'.^U''-''^-. '■"f/"^ ^fi^s^ ^iAfy ^ J! K 1905" DATE DUE PRINTED IN U.SJt S' 3 1924 018 028 567 OlorttfU Ham ^rljioal SItbraty Cornell University 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/cu31924018028567 ELEMENTS OF LAW CONSIDERED WITH EEFEEENCE TO PEINCIPLES OF GENERAL JURISPRUDENCE SiE WILLIAM MAEKBY, K.C.LE., D.C.L. FELLOW OF BALLIOL COLLEeE LATE A JUDGE OF THE HIGH CO0BT OF JUDIOATOKE AT CALCUTTA KEADEK IN INDIAN LAW IN THE UNIVEESITT OF OXFORD AND FELLOW OF ALL SOULS COLLEGE SIXTH EDITION OXFORD AT THE CLAEENDON PRESS LONDON, NEW YOKK AND TORONTO : HENRY FROWDE ALSO SOLD BY STEVENS & SONS, LIMITED, 119 & izo CHANCBEY LANE, LONDON 1905 B ^/isi LONDON HENEY PEOWDE, M.A. PUBLISHER TO THE UNIVEBSITY OF OXFORD STEVENS AND SONS, LIMITED PEEFACE TO THE FIEST EDITION I HAVE explained, in a place where it is likely to receive more attention than in a preface, the object of this book, and the use which I intend to be made of it. I have now only to add a word or two as to its form and its arrangement. Its form is that of Lectures : and in fact a good deal of what the book at present contains formed part of a series of Lectures delivered to a small class of Hindoo and Mahommedan law students in Cal- cutta, in the year 1870. It would have cost me no additional trouble to divest the book of that form, but I have preserved it, for this reason : — it enables me to speak in the first person, and thus to show more clearly than I could otherwise do, how far I have depended on the labours of others, and how far I must take the whole responsibility of what I have said upon myself The arrangement is obviously defective ; and this, in a work which professes to be a contribution (however small) to the scientific study of law, is a serious admission. But I do not think it possible to enter hei'e into an explanation of the cause of this defect. I have indicated it very partially, in one particular, in some observations made in the IV PREFACE. course of the work. What I maintain Is, that when a work is written on EngHsh Law, which is complete in point of arrangement, the long series of labours which are now just commencing will have been brought very nearly to a conclusion. London, October, 1871. PREFACE TO THE EOUETH EDITION I AM encouraged to hope that this book may still be of some use to students. It is true that there has been a slight tendency of late to underrate the im- portance of a close inquiry into the meaning of legal words and phrases. But this tendency will pass away : and the historical research which at present engages most attention wUl in the meantime have done good service. The recently published treatise of PoUock and Wright on Possession is a most valuable contribution to an investigation which I hope to see carried further, and it has, I feel sure, greatly gained by the historical inquiries which preceded it. I am much indebted to Mr. Montague, of Oriel College, Oxford, and to Mr. Sheppard, of Trinity College, Cambridge, for the suggestions and cor- I'ections which they have sent to me. OxFOED, August, 1889. PREFACE TO THE SIXTH EDITION This edition is largely identical with the last. I have somewhat expanded the discussion as to the meaning of the term ' sovereignty,' which has been the subject of so much contention. OxFOBD, August, 1905. CONTENTS PAGE Inteoduction .... ... ix CHAPTER I. General Conception of Law i CHAPTER II. SoiTBCEs OE Law 38 CHAPTER III. Persons and Things 79 CHAPTER IV. Duties and Rights 92 CHAPTER V. On the Expression oe the Law . . . . 107 CHAPTER VI. The Creation, Extinction, and Transeeb oe Legal Relations 114 CHAPTER VII. The Arrangement of the Law . . . . 152 CHAPTER VIII. Ownership 157 CHAPTER IX Possession 180 CHAPTER X. Easements and Proeits-a-prendre .... 205 VIU CONTENTS. PAGE CHAPTEE XL Secueity 214 CHAPTEE Xir. Acquisition op Ownership 235 CHAPTEE XIII. On Pbesceiption 264 CHAPTER XIV. Liability ......... 292 CHAPTEE XV. Liability upon Conteact . . . . . . 298 CHAPTEE XVL Liability foe Toet 322 CHAPTEE XVII. Geounds oe Non-Liability . . . . . . 346 CHAPTEE XVIII. Succession 371 CHAPTEE XIX. Sanctions and Eemedies 403 CHAPTEE XX. Peoceduee 416 Index .27 INTEODUCTION In order that this work may accomplish, to any extent, its very limited object, it is absolutely necessary that it should be understood from what point of view of the study of law it is written, and what is the particular use which it is intended to serve. For this purpose it is necessary to bear in mind that, until very lately, the only study of law known in England was that preparation for the actual practice of the profession which was procured by attendance in the chambers of a barrister or pleader. The Universities had almost entirely ceased to teach law ; and there was nowhere in England any faculty, or body of learned persons, who made it their business to give instruction in law after a systematic method. Nor were there any persons desirous of learning law after that fashion. Forensic skill, skill in the art of drawing up legal documents, and skilfulness in the advice given to clients, were all that was taught, or learnt, by a process of imitation very similar to that by which an apprentice learns a handicraft, or a schoolboy learns a game. This method of training produced its natural results. The last rays of learning seemed to be dying away from English Law with the old race of conveyancers and pleaders ; the only lawyers of eminence who were undisturbed by the bustling activity of the courts. The Chancery lawyers as a rule have retained a higher standard of culture than those of the Com- mon Law Bar ; and at both Bars there always were, and still are, to be found many men of eminent attainments in all departments of knowledge. But the law itself is, at present, little influenced by these attainments, and no one would venture to assert that they lie in the direct path of a success- ful professional career. X INTRODUCTION". This is not the place to consider the effect of this decay of legal learning, and exclusively ' professional ' training, either upon the profession itself, or upon the law, or upon the judges who administer the law. Nor is it the place to consider the causes which have led men to seek for a higher standard of legal knowledge, and thus to a revival of the demand for a systematic education in law, apart from professional training. All I have now to take notice of is that, as a natural consequence of this demand, the Universities of Oxford, of Cambridge, and of London, are taking active steps to re-con- stitute the study of law as part of their course. But it is only with the earliest, and what I may call the preliminary portion of a lawyer's education that a University has to deal. Towards imparting directly that professional skill of which I have spoken above, no University or Faculty of Law can do anything whatever. That must be done else- where, and at a later stage. I am indeed one of those who are persuaded that the skill in question will be at least more easily acquired, if not carried even to a higher point than it has at present reached, after such a preparation and ground- ing as a University is able to give. But the only preparation and grounding which a University is either able, or, I suppose, would be desirous to give, is in law considered as a science ; or at least, if that is not yet possible, in law considered as a collection of principles capable of being systematically arranged, and resting, not on bare authority, but on sound logical deduction ; all departures from which, in the existing system, must be marked and explained. In other words, law must be studied in a University, not merely as it has resulted from the exigencies of society, but in its general relations to the several parts of the same system, and to other systems. But it is not sufBcient simply to take a resolution to teach law in this way. Experience shows that to establish a study on this footing we must have books and teachers specially suited for the purpose. At present, of the first we have scarcely any. I do not wish to say a word in disparagement INTEODUCTION. XI of the books which are now usually read by students ; I only wish to observe, that with two or three notable exceptions, which cover, however, but little ground, they belong to that period of the study of English Law which is now passing away, and that they are only suited to assist in the acquisition of professional skill ; this being the object which master and student have hitherto kept steadily and exclusively in view. The first two or three generations of those who take to the study of law after the new fashion will undoubtedly find this a considerable difiiculty in their way. It must be many years before the scattered rules of English Law are gathered up and discussed in a systematic and orderly treatise ; and for some time to come students of law will find themselves obliged to work a good deal with the old tools. Nor does it follow, because these tools are not quite perfect, that they are to be discarded as useless. The actual state of the English Law on a variety of subjects is laid down with clearness, brevity, and precision in several elementary works ; and though it is very easy to exaggerate the use ■ of acquiring a knowledge of the existing rules of law ; though this knowledge, standing alone, is only part of the skill of which I have spoken above, and will always be far better acquired in a barrister's chambers than in the lecture room of a professor ; though this know- ledge is emphatically not that which is the chief object of the preliminary training which I have now under consideration, — yet the existing law is (if I may use the expression) the raw material upon which the student has to begin to work. Being told that the law contains such and such a rule, it will be his business to examine it, to ascertain whence it sprang, its exact import, and the measure of its application. Having done so, he must assign to it its proper place in the system ; and must mark out its relations with the other parts of the system to which it belongs. This will require a comparison with analogous institutions in other countries, in order to see how far it is a deduction from those principles of law which are generally deemed universal, and how far it is peculiar to xu INTRODUCTION. ourselves. For this purpose some acquaintance with the Roman Law will be at least desirable, if not absolutely necessary ; because the principles of that law, and its technical expres- sions, have largely influenced our own law, as well as that of every other country in Europe ^. It is for students of law who occupy the position indicated in the above observations that this book is intended, and I repeat that it is absolutely necessary that those who use it should bear this in mind. I have presumed that they are in the course of making acquaintance with the more elementary rules of English Law ; that they are desirous to understand those rules, and to know something of their origin and relation ; not merely to use them as weapons of attack or defence. This difficult, but by no means uninviting, inquiry is the one in which I have made some attempt to assist them. 1 This is the great difBoulty of Indian law students. They can hardly be expected to make themselves generally acquainted with the Roman Law. But I do not think that it is at all impossible for them, even with a very slight knowledge of Latin, to obtain a useful insight into some of its leading principles. Being most desirous to render some assistance to this class of students, I have simplified, as much as possible, the references to the Eoman Law. ELEMENTS OF LAW CHAPTER I. GENERAL CONCEPTION OF LAW. 1. Law is a term which is used in a variety of different General •' conception meanings ; but widely as these differ^ there runs throughout of law. them all the common idea of a regular succession of events, governed by a rule, which originates in some power, condition, or agency, upon which the succession depends. 2. The conception of that law which we are about to Part of the consider — the law of the lawyer — is contained within and of a politl- forms part of the conception of a political society. Fully "^^ society. to develop the ideas comprehended under the term political society would require a very long discussion. Nor is this full development necessary for our present purpose^ 3. For this purpose it is sufficient to observe some of its Character- most striking features ; and one that mainly distinguishes political a political society from other associations of men is, that ^"'^^^ ^' in a politieal society one member, or a certain definite body of members, possesses the absolute power of issuing com- mands to the rest, to which commands the rest are generally obedient. 4. It is desirable to observe that this, though a charac- teristic of a political society, does not belong to it exclusively, so as to serve as a definition of it. Though not, however, B 2 GENEEAL CONCEPTION OF LAW. [Chap. I. a distinguishing characteristic of a political society^ it is a marked and conspicuous one; just as the habit of walking erect is a marked and conspicuous characteristic of the human race. Butj in the same way as animals other than man have been known to walk erect, so societies other than political ones are known, of which the members are in the habit of obedience to a ruler, who is acknowledged to have the right to issue and to enforce his commands. The association called a 'family* has existed in many countries, and possibly stiU does exist in some, in such a form that, just as in a political society, the members of it are in the habit of complete obedience to its head, who has the absolute right to enforce, and actually does enforce, that obedience. What 5. It is the body of commands issued by the rulers of issued in a a political society to its members which lawyers call by the "''wjiet*' name 'law.^ There are only two small and very insignifi- la-ws pro- cant classes of the commands so issued which are not laws. perly so , . . . called. Very rarely notifications in the form of commands are issued by the rulers of a political society, which are nevertheless not enforced : as, for instance, rules of rank and precedence in society, orders to wear mourning when a great person dies, and so forth. These are no part of law in our sense of the term. So also the rulers of a political society sometimes, but very rarely, address a command to a particular individual or individuals by narae. Such occasional and specifi.c com- mands are not properly comprised under the term law, which, as we have said, involves the idea of a general rule, applicable to all cases which come under a common class. Laws de- 6. Austin considers that there are two other objects in- claratory i i i ..i • .i • „ . . and laws cluded Within the p-ovmce ot jurisprudence and called laws, [aws^ '^^ which are, nevertheless, not commands ; namely,, declaratory laws, and laws which repeal laws. Bu,t, as it seems to me, every such law, if it is addressed by the sovereign one or number to its subjects generally, if it is a signification of desire and is imperative, falls under Austin-'s conception of law: though it may only be a complete law, that is, Sec. 5-10.] GENERAL CONCEPTION OF LAW. 3 a complete command, when taken in- connexion with some other signification of desire. There are^ no doubtj eases in which it is somewhat tedious to work out the ways by which a particular- form of expression may be brought under this conception, but I am not aware of any cases in which the difiiculty is. insurmountable ^. 7. A special order of forfeiture of property made against Orders of . , n T IT f , forfeiture. a particular person as a punishment for open rebellion^ though it may be in form an act of parliament, is not a law. Nor are the acts annually passed by parliament for appropriation of the revenue laws properly so called. 8: We thus arrive at a conception of the term law which Summary ^ 01 concep- may be summed up as follows. That it is the general body tion of of rules which are addressed by the rulers of a political society to the members of that society, and which are generally obeyed. 9. The aggregate of powers which is possessed by the Sove- . . . . ^ reignty. rulers of a political society is called sovereignty. The single ruler, where there is one, is called the sovereign; the body of rulers, where there are several, is called the sovereign body, or the government, or the supreme government. The rest of the members of a political society, in contradistinction to the rulers of it, are called subjects ^. 10. It is implied in what I have said above that there are Laws set other rules than those set by sovereign authority which are than properly called laws : as, for example, the rules which the head authorUy. of a household imposes upon the members of his household': and when we desire to distinguish between these laws and those laws which, being set by a sovereign authority, are the ' Mr. Prederic Harrison gives a, number of such c^sqs in an article ip the Fortnightly Review, No. 143, N. S., p. 684. But he adds (p. 687), ' I am far from saying that Austin's analysis of law cannot he applied to all these cases.' ' The King of England" is sometimes called the sovereign, but this is only out of courtesy. The ruling power of Great Britain and her depen- dencies is the sovereign body, consisting of the King and the Houses of Parliament. The use of the word ' Sovereign ' as a title of honour, not expressing exactly any political condition, is now very common in Europe. B a GENERAL CONCEPTION OF LAW. [Chap. I. This con- ception of law estab- lished by- Austin. Austin distin- guished law from morality. appropriate matter of jurisprudence, we call the latter by the name of positive laws'^. 11. This is the conception of law as stated by Austin in his lectures on the 'Province of Jurisprudence'; and I have only repeated his conclusions^. Many of them rest upon arguments drawn from Austin's celebrated predecessors, Hobbes and Jeremy Bentham. 12. "What, however, Austin's predecessors do not appear to me to have fully apprehended, at least not with that sure and firm grasp which proceeds from a full conviction, is the distinction between positive law and morals. We find, for example, that Bentham, when drawing the line between jurisprudence and ethics, classes legislation under jurispru- dence ^, whereas, as Austin has shown *, it clearly belongs to ethics. Austin, by establishing the distinction between positive law and morals, not only laid the foundation for a science of law, but cleared the conception of law and of sovereignty of a number of pernicious consequences to which in the hands of his predecessors it had been supposed to lead. Positive laws, as Austin has shown ^, must be legally bind- ing, and yet a law may be unjust. Resistance to authority cannot be a legal right, and yet it may be a virtue. But these are only examples. Into whatever discussion the words 'right ' and ' justice ' enter we are on the brink of a confusion from which a careful observance of the distinction between law and morals can alone save us. Austin has _shown not only what positive law is, but what it is not. He has determined accurately the boundaries of its province. The domain he assigns to it may be small, but it is indisputable. He has admitted that law itself may be immoral, in which case it may be our moral duty to disobey it; but it is neverthe- 1 Following the example of other writers, I drop the epithat ' positive ' when the context makes it clear what kind of law is meant. '^ See the first, fifth, and sixth Lectures. ' Bowring's ed. vol. i. p. 148. * Lecture v. p. 177. ' Lecture vi. p. 275. Sec. 11-14.] GENERAL CONCEPTION OF LAW. 5 less laWj and this disobedience, virtuous though it may be, is nothing less than rebellion. 13. Austin^s conception of positive law and o£ sovereignty Austin's does not depend upon the theory of utility discussed and ad- of law not vocated by hun in his second, third, and fourth lectures ; as on^Xfit"* the interposition of that discussion into an inquiry to which, oJ" ^^^y strictly speaking, it does not belong, has led some persons theory, erroneously to suppose. Austin was a utilitarian, and made an attempt (which seems to me to be creditable, though it has not been treated with much respect) to show that utilitarianism is consistent with the belief in a Divine providence. But in truth Austin^s conception of law and sovereignty does not depend upon any theory of religion, or of morals, or of politics, whatsoever. It might be accepted by a Hindoo, by a Mahommedan, or by a Christian; by the most despotic of monarchs or by the staunchest of republicans, 14. Austin's conception of positive law has of late years Criticism been subjected to a good deal of criticism, chiefly on account of the conception of sovereignty which it involves ; but it is not always easy to understand exactly what view is taken by the authors of their criticisms. They do not seem altogether to reject Austin's conceptions, still less do they make any attempt to substitute others in their place : and yet they seem anxious to prove that Austin's conceptions would lead to results which are false, or which, at any rate, the world would be un- willing to adopt. It appears to me that in what has been said there has been some misunderstanding of Austin's real position. It has been thought to result therefrom that sovereignty must be regarded as incapable of limitation ; or, as one writer expresses it, that Austin's military training has inclined him to despotism. It is also suggested that if Austin's explanation of sovereignty be accepted the aggregate of powers which go to make up sovereignty cannot be divided; and, again, it has been supposed that he intended his conceptions to be applied to all governments in all ages. This is very Burpi-ising, because, so long ago as 1874, Sir Henry Maine, 6 GENERAL CONCEPTION OE LAW. [Chap. I. in two lectures evidently intended for this purpose, carefully pointed out the true object of Austin's analysis ; that it was scientific and not political ; that it is based upon assumptions and not upon historical facts j and that it rests not upon authority but upon logic. It is an abstraction^ just as all the statements of mathematics and many of 'the statements of political economists are abstractions. At the same time Maine was careful to state that it is not upon that account to be laid aside as useless ; on the contrary, that rightly viewed Austin^s analysis is a precious inheritance to English students of lawj 'that it is the only existing attempt to construct a system of jurisprudence by a strictly scientific process, and to found it, not on a priori assumption, but on the observation, comparison, and analysis of the various legal conceptions^.'' Maine's 15. The passage I have just quoted ought to be sufE- as regards cient to make it quite clear what was Maine's own attitude Austin. j^jj regarij to Austin. It is well known to all those who studied law under Maine that he was from the first a warm admirer of Austin, and that it was largely due to his teaching that Austin acquired that wide and deep influence over English jurisprudence which up to that time he had not enjoyed. A considerable number of eminent men at- tended Austin^s lectures, which were delivered between 1826 and 1833. In that year he published the 'Province of Juris- prudence,'' which contains that portion of his lectures which has become celebrated. But no notice was taken of it until Maine insisted upon the importance of it to English students. It may be noted in passing that this did not cause any dis- appointment to Austin. As he says himself, ' So few are the sincere inquirers who turn their attention to these sciences, and so diflficult it is for the multitude to perceive the worth of their labours, that the advancement of the sciences themselves is comparatively slow; whilst the most perspicuous of the truths with which they are occasionally enriched are either ^ Early History of Institutions, p. 343. Sec. ig, i6.] GENERAL CONCEPTION OP LAW, 7 rejected by the many as worthless and pernicious paradoxes^ or win their laborious way to general assent through a long and dubious struggle with established and obstinate errors/ But Maine was precisely one of those ' sincere inquirers/ He waSj however, fortunately, a great deal more^ Besides being able as a jurist to appreciate the inestimable value of Austin's analysis as a basis for the philosophy of law, he had the historical and political insight which enabled him to per- ceive the precise limits of the task which Austin had set himself to perform. Consequently in Haines's writings, particularly in that portion of them to which I have already alluded, we have exactly that correction which a too ex-* elusive study of Austin's rigid analysis necessarily requires^ But there is not the slightest indication, as far as I am aware, that Maine ever hesitated about his acceptance of Austin's analysis and of its results. In the passage which I have already quoted, and in other passages both of his earlier and later works, he speaks in the most emphatic terms of their value. 16. In one respect I think Maine's observations do not Maxiin quite correctly represent Austin's views. He cites cases in a goye- order to show that the application of Austin's conceptions to ™ig° P^i- them would be ' difficult or doubtful ' : and amongst them he com- cites the case of the Punjaub under the rule of Kunjeet Singh, where, as Maine thinks, there were no positive laws at all, the people being governed by customs which were enforced by the quasi-domestic authority of a village court ^i All this is probable enough. But Maine then makes the somewhat remarkable suggestion that Austin would have brought such a condition of things within his conceptions of law and sovereignty by a resort to what he calls 'the great maxim' that 'what the sovereign permits he commands.' In the first place I cannot find that Austin ever gave expression to any such maxim as this, I suppose that the passage referred to is in Lecture i. p. 104, but the maxim which can be extracted from that passage is one of a very ' Early History of Institutions, p. 381. 8 GENEEAL CONCEPTION OF LAW. [Chap. I. different character. What Austin there says is^ not that everything which the sovereign permits he commands, but that a rule which the sovereign permits a judge to lay down, and which, when laid down, he will himself enforce, he must be taken to have commanded. But in this form the maxim could have no application whatsoever to the state of things described by Maine : we cannot, therefore, solve any difficulty by means of it. But what difficulty is there to solve ? What Maine shows is that in the Punjaub, in the time of Runjeet Singh, the people were governed, not by positive laws, but by rules chiefly of a religious or semi-religious character, to the enforcement of which no regard was paid by the reigning monarch. But the existence of such rules neither affects Austin's conception of laws in general, in which many of them are included, nor does it affect his conception of positive law or of sovereignty, with which they are not concerned. In every state, even the most modern ones, there are rules regulating the life of the people, and even (as I shall show presently) entering largely into the decisions of courts of justice, which do not belong to positive law, In the Punjaub, in Runjeet Singh's day, the distinction between positive law and morals as drawn by Austin was certainly not recognised. I should be rather surprised to hear that it is recognised now. Moreover, it seems to me that Maine has overlooked that the application to the case supposed, and to similar cases, of any such vague maxim as he suggests, would sweep all laws which men obey, whether positive laws, or moral laws, or divine laws, into one net, and thereby destroy entirely the distinction between positive law and other laws properly or improperly so called, which it was the prime object of Austin's analysis to define and maintain. Austin's 17. Maine has more than once observed that Austin's analysis . - • i ,i reducible conceptions When rightly viewed, that is, as legal, not as evid^ent historical Conceptions, have the appearance of self-evident proposi- propositions. This is quite true. But it does not at all tions. follow from this that his labours were unfruitful, and I have Sec. I7, i^a.J GENERAL CONCEPTION OF LAW. 9 already shown that this was not Maine's meaning. Self- evident propositions very often contain truths which it is convenient to ignore : and the common way in which they are ignored is by the nse of ambiguous language, in which the contradiction is so artfully concealed that it takes much time and patience to detect it. The task which Austin set himself was the comparatively humble one, but the useful and even necessary one, of hunting out and exposing these contradictions, and making it impossible without wilful carelessness to repeat them ^. 17 £^. Another criticism of Austin is as to his introduction The ele- into the conception of law of the element of force. It has foj.ce in been more than once observed that Austin gives somewhat the con- ° ception of excessive prominence to the element of force, which (it is law. admitted) is contained in every law, but which is very often so far in the background that it requires a good deal of effort to discover it. That the force by which law is sanctioned does remain very much out of sight is undoubtedly true, and the forms of legal procedure have been, as I shall show hereafter, affected by this circumstance^. So too it is true that many laws do not even bear the external form of commands ; in fact, very few do so. We may turn over page after page of the statute-book and not find an impera- tive passage. But at the same time it is impossible that law * ' In the confidence of private friendship, Mr. Austin once said of himself, that if he had any special intellectual vocation, it was that of "untying knots." In this judgment he estimated his own qualifications very correctly. The untying of intellectual knots ; the clearing up of the puzzles arising from complex combinations of ideas confusedly apprehended, and not analysed into their elements ; the building up of definite conceptions where only indefinite ones existed, and where the current phrases disguised and perpetuated the indefiniteness ; the disen- tangling of the classifications and distinctions grounded on differences in things in themselves from those arising out of the mere accidents of their history, and, when disentangled, applj'ing the distinctions, often for the first time, clearly, consistently, and uniformly — these were, of the many admirable characteristics of Mr. Austin's work as a jurist, those which more especially distinguished him.' J. S. Mill, Dissertations and Dis- cussions, vol. iii. p. 207. ' See post, sects. 839, 843, 10 GENERAL CONCEPTION OF LAW, [Chap. L should exist without foreej and it is desirable in the analysis of law to bring into prominence this feature of it^ for the very reason that it might otherwise be overlooked. It is also desirable that we should be reminded that (as Mr. Harrison says ^) it is this force which causes every declaration of the sovereign to be something which is ' not advice^ nor an ideal, nor custom^ nor an example of any kind/ but an imperative command, as much as any article of the penal code. Divisibil- 17 b. Austin''s conception of sovereignty has been vigorously reignty attacked by writers who deal with the very peculiar position occupied by the British Government in regard to what are called '' protectorates ■" and ' spheres of influence,' and also in regard to the native princes of India. Undoubtedly in all these cases the stronger governnlent assumes to exercise functions in the territory of the weaker one which only a sovereign authority can exercise, whilst it leaves other sovereign functions in the hands of the weaker government. It follows, therefore, that in these cases sovereignty is divided. From this it seems to be inferred that Austin''s conception of sovereignty must be erroneous, because, as is alleged, according to his conception of it no such division is possible. Surely, however, this is not the case. Not only does Austin nowhere say so, but he, almost in express terms, says directly the contrary. He explains the position of (so-called) 'half sovereign' states^ by showing that in their case the sovereignty is shared by two otherwise independent political societies j and he supports this view by pointing out that this is only one of the infinite variety of ways in which sovereignty may be shared by -different persons or bodies of persons, and that it makes no difference that in any particular c^ase one of the constituent members is also sovereign in another political society. in inter- 17 c. Speaking more generally, Maine asserts that Austin's national . „ ... , „ . law. View ot sovereignty is not that of international law ^. This 1 Fortnightly Eeview, No. 143, N. S., p. 688. = Leot. yi. p. 258. » See Maine's International Law, p. 58, qnoteA by Jerkyns, British Sec. I7b-i7d.] GENERAL CONCEPTION OF LAW. 11 may be true, though I suspect that in many cases where the term 'sovereignty' has been used in international arrange- ments without any such precise meaning as Austin has assigned to it the necessity of definition has only been adjourned, and that though the language used may for a time be sufficient for all practical purposes, yet when the necessity for greater precision does arise it may be found difficult to deal with. But however convenient it may be in international negotiations to avoid difficulties by using language which is not very precise, it still remains true that a lawyer dealing with legal questions must always be prepared to prove, if it is denied, that there is a determinate and supreme sovereign or sovereign body of whom, or of which, the intentions as regards the matter under consideration are capable of being ascertained, and that the commands of this person or body will be obeyed. Of the component parts of a sovereign body some may be able to act independently of the others, and then the lawyer must be prepared to show precisely how the hne of demarcation is drawn. 17 d. There is no difficulty, therefore, in making the and in admission that in the kind of law which is called international law, the word ' sovereignty ' is not used in the precise sense attributed to it by Austin. Still less difficulty is there in admitting that Austin's conception of sovereignty has nothing to do with politics. It sometimes suits politicians to use language of a very vague kind, as when they speak of the ' sovereignty of the people.'' Such a phrase has no legal significance •'. Kule and Jurisdiction Beyond Seas, p. i66. See also in some observa- tions by Sir Courtenay Ilbert in The Government of India, p. 460. Kecently the word ' suzerain ' has come into us6. Like some other terms used in international arrangements it has no precise meaning, though it may be useful for the moment. ' I entirely dissent from the view that in this country the sovereignty can in any legal sense be said to be shared by those who elect the members of the House of Commons. No doubt Austin says this (Lect. vi. p. 253), but it conflicts with all which he has said on the subject of sovereignty elsewhere. 12 aENEEAL CONCEPTION OF LAW. [Chap. T. Rules of 17 e. A different, and to my mind a far more serious^ criti- whichare cism of Austin^s conception of law and sovereignty lies in not laws, ^jj^g observation that there are many rules of conduct which but are _ ^ _ •' enforced are treated as binding, and which are enforced just like other tribunals, laws, but which nevertheless do not proceed from the sove- reign authority at all. This is boldly asserted by Bentham, who accordingly divides laws into . real commands and ficti- tious commands'-. But, as he then proceeds to argue that all laws which are not real commands, that is, which do not proceed from the sovereign authority, ought to be at once got rid of, his view does not help us. The assertion I have to meet is that there are rules of conduct, and these not rare and exceptional ones, but abounding in every system and recognised by judges, which do not answer to Austin's description of laws as being commands issued by sovereign authority. This is a different kind of objection to that stated above, namely, that some laws do not fall within Austin's conception, because they are not imperative in form. The objection is the graver one that they do not proceed from the sovereign authority. It is pointed out, for example, that courts called courts of equity exercise systematically a corrective and supplementary jurisdiction avowedly based not upon positive law but upon morality : that all courts acknowledge the validity of custom; that all English courts administer law which the sovereign never heard of and which they manufacture for themselves ; that all courts, whether called courts of equity or not, to some extent try the actions of men, not by a standard fixed by the sovereign, but by their own estimation of prudence, honesty, skill, and diligence. It is urged that whilst, on the one hand, it would be impossible to deny that the courts acting as I have described administer law, on the other, there is no possibility of bringing the law so administered under the conception of a command issued by a sovereign. ' Bowring's ed. vol. i. p. 263, n. ; vol. ill. p. 223. Sec. I7e-19.] GENERAL CONCEPTION OP LAW. 13 18. Austin has, in part, forestalled and answered this Austin's objection. With regard to any rule which emanates from tkmof the a judge he has pointed out^ that a judge is merely a minister J'^'^j'^ °^ with delegated powers, and any rul'es made by him, so long tribunals, as he acts within his delegated authority, are as much com- mands of the sovereign power as if they had been issued by itself. With regard to customs, which the judge does not make but only applies, he asserts ^ that until applied they are moral rules only, and that the judge transforms them into legal rules by the same authority as that Under which he makes rules which are not suggested by custom. Any judge permitted to make rules he considers to be tacitly empowered to make laws ^. 10. This answer, so far as it goes, seems to me to be How far complete. The point at which it has been most strongly leign comi attacked is the assertion that the sovereign's acquiescence "'v'^rjjg is equivalent to a command : and if Austin intelided to permits, state, broadly and generally, that ' everything which the sovereign permits he tacitly commands/ the assertion is, no doubt, untenable*. But, as I have already said*, Austin does not say this, nor was it possible for him to say this. He does not say ' whatever the sovereign permits to anybody,^ but ' whatever the sovereign permits to a judge ' : nor does he even say ' whatever is permitted to a judge,'* but ' what- ever is permitted to a judge to order, and is enforced by sovereign authority when it is ordered.^ This is what I understand Austin to say is equivalent to a command issued 1 Lect. xxix. p. 547. ' lect. xxx. p. 560. ' It has been objected that the Talldity of a custom cannot be dated from its judicial recognition. If by validity is meant influence, this is true ; as it is also true that, after legal recognition by an inferior court, it may be still doubtful ■n'hether the custom would be recognised by the Court of Appeal. But at most this only proves that there are rules of conduct which, though recognised by judges, are still not law. This I admit, and I shall discuss almost immediately the consequences of the admission. * Maine's Early History of Institutions, p. 374. See post, sect. 121, ' Supra, sect. 16 a. 14 GENERAL CONCEPTION OF LAW. [Chap. I. by the sovereign authority itself. Nor does this seem to me to be an extravagant assertion. Rules of 20. As regards morality, Austin's opinion seems to be applied by that courts of equity do not, now at any rate, enforce morality courts of ^g g^gj^ . ^^g^^ ^j^g notion of courts of equity being courts of conscience is obsolete, and that the rules upon which courts of equity proceed are as much rules of law as any which prevail in ordinary courts ^. In the ordinary courts he con- siders the attempt to introduce morality as a basis of decision to be limited to a single decision of Lord Mansfield's, which he thinks deservedly failed ^. and by 21. Austin does not consider the case of courts of common courts of _ common law enforcing rules of conduct founded upon considerations of honesty, prudence, skill or diligence. It is not unlikely that if he had done so here also he would have said — ' these which you call rules of conduct are really rules of law. It makes no difference that they are rules which men generally think that they ought to observe apart from law. The judges have adopted them and the sovereign enforces them ; and upon the principle stated they are, therefore, law.' Austin's 22. It is obvious that these answers all depend upon the tiou onhe assumption, first, that the judge has a delegated authority action of ^Q make rules of law, and secondly, that, in requiring that bunalsin- the actions of men should conform with any rule of conduct which the judge approves, he means to lay down a rule of law. That judges in England can and do make law no one can deny. Take for example the action of judges in regard to what is called ' undue influence.' Morality suggests that when one person stands in a confidential relation to another, as his legal or spiritual adviser, he should take no advantage of his position to obtain any pecuniary benefit for himself. Judges have transformed this rule of morality into a rule ' Lect. xxxvi. p. 640. « = Lect. V. p. 224. The decision here referred to is probably that of Lee I). Muggeridge, reported in Taunton's Reports, vol. v. p. 36. It is frequently quoted as a decision of Lord Mansfield, but it was really a decision of Sir James Mansfield. Sec. 20-23a.] GENERAL CONCEPTION OP LAW 15 of law as binding as an act of parliament ; and hundreds of similar instances might be given. 23. Accepting, however, Austin's explanation as sufficient in such cases as this, I do not think it solves the whole diffi- culty. There are, I think, cases even in England in which rules are adopted and acted upon by judges, which have not hitherto existed as law, and which judges do not even pretend to make law by acting upon them. In other words, I think judges constantly arrive at a point at which they refer to a standard which is not a legal one. This takes place frequently in modern English law. But if we look further afield, if we turn to the earlier English law, or to modern continental law, we shall find the same, perhaps even a larger, importation into decisions of matter which is not legal. The very notion that a rule can by any possibility be transformed into law by judicial recognition is quite a modern one even in England, a,nd nothing of the kind has ever been recognised except in England, and in countries which have formed their legal system under the influence of England. This I shall explain more fully hereafter; it is sufficient for the present to indicate the fact which is indisputable. And yet we find that everywhere judges unhesitatingly refer to the principles of jurisprudence as generally recognised, to the principles of equity, and to the guidance of common sense. And they take their guidance as willingly from these sources as from any other. 23 a. After what I have said already ^, it is scarcely necessary to observe that I entirely reject the notion that these cases can be explained by the facile suggestion that the judge acts by the implied permission of the sovereign. That he does so act is true, and it is also true that the sovereign authority can, if necessary, be invoked to enforce the judge's decree. But this does not help us to solve the difficulty. It is not, as we have seen, universally true that judges are permitted to make rules of law, and even where • Supra, sect. i6a. out law. 16 GBNERAI, CONCEPTION OF LAW. [Chap. I. it is otliei?wise it is no part of the judge-'s intetitioa in the cases I have piit to construct a rule of law : all he aims at is, the issue of a particular command. Not, how- 24. These admissions seem to place the disciple of Austin ceas^ary^to in a difficulty. They seem to show that Austin's conception modify his q£ ^^ £g j^^^ adequate even as appKed to modern English law^ conception ^ '^ ^ . of law. and that it is equally inadequate if we look into our own past history^ or into the condition of law in other countries. In shortj it seems to show that Austin^'s conception of law fails as a general oi* Scientific conception; Judgesfre- 25. The difficulty, however, appears to me to be created act with- by an erroneous assumption. It is always assumed when an analysis is made of a judicial decision that it consists of two parts only, a finding of the facts, and an application of the law to the facts so found. There is perhaps a sense in which this language may be justified ^, but under this lan- guage there generally lies an assumption which is certainly isrroneous ; namely, that when once we have ascertained all the events which have occurred, and which in any way bear upon the matter in dispute, we can never have anything left to do but to apply the law. 26. This conception of a judicial decision, as the mere application of rules of law to events which have occurred, may possibly be an ideal which we ought to endeavour to realise. It was, no doubt, Bentham's ideal, and I should feel disposed to say that he wasted a great part of his life and much of his vast intellectual power in endeavouring to realise it too hastily. But the history of law shows a very different conception of a judicial decision. It is worth while to reflect to how large an extent tribunals have existed, and do exist, without law. We may see this easily enough when 1 Speaking of courts in which caSes are tried before a jury, it is some- times said that all questions are questions of law or questions of fact, tneaning thereby that all questions are questions for the judge or questions for the jury. Of course in this Sense the statement is obviously true. I have discussed this subject in an article in the Law Magazine, 4th series, Vol, ii. p. 311, to which I beg leave to refer. Sec. Z4-27.J GENERAL CONCEPTION OF LAW. 17 a rude and turbulent people is being gradually brought round to peaceful and orderly habits. This I shall show more at length presently. But I will take my first example from one of the modern countries of Europe. Art. 4 of the French Civil Code contains an express provision that the judge who refuses to give a decision upon the ground of the silence or the insufficiency of the law is guilty of an offence, for which the penal code by Art. 185 renders him liable to a fine of two hundred francs. Yet the French judge cannot issue any repentinum eclidum or fall back, as an English judge often can, upon the inexhaustible ' common law.' Curiously enough, the very next article of the Civil Code, the fifth, expressly pro- hibits judges from pretending to lay down general rules when giving their decisions ^. Under such circumstances one might imagine that a French judge would abandon himself to some such indolent maxim as prout res incidit, and give a merely negative decision. Not at all. He refers to what he calls ' la doctrine et la jurisprudence.^ He looks at the case from what he calls the ' point de vue juridique.' He relies on the ' principes generaux de droit,' or ' le bon sens et I'equite.' And he does this not because the rules thus vaguely referred to are law, or because he can make them so, but because, like a sensible man, he prefers them to his own unassisted judgment. 27. The extent to which judicial tribunals can act, and Function are obliged to act, without law, becomes stiU more apparent to regulate when we go back to the early history of law. We may ^^ ^^^^ easily reach a time when we find a species of rude tribunals disputes, in action without any law at all. In a very interesting lecture upon the primitive forms of legal remedies^. Sir Henry Maine has shown that many ancient forms of pro- 1 Code Civ, Art. 4 : ' Le juge qui refusera de juger sous pr^texte du silence, de I'obsciirit^, ou de I'insuffisance de la loi pourra Stre poursuivi comme coupable de dfei de justice.' Art. 5 : 'II est d^fendu aux juges de pro- noncer par voie de disposition g6u6rale et r^glementaire sur les causes qui leur sont soumises.' " Early History of Institutions, Lect. ix. C 18 GENERAL CONCEPTION OP LAW. [Chap. I. cedure may be analysed into disorderly proceedings^ which some one steps in to regulate. So too the early history of most Teutonic nations reveals to us a stage at which for the simple struggle between the opposing parties there was substituted a combat under fixed rules. The contrast becomes most striking when we find, as in our own early legal history, the judges of a regular court prescribing the rules and con- ditions of a combat, and even present at and presiding over it. We read in our Law Keports how the judges of the Court of Common Pleas used to attend in person at the day and place appointed for the combat, attired in their scarlet robes, and accompanied by the sergeants-at-law ^. The long series of cases to be found in our reports upon wager of battle terminates with one which was decided as late as the year 1819. The incidents of that case from a juristic point of view are not a little remarkable ^. One Thornton was tried for the murder of the sister of Ashford, and was acquitted, whereupon Ashford, being dissatisfied with the ver- dict, ' appealed ' Thornton for the murder. Thornton replied that he was not guilty, and that he was ready to defend himself against the charge by his body ; in other words, that he was ready to fight Ashford. To this Ashford replied that Thornton was not entitled to ' wage his battle,'' be- cause, under the circumstances (which were stated), his guilt was manifest. At this point the ease was submitted to the Court of Queen's Bench, and the judges, after a very long argument, decided that Thornton was entitled to his wager of battle. They doubted, however, whether Ashford had not lost his appeal by contesting, upon invalid grounds, Thornton's right to his wager of battle, instead of ac- cepting his challenge at once : and upon this point, which was reserved, judgment was never given. All through the ease was argued upon precedent and authority, precisely ' See a very full report of a combat which was arranged to take place, but which went off because one of the combatants failed to appear, in Dyer's Reports, temp. Elizabeth, p. 301 a. 2 See the report in Barnewall and Alderson's Reports, vol. i. p. 405. Sec. 28, 29.J GENERAL CONCEPTION OE LAW. 19 in the same way as if the Court had beea trying an action of trespass, or upon a bill of exchange. And yet the only substantial question before the Court was, whether the parties should be remitted pretty nearly to the position of a couple of savages one of whom had suffered an injury which he sought to revenge. 28; Cases like these furnish most interesting examples of the way in which law can accommodate itself to circum- stances. In the same way as a judge does not refuse to act, because he cannot find or create a rule of law applicable to the dispute, so he does not refuse to act, because the dis- pute is not altogether under his control. It is in this way that the law recovered inch by inch the ground which it had lost in turbulent times. After the fall of the Roman Empire there was a step backwards, and private warfare superseded regular judicial procedure. Still the law was not wholly effaced. It regulated the combat which it would not suppress. So too the vitality as well as the pliability of law is well illustrated when we find a jury defending their verdict by their own bodies, or a magistrate demanding satis- faction for a contempt of court in precisely the same terms as if he were resenting a personal insult. 29. It being understood, therefore, that the function of Judges a judge is not only to apply law to ascertained facts, but to both go decide or to put in train for decision every dispute which comes ^^e^'aw. before him, we are now prepared to consider the position of a judge who, having two litigants before him, finds that one of them has done something which is contrary to the habits, feelings, or opinions of the society to which the parties belong. Is there any rule of law which binds him to the decision of the case in a particular way? If there is, he must apply it wliatever he or others may think of the propriety of it. But if there is not, he must still give a decision : and he will naturally decide against that party whose conduct has been unusual or unreasonable, or dishonest, or negligent. If, as Austin seems to say, there are in all such cases rules of c 3 20 GENERAL CONCEPTION OF LAW. [Chap. I. conduct which judges have transformed into rules of law cadit quaestio, our assumption that the judge has gone outside the rules of law is unfounded ^. But if it be admitted, as I think it must be admitted, that judges frequently resort to a standard of conduct which, according to Austin's conception of law, is not a legal one, then I say that the mere fact that a judge refers to such a standard does not compel me to conceive law so as to include it. If a judge comes to a decision by drawing lots, or after inspecting entrails, or by causing the parties to submit to some ordeal, or the terrors of an oath, or to a trial of strength and skill, we do not think it necessary to say — it would simply throw all notions of law into confusion to say — that these matters were all thereby brought within the province of jurisprudence. The judge in such cases, as in every case in which he makes any order, delivers, it is true, a command : but this command is not exclusively founded upon law ; it may be founded upon chance, or upon the result of a combat, or upon some indication of the divine will and pleasure, or upon the judge's own notion of what is right and expedient. 30. The power which EngHsh judges have of making rules of law makes it sometimes difficult to say precisely, when they are importing rules of conduct into law, and when they are going outside the rules of law and making use of the rules of conduct which they find elsewhere for the purposes of their decision. Consequently there are many I'ules made use of in English courts of justice which hover upon the borders of law, and we are hardly able to say whether they are legal rules or not^- Of course such ^ There are a vast nnmber of broad and general presumptions which judges sometimes make use of, in order to avoid any very definite conclusion : such for example as potior est conditio possidentis, semper praesumitur pro negante, &c. These are rules of law, but, unless they are indolent, judges do not often take -refuge in these maxims. ^ There was at one time a struggle to establish as a rule of law that it was the duty of the servants of a railway company to call out the name of a station before a train had reached the platform, and for a time it seemed likely to be recognised that this was a matter of law; but it is Sec. 30, 31.] GENERAL CONCEPTION OE LAW. 21 a doubtful condition could only exist in English law. But, nevertheless, it so happens that we can see rather more clearly in the English courts than elsewhere the operation of rules of conduct which are not law, because of the separation of the functions of decision between judge and jury. When a case is being tried by a judge with the assistance of a jury, the rule which assigns the respective duties of these two parts of the tribunal directs the judge to decide questions of law himself, and to leave to the jury questions of fact. Generally nothing is said as to how questions of conduct are to be decided; but they are, in practice, always left to the jury, unless and until the judge chooses to take any particular question out of the province of the jury by applying to it a rule of law. To say, therefore, that a standard is to be applied by the jury is the same thing as to say that the standard is not a legal one. But the non-legal standard is in fact also applied in courts in which there is no jury, and the nature of the standard does not depend upon the person who applies it ^ 31. It is a rigorous deduction from Austin's conception Sove- of law that the sovereign authority is supreme, and from nt^cap- a purely lesjal view absolute. Bentham^ has also maintained f.'^^'r °t- ^ •! ^ ^ ^ limitation this, and Blackstone ^ has been forced to admit it. No doubt by law. we commonly speak of some governments as free, and of now settled that the tribunal must determine in each case what is reason- able. See Bridges versus North London Railway Co., Law Eep. Eng. and Ir. App. vol. Tii. p. 213. "^ It may be suggested that since tribunals can act entirely without law (which they certainly can conceivably do), law is not a necessary element in the conception of a political society. It is doubtless possible to conceive a political society with tribunals for settling disputes without law ; but, as I consider that it would be the inevitable tendency of such a society to develope law, I do not think that what is said above (§§ i sqq.) as to the conception of a political society requires modification. 2 Fragment on Government, s. 26 ; vol. i. p. 288 of Bowring's edition. ' Blackstone says (Commentaries, vol. i. p. 48) of governments, that, ' however they began, or by what right soever they subsist, there is and must be in all of them a supreme, irresistible, absolute, uncontrolled au- thority, in which the jura summi imperii, or the rights of sovereignty, reside.' See also Burgess, Political Science, vol, i. p. 5a, and the authori- ties there cited. 22 GENERAL CONCEPTION OE LAW. [Chap. I. others as despotic; and it would be idle to deny that these terms hare important meanings ; but they do not mean, as is often assumed, that the powers vested in the one are, in the aggregate, less than the powers vested in the other. As Bentham has pointed out, the distinction between a govern- ment which is despotic and one which is free turns upon circumstances of an entirely different kind : ' on the manner in which the whole mass of power, which taken together is supreme, is in a free state distributed amoiig the several ranks of persons that are sharers in it j on the source from whence their titles to it are successively derived; on the frequent and easy changes of condition between governors and governed, whereby the interests of one class are more or less indistinguishably blended with those of the other ; on the responsibility of the governors ; on the right which the sub- ject has of having the reasons publicly assigned and canvassed of every act of power that is exerted over him.'' But, if we once admit that all law proceeds from the sovereign body, to speak of the authority of the sovereign body being limited, or of its acts being illegal, is a confusion of terms. Limita- 32. There is only one limitation of sovereign authority which Bentham thinks possible ; namely, ' by express conven- tion.'' I am not at all disposed to underrate such restrictions, but it seems to me that their value is political rather than legal. They serve as a guide to a conscientious man when he is considering whether he ought to resist authority. Bentham has elsewhere ^ shown the futility of attempting to create irrevocable laws, and there must be, therefore, some body which has the power to revoke, or, in exceptional cases, to set aside even the most fundamental rules ; and in that body the supreme authority will reside. Hence it is that very often what was intended as a restriction upon authority really operates as a re-distribution of power. For instance, it was no doubt intended to limit the authority of the President and Congress of the United States, by the fifth ' Bo-wring's ed., vol. ii. p. 401. tion by express conven- tion. Sec. 32-34.] GENERAL CONCEPTION OF LAW. 23 article ^ of the Constitution. But it is Austin^s opinion, that the effect of that article is to place the ultimate sovereignty in the States, taken as forming one aggregate body, and to render the ordinary government, consisting of the President and Congress, as well as the States' governments, taken severally, subordinate thereto^. 33. There would still be this peculiarity in the United States' Constitution, that the ultimate sovereign power was generally dormant, and was only called into active existence on rare and special occasions. This is not inconsistent with sovereignty, or with our conception of a political society ; but it is a peculiarity. And the exact nature of the American Constitution may possibly, in relation to certain questions of international law, become a topic of further discussion. 34. It is this peculiarity in the American Constitution which Functions gives the Supreme Court of the United States its apparently supreme anomalous character. Of course, whatever may be the effect p°'^^> of the Articles of the Constitution in limiting the sovereign political, powers of the President and Congress, those provisions would fall far short of the object they were intended to secure, if there were not some ready means of declaring when they had been violated, and that all acts in violation of them were void. This function has accordingly been exercised by the Supreme Court ; and if Austin is right in considering the ^ This article provides tliat Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to the Consti- tution, or, on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of the Constitution, when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by Congress. See also Art. X of Amendments to the Constitution. ^ Lect. vi. p. 268 (third ed.). So too Mr. Montague Bernard says : ' Behind both general and local authorities there is a power, intricate in respect of its machinery, and extremely difficult to set in motion, requiring the concurrence of three-fourths of the States acting by their legislatures or in conventions, which can amend the Constitution itself. This power is unlimited, or very nearly so.'-^Neutrality of Great Britain during the American War, p. 43. 24 GENERAL CONCEPTION OF LAW. [Chap. T. President and Congress as not supreme, this is only an ordinary function of a Court of Law. The acts of every authority, short of the supreme, are everywhere submitted to the test of judicial opinion as to their validity. It may, therefore, be perhaps doubted whether De Tocqueville is correct in calling this function of American judges an 'immense political power ^.■' It is, if Austin is correct in his view of the American Constitution, not a political power at all, but precisely the same power as any court is called upon to exercise, when judging of the acts of a subordinate legislature. The High Courts in India, for instance, exercise a similar power, when judging of the acts of the Governor-General in Council. And it might be claimed as one of the advantages of Austin's view of the American Constitution, that it makes the position of the Supreme Court capable of a clear definition ; and thus renders the dangerous transition from a strict judicial inquiry to considerations of a political character, when the validity of acts of the Government is called in question, though still far from improbable, at least less easy. 35. Moreover, even i£ the power of the Supreme Court can be correctly described as a political power at all, I doubt whether it has not been exaggerated. Should the Supreme Court and the President and Congress ever really measure their strength, it must be remembered that by the Constitution ^ the President nominates, and with the advice and consent of the Senate appoints, the Judges of the Supreme Court, to hold their office during good behaviour 3. This would probably be taken to mean, that they could be removed after conviction, upon im- peachment for misconduct. They are thus appointed by, and are responsible to, the very persons to whom they would by the hypothesis be opposed; and who by the hypothesis are tyrannical *. Now it is not at all impossible that, so long as ^ Democracy in America, vol. i. chap. vi. "^ Art. II. sect. 2. cl. 2. 3 Art. III. sect. i. ' I assume this, and also that the President, the Senate, and the House of Kepresentatives are acting imanimously in their opposition to the Supreme Court. As a check on each other these separate bodies can act Sec. 35, 36.] GENERAL CONCEPTION OF LAW. 25 the Supreme Court preserves its high character for integrity and independence, it may serve many very useful purposes ; but it seems to me to go too far to say^ as De Tocqueville says, that ' the power vested in the American courts of justice of pronouncing a statute to be unconstitutional, forms one of the most powerful barriers which has ever been devised against the tyranny of political assemblies/ I think Bentham, in the passage I have quoted, has much more correctly stated the true securities against tyranny, whether of individuals or of political assembHes, so far as it is possible for this protection to be constitutionally secured. These securities Americans enjoy to the fullest extent, coupled with certain national sentiments of perhaps even greater importance. 36. It is also necessary to observe that what I have said Practical as to the absolute nature of the sovereign authority, which tjo^g „„ is the purely legal view of the relation between subjects and J^f' ^''^°' their rulers, does not in any way represent this relation in ture of many of its most important aspects. Though for legal purposes reignty. all sovereign authority is supreme, as a matter of fact the most absolute government is not so powerful as to be unrestrained. Though not restrained by law, the supreme rulers of every country avow their intention to govern, not for their own benefit, or for the benefit of any particular class, but for the members of the society generally ; and they cannot altogether neglect the duty which they have assumed. In our own country we possess nearly all the institutions which have been above referred to as the characteristics of a free government. A regular machinery exists for introducing into the ruling body persons taken from all classes of the community, and for changing them, if the measures of those in power become distasteful. Liberty of the press is everywhere conceded. The humblest subjects, though they may have no defined to any extent. But it is upon their tyrannical action when united that an external check of some kind is required, and this I think the Supreme Court would fail to supply. 26 GENEEAL CONCEPTION OF LAW. [Chap. I. power; have a right to meet and to state their grievances, provided they do not disturb the public peace. And the Government hardly ever refuses to hsten to such re- monstrances, though, through ignorance and selfishness, they not unfrequently turn out to be unfounded, or to represent but very feebly, if at all, the real interests of the community at large. Persons 37. We must also distinguish the independence of the sovereign sovereign body itself from the independence of the members generaSy^ who happen to compose that body. The King, the members subject to of ^iie British Parhament, the Viceroys of India and of Ireland, the President of the United States of America, are aU subject to the same general laws as ourselves : only for reasons of convenience the process against them in case of disobedience is somewhat different. Import- 38. I have dwelt upon these practical qualifications of the oT|/ip or under- doctrine of the supremacy of the sovereign authority, because standing ^jjg^j- (Jogtrine has been thought to arm the actual rulers of distmc- ° tion be- a country with unlimited powers ; to destroy the distinction and poll- between free and despotic governments; and to absolve the "'®' holders of power from all responsibility. It does nothing of the kind. Even where no attempt has been made, as in America, to bind the exercise of authority by a special set of rules, or to submit it, as in France under the Republic and the Second Empire, to the popular wilP, powerful checks exist upon the exercise of arbitrary authority, which are none the less effectual because they do not belong to the province of law. Delega- 39. Having then estabhshed that the sovereign body, as sove- such, is independent of law, and that the sovereign body lays reign y. ^q^jj^ ^g positive law, the rules which are to regulate the ' The Constitution of the Fourteenth of January 1851, does not, like that of the Fourth of ifovember 1848, contain a declaration 'that the sovereignty resides in the whole mass of French citizens taken together' (Art. I), but it attempts to give effect to a similar notion by declaring the right of the Emperor (then called President) to appeal to the people at large (Art. V). Sec. 37-43-] GENERAi CONCEPTION OF LAW. 27 conduct of the political society which it governs, the inquiry into the relation of rulers and their subjects would, for legal purposes, seem to be complete. It would be a simple relation of governors and governed. 40. But, in fact, this simple state of things is nowhere known to exist. Not only does the sovereign body find it necessary to employ others to execute its commands, by enforcing obedience whenever particular individuals evince a disinclination to obey the law ; but in almost every country authority is delegated by the sovereign body to some person or body of persons subordinate to itself, who are thereby empowered, not merely to carry out the sovereign commands in particular cases, but to exercise the sovereign power itself, in a far more general manner; sometimes extending even to the making of rules, which are law in the strictest sense of the term. 41. When the sovereign body thus substitutes for its own will the will of another person, or body of persons, it is said to delegate its sovereignty ^. 42. There is scarcely any authority, even to execute a Gradation specific command, which is conferred by the sovereign body detegate^ in terms so precise as not to leave something: to the discre- ^y. ^°™" ■^ ° reign. tion of the person on whom it is conferred. On the oihet hand, there is scarcely any delegation of sovereignty which is so general and extensive as to leave the exercise of it, at any time, completely uncontrolled. And it would be easy to construct out of the powers usually delegated to others by the sovereign body, a continuous series, advancing by insensible degrees, from the most precise order, where the discretion is scarcely perceptible, up to a viceregal authority, which is very nearly absolute. Any attempt, therefore, to divide these powers accurately into groups by a division founded on the extent of the authority conferred must necessarily fail. 43. It is, however, common to mark off and classify some 1 Austin, Lecture vi. vol. i. p. 250 (third edition). 28 GENERAL CONCEPTION O^ LAW. [Chap. I. of the more extensive and general of the delegated powers by describing them as ' sovereign ' or ' legislative ■" ; or (in order to distinguish these delegated powers from the powers of the supreme sovereign body itself) as ' subordinate sovereign ' and ' subordinate legislative ' ; whilst the powers which are specific are described as ' judicial ' or ' executive.' The term ' administrative/ so far as it has any definite meaning at all, seems to be used to describe powers which lie somewhere between the powers which are more general and those which are more specific. No harm results from the use of these terms, which are sometimes convenient, if it be borne in mind that they do not mark any precise distinction. They are just as useful as the terms ' great ' and ' small/ ' long ' and ' short,^ but are not more precise. Different 44. To Confer the power of making laws is the most con- de'iegating spicuous mode of delegating sovereign authority, and it has sove- been sometimes spoken of as if it were the only mode. But reignty, . _ , _ ■' it is not so. The Viceroy of India, when he declares war, or makes a treaty, exercises the sovereign authority as directly and completely as when, in conjunction with his Council, he passes an Act. So the Governor of Jamaica or the Lieutenant-Governor of Bengal, when he grants a pardon, exercises a peculiar prerogative of sovereignty. So every Judge, from a Justice of the Peace up to the Lord Chancellor, exercises a power which in its origin, and still theoretically, belongs exclusively to the sovereign, and which was at one time considered the most conspicuous attribute of sovereign authority. Tiie actual 45. I have deferred until this point any consideration of the au- tlie origin and foundation of political society ; as to how it thonty to ^^g i-ijg^^ ^^^ ^^^ ^g^j^g ^^ j^^j^g j^^g ^^^ another; and why hws. this, which was the practice in earlier associations, is still the characteristic of every political society : and I do not now intend to enter upon this inquiry fully, but only in order Sec. 44-47.] GENEEAL CONCEPTION OF LAW. 29 to get rid of some misconceptions which seem to me to be subversive of all law. 46. The inquiry into the origin of political society is ob- viously an historical one, and does not admit of speculation. But obvious as this is, it is very rare to find the subject historically treated. People are very apt to declare the origin of political society to be that which best accords with their own political theories. Thus it is the theory of some that kings rule by divine right, and so they assert it to be a fact that political societies under a monarch are a divine institution. Other people say that it is natural to be so governed, and then they , allege that nature, as a sort of deity, or occult agency, led people to institute a society upon that basis. Other people think that no one could be obliged to obey any ruler without his own assent, and then they say there was a compact that all should obey their ruler or rulers. This last notion, false as it is, is a great advance upon the other two, for it accounts better for all the dif- ferent forms of government, and it appreciates, partially at any rate, the important fact that in all governments there are mutual interests to be considered, and that there is always some sort of concession and compromise. The theory of the social compact is, in fact, a protest against the deso- lating theory of divine right, but it falls to the ground before the obvious and simple remark, that it never had and never could have any real existence. 47. The actual origin of most governments is shrouded in obscurity, but one thing seems to be clear, that it never occurred to any one to invent government. New forms of government have been invented, and one form of govern- ment has been substituted for another. But government itself did not come into existence all at once as a brilliant idea, or as a device to escape from a difficulty. It grew up very gradually, and probably without even those who were engaged in establishing it knowing exactly what they were about. 30 GENEEAL CONCEPTION OE LAW. [Chap. I. Present 49. It is very possible that mostj i£ not all^ existing basis of ,,,....., . „ . , authority governments had their origin m the passions ot a single laTra'is^ individual, or a few individuals banded together to oppress utility. their neighbours. But whether this be so or not makes no difference whatever when we are considering why govern- ments exist now. They exist now because the happiness of the people is thereby promoted, or at least because their unhappiness is less likely to be increased by leaving the government where it is than by disturbing it. No one, I think, now seriously denies this. These are the grounds upon which we lend our support to a government, even when it is obviously bad. We know that the worst government is better than none at all, and that the chances of improving an estabhshed government are generally far better than the chances of setting up a new and improved government in the place of one which we have destroyed. The only 49, The happiness of the people, therefore, is the only guide to ^^ r r ! > J the legis- true end of government. No ruler does avow, no ruler dare utility. avow, any other. Various pretexts have been put forward in times past for the claim of one man to rule over another, and they have not unfrequently been answered by preten- sions equally unfounded. All these Bentham has thoroughly exposed — divine right, the law of nature, the social compact, the principles of liberty, and the imprescriptible rights of man : and of these, in the form at least in which they were then in vogue, we hear but little now. But admitting this, there is still a desire to substitute some a priori conception between us and the principle of utility. We are told that although the happiness of the people is the ultimate end of government, it is useless to attempt to arrive at happiness by placing that object directly before us. We are directed to try and discover the laws of life and the conditions of human existence, which, it is said, will alone lead us to happiness. Doubtless if we could discover these laws and conditions, and could feel sure that by obeying them we should arrive at happiness, this is advice which ought to be Sec. 48-52.] GENERAL CONCEPTION OF LAW. 31 followed. No utilitarian would object to this, for utilitarians (as Mill observes^) always desire the tendency of actions to be judged not, as tbeir enemies assert, by the con- flicting views of individuals^ but by the widest inductions possible. 50. When J however, we are asked to accept a principle as a guide of action because it is one of the primary laws of life, we are justified in examining it with some caution; and this caution is especially necessary just now, for I fear that there is great danger of the respect for law being undermined by a principle which we are asked to accept on the ground that it is one of these primary conditions, and which, though invented by philosophers, is adroitly made use of by the declared enemies of society. 51. The principle which has been put forward by a great The prin- authority as a safer and more direct guide to happiness than equal the principle of utility is that which is called the principle of ''^eedom. equal freedom. Stated more at length the principle is that ' every man has freedom to do all that he wills provided that he infringes not the equal freedom of any other man ''■.' The form in which the principle is stated is peculiar, but I take it to mean that 'every man ought to have freedom to do all that he wills ' with the proviso stated. I should, however, have still some doubt as to the meaning of the principle had not its most celebrated exponent himself explained it. It means that all coercion of one human being by another is immoral: that immorality is inherent in government and attaches to all its functions ^. 52. It is worth while to observe that up to a certain point all utilitarians would agree with this. They agree that all coercion is an evil ; and therefore that all subjection is an evil But they say that this is a fact out of which you can make nothing for the purposes of society. Bentham, no doubt, says a good deal more than this, with which 1 Essay on Utilitarianism, p. 24. ' Herbert Spencer, Social Statics, ed. 1892, p. 54. ' Social Statics, p. 116. 32 GENERAL CONCEPTION OE LAW. [Chap. I. I am not now concerned. It may be that Bentham's ethical theory is altogether unsound. It may be that moral philo- sophers may understand the assertion that ' all coercion is immoral ' in some abstract sense in which it is true. But it is impossible to apply any such principle in the world in which we live to the aiJairs of life. Further^ to attempt to apply it will open the door wide to anarchy and eonfusioUj for if we once admit that law is immoral^ all hope of defend- ing it is gone. 53. In a former edition of this work I discussed at some length Mr. Herbert Spencer's assumption of the law of equal freedom from which he deduces the disastrous consequence that all law is immoral. I did so because he applied the principle with great severity to some of the existing in- stitutions of soeietyj especially to the ownership of land. But that eminent philosopher has somewhat changed his views, as appears by his more recently published works : and though he still maintains as the primary law of society a principle which renders the private ownership of land inequitable, he makes the important concession that, inasmuch as the practical application of his principle would (in his opinion) 'work ill,' and 'the resulting state of things would be a less desirable one than the present/ the principle need not be acted on^. In other words Mr. Herbert Spencer (as I understand him) does himself agree that the question whether the private ownership of land shall be retained as an existing institution does ultimately depend upon considerations, not of freedom, but utility. I have always maintained that the principle of equal freedom is really useless as a guide, because it is subject to an indefinite number of exceptions of which we can only determine the existence by the method of observation and ex- perience as applied to their results : in other words by deter- mining their utility. Though therefore I may deplore that any philosopher should think it necessary to commit himself to such a dangerous statement as that law is immoral, I think ' Principles of Ethics, vol. ii. p. 444 (ed. 1893). Sec. 53-56.] GENERAL CONCEPTION OF LAW. 33 the very fact that he finds such a doctrine unworkable is a strong testimony against it. 54. Moreover it is the less necessary for me now to say anything at length on this subject^ seeing that the utilitarian position has been defended by a far abler hand than mine. Professor Sidgwiek in his ' Principles of Polities ' maintains^ as I do, that the ultimate standard by which the action of government must be measured is its conduciveness to the general happiness of the governed^. 55. The principle of equal freedom^ as set forth by The prin- Mr. Herbert Spencer^ does not differ very materially from that ^j^g j-eali- whieh has been enunciated by a German writer of a very s^tion of different school. Lassalle^ in his ' Theory of Acquired Rights,' lays it down that private law is ' the realisation of the will of the individual ^/ This captivating paradox is not apparently used by Lassalle for any very destructive purpose in the work I have referred to, but the preface discloses that the author well understood the use that might be made of it: and the worst of all such dogmas seems to me to be that you may draw from them any consequences you please. 56. Nothing to my mind is more refreshing than to turn Utility the from these vague and dangerous speculations to the solid tioal test ground of utility. Though there may be use in such specula- ^j ^ tions in their proper place I object to their being thrust ' Pp- 34, 36. ^ Vol. i. p. 57. In this passage he speaks of private right only, but I gather from the preceding page that he would apply the same principle to all law. Referring, I suppose, to Savigny's definition of a jural relation (Rechtsverhaltniss) as ' a province of the independent mastery of the individual will' (System d. h. r6m. Rechts, § 52) Lassalle saya (Pref. p. viii) : ' So it is well known that in Germany, Savigny, as the head of the historical school, is considered to be the most prominent represen- tative of the reactionary party, whereas his notions upon the subject of acquired rights are in reality revolutionary and subversive, as compared with the follies and inconsistencies in the position taken up in regard to this subject by those who are supposed to represent liberalism in philo- sophy.' I do not pretend to understand exactly what Savigny's theory of acquired rights was, but there seems to be something dangerous in his talk about them. See further as to Lassalle's views the passage quoted infra, note to sect. 56. D 34 GENERAL CONCEPTION OF LAW. [Chap. I. across the difficult path of legislation, not to show us the way, but only to mislead us, and reduce us to a condition of help- lessness. Why are we to be led at every turn to the brink of a precipice, and then have to trust to the goodnature of those about us not to throw us over ? People say that the principle of utility is barren. It certainly will not enable us to do just what we please. But at any rate when I have found out which of the several courses of action open to me is most likely to be useful — that is, when I have formed a judgment as to which course of action is likely to produce the greatest amount of happiness and the least amount of misery to all whose interests are affected— I know what to do. This no dogma about freedom will ever tell me. I hear it loudly proclaimed that all government is evil. I answer ' undoubtedly it is so, but anarchy is a greater evil still.' I am told that the institution of property is a cruel injustice. I reply that this depends upon whether it tends to promote subsistence, abundance, and security. It may probably be answered that it promotes all these to some extent, but that it to some extent defeats them. But does it on the whole pro- mote them, more than its abolition would do ? This requires to be looked into, and every one of the rights of property requires to be examined by this test. If the changes proposed be examined by the same test, no harm can arise. Some men may come out of the process richer and others poorer, but mankind at large will be at least as happy, and probably happier. At any rate we may be sure that, whether we like it or no, all the rights of property will presently be tried by some test or other. They are being so tried now. In this I agree with Lassalle, who asserts, truly enough, that this is the great social question of the age. This (as he says) is the question which lies at the bottom of all other questions, and which the moment it is touched makes the chest heave and the pulse beat '- This excitement will certainly lead to blood- ' Preface, p. vii. ' Was ist es, das den innersten Grund unserer politi. schen und socialen Kampfe bildet ? Der Begriff des erworbeuen Eechts Sec. 57.] GENERAL CONCEPTION OF LAW. 35 shed if we go about telling people that all law is immoral^ and that to do right we have only to see that we realise the will of the individual. On the other handj we may just escape bloodshed if we can induce people to reckon up what will be the probable gain or loss of any proposed change : especially if we can get them also to remember that every violent change involves a great risk of security, and that without security nothing in the world is worth having. 57. If instead of saying that we ought not to take utility Legisla- as our guide in legislation, it were said that legislation, even fgg^ie in- with utility for its guide, is, after all, but a feeble instrument strament of happiness, I should be much more inclined to agree. I take ness. it, however, that this is not because we have chosen the wrong principle to guide us in legislation, but because legislation can never under any circimistances be a potent instrument for happiness. Nearly all that the lawgiver can do is to remove impediments to people procuring happiness for them- selves j and to secure them from being disturbed in the enjoyment of it. Even as regards procuring for persons the necessaries of life, the best the law can do is to secure them the fruits of their labour. If this is insuflScient, the law can only supply the deficiency by doing (as it were) violence to itself — that is, by seizing the property of one man to satisfy the wants of another. Security is the main, it may almost be said the sole object of the law. But here again the action of the law is almost wholly negative. The law can only foster security by punishing or redressing invasions of it. More- over not only is the action of the law thus limited, but the very process itself of protecting security necessarily involves a sacrifice of security. In whatever way security is protected, whether by courts of justice, or by an armed force, or by a police, the process is an expensive one, rendering it necessary ist wieder einmal streitig geworden. TJnd dieser Streit ist eg, der das Herz der heutigen Welt durchzittert und die tief inwendigste Grundlage der politisoh-socialen Kampfe des Jahrhunderts bildet.' And this is becoming truer every day. D 3 Law < neither 36 GENERAL CONCEPTION OE LAW. [Chap. I. to impose taxes ; and every tax is more or less a sacrifice of security ; a small one no doubt, but still a sacrifice, and there- fore a remedy which, if applied on too large a scale, would fail in its effect ^. 58. The same truth may be put in another form by saying that the value of law is to be measured not by the happiness which it procures, but by the misery from which it preserves us. And it is also unfortunately true that besides the misery which governments are compelled to inflict in the way of punishment and coercion in order to prevent mischief, they inflict untold misery for their own selfish purposes. Yet we must remember that, as Bentham says, the worst govern- ment ever known is infinitely better than no government at all. Without government one half of the world would be robbing and murdering the other half. This, and not the loj'alty or affection which we owe to our rulers, is the really strong argument against revolution. Over and over again governments — I fear it must be said all governments — are guilty of iniquities which would fully justify their ex- pulsion from power; but the question must always still be asked — Can the existing government be replaced by a better ? Can it be replaced at all ? The righteousness of a cause is never alone a sufficient justification of rebellion. 59. We shall, therefore, look for happiness in the wrong increase direction, if we expect it to be conferred upon us by the nor dis^^* ^^^- Moreover, not only is it impossible for the law to tribute it increase the stock of happiness : it is just as impossible for the law to ensure an equal distribution of it. Equality may be hindered by the law, it cannot be promoted by it. Any attempt to promote it by taking from one man and giving to another could only end in destroying wholesale the sources of happiness. But though it is impossible that men should ■ These somewhat trite, hut still useful, observations on the objects of law are set forth in the ' Traits de Legislation ' published by Dumont from the original MSS. of Bentham. They may be read (and they deserve reading) either in Hildreth's translation of Dumont's work, or in Ben- tham's collected works, vol. i. pp. 301-322. Sec. 58, 59.J GENERAL CONCEPTION OF LAW. 37 ever be made equal in the sense of eacb obtaining an equal share of happiness, it is still a cardinal assumption of utili- tarians that all men are equal in the sense that in esti- mating happiness one counts for one and no more : that is, as I understand it, that no person whatever has a right to say that he has a better claim to consideration than another. If the law could, it would make the happiness of all men exactly equal. If this is not attempted, if when one man has appropriated to himself a larger share of the sources of happiness than his neighbours, the law protects him, it is because this protection is for the benefit of all: or, which comes to the same thing, because to withdraw it would injure all. For no other reason and to no greater extent ought we to maintain the unequal condition of in- dividuals. CHAPTER II. SOURCES OF LAW. What is 60. There are several inquiries which have been prosecuted l!lf,tl?l^^ under this head, and some writers have thrown themselves ^"'•^'- and their readers into inextricable confusion, by pursuing more than one of these at the same time, without noticing the distinction between them. I am not now about to inquire whence it is that rules of conduct acquire the binding force of law — that I have already- made to depend on the will of the sovereign authority. Nor am I about to inquire how or why the sovereign authority came to have the power to make laws ; that, as far as I think necessary, is also discussed in the previous chapter. What I mean now to inquire into is simply this : — where, if a man wants to get at the law, he must go to look for it ^. The prim- 61. The primary and most direct source, and, where it is is declared to be found, the exclusive source of law, is the expressly w'remV^ declared will of the sovereign authority. When the sovereign authority declares its will in the form of a law, it is said to legislate; and this function of sovereignty is called legisla- tion : the body which deliberates on the form and substance ' Even with these limitations there is still room for much indefiniteness in the term 'sources of law.' We generally mean by it, as will appear from the text (sect. 99), something stricter than mere literature ; I do not pretend, however, that it would be possible to draw an exact distinction between literatura and auctoritas. Lawyers fi'equently fortify their con- clusions by references to opinions which are not, in a forensic sense, authoritative. SOURCES OF LAW. 39 of such laws before they are promulgated is called the legislature ; and the laws so made are called acts of the legislature. 62. It has already been remarked that legislation, like or sub- any other function of sovereignty, may be delegated to a legisla- subordinate person or body of persons. In this case the *''^®' subordinate legislature is the mouthpiece of the sovereign authority, and the declarations of the subordinate legislature derive their binding force from the will of tbe sovereign authority, just as much as if they had been framed and issued by the sovereign authority itself. 63. All the colonies of England present examples of this Suboi-di- delegation of legislative power, but nowhere have subordinate i^tioii*in^' legislative authorities been multiplied to so great an extent ■'■"'^'^ ^""^ as in India. Thus in the province of Lower Bengal alone ies. there are four distinct bodies or persons, each possessing a very extensive legislative authority. There is first the British King and Parliament, the supreme authority ; then the General Legislative Council; next the Governor-General himself; and lastly the Council of the Lieutenant-Governor of Bengal. This example of subordinate legislation illustrates not only the extent and importance of the function, but also the evils which may attend it. Where the power of legisla^ tion is conferred on such a variety of persons it is certain that there will be confusion of laws, and there is also great danger of the worst of all evils, namely, of doubts being raised as to whether the legislative authority of some of the subordinate bodies has not been exceeded. For the supreme sovereign authority is always obliged to allow the authority of its subordinates to be questioned, in some form or other, by the courts of law, in order to keep a check on their usurpa- tion of power; though sometimes it resorts to that highly unsatisfactory expedient for getting out of the difficulty — an ex post facto ratification of acts which are admittedly illegal. 64. It may also be desirable here to notice that sovereignty Methods is delegated upon two distinct principles in the dependencies l^f^^_ ^^^' 40 SOURCES OF LAW. [Chap. 11. of England. In India the Governor-General and Legislative Council constitute together a legislature whose functions are expressly limited in several directions^ and whose action is expressly made subject to the control of the British Parlia- ment, which, it is obviously contemplated, will in no wise discontinue the habit of occasionally making laws for India, On the other hand, most of the colonies possess constitutions which confer upon their respective legislative assemblies, together with the King of England (usually represented by a Governor), legislative authority of the most general kind, and which obviously contemplate that all the ordinary func- tions of legislation will be carried on within the colony itself. But colonies possessing such constitutions are still subject to the same sovereign body as ourselves, the King and the two Houses of Parliament. The power of the British Parliament over a colony, though dormant, is not extinguished by the grant of such a constitution as I have described. There is amply suflScient in the Acts of Parliament which grant colonial constitutions to make the very acceptance of them a mark of subordination i. Indirect 65. Legislative functions are also exercised, , not only by t ions of bodies expressly constituted for that purpose, and under the aifthoritT ^^^^ °f legislation, but by bodies of persons who have the power to frame rules for the protection or convenience of the inhabitants of certain localities. Thus in large and populous towns we frequently find a body called by the name of a municipality, which has power to make bye-laws, as they are called, for regulating the conduct of the inhabitants, and even to impose taxes. So the Privy Council, and Boards of Health, and of Education, frame rules for special objects ' See the 15 and 16 Vict. chap. Ixxii. (New Zealand), and the 30 and 31 Vict. chap. iii. (British North America). In all these acts the supreme sovereignty of England is, in accordance with traditional usage, studiously- referred to as if it were vested in the Crown alone. But of course no one can doubt that the King and the Colonial Parliament are technically subordinate to the King and the English Parliament. See Parliamentary Government in the British Colonies, by Alpheus Todd, pp. 34, 168, 188, 192. Sec. 65-68.] SOURCES OF LAW. 41 intiTisted to them, whicli are some of them laws in the proper sense of the word. So too Courts of Law issue general rules of procedure in matters of litigation which are also law. In these cases the power of legislation has been expressly conferred. 66. The sovereign body can always delegate its function of Subordi- legislation to any extent it pleases ; it being wholly uncon- latures" trolled not only in the matter, but in the manner of legislation. ^^1°°*^ In other words, the sovereign body not only exercises the legislative function, but is the author of it also. But a subordinate legislature, not being the author of its own functions, and having no control over the manner of legislation, can only delegate its functions so far as it has been author- ised to do so. General legislative powers, such, for example, as are possessed by the Legislative Council in India, would undoubtedly carry with them some powers of delegation, which should, however, be very carefully exercised lest the bounds of authority be exceeded. 67. I have mentioned legislation as the primary source of law because it is the most direct, the simplest, and, so to say, the supreme source of law. But active legislation is a characteristic of advanced societies only. In the earlier stages of civilisation there is little legislation : in the earliest, none ^. 68. The sources of law other than legislation are complex Sources of and difficult to understand ; and without a glance at the tiian legis- general history of the development of law I do not think I g^pj^^j^g^ could make what I have to say as to the sources of law intel- by the history ligible. Without attempting, therefore, anytmng approachmg of law. to a complete historical discussion, I propose to give a short sketch of the general development of law, adverting after- wards to certain peculiarities of its development in some countries of Europe and of Asia. I hope in this way to be ' In India there is a whole field of law which has never been touched by legislation: and in all Mahommedan countries the action of the legislature is greatly restricted. 42 SOURCES OF LAW. [Chap. II. able to throw a little light upon some obscure questions in the history of the sources of English law. Early 69. Early in the history of most ancient systems of law we ance of find something in the nature of a code, using that term with codes. some latitude to express any collection of written laws more or less complete and formal. Such a code was the Mosaic law, the law of the Twelve Tables, the so-called laws of Manu, the laws of Solon, and the Koran. How early 70. A code once made is the basis of all future progress, loped. The future history of law is the history of the modes by which the provisions of the code are extended and modified in order to meet the growing wants of the community. There is no more interesting study in the history of law than that of the modes by which this modification and extension have been effected. Notgener- 71. A code is always an effort of legislation, yet the early legisla- preparation of a code is not by any means a sign that the nation is capable of a continued effort of legislative activity. In Rome, in the centuries which immediately followed the introduction of the code of the Twelve Tables, there was very little legislation; in Eastern nations continued legislative activity has never been developed at all; in Western nations it has never been able to satisfy the requirements of a pro- gressive people. Other means of modifying and extending the law have had to be devised, and one of the most potent instruments which have been used for this purpose is that which is called interpretation. Interpre- 72. 1 Strictly speaking, interpretation is a process which explained would produce neither extension nor modification of the law. jjy Given the rule of law, the only question which, strictly speak- ing, interpretation has to solve is — what conduct does the rule prescribe? There are three elements into which this inquiry may be analysed — the grammatical, the logical, and the historical element. First, we may consider the words ' See and compare what is said on the subject of interpretation in Savigny, System d. h. rom. Eeehts, Bk. i. ch. 4, ss. 32 sqq., from which many of my observations are taken. Sec. 69-75.] SOURCES OF LAW. 43 used^ and take them according to their ordinary meaning and construction : this is the grammatical element in the process. Then we may consider each portion of the rule with its con- textj and observe the relation in which the several portions of the rule stand to each other: this is the logical element. Lastly^ we may consider the condition of the law when the rule was introduced^ and what defect or error it was proposed to remedy : this is the historical element. 73. Closely connected with the historical element, and searcelyj I think, distinguishable from it, is the ratio legis as an instrument of interpretation. But caution must be exercised in referring to the ratio legis as an instrument of interpretation, as it may easily be mistaken : especially we must be careful not to confound the true ratio legis with the mere accident which may have led to its introduction ^- 74. The grammatical interpretation of a rule of law may leave no doubt as to the meaning of it. But, on the other hand, a rule of law may on a grammatical consideration of it present several meanings ; and neither the logical nor the historical consideration of it may indicate with certainty which of these meanings is the correct one. Or it may happen that the grammatical consideration of a rule of law suggests one meaning, whilst the logical, or the historical consideration of it suggests another. In a case of conflict the grammatical meaning generally prevails, but not always. The plain grammatical and logical meaning of the act of Elizabeth relating to leases by ecclesiastical corporations has always been restricted by the ratio legis. 75. When the grammatical consideration supplies several Interrep- meanings, and neither the logical nor the historical considera- ^ged to tion determines with certainty which is the true meaning, l^^^ ' Savigny gives the example of the Senatusconsultum Maeedonianxim which was passed in consequence of the murder of his father by one Maoedo, who was pressed for money to satisfy Mis creditors (Gliick, Pandekten, vol. xiv. p. 306). So the maiming act (22 and 23 Charles II, chap, i) was passed (as appears from the act itself) on the occasion of the cutting off Sir John Coventry's nose. 44 SOURCES OF LAW. [Chap. 11. where the then we resort to other considerations. If the rule of law is dcmbtfuf.'^ looked on with favour we interpret it liberally, that is, so as to bring under it as many cases as possible ; if it is looked on with disfavour, we interpret it strictly, that is, so that it may embrace as few eases as possible. 76. So far we have been considering interpretation proper. But suppose the judge to have before him one of those eases to which I have already alluded, for which there is no mle of law precisely suitable. Still the judge must decide the case, and being desirous, as judges generally are desirous, not to rest the case upon his own arbitrium, he will naturally try to get more out of the existing rules of law than can be obtained by the regular process of interpretation. He will try and discover from what actually is said what probably would have been said had a larger class of cases, including the one before him; been within the contemplation of the framers of the rule. This attempt on the part of the judge is not due to any assumption of authority, but rather to a respect for the authority of others. It is a logical process and it is applicable chiefly to those new relations which have arisen since the rule was made, and which it is impossible, therefore, to say are within its provisions. The process is sometimes expressed, and in a manner justified, by saying that the case to which the rule is extended is within its equity. This equitable extension of a rule involves, of course, the process of interpre- tation, and the judge assumes it as certain that he is acting in conformity with the declared will of the legislator in his application of the rule. Still, put it how you will, it is more than mere interpretation. It is, to some extent, an applica- tion of the principle of analogy. Extension 77. It is by this use of his judicial discretion, in cases where by anal- ogy. ^ doubt leaves him a discretion, that a judge manages to make a rule of law cover more ground than was intended; and sometimes, but more rarely, by a reverse process, he narrows its application. There are indeed cases of bolder extension still which one hesitates to class under extension by interpretation. Sec. 76-78.] SOURCES Or LAW. 45 and which perhaps ought to be classed apart as cases of ex- tension by analogy. Even though the judge in such cases can scarcely pretend that he is still carrying out the declared will of the legislator, yet, having no other rule to go by, he thinks it safe to extend a rule which he has learned from experience to be a salutary one. Or perhaps he will put it in this way. He will say that the rule may be taken to be a single example of the application of a wider principle which it involves, and so he will justify the application of the principle to cases not specially provided for. 78. Thus it is that so-called interpretation becomes a source Dislike of of new law. The authors of modern codes generally look to judge- upon it with disfavour, as did the Emperor Justinian. They "^^*^® ^^^'' wish to stop all extension of the law except by direct legisla- tion, and to bind down the judges by inflexible rules, proposing to make provision by future legislation for all unforeseen cases as they arise. But an active legislature is not even which is, now popular : nor do legislative assemblies deal by any means generally successfully with matters of detail. Judicial legislation, on and^s'u^- the other hand, is generally popular, and I have very great cessful. doubt whether the extension of the law by judicial interpreta- tion is so great an evil as has been alleged ^. ^ Justinian forbad all attempts to extend the law by way of interpreta- tion, including in the prohibition commentaries as well as judicial decisions. 'Nemo .... audeat commentaries isdem legibus adnectere, nisi tantum si velit eas in Graecam vocem transformare sub eodem ordine eaque consequentia sub qua voces Romanae positae sunt : . , . . alias autem legum iuterpretationes, immo magis perrersiones eos jactare non concedimus Si quid vero ut supra dictum est ambiguum fuerit visum hoc ad imperiale culmen per judices referatur et ex auctoritate Augusta manifestetur, cui soli concessum eat leges et condere et interpre- tari.' Co. Just. i. 17. 2. 21. The French legislature has taken a middle course. Art. 5 of the Code Civil (quoted above, a. 26, n.) prevents the ordinary judicial interpretation from becoming authoritative. But by a law of 27 VentSse, An viii, art. 88, ' Si le commissaire du gouvernement apprend qu'il ait 6ti rendu en dernier ressort un jugement contraire aux iois ou aux formes de proofider, ou dans lequel un juge ait exc6d6 ses pouvoirs, et centre lequel cependant auoune des parties n'ait r6clam6 dans le d^lai fix6, aprfes ce dSlai expire, il en donnera oonnaissance au tribunal de cassation ; et si les formes ou les Iois ont iti viol^es, le jugement sera 46 SOURCES OF LAW. [Chap. IT. Custom 79. Of the several processes by whicli law is extended the dent to lext which I shall consider is custom. Some writers say ''^^^ that a custom may exist as law independently of the will of the sovereign authority, and they derive its obligatory force from the consensus utentium, or, in modern phrase, from the national will, or national conviction. But the growth of custom into law seems to me rather to be a survival of the period when disputes were generally settled by tribunals without law. The growth of custom into law is analogous to the growth of law itself in an infant society. At first there is no conception of law proceeding from a distinct author, but only of commands. If a dispute is decided by authority, the decision is supposed to come from some divine inspiration. Such commands were issued at first by the king and then by an aristocracy, which was in the West political, and in the East religious. Where we find the heads of a village, or the lord of the soil, exercising a sort of rude jurisdiction, these tribunals would naturally tend to base their decisions upon custom, that is, upon the habits of those with whom the judges were best acquainted within their own jurisdiction. It is however scarcely too much to say that every such authority, if allowed to continue, in time transforms itself, or is corded and transformed, into a court, and treating its traditional customs obserred. i > ^ as binding rules, brings into existence a body of law. The law so generated is called custom. I do not, of course, mean by this that all custom necessarily originates within a tribunal. But the members of the tribunals would know the customs better than their fellows; they would give effect to them, and would ensure their permanence, first, by a precise oral becomes law by being re cass6, sans que les parties puissant se prevaloir de la cassation pour 61uder les dispositions de ce jugement, lequel vaudra transaction pour elles.' This interpretation would, I understand, be authoritative notwithstanding the provisions of Art. 5 of the Code Civil. So also (I understand) would be a decision of the Court of Cassation given a second time on a second appeal between the same parties. See Dalloz, E6pertoire, s. v. Lois, ss. 458 sqq. In England all judicial interpretation by the superior courts is authoritative, because all their decisions are authoritative. Sec. 79-8I.J SOURCES OF LAW. 47 tradition^ and afterwards by a written record ^. Customs are suggested by the habits of the people, but they axe preserved, strengthened, and given effect to by the practice of the courts. 80. Nothing more is necessary for the grovrth of a custom than that people should have some tradition of what their fathers did before them, that they should repeat the same conduct on similar occasions, and that they should be con- vinced that what is so done is right. And no external force is needed for the growth of custom. The tendency of men to allow their conduct to be ruled by custom is always strong : and those whose duty it is to arbitrate in disputes, are always especially ready to fall back upon custom, whereby they reduce their own responsibility and are almost sure to gain the applause of their neighbours. 81. The operation of custom and of interpretation in Various modifying the law depends upon a variety of circumstances, of custom The reduction of rules of law into writing has a tendency andmter- ° ■' pretation. to check the growth of custom : but interpretation^ which is always ready to act upon the written law, is itself acted upon by custom; it being the practice of judges to accept the ' usual ^ interpretation of a law as the true one. It also makes a very great difference whether the manipu- lation of these processes remains in the hands of unprofessional persons, or falls into those of trained lawyers. In the ordinary Influence course of national progress^ as soon as the usual division of labour takes place^ the latter event will happen. But the lawyers must always in the main exert their influence not by separating themselves from the current ideas of the community mainly a to which they belong, but by representing those ideas, and one. ' The old village coxirts (SchOffengerichte) mentioned by Savigny no doubt based their decisions entirely upon customs, though the practice of drawing up records of their decisions (Weisthiimer) probably gave a de- cided preponderance to the judicial over the popular element. The tendency to substitute written rules for oral tradition appears everywhere in the West, even in lay tribunals. In the East the tendency towards the production of written laws is not so marked. 48 SOURCES OF LAW. [Chap. TI. putting them into legal shape. The lawyer class does not come into existence suddenly. Lawyers are generally first found giving advice only^ either in cases of dispute, or as to the performance of the proper solemnities in legal transactions. From this they generally proceed to draw up formularies or guides for the transaction of business; and it is only later still that they venture to deal with law theoretically, either in written treatises or by oral teaching. Gradually also under their influence the decisions of the courts assume a different tone : from being mere dry adjudications of the matter in dispute they come to be reasoned out, and acquire a more or less scientific character. A tradition also of a special legal kind, apart from ordinary custom, grows up about the courts which largely influences the decisions of the judge. It is when law has arrived at this stage that interpretation becomes most arti- ficial, and serves, perhaps, only to veil the process of innovation. Unchecked by public opinion it would be intolerable, but under this restraint it produces useful results. For it must never be forgotten that, whether the law be interpreted so as to cover an increasing area of cases, or whether customary rules be imported into the law, it is never a mere arbitrary modification or extension of the law which thus takes place, but a formulating of the popular ideas by a skilled class. On the other hand, without the skill of the lawyer society would scarcely make any advance at all. Contrary to what is gener- ally supposed by those who have paid no particular attention to the development of law, it is the lawyers who have gener- ally made the first advaiice by breaking through the stiffness of early forms and the rigidity of ancient rules. Lawyers have been frequently attacked as being too technical, just as they have been frequently attacked for the assumption of unauthorised power: and doubtless, at different times, they have been made justly liable on both charges. But the general observation remains true, that large and beneficial reforms in the law have been made by lawyers, and very few could have been made without them. This could hardly be Sec. 82.] SOURCES OF LAW. 49 otherwise. The law may correspond to the legal culture of those who produce it ; it cannot go beyond it. 82. I will now endeavour to illustrate the growth of law Develop- more particularly by a glance at the development of law in Roman cei-tain countries of the ancient and modern world; I shall ^^^' refer to the influences which have operated upon the law of Rome, upon the Hindoo law, upon the Mahommedan law, upon the law of continental Europe, and upon the English law. Beginning with the law of Rome we find that the early law was gathered up, as early as the fourth century before Christ, into a code which is known as the Twelve Tablesi From that time forward the legislative powet was always at hand, but nevertheless the most important modifications of Roman law were brought about by other influences. Taking the law of the Twelve Tables as their text the Roman jurists busied themselves about its interpretation, and with much dexterity developed from this rude code rules of law suitable to the growing wants and complicated relations of a thriving and active community. Still more largely was the Roman law affected by an influence which has been called equity. This is a term which has been used to describe a great many influ- ences which have some similarity to each other, but are not identical^ To a great extent equity^ as administered at Rome through the prsetor's edict, was custom of a very general kind» The source from which it was, in a great measure^ derived was, as is well known, the ' jus gentium,'' or ' jus commune omnium gentium,'* subsequently identified with the ' jus naturae.' The practical result was that forms which had become too cumbrous for use were dispensed with ; principles which had been found too narrow Were expanded; and laws which had become un- suitable were ignored. Custom also, in the narrower sense of the practice prevailing at Rome in the whole or in some section of the community, was constantly being imported into the law, but always through the hands of a skilled jurisconsult, or of a prsetor who, though not necessarily himself a lawyer, was completely under the lawyer's in- 50 SOURCES OF LAW. [Chap. IT. Develop- ment of the Hindoo law. Antiquity of the Hindoo L-odes. fluence. The issue of the edict by the prsetor was a process more like legislation than a creation of law by a modern English judgCj in that it announced beforehand in an abstract form the rule which would be applied. But a rule so issued was only binding on the prsetor who issued it. This curious method of creating law is almost unintelligible unless we remember that the praetor, as representing the sovereign power^ was supreme as to the matters which it actually fell to him to decide ; and that he was exercising this supreme power under the important restriction that all his proceedings were watched by competent and jealous critics. Practically, therefore^ each prsetor followed in the footsteps of his predecessors^ adopting only such well-considered changes as were pretty sure to be acceptable. 83. Turning to the Hindoo law^ we do not find any distinct epoch when it was first reduced into a written form, but we have a number of so-called codes, of which the code of Manu is the best known and most influential. These codes are the written basis of all subsequent Hindoo law. They have a double aspect; being as much religious as legal. It is doubtful whether any of these codes, though they now bear the name of an individual, are the product of a single hand; or even of a single age. It is more probable that they represent ancient texts in a more or less modified form. The form in which they now exist is said to indicate a comparatively modern date, but this seems to me not very material, because there is internal evidence that in substance they belong to a very early stage of society. For example, in the so-called code of Manu we do not find the ownership of land at all dealt with, undoubtedly because it was not yet known. So too the conflict of rights between individual members of the family had scarcely yet attracted legal notice. Nor had the widow asserted any independent rights. So far as she appears to have had any rights at all, it was as head of the household after her husband's death, which looks like Sec. 83.J SOUECBS OF LA.W. 51 a survival of polyandry 1. Whenever, therefore, this code may have assumed its present form^ it is certain that its matter belongs to a very early period 2. But the code of Manu^ venerated as it still is, and antiquated as it is^ has not placed an insuperable barrier in the way of advance. Fortunately the code itself contains a recognition of the influence of custom, and so far from discountenancing this influence it expressly encourages it. ' The king,' says Manu, ' who knows the revealed law [ought] to inquire into the par- ticular usages of trades and the rules of certain families^ and to establish their particular laws ^.' The Hindoos themselves did not fail to recognise and make Brahmin- use of this latitude^ and by means of custom and interpreta- ence upon tlon largely developed the Hindoo law. These processes were ^^' for a long time chiefly in the hands of learned Brahmins, who were neither skilled lawyers^ nor priests, nor a simple aristocracy, but something of all three*. Stili, having no oflScial position their real claim to influence depended upon their personal qualifications, and chiefly upon their learning. The formal process which they adopted was that of writing commentaries on the older written law. But these com- mentaries, though mostly couched in the language of inter- pretation, are to a large extent occupied in engrafting new ' Manu, chap. ix. sect. 104. See also chap. viii. sect. 416. ' The date of the code even in the form in which we possess it seems to be still unsettled ; but the statement in the text that in substance it belongs to an early stage of society is, I think, incontroyertible. Like the Twelve Tables, it may have been considered a carmen necessarium long after it had been largely supplemented by custom and interpretation. ' Manu, eh. viii. sect. 41, 'if,' adds a commentator, 'they be not repug- nant to the law^ of God.' But the original author did not think this precaution necessary. * There is some analogy between the position of learned Brahmins and the Pontifices at Rome. I do not observe that the Brahmins, like the ecclesiastical lawyers of Europe, have endeavoured to use their influence for promoting the interests of a class. This accusation has been brought against them, but I have not seen any evidence of it. The learned Brahmins who wrote the great commentaries mixed, I imagine, very little directly in the management of human affairs, and they seem to have been animated by a very lofty spirit. E 2 52 SOURCES or LAW. [Chap. II. Develop- ment of the Ma- customs upon the old rules, and in pointing out (with many- apologies by the authors for the degeneracy o£ the times in which they wrote) the rules which had become obsolete. The value of these commentaries depends solely upon the reputation of the persons by whom they were compiled ; but, like the Institutes of Lord Coke^ they are authority and not mere literature. The Hindoo law is now administered by British courts of justice in which the judges are partly native and partly European. Under their influence the development of law by interpretation and by the recognition of custom has been actively continued, and it has been accelerated by a third process which I shall explain presently, the creation of law by judicial decision ^- 84. The Mahommedan law rests also on a written basis, the Koran, which, like the Hindoo Shasters, is divine, but, dan law. ^^ing comparatively modern, bears much more directly upon the ordinary affairs of life. There is not, therefore, the same room for development, and there is no admission in the text of the Koran of the necessity or the propriety of any modification of its precepts. Even in Europe, where Mahom- medans have become familiar with the exercise of legislative functions both in the modern form, and in the form of the imperial legislation of Rome, they have rarely ventured upon a development of their law by this direct process. In a few instances, as, for example, the acceptance of interest for a loan, the precepts of the Koran have been departed from, but every judge professing to administer Mahommedan law, and every ruler professing to be guided by its principles, is loaded with fetters. The Mahommedans have made scarcely any ' The British courts in India, and especially the European judges, have been accused by some of paying too much, and by others of paying too little, attention to the commentators. As a matter of fact the courts in India have innovated very largely, and it is not a little remarkable that modern Hindoos, who Will not tolerate any interference with their law by a legislature, have always accepted with deference the decisions of our tribunals even when they have been counter to popular feeling. This is especially so with the decisions of the Privy Council, but all the High courts have from the first been liked and respected by Hindoos. Sec. 84-86.] SOURCES OF LAW. 53 attempt to free themselves from this thraldom. They seem to be paralysed by a sort of superstitious feeling that it would be irreligious to doubt that the word of the Prophet was sufficient for the wants of mankind even twelve centuries after it was spoken. A certain amount of the old Arabian custom was, no doubt, assumed by Mahommed, and has always remained in force, though not expressly recog- nised ^ ; and at some time or other the Mahommedan lawyers seem to have come temporarily under the influence of the Latin jurisprudence to their very great advantage. Traces of this influence may be easily discovered in the great commentary of Khalil Ibn Ishak translated into French by M. Perron, and a commentary much used in India called the Hedaya. 85. I now pass on to the development of law in modern Dovelop- Europe, where we come upon an entirely new phase. None j^^ ^^ of the great nations founded on the continent of Western ™or a judgment was still cases. very rare even in the reign of Henry VIII, when the last Year Book was published. Yet this can hardly be so, for the reports of Plowden in the reign of Edward VI, which are much fuller than the latest Year Books, show that cases were at that time freely cited, and it is not likely that the practice came suddenly into existence. Moreover, we can scarcely account for the existence of the Year Books at all unless we suppose that the lawyers studied them and made some use of them. The importance attached to the Year Books is further shown by the numerous reprints of them which were issued as soon as the art of printing was dis- covered, and also by the popularity of the abridgments made of them by Fitzherbert and Brooke. Probably, therefore, the influence of precedent upon the decisions of the judges is not to be measured by the number of cases quoted in the Year Books. 81. It is, however, always as indicating the custom of Decisions England, and not as authority, that the decisions of earlier latertimew judges were cited during all this period and even afterwards, tative." 60 SOURCES OF LAW. [Chap. II. In the patent of James I^ for the appointment of official reporters it is indeed recited that the common law of England is principally declared by the grave resolutions and arrests of the reverend and learned judges upon the cases that come before them from time to time, and that the doubts and questions likewise which arise upon the exposition of statute laws are by the same means cleared and ruled. Nevertheless we find Blackstone still saying that the first ground and chief corner-stone of the laws of England is general and immemorial custom. But long before Blackstone^s time, and in some measure perhaps owing to the patent of James 1, a very important change had taken place in the view held by judges as to the force of prior decisions. These decisions were at first evidence only of what the practice had been, guiding, but not compelling, those who consulted them to a conclusion. But when Blackstone wrote, each single decision standing by itself had already become an authority which no suc- ceeding judge was at liberty to disregard. This important change was very gradual, and the practice was very likely not altogether uniform. As the judges became conscious of it they became much more careful of their expressions, and gave much more elaborate explanations of their reasons. They also betrayed greater diffidence in dealing with new cases to which no rule was applicable, cases of first impression as they were called ; and they introduced the curious practice of occasionally appending to a decision an expression of desire that it was not to be drawn into a precedent. General 92. Thus it comes to pass that English case law does for compared ^^ what the Roman law does for the rest of Western Europe. of the*''^* And this difference between our common law and the common Eoman law of continental Europe has produced a marked difference between our own and foreign legal systems. Where the principles of the Roman law are adopted the advance must always be made on certain lines. An English or American ' Pat. 15 Jac. I., in vol. vii. part 3. p. 19 of Rymer's Foedera, ed. 1741. Blackstone, Comm. vol. i. p. 7a. Sec. 92.] SOUECES OF LAW, 61 judge can go wherever his good sense leads him. The result has been, that whilst the law of continental Europe is formally correct it is not always easily adapted to the changing wants of those amongst whom it is administered. On the other hand, the English law^ whilst it is cumbrous, ill- arranged} and barren of principles, whilst it is obscure and not un- frequently in conflict with itself^ is yet a system under which justice can be done. Anyhow it stands alotie in the history of the world. The records of decisions have no doubt at all times and in all countries served as evidence of custom, just as the Year Books formerly served, and the court rolls of manors still serve, amongst ourselves. And even without the influence of custom judges are never likely to disregard or to remain uninfluenced by the decisions of their prede- cessors. But nowhere else than in England and in countries which have derived their legal systems from England have the decisions of judges been systematically treated as authori- tative. There seems to have been a good deal of fluctuation under the Roman law as to the authority to be attributed to the imperial rescripts and decrees given in particular cases. Still if these were ever ti'eated as generally binding it seems to have been because the Emperor was himself the supreme source of all authority, and could legislate when and how he pleased. But no decisions of any tribunal had^ as such, any authority whatsoever. ' Nemo judex vel arbiter existimet consultationes quas non rite judicatas esse putaverit sequen- dum, cum non exemplis sed legibus judicandum sit,'* Nearly all modern continental codes contain similar prohibitions, and this is the modern continental practice '. ' 'The opinions of law professors and the views taken by prior judges shall not be in any way considered in future decisions.' Allgem. Land- Keeht, Introduction, s. 6. The stringent provisions of the French Code have been already referred to. (See note to sect. 26.) Of course previsions of this kind do not prevent judges from resorting to the opinions of those who preceded them for guidance, and this inevitably results in these opinions producing an influence which is of great importance, though widely distinguished from the 'authority' of English decisions. French judges really rely on such opinions when they refer to ' la doctrine et la 62 SOURCES OF LAW. [Chap. II. Jural 93. Well established as the practice of the judges to make basis of ... authority the law has now become m England, it is not easy to reconcile law**^^ ourselves to the notion when the practice is brought under our observation. The explanation of it is the delegation to the judges of what was once a peculiar function of sovereignty. If we look at the history of all early societies we find that the principal duty of the sovereign, in time of peace, is not the making of law, but the decision of law-suits. It is the king himself who decides all disputes between his subjects; he is the judge before whom the issue is tried-'; and whilst in some of the oldest treatises on law we find the judicial function of kings carefully and prominently con- sidered, the legislative function is scarcely noticed. This is notably the case in the treatise of Manu, where the king is always spoken of as 'the dispenser of justice/ and his duties as such are minutely laid down; whereas I do not recollect a single passage which enjoins him to make wise and good laws. Nor does this in any way result from the claim of Hindoos to have received a divine revelation. We find the same thing in societies which lay no such extensive claim, and indeed which hardly claim at all to have received commands direct from God. 94. Even in England, where Austin thinks the judicial function was more completely separated from the legislative than in any other country ^, we find strong indications of the extent to which those functions were mixed in early times. The present judicial authority of the House of Lords is generally traced to its representation of the Aula Regis, which was at the same time the supreme court of justice jurisprudence ' or ' le point de vue juridique.' German judges seem to have no hesitation in referring to treatises, and to the Gerichtsgebrauch or usus fori. Thus a kind of customary law (Juristenrecht) is formed by the courts, but Unger says that it cannot be applied by the courts in Austria, because the application of all customary law is forbidden by legislation, (linger, Syst. d. Oster. Privat-E., vol. i. p. 42 : Austrian Civil Code, s. 12.) I should doubt if such legislation could ever be effectual. ' See Grote's History of Greece, Part I. ch. xx. ^ Leot. xxviii. p. 536 (third edition). Sec. 93-96.] SOURCES OP LAW. 63 and the supreme legislative assembly in the kingdom. It required a special clause in Magna Carta to enable the Court of Common Pleas to sit anywhere except in the place where the king happened to reside. By a fiction the sovereign is always supposed, even at the present day, to preside in person at every sitting of the Court of King's Bench j and it is as keeper of the king's conscience that the chancellor is said to exercise his authority. 95. The truth is, as Sir Henry Maine has shown ^, that Idea of the idea of law itself is posterior in date to that of judicial terior to decision : and it was the actual observation of a succession *^j! ?^, ' judicial of similar decisions of the same kind which gave rise to decision, the idea of a rule or standard to which a case might be referred. As soon as this observation was made every one would naturally recognise the advantage of stating in an abstract form the rule which might be inferred from a series of uniform decisions, and which, it might be reckoned with tolerable certainty, would be applied, whenever a similar dispute should arise. This was the first germ of law : and the first recognised laws were probably collections of the scattered rules which had thus come to be adopted. 96. It was only in the simplest condition of society that Delega- the king could really be also judge in all matters of litiga- judicial tion. At a very early period this function of sovereignty go^g^eign would be delegated to persons whose duty it was to decide disputes and punish offences. The wise, and learned, and elderly persons, who sat with the king to assist him with their advice, would be deputed by him to decide cases in his absence. But this change in the person of the judge would not materially affect either the character of the ofiice or the exercise of the function. The same repetition of cases would occur : by deciding them successively in the same way, the subject judge, just like the sovereign judge, would give currency to certain rules, and these rules would come to be looked upon as law. ' Ancient Law, p. 5 (ed. 1861). 64. SOURCES OF LAW. [Ohap. II. Judicial 97. The process by which law is made by judges in the law not a exercise of their judicial function has been undoubtedly mis- usurpa- understood. It has been said, that the exercise by judges of the legislative function at all is a usurpation. If by the exercise of the legislative function be meant the evolution, of law by the process above described, this statement is the very reverse of truth. A judge who merely substitutes for his own opinion the concurrent opinion of others is no breaker of the law. The only result of saying that judges could make no law, would be to say, in effect, in a large number of cases, that there was no rule of law applicable to the pur- pose in hand, and to leave the judge entirely uncontrolled. Character- 98. A very much more important question has been raised, judiciary as to the correct appreciation of the process of making law ^^" by judicial decision. Austin has minutely criticised this procesSj but the published Lecture which contains these criticisms is, as is so frequently the case with the scanty remains We have of the writings of that eminent jurist, made rip of two disjointed fragments; and it is of course, therefore, not summed up into any final conclusions. It appears to me that the essential difference between the generation of law by judicial decision and by express legis- lation lies in two of the characteristics of judiciary law noted by Austin, — namely, that it is ex post facto, and that it is always implicated with the peculiarities of the particular Case in which it is applied* All the objections which can be raised against judiciary law may be traced to one or both of these characteristics ; its bulk, the difficulty of ascertaining it, its inconsistency, and so forth. To the combination of these two characteristics may be also traced its great, though possibly its only advantage — that of flexibility, or capacity of being adapted to any new combination of circumstances that may arise. Were the judges in England compelled, as in Italy, France and Spain, and as has been attempted in India, to state separately and fully what French lawyers call the motives, and Spanish lawyers the points of their decisions Sec. 97-99.] SOURCES OP LAW. 65 — that is to say, their findings in fact and the rules of law which guide them — there would be a complete revolution in the history of English case law. The law being stated in distinct propositions, altogether separate from the facts, would be easily ascertained. This, coupled with our notions as to the authority of prior decisions, would render a conflict so conspicuous, as to be almost impossible. The law would soon become clear and precise enough; but so far as judicial decision was concerned, it would become much more rigid. It is because English judges are absolved from the necessity of stating general propositions of law, and because, even when these are stated, they are always read as being qualified by the circumstances under which they are applied, that our law remains bulky and uncertain, but has also, in spite of our respect" for precedent, remained for so long a period flexible. Whether it would be found possible to combine our practice as to the generally unquestionable authority of prior decisions, with the practice of laying down abstract propositions of law separate from and independent of the particular facts, is an experiment which, as far as I am aware, has not yet been tried ^. 99. The nature of the process of reasoning which has to Proceas of be performed in order to extract a rule of law from a number j,y which of decided cases by elimination of all the qualifying circum- ^J' '^ ®^" stances, is a very peculiar and difiScult one. The opinion of the judge, apart from the decision, though not exactly dis- regarded, is considered as extra-judicial, and its authority may be got rid of by any suggestion which can separate it from ' The High Court at Calcutta has gone somewhat near it, by requiring even its own members, when they differ in opinion on a matter of law, to refer the difference to, the arbitration of a majority of the whole Com-t. This sometimes leads to the enunciation of propositions of law in an abstract form, which it is made imperative on all the members of the Court, and of course on all the inferior Courts, to accept, until overruled by the Privy Council. See Eule of High Court of Calcutta of July 1867, in Mr. Broughton's Civil Procedure, p. 710 (fourth edition). The govern- ment saw no usm-pation of power in this proceeding : on the contrary, the rule is said to have been made at the suggestion of government. F 66 SOUECES OP liAW. [Chap. II. Competi- tion of opposite analogies. Third source of law : Com- mentaries, the actual result. Unless, therefore, a proposition of law is absolutely necessary to a decision, however emphatically it may have been stated, it passes from the province of aucto- ritas into that of mere literatura. Curiously enough it is not the opinion of the judge, but the result to the suitor which makes the law^. 100. Paley has called the process by which law is extracted from a series of decisions the competition of opposite analo- gies^. Austin considers that this process is not necessarily confined to the extraction of law from judicial decisions, and that it may as well be employed in the application of ascer- tained rules of law to particular cases. But, as I have said ^, it is the peculiarity of English judg«s that they do not think themselves bound to distinguish these two operations, and that they very frequently perform them simultaneously. They, in fact, determine the law only hy applying it. And I think Paley^s description of forensic disputation and judicial decision is both forcible and accurate. ' It is,^ he says, ' by the urging of the different analogies that the contention of the bar is carried on ; and it is in the comparison, adjustment and recon- ciliation of them with one another, in the discerning of such distinctions, and in the framing of such a determination as may either save the various rules alleged in the cause, or, if that be impossible, may give up the weaker analogy to the stronger, that the sagacity and wisdom of the court are exercised/ 101. Closely connected with the law which emanates from a series of judicial decisions is the law which is derived from the commentaries of great jurists. These are also ' This is consistent with the idea that the basis of the law which comes to us through judges is custom, and not opinion. '^ Moral Philosophy, vol. ii. p. 259. Austin seems to have thought at first that Paley was speaking only of the application and not the extrac- tion of law. (Lect. xxxvii. p. 653.) But he afterwards changed that opinion. (Fragments, p. 1031.) Very likely Paley did not, any more than judges, distinguish the two processes. ' Supra, sect. 98. Sec. 100-104.] SOURCES OF LAW. 67 expounders of the law, and their works are constantly read and referred to in courts of justice, and have the very greatest weight. 102. The authority of a commentator cannot, however; like that of a judge, be traced immediately to the sovereign, and, as a general rule, a commentary when it first appears is only used as an argument to convince, and not as an au- thority which binds. But just as judges by successive decisions give currency to custom as a rule of law, so by successive recognition they establish the authority of a commentator; till at last the opinions which he has expressed count for as much, or even more, than the opinions of the most eminent judge. This is the case with such commentaries as those of Lord Coke, Lord Hale, and Littleton in England ; the Dayabhaga, the Mitacshara, and the Hedaya in India. 103. Between commentaries and judicial decisions there is Difference a distinction of form which it is important not to overlook, between Judicial decisions are, as we have seen, by their very nature c'^'^men- concrete; all the judge professes to do is to decide the case judiciary before him; and the principle of law which guides him has very often to be extracted with much labour and difficulty. But the commentator not unfrequently deals with matters entirely in the abstract. He lays down propositions of law capable of being applied to a whole class of cases | he infers one principle from another; he foresees new combinations and provides for new results. A commentary of this character, when once its authority is established, is far more compre- hensive than any number of volumes of reports; but very few treatises of this kind, and scarcely any modern ones, have attained the necessary standard of reputation. 104. I have not, as will have been observed, made either Divi the divine law, the law of nature, or the moral law, separate sources of law ; and I do not think that they ought to be so made, although many learned persons strenuously maintain the contrary. The terms themselves are very vaguely used, but I think by divine law is generally meant that body of p 3 ne law. 68 SOURCES OF LAW, [Chap. II. Chris- tians. Greeks and Ro- mans. rules whicli is set by God to man through inspired revelation'. Nearly all nations claim to be possessed of some such revelation, but the nature o£ it differs considerably ; and the relation ■which these revealed rules bear to law, in the proper sense of the term, also varies very greatly. 105. Christian nations lay claim to nothing more than a revelation of certain doctrines of religion and certain very general rules of morality. The Author of the Christian faith, though repeatedly appealed to for that purpose, always refused to interfere in questions of a political character, or to lay down specific rules of conduct. IDS. The Greeks and Romans had scarcely any notion of a divine revelation at all, in any sense which we should attach to the term. The divine communications which they received were rather in the shape of advice or warnings how to act on some special 'occasion. If it was supposed that there had been at any time persons, who spoke habitually imder divine in- spiration, these were not sages who directed the conduct, but poets who stirred the feelings and imagination of their hearers. 107. The Hindoos, whilst they too have been largely influenced by a mythic poetry of supposed divine origin, have also, as I have already mentioned, a very distinct revelation of the will of God. And this revelation is quite as much occupied with the ordinary affairs of daily hfe as with the regu- lation of religious observances. The general moral precepts are few, and, consequently, its actual influence on the modern life of a Hindoo is not very great. 108. The extent to which Mahommedans are still under amTjews. ^^^ influence of a divine law I have already explained. They have carried the notion further than any other people except perhaps the Jews of old, who for a long period claimed to be ' Rules of conduct, not actually revealed, may also be referred to a Divine Author, and, I believe, are sometimes called divine, but I am at liberty to restrict the expression ' divine law ' as I have done, and as it is convenient to do ; comprising the unrevealed rules, as is more commonly the practice, under moral law, or law of nature. Hindoos. Mahom iriedans Sec. 105-109.] SOURCES OF LAW. 69 under the direct personal government of God Himself, and to be in constant communication with Him. It appears that the Jews felt at times this form of political society to he inconvenient, and the traces of a struggle to obtain a different constitution are to be found in the Bible, where we read that they desired to have a king ' like all the other nations ^.' And though they are rebuked for their ingratitude their prayer is at last granted. But the Jews never seem to have arrived at any very clear notions about law, at least not about ' their own law. 109. Modern nations have recognised a very important Divine principle as to the application of divine rules by human always authority, that some divine rules are not to be so enforced, enforcer!. No one, whatever he might pretend, could practically assert the contrary : and there seems, therefore, no help for it but to admit that the law, as a human institution, takes the highest standard of morality of which it is capable, but which still leaves something unfulfilled. The Mahommedan law supplies one example of this in the recognition of the lawfulness of taking interest for the use of money, though I still doubt whether a Mahommedan, if asked, would acknowledge any distinction in the obligatory force of divine precepts. We find other and clearer examples in the various cases in which under nearly every system of law a man is relieved from the fulfil- ment of his promise under certain circumstances. In the case of infancy, for example, the debt incurred by the infant is not enforced, but very often he ought, nevertheless, to pay it. A curious case of this kind occurred early in our administration of justice in India. The Hindoos of Lower Bengal generally desired that as between father and son the father should have power to dispose of the family property. The English judges were by no means unwilling to grant this power to them, but some very plain precepts of divine authority stood in the way. The Hindoos thereupon enunciated the convenient maxim, that a sale once made could riot be set aside, because ' a fact ' I Samuel viii. 5. 70 SOURCES OF LAW. [Chap. II. cannot be altered by a hundred texts.' The English judges capped this with a Latin maxim, ' Fieri non debet, factum valet.'' And no one has ever since questioned the power of alienation ^. Influence 110. But though the operation of divine law has been ],^^ thus limited, it would be idle to deny that it has indirectly had a large influence upon law. To deny this would be to deny that a large portion of mankind has had any sincere religious belief at all. Still it is impossible to admit, as Blackstone and some other English lawyers seem to assert ^, that there is implied in every human law some sort of reser- vation or exception in favour of the divine law ; a salvo jure divino absolving men from obedience to the human law if it conflicts with the divine. This proposition is not the less objectionable because it is capable of being read in a sense in which it is not untrue. If Blackstone meant that a con- scientious man, with a firm and well-grounded conviction that there existed a conflict between a particular divine and a particular human injunctioii, ought to obey the first and not the second, he was enunciating what is strictly true. But this is a truth very rarely applicable, and is wholly foreign to the subject which Blackstone had under consideration — namely, the nature of laws in general. 111. If, on the other hand, Blackstone intended to lay it down as a principle of general application that every one is entitled to institute for himself a comparison between the human and divine law, and that, in case of any proceedino- taken against him for disobeying the human law, he may plead the divine precept in his defence, the absurdity of the principle may be demonstrated at once by attempting to apply it. If a judge were to say, 'I find so and so in an act of parliament, but in my opinion the divine precept is otherwise, and I decide according to the divine precept,-" he > See the Dayabhaga of Jimuta Vahana, chap.' ii. ss. 28, 39 ; and Strange's Hindoo Law, vol. i. p. 53. ^ See Comm. vol. i. pp. 42, 43 ; Fonblanctue on Equity, p. 8 (fifth ed.). Sec. 110-113.] SOURCES OF LAW. 71 would be certainly overruled by the court o£ appeal, and probably declared unfit for his office. 112. It seems to me that the fundamental error lies in treating the conflict between divine and human laws as an ordinary one, which the lawyer must be constantly prepared to meet. Nothing can be further removed from the truth. In every country which acknowledges a revelation, the general precepts of law which have emanated from a divine source have been over and over again acknowledged by the human sovereign authority. The Koran and the Shasters are expressly declared by act of parliament to be the law of the Mahommedans and Hindoos respectively in India ^. The precepts of the Bible have been applied to the institutions of daily life by Christians, to as great an extent as the difference of circumstances wiU admit; and there has been a tendency rather to strain than to contract the application of the rules of the Old Testament to the wants of modern society. So far from a conflict between human and divine law being an ordinary occurrence, it is very unlikely that any such conflict should arise. A sovereign body is not very likely to promulgate laws which all, or even a large majority, of its subjects would believe to be contrary to the commands of a Being of infinite powerj wisdom, and goodness. It is far more probable that any supposed antagonism is the sug- gestion of ignorance or presumption. How a case of real antagonism is to be dealt with, should it arise (and, rare as it is, no one will assert it to be impossible), is a question as unfit to be considered in a treatise on law, as the some- what similar question — when is a nation justified in rising in rebellion against its rulers ? 113. It may, indeed, happen to an advocate or to a judge, that his own opinion of what is enforced by a divine precept is in conflict with some rule of positive law which he is called upon to support. But no one would pretend that the law was in any way affected by the private opinions of ' See 21 Geo. III. e. 70. ». 17. 72 SOURCES OF LAW, [Chap. II. those whose duty it is to administer it. Thus there are some Christians who believe that, for reasons founded on divine commands, the marriage tie is indissoluble. But this would not justify a judge who thus thought in refusing to pronounce a sentence of divorce in case of adultery. A large majority of those qualified to form an opinion have thought that there is no such divine prohibition and 'have made the law accordingly. 114. So there are to be found Mahommedans who consider that God has forbidden the taking of money for the use of money ; but the judges, with the general consent of a vast majority of Mahommedans, have long been in the habit of giving* interest on loans of money to Mahommedan lenders ; and it would be preposterous for a single individual to set up his opinion against this overwhelming opposition. Use made 115. What use the lawyer may still make of the divine ofdMnT^law is clear enough. The judge, being obliged to decide, '^^^" even when all his efforts to discover a rule of positive law have failed, or where there are rules which conflict, or where the interpretation of the rule is doubtful, may safely assume in such cases that the sovereign power, if it had declared its vnll in the form of a positive law, would have done so in conformity with the divine precept. And a judge who acts upon the divine precept in such cases is fully within the limits of his authority. He is doing that which a sovereign judge would undoubtedly himself do under the circumstances, that is, he is deciding the case according to that which is believed to be right and just. So much of divine law has, however, been incorporated into positive law, that even in this way the lawyer has very seldom to resort to it. Moral law 116. With regard to the moral law and the law of nature, nature. i* would be impossible to say whether or no we should enu- merate either or both of these amongst the sources of law, until we had assigned to those terms some more definite meaning than is commonly done. That there are rules of conduct which are regularly observed amongst men, and Sec. 114-116.] SOURCES OF LAW. 73 to a considerable degree influence judges in making their decrees, but are yet neither positive law nor the revealed commands of God, is undoubtedly true ; such, for instance, as the rules which regulate the intercourse of nations, the laws of war, and constitutional practice. There are also rules of conduct which judges constantly refer to, and act upon, which, nevertheless, are not law, though in England they have a tendency to become so : such, for example, as the rules of fair-dealing. Rules of this kind are sometimes said to belong to the moral law, and at other times to the law of nature. Speaking very generally, these two expressions seem to me to comprehend very much the same rules, but they refer them to • different sources. The term ' moral law ■" appears to assume some innate faculty of distinguishing right from wrong. The law of nature, on the other hand, seems to refer to the disposition of man in an uncorrupted state ^. But the moment a difference of opinion arises as to what the rules are which are to be derived from either of these sources, no further attention is paid to them. There is something almost absurd in my asking you to accept a thing as right, because my moral sense tells me it is so, or because 1 think that it can be traced to nature. Bentham^ has said that such ex- pressions as moral sense and law of nature are only pretences, under which powerful men have concealed from themselves and others the exercise of arbitrary power, by making a sham appeal to some external standard, when they are really consulting only their own wishes. This may be true of potentates. But though a lawyer might also choose to avail himself of these or similar expressions, he would really be driven, in every case, to support himself by an appeal to an external standard, and one of a very different sort, namely the common experience of mankind. And where conduct is ■ I am not sure that persons who refer the existence of niles of conduct to utility or expediency, might not use the term 'moral law' to describe them. But the term generally implies the existence of an innate faculty. " Fragment on Government, chap. ii. sect. 14 ; vol. i. p. 8 of Collected Works. 74 SOURCES OF LAW. [Chap. IL to be considered, or where the rule of law is obscure or de- ficient, that which mankind at large has regarded as right is a guide it would be presumptuous to neglect, whatever may be the influence which has led us in that direction — our moral faculties, or our uneorrupted nature. 117. The history of these expressions exemplifies this in a very remarkable manner. The general idea of a law of nature is said to be due to the Greek philosophers of the Stoic school. 'According to nature' expressed their idea of moral as well as material perfection ^» But by what test did they discover what was and what was not according to nature ? Simply by that of uniformity. What was the same to all and amongst all they accepted as natural ; what- ever varied they rejected^. So too the Eoman lawyers, before they had learnt the Greek philosophy, had, as is well known, adopted as the result of intercourse with other nations a body of law, whichj under the name of jus gentium, or law common to all nations, they very extensively applied^. When they adopted the notion of a law of nature, they did not abandon these rules, or change them a single whit. There was no necessity to do so ; for the law of nature is only (as has been said) the law common to all nations seen in the light of a peculiar theory*. 118. So too the very expression 'moral law' shews un- mistakeably, that consciously or unconsciously the rules of conduct comprised under it have been formed by habit. The word mos, from signifying what is customary, has come to signify what is right. It was to explain the phenomenon of a common agreement upon this point, that an innate faculty was suggested : and whenever this faculty is called in question, it is only by pointing to this agreement that its existence can be proved, or its extent measured. Principle 119. Nor, I may observe, would it make anv difference of utility. •' ' ' Maine's Ancient Law, p. 54 (first ed.). ^ Grote's Plato, vol. iii. p. 510, u. ' Danz, Lehrbuch d. Gesoh. d. rOm. Eechts, § 46. * Maine's Ancient Law, p. 50 (first ed.). Sec. 117-120.] SOURCES OF LAW. 75 so far as regards the matter now under consideration, were we to drop these terms altogether, and substitute the prin- ciple of utility in their place, as those would have us do who have most strongly attacked them. For however useful it may be, politically speaking, to establish clearly in men's minds that the greatest happiness of all is the true guide of action, the test of conformity to this principle can be no other than public opinion ^. A reference to utility, separated from experience and resting on a bare assertion of the good or evil tendency of a particular line of conduct, is just as powerless to convince, and just as apt to serve as a disguise of arbitrary power, as an appeal to either nature or a moral sense. In whatever dress, therefore, we may choose to put our sentiments, I do not think the lawyer need go beyond actual experience. 120. There are, however, two countries of Europe in which the rules of conduct W€ have just been considering have played a different and more conspicuous part. I have already alluded to the effect of equity on Roman law, and the equity of the Enghsh Chancellors is not wholly dissimilar, and its effects have not been less important. For a fuU and clear exposition of the method by which upon an assumed principle of natural equality, or equity, the Roman lawyers managed to get rid of dogmas and distinctions which belonged to the strict law of Rome, but which were not found in the law common to aU nations, I must refer the student to the chapter on 'Equity^ in Maine's Ancient Law. Our own notion of equity is so far identical with this, that the moral law comes in as an avowed remedy for the in- convenience and inapplicability of an already existing system, ' Bentham admits this. He says : ' Tiiose who desire to see any check whatsoever to the power of the government under which they live, or any limit to their sufferings under it, must look for such check and limit to the source of the Public Opinion Tribunal, irregular though it be, and, to the degree in which it has been seen, fictitious ; to this place of refuge, or to none ; for no other has the nature of things afforded. To this tribunal they must on every occasion apjreal.' Securities against Misrule adapted to a Mahommedan State, sect, i ; vol. viii. p. 562 of Collected Works. 76 SOURCES or LAW. [Cbap. II. But the origin of English equity is in that early stage of history when the idea of law was very incomplete, and the exercise of the judicial function had not been clearly separated from the ordinary exercise of sovereign authority. The decrees of the Court of Chancery were in their origin founded on a sort of remedial power residing in the sovereign by virtue of the prerogative. It was the King^s conscience which was moved by an injustice; and because it was one which was not remediable by the ordinary law, the Chancellor received a commission to remedy it, sometimes from the King him- self, but sometimes also from Parliament ^. Of course it was easy to pass from this to a general commission to redress grievances for which the strict rules of law supplied no adequate remedy, without noticing that thereby power was given to the Court of Chancery practically to fix the limits of its own jurisdiction, by determining in what cases the deficiencies of the common law rendered it necessary for itself to interfere. Whyequi- 121. Notwithstanding this, equity has to a great extent come com- lost in England that feature, which at first sight it would ^tgii!^^ ^ seem easiest to preserve^ namely, its elasticity, Maine ^ considers that this is due to courts of equity having originally adopted certain moral principles, which have been carried out to all their legitimate consequences, and which fall short of the corresponding ethical notions of the present day. I venture to think that it is also due, in part at least, to the very different conception of law itself by modern lawyers, and to the great importance which is now attached to the stability of law, and to the necessity, in order to secure it, for a complete separation of legislative and judicial functions. I do not, of course, canvass the acute and truthful generaliza- '■ Spence's Chancery Jurisdiction, vol. i. p. 408. = Ancient Law, p. 69 (first ed.). Notwithstanding the high authority of Maine on such a point as this, I doubt if equity has become so inelastic as he supposes. I rather think it has taken a fresh start lately ; and that the closer relations of courts of law and equity may have had something to do with a relaxation in the stiffness of both. Sec. 121-124.] SOURCES OF LAW. 77 tion that equity precedes legislation in the order of legal ideas, but I would base it on a far more general principle than the preliminary assumption of fixed ethical rules. 122. Consider the matter from the opposite point of view. Equity precedes legislation in legal history. Why ? Because the idea of law as an inflexible rule without the possibility of rnodification is wholly unsuited to the early notions of the functions of courts of justice. According to a notion which extends far down into our own history, the function of judges is not only to enforce the commands of a soTereign, but under his authority to redress grievances. But it is only when there is a separation of judicial and legislative functions that it becomes possible to distinguish the province of law from the province of morality. Both ideas are comprehended under the term 'justice.' When this separation has taken place, then the flexibility and adaptability to special circum- stances, which are the very essence of the remedial functions of courts of equity, conflict with the idea that the rules to be administered are rules of law, and with the conception of law which now prevails in jurisprudence. 123. Inasmuch however as the rules of equity have a ten- dency under the influence of precedent to become rigid, their elasticity depends on the same causes which give elasticity to the common law : — that they are made by judges in the course of judicial decision ; that they are ex po»t facto and concrete ; and that they are not, like an act of parliament, prospective and abstract^. 124. A very curious problem with reference to equity is In India. being worked out in India. We scorn the exclusive maxims of the Eoman Law, and we emphatically profess to extend the protection of law to all classes of the King's subjects alike. Nevertheless, there are in India enormous gaps in the law. It is not too much to say that there are con- siderable classes of persons whose legal rights are, with reference to many topics, very imperfectly defined: and ' See supra, sec. 98. 78 SOURCES OF LAW. there are many topics affecting all classes on whicli it would be scarcely possible to lay down a single principle wbich there would not be some hope of challenging with success. It has been supposed that in India these gaps are to be filled up by the judge deciding the case according to ' equity and good conscience/ And it has even been said, that all the rules of law which a judge has to apply in India are subject to 'equity and good conscience.' But though in the present state of Indian law some such maxim and some such expedient may be necessary, it is well to be on our guard against the dangers to which it may lead. Constantly criticized by an able bar, always closely watched by a jealous public, generally dealing with suitors who have the energy and means to resent injustice, judges administering equity have been under a restraint as effective, if not as obvious, as judges administering common law. Under these restraints, and with ethical ideas generally accepted in a homogeneous society, as in England, equity may do^ and no doubt has done, very useful work. But in a country like India, where these restraints are almost wholly wanting, and where it is perfectly possible (not to speak of minor antagonisms) that in successive courts af appeal a Hindoo, a Mahommedan, and a Christian might have to sit as judges in the same case, the attempt to apply a system which is assumed to be ethical, and which has only been extensively applied in two countries of the world, might seem somewhat hazardous^. ^ The difficulty of transferring the ideas of European systems of law, together with all their traditional modifications, into Indian courts, is illustrated by a line of argument which I have more than once heard. It is said (and truly said in a certain sense), that all courts of law in India are courts of equity also, and that the law must therefore be administered equitably. And (it is urged) it would be inequitable to apply strictly the rules of procedure, where they would press hardly on particular litigants. No one would think of claiming any special favour on such a ground in the English Court of Chancery. But it is not so easy to explain to a person wholly ignorant of the history of the terms, why, with the principles which they profess to adopt, courts of equity do not more frequently than any other courts relax the rules which they have once laid down. CHAPTER HI. PERSONS AND THINGS. 125. Tte terms 'persons' and 'things' occur very f re- Things quently in law, and it is necessary to try and get some idea imagi- of what we mean by them. I will first deal with the term ■°''^" ' thing.' In its narrowest and strictest sense a thing is a permanent sensible object other than a person. But it is sometimes used to denote any object real or imaginary about which we can speak or think. To its use in this extended sense there can be no objection provided it be imderstood that we cannot give physical attributes to imaginary objects. 126. Objects which are sensible are what we call corporeal, as land, gold, corn, and so forth. But if we include amongst things those objects which we can conceive, we have two classes of things, corporeal and incorporeal. 127. Rights are incorporeal things : and the law deals Things corporeal with them as such. Thus a debt or a patent may be pledged, and incor- sold, and transferred either inter vivos or by will. In other ^"^^'^ ' words, a right may be itself the object of rights. 128. Whilst a right is itself necessarily incorporeal, the object of the right may be either corporeal or incorporeal. Thus if ^ owe a debt to £, the object of B's right is money and is corporeal; but the debt itself treated as the object of pledge, or sale, or bequest, is incorporeal. 80 PERSONS AND THINGS, [Chap. III. Thinga 129. Things are divided into moveable and immoveable ; and im- ^^^ this division corresponds to an obvious physical dis- moveable. tinction. This division of things is not much in use in Things England. English lawyers prefer to divide things into real perso^ial. and personal. A learned modern author suggests that the terms 'real' and 'personal' were not in use prior to the seventeenth century i. But I find them used, apparently as familiar expressions, in the reign of Henry the Seventh ^ It is not unlikely that the terms ' real ' and ' personal ' are con- nected with the division of actions in the Roman law into actions in rem and actions in personam. The actio in rem of the Roman law was founded on what was called a jus in rem; the actio in personam upon a jus in personam. I shall explain the terms ' in rem ' and ' in personam ' more fully hereafter. It is sufficient to say now that a jus in rem is a right of ownership, or a right available like ownership against persons generally; whilst a jus in personam is a right available against an individual or against determinate individuals. Now Enghsh lawyers also divided actions into real and personal, and the real action, like the actio in rem, was based upon a jus in rem, whilst the personal action, like the actio in personam, was based upon a jus in personam. But in the English law there was a further distinction between real and personal actions, a distinction of which the Roman law knew nothing. In a real action the very thing itself could be recovered in specie, and the judgment could not be otherwise satisfied. In a per- sonal action the judgment could always be satisfied by the payment of a sum of money. But further (and this is the point of connexion we are seeking for) a real action could only be brought in respect of immoveables, and hence immoveables got the name of realty. Moveables, on the other hand, were always sued for in a personal action, and got the name of personalty \ 1 Williams on Real Property, p. 7 and note. » Year Book, 6 Hen. VII, fo. 9. ' Bracton says : ' nunc cum sit res mobilis quae petatur, sicut leo, bos Sec. 129-130.] PERSONS AND THINGS. 81 130. In a general way, therefore, real things, in the English law, were things which could be recovered in a real action ; in other words, land and rights over land ; and all things which could not be so recovered were considered as personal : if there were any things the nature of which was doubtful they were set aside as mixed ; and for some purposes of procedure this rough classification was sufficient. But the classification of things into real and personal had to be applied to a purpose for which greater accuracy was requisite. Eeal things at a man's death go to his heir, and personal things to his executor or administrator. Everything in its turn, there- fore, has had to be marked as real or personal ; and the courts in making this notation, though professing genferally to adhere to the old line of distinction, have made some considerable departures from it. For example, certain things affixed to the land, such as machinery and the like, are, nevertheless, sometimes treated as personal. Shares in a railway or canal company are also considered as personal. So is rent actually due. But the right to receive future rent is real. Leases for lives are sometimes real and sometimes personal. Partner- vel asinus, vestimentum, vel aliud quod consistit in pondere vel mensura, videtur, prima facie, quod actio vel placitum esse debeat tarn in rem quam in personam, eo quod certa res petitur, et quod possidenstenetur restituere rem petitam, Sed revera erit in personam tantum, quia ille a, quo res petitur, non tenetur precise ad rem restituendam, sed sub disjunotione, vel ad rem, vel ad precium, et solvendo tantum precium liberatur, sive res appareat, sive non. Et ideo si quis rem mobilem vindicaverit ex quacunque causa ablatam, vel commodatam, debet in actione sua definire precium et sic proponere actionem suam Et undo quia non com- pellitur precise ad rem quae petitur, erit actio in ipsam personam, cum implacitatus per solutionem tantumdem possit liberari.' (Book III. chap. i. fol. 102 b, vol. ii.p. 134 of Twiss's edition.) Bracton here expresses, in the language of the Koman Law, a distinction which was quite unknown in that system. The actio in rem was applicable to both moveables and immoveables, and down to a very late period neither one nor the other could be recovered in specie. Afterwards, under the legislation of Jus- tinian, specific restitution could be ordered in any action and in respect of any kind of property. The distinction between the remedies for the recovery of real and personal property is of German origin. See Gains iv, I, 2 ; Beseler, Syst. d. Gem. Deutsch. Privat-K. § 86 ; Holtzendorffs Encycl. Syst. Th. pp. 526, 547, 554. a 82 PERSONS AND THINGS. [Chap. Ill ship property o£ every kind is personal. And land itself, as soon as it is agreed to be sold^ becomes person9.1 ; whilst money agreed to be laid out in land becomes real. Now therefore that the distinction between the various kinds of actions is abolished it would be difEcult to say more than that real things are those which go to a man's heir, and personal things are those which go to his executor or administrator. Persons. i3i_ Persons are human beings capable of rights. To constitute a human being capable of rights two things are necessary, birth and survival of birth. What con- 132. There are expressions to be found in English law- birth, books which look as if the foetus, or even the embryo, in the mother's womb were capable of rights ^. Thus we find it said that the unborn child may take by devise or inheritance. But I think the true meaning of this is, not that the unborn child really takes, but that the right is reserved for the child until the moment of its birth. This appears also to be the view of the best German jurists^. The framers of the Prussian code state, no doubt, that certain rights, e.g. to be protected from violence, belong to the unborn child ^ : and there is, undoubtedly, a duty generally recognised to abstain from injuring the unborn child, quite distinct from the duty to abstain from injm-ing the mother; a duty which is imposed upon the mother herself. But this may be a duty to which there is no corresponding right, and therefore there is no necessity on this account to attribute any right to the infant. The French code uses expressions which are ambiguous *. But the maxim always relied on by French jurists is ' qui in utero est pro jam nato habetur ^.' This is a fiction, and such a fiction is only necessary on the assumption that birth ' Blackstone's Comm. i, 130. ' TJuger, Syst. d. Osterr. allgem. Land-R. vol. i, p, 233 ; Windschied, Lehrb. d. Pandekten-R. a. 52; Vangerow, Lehrb. d. Pandekten, § 3a. See Dig. i. 5. 7; 50, i6„ lag. ' Land-R. i. x, la ; Dernburg, Lehrb. d. Preuss. Pr.-Eechts, voL i. p. 83. * Code Civ. art. 725, 906. ' Pothier, (Euvres, ed. Buguet, torn. viii. p. 7 ; torn. i. p. 484. Sec. 131-133.] PBRSONS AND THINGS. 83 is a necessary condition of personality. On the other hand, if we take the view that an embryo from the moment of con- ception is a person, we must then, if it should never be born, get rid of it by the contradictory assumption that it never existed. 133. What constitutes birth has been very carefully considered by English lawyers in reference to the very common charge of child-murder. If the child has not been born the charge of murder cannot be sustained. The question, therefore, what constitutes birth is in these cases a very important one. The main circumstance which constitutes birth, so as to render a charge of murder sustainable, is complete separation from the mother^. Nothing is said about maturity, but the use of the word 'child' seems to assume that the foetus must have assumed the human shape. The child must also be born alive. There is no other express requirement. The French law requires that the child should be, what is called, viable^. This expression is vague. It seems to iudicate that the foetus should have advanced to thati stage in which it possesses all the organs necessary to continuous life, and should be in other respects capable of living. But there is always great difl&culty in getting an exact account of the condition of a child dying immediately after its birth, and not very carefully examined by any skilled person '. An attempt has been made to meet this difficulty by a rule that every child born prior to the hundred and eighty-second day after conception, should be presumed incapable of living, and, therefore, of, becoming a person. The Roman law does not (as has been supposed) countenance any such presumption ; and it is open to the very strong objection that it necessitates for its application a determination of the date of conception with an accuracy which is very ' Steph. Dig. Crim. Law, art. 218. The division of the navel string is not necessary. 2 Code Civ. art. 725, 906. ' There seems to be a presumption in favour of viability. See Sirey, Codes anuot^s, notes 5, 6, and 7 to Code Civ. art. 725. G3 84 PERSONS AND THINGS. [Chap. III. rarely attainable. The question whether there should be any requirement o£ vitality beyond the bare survival after the child has left the body of its mother and the acquisition of the external human shape has been much discussed by German jurists, but their opinions are based to a large extent upon the authority of the Roman law ^. 134. There has been some disposition to make it a requisi- tion to the attainment of personality that the child should have cried, but the Code of Justinian expressly declares that this is not requisite, and modern jurists generally take the same view^. Death. 135. A human being ceases to be a person at death. The determination of this event presents no difficulties of the kind we have been considering. If the body is under view there is raTely any difficulty in determining whether or no it has ceased to live. But if a man leaves his home and gives up all communication with his family and friends, so that all trace of him is lost, then it becomes very difficult to determine whether or no he is alive or dead. So also it is sometimes difficult to determine at what exact moment death has taken place, if tbat determination is necessary ^. There are certain rules which are intended to obviate these difficulties, but these belong to the head of evidence. Eights 136. Ricphts and duties are sometimes attached to an ussve- and duties .... . . attached gate of human bemgs m such a way that the individuals eates^of " composing the aggregate are altogether lost sight of ; that gates of persons. ' See the subject discussed at length in Savigny, Syst. d. h. r5m. Eechts, vol. ii. Bell. 3 ; Vangerow, LehrK d. Pandekten, s. 32 ; and particularly Wachter, Pandekten, s. 40. ^ Code, 6. 29. 3 ; Sav. Syst. vol. ii. p. 8. ' There is no such thing in England now as civil death : and there is very little said about it even in our old books. It was of two kinds, that which took place on conviction for certain crimes, and that which took place on becoming a member of a monastic order. See Coke's Reports, vol. ii. p. 48 ; Sav. Syst. d. h. rOm. R. vol. ii. p. 151 ; Dernburg, Lehrb. d. Preuss. Pr.-R. vol. i. p. 80 ; Domat, Liv. prelim. Tit. a. sect. 2. § 12 ; Code Just. I. 3. 56. I. The effect of entering a religious order is very ably discussed by Dr. Friedrich Hellmann in a pamphlet entitled Das Gemeine Erbrecht der Religiasen ; Munich, 1874. Sec, 134-137.] PERSONS AND THINGS. 85 isj the aggregate is looked upon as a single person (a fictitious one of course) to whom the rights belong and upon whom the duties are imposed. Strange as this conception appears to us when we come to reflect upon it, yet it is very- common. As a familiar example of it I will take the case of the University of Oxford. The University of Oxford is an aggregate of persons consisting of the Chancellor, Masters, and Scholars. In common language the University is said to own a large amount of property, to make contracts, to buy and sell, to bring and defend actions. This language is per- fectly accurate. These things are done, and, in the eye of the law, not by any individual member of the University but by the University as a whole. And the complete distinctness of the University, as a person, from the individual members which compose it, is seen by this, that if any member of the University occupies (say) a house belonging to the University, he occupies it, not as being himself owner, but as tenant or licensee of the University. So also if a member of the Uni- versity were to intrude upon the property of the University he would commit a trespass. So also if' I were to make a contract with the University there would be no 'vinculum juris ' whatsoever between myself and the individual members of the University. The contractual relation would exist between me and the fictitious person called the University alone. The University is always present to our minds as the person to whom the rights and duties are attached 1. 137. The attribution of a capacity for rights and duties Rights . .. •i.j.T.iij -1 attached to an imagmary person is not to be looked on sunply as }„ g^riy the resource of an advanced and highly technical system of *™^^ .*" jurisprudence. The idea, though it has received considerable modem development, reaches far back into antiquity. Some * See the Essay on Juristische Personen in Savigny, Syst. d. h. r6m. Eechts, vol. ii. §§ 85 sqq., which is, as usual, moat instructive and in- teresting. The Boman lawyers generally said of such an imaginary person 'personam vice fungitur,' and as regards its rights and duties they expressed themselves thus, ' Si quid universitati debetur singulis non debetur, nee quod debet universitas singuli debent.' Dig. 3. 4. 7. 1. 86 PERSONS AND THINGS. [Chap. III. of the earliest legal conceptions we meet with are those in which rights and duties are attached not to single individuals but to families. Now a family is an aggregate which in early times formed such an imaginary person as I have been describing. In early times the homestead, the cattle, and the household utensils are spoken 'of in law as belonging, not to the individuals who composed the family, but to the family itself. The reason of this I take to have been the simple one that the law did not advance beyond the threshold of the family residence. The rights of the family inter se (if it could be said that there were any) were not yet legal rights : they were disposed of, not by the law, but by the family council. It was enough, therefore, for the law to say that the rights belonged to the family en bloc without defining them any further. But even after the rights of the individual members of the family inter se began to be lec^ally recognised, the conception of the family as the subject of legal rights and duties still remained, and was extended to artificial aggregates. .Juristical 138. Continental lawyers call an imaginary person to which persons, j.jgij^g ^nd duties are attributed a juristical person^- A juris- ceived by -fjical person is generally an aggregate of real persons, but continen- .■,.«.!,• ,• • • i • i tai law- there is no difficulty in creating an imaginary person which not%e ''*' does not contain any real person. Thus under the Roman aggregates ^^^^ there was an interval between the death of a person ofpersoas. ... and the assumption of the inheritance by his successor. During this period the Roman lawyers found it very incon- venient that there should be no one to represent the estate. 1 Thibaut uses the expression 'Gemeinheit,' which Lord Justice Lindley translates 'corporation.' But Thibaut's original definition of a Gemeinheit would hardly coincide with what is called a corporation in the English law. From Lord Justice Lindley's translation it would appear that this definition was modiiied by the author in later editions, but I have not been able to ascertain exactly how. It would seem, however, that Thibaut was disposed to substitute for 'juristical person' the expression 'moral person.' See Thibaut, Syst. of Pandects Law, General Part, s. 113, transl. by Lindley. The same expression is used in the Italian Civil Code, art. 3. This is a new abuse of a term already pretty well misused. Sec. 138, 139.] PERSONS AND THINGS. 87 Accordingly they made the estate itself into an imaginary persoHj or, as the phrase was, ' haereditas personae vice f ungi- tur/ So in order to have some person who could represent the claims of the public they created another imaginary person called the fiscus or treasury. 139. There is a natural tendency whenever we consider How they a group of rights and duties as connected with a particular ed? *"^^* thing to speak of them as belonging to that thing i; For example, if property be given for the maintenance of a hospital we naturally speak of it as 'belonging to the hos- pital ' ; SO if a contract is made with some three or four persons who are jointly carrying On trade we speak of it as a contract ' made with the firm.^ So when a man has become insolvent we speak of the property which is divisible amongst his creditors as 'belonging to his estate.^ So also we speak of rent being due from the land, of an estate being liable for a debt for which it is mortgaged, and so forth. If the rights and duties thus spoken of were really attri- buted to the hospital, the firm, the estate, or the land, there would in each case be a juristical person. But if we examine these cases more closely we shall often, find that there is a natural person to whom the right or duty in question really belongs, and that these expressions are only used to indicate the extent of the right or duty, and how it is transferred. Thus, when we say that an estate is liable for a debt, we do not mean that the owner of the estate is not liable, but that the liability can be enforced by seizing or selling the estate whoever may happen to be the owner, and that on the transfer of the estate this liability of the estate passes over to the transferee. If that is our meaning there is no juristical person, but only the use of a figurative expression which in- dicates shortly the legal situation, but does not fully or accurately describe it. • This tendency is by no means confined to lawyer's and to legal rela- tions. In common language we use such expressions as ' a school gaining a distinction,' or 'a club getting into debt.' 88 PERSONS AND THINGS, [Chap. III. Difference 140. All lawyers agree that juristical persons should be amou'^t"" created to some extent. But there is a difference of opinion continen- ^s to what are juristical persons, and as to what is necessary yers. for their creation. Some persons would allow that the estate of a deceased person is a juristical person ', but would not allow that the public treasury is so. Others again, who would admit the public treasury, would not admit the land subject to burdens. The real question seems to be that just Opinion of indicated. To whom do the rights and duties belong ? Is the lasers, person who in a court of law or in a legal transaction repre- sents those rights and duties acting on his own behalf, or on behalf of some fictitious creation which acts through him ? This is substantially the same question, and it is in this latter form that it is generally put by English lawyers. When an inquiry is made whether a particular thing or aggregate is a juristical person, they always consider one point only, namely, whether or no it has capacity to act. If it has capacity to act it is a juristical person, other- wise not^ Juristical 141. Of course this capacity to act is also an ideal capacity p(,t though it produces real effects. An ideal being can never ho. .rough really act, but it can be represented by a real person who can ''^Jisenta- act, and can create duties and obligations on behalf of the ?■ ' juristical person by way of representation. The act of the representative, though not so in reality, may conveniently be treated as to all its legal effects exactly as if it were the act of the juristical person ; and where the ideal creation has this ^ See Sav. Syst. d. h. rBm. Kechts, s. 89 j TTnger, System d. 6sterr. allgem. Privat-Rechts, vol. i. p. 317 ; Holtzendorff, Jurist. Encyc. s. v. Stiftungen. ^ The figurative language in which lawyers attribute rights and duties to things or aggregates is, of course, very important, because it may, in effect, define the rights and duties themselves. Thus when a judge says that an estate (meaning perhaps a piece of land) is liable, he may intend to assert and to define the liability of the present owner of the estate. So when, in a recent case. Sir William James, by a rather daring use of language, spoke of the estate of a deceased person as a 'co-contractor,' he both affirmed and at the same time limited the liability of the repre- sentatives. See Law Eeports, Chancery Appeals, vol. ix. p. 343. Sec. I40-I43-3 PEESONS AND THINGS. 89 capacity of acting through a representative, EngHsh lawyers allow that it is a juristical person, or, as we call it in England, a corporation^. And the term corporation with us implies the attribution of the capacity to act through a repre- sentative. This is so clear, that when a corporation is created the capacity to act need not be specially granted. So far as it is possible that acts should be done through a representa- tive it will be presumed that a corporation may do those acts, provided that they are consistent with the purpose for which the corporation was created. 142. Corporations in England consist of aggregates of Corpora- persons, but, as appears from what has been already said, the England iuristical person, the corporation, is something totally distinct are always •> r > r > o J aggregates from the persons who compose it: and hence it follows that of persons: no change in the persons who compose the corporation but a produces any change in the corporation. If one shareholder the mem^ goes out of a company which is a corporation and another ^^^^ ^^^ comes in, the corporation still remains the same corporation the cor- as before. The shareholders of the New River Company ^°'^ '° ' have been all changed over and over again since its formation, and yet the juristical person, the corporation, to whom all the rights and duties are attached, has been one and the same continuously from its creation. 143. The view that the individual members of the cor- even poration are not the owners, not even the co-owners, of the the mem- corporate property, which is undoubtedly the true view, is l^ers man- sometimes obscured by the circumstance that the members of property the corporation have in their own hands the management of poration in their ' I am not sure that some questions may not arise on the language of o^"^ ^^- Order 48 a, rr. i, 3, and 8, of the Eules of the Supreme Court which provide that partners may sue and be sued in the name of the firm. It was, of course, not intended to make every firm a corporation, but these rules seem to give a firm capacity to act, and also to treat a firm as the owner of property, and this is going a long way towards making a firm a cor- poration. See also a case where a society which was not incorporated, and which was not a partnership, was notwithstanding held liable to be sued in the name of the society ; Allen v. Flood reported in Law Reports, Appeal Cases of 1901, p. 426. 90 PERSONS AND THINGS. [Chap. III. the property of the corporation, and have also a right to apply the profits of it to their own use. Thus in a municipal corporation, or corporation of a town, the freemen, who are the persons who compose the corporation, have very often the right to regulate the common lands adjacent to the town, and to turn out their own cattle there. So too a shareholder in a railway company has a right to vote at meetings and to receive his share of the profits of the undertaking. Still the freeman has only what is called a jus in alieno solo, just as he might have if he were not a freeman. So the shareholder's right to his dividend is a claim by him against the company, a debt due to him from the company. If he were to help himself to his dividend out of the company^s cash-box he would commit a theft. Corpora- 144. A corporation can, of course, be created by act of created in parliament, and many corporations are so created. The England. ]^|jjg. j^g^g g^jg^ povper to create corporations by letters patent under the great seal. Private persons cannot create a corporation at their own will and pleasure, but under the authority and restrictions of certain acts of parliament any number of persons, not less than seven, may by following the prescribed forms become a corporation 1. Corpora- 145. There is a curious thing which we meet with in English law called a corporation sole. A corporation sole is always some sort of ofBcer, generally an ecclesiastical officer. Rights and duties are frequently attached to an officer for the purposes of his office only. When an officer vacates his office these rights and duties pass to his successors ; and it being convenient to distinguish the rights and duties which attach to a man jure proprio from those which attach to him jure officii, it is permissible to speak of the latter as attached, not to the man, but to his office j just as it is permissible to speak of rights and duties which pass with the land from ' It is a general rule that juristical persons cannot be created except by the express authority of the ruling power given specially or generally. This was a rule of the Eoman law; Dig. Bk. xlvii. tit. 22. See the Italian Civil Code, art. 2. Sec. 144, I45-] PERSONS AND THINGS. 91 owner to owner as attached to the land. But this language is merely figurative, and there is no doubt that, as, in the one case, the rights and duties spoken of as attached to the land are really attached to the natural persons who are successively owners of the land, so, in the other case, the rights and duties spoken of as attached to the office are really attached to the natural persons who are the successive holders of the office. The term ' corporation sole ' is, therefore, as it appears to me, a misnomer. The selection of persons who are styled corpora- tions sole is a purely arbitrary one. The King is said to be a corporation sole, and so is a parson. But the Secretary of State for India is not so ^, nor is an executor ; though there is at least as good reason why both these persons should be treated as corporations sole as a parson. And on an examination of the position of so-called corporations sole it will be seen that they are not -really juristical persons, but only natural persons peculiarly situated as regards the acquisition and incurring of rights and duties^. ^ The Secretary of State for India not only exercises powers but incuM liabilities virtute officii. This is because he represents the dissolved East India Company, of which he is the universal successor. If the conception of a coi-poration sole (with the substitution perhaps of a less ridiculous name) could be extended to all cases where rights and duties were attached to an office it would be convenient. ' This I think is the result of what Grant says about -corporations sole. See Grant on Corporations, especially p. 635. CHAPTEE IV. DUTIES AND EIGHTS. 146. I have hitherto considered what is meant by the term ' law/ where it is to be found, and what are the persons and things to which it relates. I now proceed to consider the relations which arise out of it. Duty. 14.7. Every law is the direct or indirect command of the sovereign authority, addressed to persons generally, bidding them to do or not to do a particular thing or set of things ; and the necessity which the persons to whom the command is addressed are under to obey that law is called a ' duty.' 148. The word ' duty •" does not belong exclusively to law. Thus it is frequently said that it is our duty to revere God, or to love our parents. But in this place, when we speak of duty, we refer only to such duties as arise out of positive law. Right. 149. 'Right' is a term which, in its abstract sense, it is in the highest degree difficult to define. Fortunately, w^here the term is used to describe a particular relation or class of relations, and not as an abstract expression of all relations to which the name may be applied, it is far easier to conceive. Nor is it impossible to explain some of the ideas which the term connotes ; and this is what I shall attempt to do here. 150. Every right corresponds to a duty ; no right can exist unless there is a duty exactly correlative to it. On the other hand, it is not necessary that every duty should have its corresponding right. There are, lq fact, many duties to DUTIES AI^D RIGHTS. 93 which there are no corresponding rights^- For example, there are duties imposed upon us to abstain from cruelty to animals, to serve certain public offices when called upon, and to abstain from certain acts of immorality ; but there are no rights corresponding to these duties, at least none belonging to any determinate person. If it is asserted that a right exists at all in the cases I have put, it must be meant that it belongs to society at large j but, as used by lawyers, the term ' right ' indicates something which is attri- buted to a determinate person or body of persons. 151. Of course, as every right corresponds to a duty, and as every duty is created directly or indirectly by the sovereign authority, so rights are created directly or indirectly by the sovereign authority also. And as the term 'duty' implies that its observance is capable of being, and will be enforced by the power which creates it, so also the term ' right ' implies protection from the same source. 152. A right has sometimes been described as a faculty or power of doing or not doing. A faculty or power of doing is undoubtedly the result of some rights ; for instance, the right of ownership enables us to deal with our property as we like, because others are obliged to abstain from inter- fering with our doing so. But we can hardly, I think, identify the right with this faculty or power. 153. It is essential to every legal duty, and therefore to Eightsand every legal right, that it should be specific. This is necessary specific because otherwise it cannot be ascertained whether or no the command on which it rests has been obeyed. If the legislature were simply to command parents to educate their children, without saying what constituted education, such a law would not be ineffectual, but it could only become effectual because its deficiencies would be supplied by some authority other than the legislature itself. Before we can punish a man for breaking the law something more is necessary than to make education in general terms compulsory. Somebody, ' Austin, Lecture lii. p. 356 (third ed.). 94 DUTIES AND EIGHTS, [Chap. TV. such as a board of education constituted for the purpose, or, in default of such a body, the tribunals which administer the law^ must have power to settle all the particulars which have not been settled by the legislature — the ages at which the children are to be sent to school, the period during which they are to remain, the penalty to be incurred by their not doing so, and so forth. If the defects in the law were sup- plied by a board under the powers conferred upon them there would be legislation on these subjects in the ordinary sense by a competent subordinate authority. If they were supplied by the tribunals there would be legislation of an indirect kind which would be called by the name of interpretation. Sovereign 154. It being moreover the essential nature of a duty no rights, ^^^^ i^ i® *li6 result of a command^ it follows that it is *'*h''^tT* iiecessarily imposed upon some person other than th& person duties. who issues the command. No man, except by a strong figure of speech, can be said to issue commands to himself. Every legal duty, therefore, is imposed by the sovereign body on some person other than itself. 155. It is equally true, though it is a truth by no means so easy to grasp, that every right belongs to a person other than the sovereign body which creates it. This, like most truths which result directly from fundamental conceptions, is scarcely capable of demonstration, yet it would not, I think, have ever been brought into doubt, had it not been for a slight confusion of language, which I shall endeavour to remove. 156. Though the sovereign authority cannot confer upon itself a right against a citizen, it may impose upon a citizen a duty to do a specific thing towards itself, as, for instance, to pay a certain sum of money into the Government treasury ; and this will result in a relation very closely analogous to the ordinary one of debtor and creditor. A tax, or a fine, imposed upon a subject is indeed constantly spoken of as a debt to the Crown, and is recovered by a process analogous to that by which ordinary debts are recovered. 157. But between the so-called rights of the sovereign Sec. 154-158.] DUTIES AND BIGHTS. 95 to a tax, or a fine, and the right o£ a citizen to receive a debt from a fellow-citizen, there are, as it seems to me, essential differences. The citizen holds his right to recover his debt, but can only exercise and enjoy that right at the will and pleasure of another, namely, the sovereign who conferred it upon him. The sovereign power, on the other hand, which imposed the tax or fine, is also the power which enforces it. Moreover, the right to payment of a debt, which is possessed by the citizen, is not only dependent on the will of another for its exercise and enjoyment, but it is limited by that will; and nothing but the external sovereign power can change the nature of the legal rela- tion between debtor and creditor. Whereas, in the case of a tax or fine, although the sovereign has expressed in specific terms, and therefore for the moment limited, the duty to be performed towards itself, it follows from the nature of sovereignty that by the sovereign will the duty may be at any moment changed. And though there is no difiiculty in conceiving the duty -which would arise upon each succes- sive command, it is impossible to conceive a right of so flue^ tuating a character; — not because a right cannot change as easily as a duty, but because we cannot conceive a right as changing at the will of its holder. 158. Looking to the habit that prevails of enforcing those duties which the sovereign body has directed to be performed towards itself by a procedure nearly similar in form to that in common use for the enforcement of duties which have to be performed by citizens towards each other, we should readily understand, that the former class of duties, as well as the latter, had come to be considered as having correlative rights. Nor, when confined to such duties as the payment of taxes or fines, would there be any objection to the extension of the term 'right,' by a sort of fiction, to the claims of the Crown. It is, however, with reference to political discussions that the distinction becomes of importance. Knowing the respect which men have for legal rights, and the feeling 96 DUTIES AND EIGHTS. [Chap. IV. which all men have that legal rights ought to be secure, politicianSj especially the partisans of authority, constantly base the claims of the sovereign body on the simple asser- tion that they are rights. Nor (as in a phrase to which I have already adverted) are the partisans of liberty, when it serves their turn, reluctant to assert that the people have rights against the Government; though it is more easy to strip off from these (so-called) rights the appearance of being founded in law. If both sides were ready with the answer, that these are only rights in the sense of being sanctioned by morality, or the general usages of mankind; and that they are not rights in the sense in which we speak of rights of property and personal security ; then, I think, the assertion would lose a great part of its force, and the discussion would be more easily reduced to its true ground, namely, what is expedient for the Welfare of the people at large ^. 159. Austin sums up the characteristics of right, on which I have last insisted, as follows " : — ' To every legal right, therefore,' he says, ' there are three parties : the sovereign government of one or a number which sets the positive law, and which through the positive law confers the legal right, and imposes the relative duties : the person or persons on whom the right is conferred : the person or persons on whom the duty is imposed, or to whom the positive law is set or directed.' ' The proposition that a sovereign body has no rights and is not subject to duties has been denied. For the reasons stated in the text I adhere to the Tiew which I had already expressed. As instances to the contrary are given the right of the King to take criminal proceedings, and the right of the subject to proceed by way of Petition of Eight. That the King himself may be party to a proceeding is not denied, but this he may well be without the assertion of any right vested in that body which constitutes the sovereign body in Great Britain ; and as to the proceedings by way of Petition of Right, they seem to me to be carefully framed so as to avoid giving even the semblance of a judgment against the Crown. If there is a judgment against any one it is against the Commissioners of the Treasury. See 23 & 24 Viet., u. 34. a. 14 ; Holland's Jurisprudence, 4th ed., p. no; i Kent, Comm. 297, note c. (There is some error in the reference given in Kent's note.) " Lect. vi. p. 291 (third ed.). Sec. 159-163.] DUTIES AND RIGHTS. 97 160. Rights generally exist in respect of some specific Some person or thing which is called the object of the right. For "fye no example, the right of the purchaser of a house to have the.'^®*®^'^'' house delivered to him by the vendor, or the right of a master ject. to the labour of his hired servant. But there are some rights which have no determinate object, as, for example, the right of a man to his good name. Rights which have no determinate object are rights to forbearances merely '. 161. Every right resides in a determinate person or persons. But all and whenever a duty is to be performed towards or in respect a deter- of a determinate person that person is invested with a riffht ^. '"''^**® ^ -"^ " person or 162. Making the various combinations which are possible, persons. we see that we may have (i) rights of persons over persons; Law of (2) rights of persons over things ; (3) duties of persons to act and or forbear in respect of persons ; (4) duties of persons to act *h™g^- or forbear in respect of things. Laws which concern, or which chiefly concern, the rights and duties of persons in respect of persons, have been sometimes classed together and called the law of persons ; and laws which concern, or which chiefly concern, the rights and duties of persons in respect of things, have been likewise classed together and called the law of things. 163. The chief, in my opinion the only, use of a division Rights of of law into the law of persons and the law of things is as and a convenient arrangement of topics in a treatise or a code. *"'"S^' ^^ « ^ erroneous As used for this purpose I shall speak of it hereafter. But classifica- by slightly changing the terms in which this classification is expressed, Blackstone has introduced an important error, which it is desirable to notice here. He speaks not of the law of persons and of the law of things, but of rights of persons '■ Austin, Lect. xv. p. 400. ' J. S. Mill (Essays, vol. iii. p. 228) objects to this view of a right that it compels us to say that a prisoner has a right to be imprisoned. I do not think so. When the law has a human being for its object, there is no duty to be performed for or towards that being. The human being is looked upon as airpiaaiiros ; or, as Heineccius puts it (Elem. Jur. i. 135), in the case of the filius familias, respectu patris res habebatur. This was the general condition of slaves. See Austin, Lect. xv. p. 398. H 98 DUTIES AND RIGHTS. [Chap. IV, and o£ rights of things^. Rights of persons there are undoubtedly ; for all rights are such. There may be also rights over things^ and rights over persons j but rights of, that isj belonging to, things, as opposed to rights of, that isj belonging to, persons, there cannot be ^. Eights in 164. Sometimes a right exists only as against one or personam, more individuals, capable of being ascertained and named; sometimes it exists generally against all persons, members of the same political society as the person to whom the right belongs; or, as is commonly said, somewhat arrogantly, it exists against the world at large. Thus in the case of a contract between A and B, the right of A to demand performance of the contract exists against B only; whereas in the case of ownership, the right to hold and enjoy the property exists against persons generally. This distinction between rights is marked by the use of terms derived from the Latin : the former are called rights in personam ; the latter are called rights in r^m. 165. The term ' right in rem ■" is a very peculiar one ; translated literally it would mean nothing. The use of it in conjunction with the term 'in personam' as the basis of a classification of actions in the Roman law has been explained above ^, and its meaning will be further illustrated by two passages in the Digest of Justinian. In Book iv. tit. %. sec. 9, the rule of law is referred to — that what is done under the influence of fear should not be binding : and com- menting on this it is remarked, that the lawgiver speaks here generally and ' in rem/ and does not specify any par- ticular kind of persons who cause the fear; and that there- fore the rule of law applies, whoever the person may be. Again, in Book xliv. tit. 4. sec. 2, it is laid down that, in what we should call a plea of fraud, it must be specially stated whose fraud is complained of, 'and not in rem.' On ' Analysis (passim) prefixed to the earlier editions of the Commentaries. ^ Of course 'persons' here include 'juristical persons.' ' Supra, sect. 129. Sec. 164-168.] DUTIES AND EIGHTS. 99 the other hand, it is pointed out that, if it is shown whose fraud is complained of, it is sufficient; and it need not be said whom the fraud was intended to injure; for (says the author of the Digest) the allegation that the transaction is void, by reason of the fraud of the person named, is made 'in rem.' In all these three cases 'in rem' is used as an adverb, and I think we should express as nearly as possible its exact equivalent, if we substituted for it the English word / 'generally.' In the phrase 'right in rem' it is used as an adjective, and the equivalent English expression would be a 'general right'; but a more explicit phrase is a 'right availing against the world at large ' : and if this, which is the true meaning of the phrase 'right in rem,' be carefully remembered, no mistake need occur. On the other hand, if we attempt to translate the phrase literally, and get it into our heads that a thing, because rights exist in respect of it, becomes a sort of juristical person, and liable to duties, we shall get into endless confusion. 166. The term ' right in personam,' on the other hand, means a right which can be asserted against a particular person, or set of persons, and no others. 167. The persons to whom a right in rem belongs may be changed to any extent within the limits allowed by the law, but the persons upon whom the duty corresponding to a right in rem is imposed cannot be changed, because all persons are under that duty. Either the persons to whom a right in personam belongs, or the persons on whom the duty corresponding to a right in personam is imposed, may be changed within the limits allowed by the law ^. 168. I will now endeavour, not without misgiving, to Meaning explain the term ' status ' or ' condition,' about which much status or condition. 1 It is necessary to distingtush carefully between a right in rem and a (so-called) real right. A real right is a right over a specific thing (a jus in re, as will be explained hereafter). Thus a right of ownership is a real right ; it is also a right in rem. But a right to personal safety is not a real right, though it is a right in rem. The other use of the term 'real,' as opposed to 'personal,' has been explained above, sect. 129. H % 100 DUTIES AI^D RIGHTS. [Chap. IV. has been written^ but, as the writers themselves generally confess, without much result. I shall confine myself to the use of these words by modern English lawyers. 169. It will, I think, clear the ground if we remember that rights and duties may depend, either upon the previous assent of the parties affected by them, or they may be in- dependent of that assent. When I say that they may depend upon the previous assent of the parties affected by them, I mean this : — that without such assent they would not come into existence j the assent of the parties is not the cause of their existence, but the sine qua non. 170. So there are rights and duties which, though they depend, in the sense above stated, on the assent of the parties affected by them, will, nevertheless, when they have once come into existence, not be changed, or prolonged, or ended at the desire of the parties. 171. And again, there are other rights and duties which not only depend on the assent of the parties affected by them, but which remain dependent on that assent, in this sense — that they may, at any time, if the parties assent, be changed, prolonged, or ended. In the latter case they are said to depend upon contract. 172. Lastly, there are rights and duties which are attached to persons in common with the whole community : there are other rights and duties which are attached, not to the whole community, but to every member of certain classes of persons in the community : and there are again other rights and duties which are attached only to individuals and not to the whole community, or to any classes of it. 178. Of the rights and duties which depend upon the assent of the parties affected by them, some may depend upon the assent of an individual, others may depend upon the concur- rent assent, the consensus as it is called, of several individuals. 174. The rights and duties which attach to the com- munity generally might conceivably depend upon assent, but never upon contract. Those which attach to certain 860.169-177.] DUTIES AND EIGHTS. lO'l classes may, or may not, depend upon contract. Those also '^ which attach to individuals may or may not depend upon contract. 175. As an example of the rights and duties attaching to the members o£ the community generally, I may give the right to personal safety, and the duty to abstain from trespass. Most persons enjoy this right and are subject to this duty by reason of birth. But a person may acquire this right and become subject to this duty by his own act, when a foreigner comes to reside in this country. As an example of the rights and duties attaching to a class, and not dependent on contract, I may give the rights and duties of a soldier as such. I may observe that a soldier, though he generally gives his assent to enter the army, never makes a contract on that occasion. As an example of the rights and duties attaching to an individual, not as a member of the community, or as one of a class, and dependent on contract, I may give the rights and duties of A who has agreed with £ to work for him. As an example of the rights and duties attaching to an individual, not as a member of the community, or as one of a class, and not dependent on contract (an example which it is not easy to find), I may give the rights and duties of Lord Hobhouse as commissioner for settling the disputes in Epping Forest under the 41 & 42, Vict. c. 213. 176. Now when we speak of 'status' or 'condition'' we always mean, I believe, some aggregate of rights and duties attached to a person, and the difficulty there is about ex- plaining the meaning of the word ' status ' or ' condition ' arises from its being used sometimes for one such aggregate and sometimes for another. We may apply it to the aggre- gate of rights and duties which attach to a man as a member of the general community. It would be permissible to speak of the ' status ' or ' condition ' of a citizen. 177. But the word ' status' or ' condition' is also, and more generally, used to express the aggregate of rights and duties which are attached to a person as one of a class. Thus 102 DUTIES AND RIGHTS. [Chap. IV. we may speak of the ' status •" or 'condition^ of a parent, a husband, a wife, or a child. 178. But I do not think that, where there is any attempt at accuracy, we use the word ' status ■" or ' condition ' to express any aggregate of rights and duties which is capable of being changed, prolonged, or ended at the desire of the persons who are affected by them, so as to be always under their control. The rights and duties of a master or a servant in modern times, for example, are not usually described as a ' status ' or ' condition.^ They are what are called ' mere matters of contract ^.' On the other hand, the rights and duties of parent and child are only to a very small extent under the control of the parties, and are usually described as a ' status ■" or a ' condition." The rights and duties of husband and wife are coming more and more under their own control, and, therefore, we say that they are passing from ' status ■" or ' condition ■" to contract. 179. Another mark which will serve to distinguish ' status ' or 'condition,'' if we use these terms in the sense above suggested, is that breaches of the duties comprised in them do not give rise to that particular kind of remedy which the law provides for breaches of contract, even when the rights violated depend upon a contract for their existence. There would in many cases be no difficulty in giving this remedy. There is no reason why a husband should not sue his wife to • SlaTery is usually described as a status or condition. If in any country slavery were a recognised institution the status of slavery might he acquired by assent. And in any country the liberty of an individual may be largely curtailed, either by his assenting to belong to a particular class, as, e.g. a soldier, or by his making a contract, as, e.g. a domestic servant. Consequently the line between slavery and free service is not one which is easily dravyn. Bentham thinks that the distinguishing mark of slavery is the perpetuity of the service (see Works, vol. i. p. 344). I am disposed rather to attach importance to the consideration whether the class is put under some degrading disabilities not necessary to the performance of their duties under their masters. I may observe that recently the Legislature has interfered a good deal between masters and servants, imposing certain liabilities on the master for the px-oteotiou of the servant which the master cannot get rid of. Sec. 178-183.] DUTIES AND EIGHTS. 103 compel her to return to him on the contract made at the marriage. But this is never allowed. He may sue her, but in a different way^ The contract) as it were^ comes to an end as soon as the condition is brought into existence. Even when a husband and wife enter into what is called a deed of separation, which is a formal contract affecting extensively their mutual rights and duties, neither of them can sue the other upon the promise which it contains ^, 180. It will now be seen what is meant by the saying so often quoted that the progress of society is from status to contract. What I think is meant isj that the rights and duties which are attached to individuals as members of a class are coming gradually more and more under the control of those upon whose assent they came into existence j and that the remedy for any breach of them is more frequently now than formerly the ordinary remedy for breaches of con- tract. This is obviously the case with the rights and duties which attach to master and serva,nt : and it is even begin- ning to show itseK very strongly in the relations of husband and wife. 181. Duties are either to do an act or to forbear from doing Duties an act. When the law obliges us to do an act the duty is negat^e°'^ called positive ; when the law obliges us to forbear from doing an act, then the duty is called negative. 182. Duties are further divided into relative and absolute. Eelative Absolute duties are those to which there is no corresponding jute. right belonging to any determinate person or body of persons ; as, for instance, the duty to serve as a soldier, or to pay taxes. Relative duties are those to which there is a cqr^ responding right in some person or definite body of persons ; as, for instance, the duty or obligation to pay one's debts. 183 ^. Duties are also divided into primary, and secondary Primary, or sanctioning. Primary duties are those which exist per se, dary^or°" ' This was the law until recently. But another step in reducing j marriage from Status to contract has been taken in the Married Woman's Property Act of 1883. ^ Austin, Lect. xlv. p. 787 (third edition). 104 DUTIES AND RIGHTS. [Cbap. IV. and independently of any other duty; secondary or sanc- tioning duties are those which have no independent existence, hut only exist for the sake of enforcing other duties. Thus the duty to forbear from personal injury is a primary one ; hut the duty to pay a man damages for the injury which I have done to his person is secondary or sanctioning. The rio'ht which corresponds to a primary relative duty is called a primary right. The right which corresponds to a secondary or sanctioning duty is called a secondary or sanctioning right. 184. The series of duties in which are comprised the original primary one and those which exist merely for the purpose of enforcing it^ very often, indeed generally, extends beyond two. Thus I contract to build you a house; that is the primary duty. I omit to do so, and I am, therefore, ordered to pay damages ; that is the secondary duty. I omit to pay the damages, and I am therefore ordered to go to prison ; that is also called a secondary duty, though it comes third in the series. And if, as we are at liberty to do, we look upon the duty to pay damages as now the primary one, the expression is not incorrect. The terms primary and secondary will thus express the relation between any two successive terms of the series. Obhga- jgg Where the duty is relative, that is, where there is tions. _ •' ' ' a right corresponding to the duty, and where this cor- responding right is a right available, not generally, but against a particular person or persons (not in rem but in personam), the duty is called an obligation i. 186. The secondary or sanctioning duties which enforce primary absolute duties are themselves always absolute; that is to say, there is no right to enforce such duties belonging to any determinate person or body of persons other than the sovereign body. ' It is I think a matter of regret that the word ' obligation ' is not adopted as a technical term of English law in the sense above indicated, instead of confining it to a small class of contracts. We certainly require some general term to express the relation to each other of two persons, one of whom has a specific duty to perform in respect of the other. Sec. 184-190.] DUTIES AND EIGHTS. 105 187. On the other hand^ secondary or sanctioning absolute duties are used to enforce primary relative duties also. Thus the primary relative duty of a servant to his master is some- times enforced by the provisions of the criminal laWj by means of a fine or imprisonment; and as these relative duties have, generally speakings each their relative secondary or sanctioning duty or obligation also, they are in such cases doubly enforced. Thus if a man's property be wilfully in- jured, there arises the absolute duty to suffer the punish- ment for mischief or trespass, and the relative duty or obligation to make compensation to the party injured. 188. Secondary or sanctioning absolute duties are for the most part the pains and penalties imposed by the criminal law. I shall have occasion to discuss hereafter how far they are resorted to in civil procedure. 189. Primary relative duties correspond either to primary rights in rem, or to primary rights in personam. Those which correspond to primary rights in rem are for the most part negative; that is to say, they are duties to forbear from doing anything which may interfere with those rights. Their general nature may be best seen by considering the nature of the rights to which they correspond. Thus there are the large classes of rights comprised respectively under the terms ownership, possession, personal liberty, and personal security. These are all primary rights in rem, and the corresponding duties are to forbear from acts which infringe these rights. Primary relative duties corresponding to rights in personam are chiefly those which are created by contract. The rights comprised in the relations of family, of husband and wife, of parent and child, guardian and ward, and other similar relations, are partly primary rights in rem, and partly primary rights in personam. Thus the right of a father to the custody of his child is a right in rem; the conjugal rights of a husband over his wife are rights in personam. 190. Secondary or sanctioning relative duties, which arise on the non-observance of primary ones, are for the most 106 DUTIES AND EIGHTS, part penalties and forfeitures whicli are enforced by civil as distinguished from criminal procedure. Sanctions. 191. In speaking of those duties which have no inde- pendent existence, but only exist in. order to enforce other duties, I have resorted to the somewhat clumsy expedient of calling them ' secondary or sanctioning/ in order to keep in view both their characteristics, — that they exist only for the sake of enforcing other duties, and that they enforce these duties by means of a sanction. 192. It is desirable to conceive clearly the nature of a sanction. A command, as Austin has pointed out ^, ' is a sig- nification of desire, but a command is distinguished from other significations of desire, by this peculiarity — that the party to whom it is directed is liable to evil from the other in case he comply not with the desire.^ And, as every law is a command, every law imports this liability to evil also, and it is this liability to evil which we call by the name of sanction. Duty is hence sometimes described as ob- noxiousness to a sanction, and it is no doubt a correct description from one point of view. '■ Lect. i. p. 91 ; Lect. ixii. p. 457 (third edition). CHAPTER V. ON THE EXPRESSION OP THE LAW. 193. Were the law ideally completej every command with Inade- its appropriate sanction would be expressed clearly and fully the ex ° by the sovereign authority. But this not having been done Pj^®^p°" °* a great deal of the time of lawyers and judges is occupied in the endeavour to arrange and interpret obscure and conflicting ruleSj and to make these rules wide enough to cover the cases which have arisen. We are perpetually in search of some clear and authoritative expression of the law^ which expression we very rarely find. 194. This unsatisfactory condition of the law is frequently inade a reproach to lawyers, and the reproach is not altogether unfounded. A good deal of laWj especially in England^ has been made by lawyers, and they might have done the work better. But under this reproach there generally lies the suggestion that lawyers have done the work badly because they are lawyers : and that laymen would have done it with greater success. Make up your mind what you want to say, and say it, is thought by many to be a maxim Worth volumes of jurisprudence-, and to be sufficient to solve all difficulties. This is a mistake. The adaptation of language to the endless variety of circumstances and the complicated situations of an advanced civilisation, is one of the most difficult tasks to which human ingenuity can be applied. And if lawyers have 108 ON THE EXPRESSION OP THE LAW. [Chap. V. not accomplished this difficult task satisfactorily, it is not because they have pursued their special studies too closely, but because they have not pursued them closely enough. The setting apart of the study of the law as a separate profession, a separation which we find in every civilised community, clearly shows that it is only persons specially educated who are likely to perform even tolerably well the task proposed. The only successful legislation has been the work of lawyers. The talk one hears about the advantages of an appeal to common sense from the refinements and intricacies of law is, when you come to examine it, nothing more than the suggestion of an ap- peal from knowledge to ignorance. The knowledge of lawyers may be at a low ebb. Just now in England I think it is so. But the knowledge of laymen on legal subjects is at zero. You might (as Ihering says) just as well go to a carpenter for a coat, or to a tailor for a pair of boots, as go to a layman for your law^. If the law is bad it must be made better by skilled persons and not by unskilled, 195. It was Bentham's grand mistake, that he failed to perceive this, and it was this failure which shipwrecked many of his finest efforts. By the well-founded indigna- tion which he felt for legal abuses he was led to try and throw the lawyers on one side. He not only thought that they were corrupt, in which opinion he may have been correct, but he thought that all their methods were mere contrivances to conceal their corruption. He dismissed all their labours in one sweeping condemnation, and determined to begin the work afresh. For fifty years at least he laboured hard to improve the law. Yet he accomplished scarcely anything. The Pannomion, or complete body of laws, which he pro- jected, is but a skeleton, and that an incomplete one. Duties are igg. H jg certainly surprising how little has yet been done implied ""e sed ' ^^^ *^^^^* ^' ^°'^' ■^®°^*^' ^- 37- "^^^ whole section Is most instruc- tive, showing the true functions of law and la-wyers. I have paraphrased it in an article in the Law Magazine, vol. iii. p. 281, to which I ask leave generally to refer. Sec. 195-198.] ON THE EXPRESSION OF THE LAW. 109 by any one towards expressing the legal duties which it is incumbent upon us to perform. The duties which have been most nearly expressed are those the branches of which are called crimes. But even here the form of the expression is a definition, not of the primary duty, but of the breach of it. It is nowhere said in positive law, 'thou shalt not steal,' but whoever does such and such an act is guilty of theft; we are nowhere bidden by the sovereign authority not to kill, but whoever causes death under certain circum- stances is guilty of murder, or manslaughter, or culpable homicide. The expression is in these cases not the less effec- tual, but I draw attention to the form of it as remarkable. 197. None of the ordinary duties of daily life are anywhere Not very fully expressed, and most of them are not very distinctly implied, implied. We should look in vain for any formulae fixing accurately the mutual duties of parent and child^ husband and wife, guardian and ward ; for any exact statement of the acts which are forbidden as hurtful to the person, property, or reputation of others ; even for any very precise rule as to the payment of debts, or the performance of contracts. It is only when a breach of these duties is complained of that any attempt is made to ascertain them with exactness ; and even then the inquiry almost invariably assumes that, if the sovereign au- thority had expressed itself, it would, as in the ease of crimes, have defined the breach of duty, and not the duty itself. 198. Take for instance those duties which correspond to the Not stated right of ownership, of personal liberty, and personal security, g^ne"" " Even a writer like Blackstone, who professes to set before his readers a complete and exhaustive view of the English law, scarcely touches upon them at all. He does not, and could not wholly overlook them. He appears to consider (rightly enough) that the discussion of them would properly fall under the head of the rights to which they correspond ^- Considering that such rights would belong to a man even in a state of nature, he calls them absolute rights ; and if it were > Commentaries, yol. i. p. 124. 110 ON THE EXPKESSION OF THE LA"W, [Chap. V. possible that a maa in a state of nature could have any rights in a legal sense, there is not the least reason why they should not be so called ; though of course the word ' absolute ' would then mark an antithesis different from that which I have used the word to express. But what does Blackstone, after having given them this name, tell us about these rights ? He plunges at once into the consideration of political Hberty, of Magna Carta, Habeas Corpus, taxation, the prerogative, and the right to carry arms. Not a word about rights in any legal sense ; that is, rights corresponding to duties imposed upon individjuals. At one time he refers vaguely to such rights, but only with an observation that their nature will be better considered when he comes to treat of their breach. This takes us to the Third Book, which professes to treat of 'Private Wrongs,' but we find that nearly the whole book is taken up with a description of the different courts of law and procedure. Even when he professes to discuss the wrong, or violation of the right, his attention is absorbed almost entirely by dis- tinctions between the forms of action suitable for enforcing the remedy which the party wronged has against the wrong- doer. Nearly all that Blackstone has to say anywhere besides this, even about so important a topic as ownership, relates to the transfer of it, and the various modes in which the rights comprised under that term may be apportioned. The nature and extent of the rights themselves are passed over nearly in silence ^. ' Though the scantiness of expression to which I here advert is a feature of general jurisprudence, and though this tendency to confound the rights which protect person and property, so far as they are the subject of civil procedure, with the forms of pleading, is observable in other systems, it has had a special influence in English law. It would not be convenient here to trace the connexion between procedure and the evolution of law, but it will suggest itself to any one who reads the account given in books on pleading, of the ' original writ,' and the ' action on the case.' See Stephen on Pleading, seventh ed. , chap. i. and the note ad flnem. With the narrow notions of courts of civil procedure on this subject in early times, we may contrast the maxim of the criminal law, that where a statute forbids the doing of a thing, and provides no special sanction, the doing of it is always indictable. Bacon's Abridgement, Indictment (E). Sec. 199-201.] ON THE EXPEESSION OF THE LAW, 111 199. Other writers have escaped the confusion into which or other Blackstone has fallen between the legal rights of subjects as against each other, and the (so-called) constitutional rights of subjects against the government ; but no writer^ whose opinion is acknowledged as authoritative in courts of law, has yet attempted to put into an express form those duties which we all acknowledge the necessity to observe, and upon which we depend for the security of person and property. No such writer has attempted to ascertain, with anything approaching to accuracy or completeness, what constitutes a wrong, or breach of such duties. Even where the sovereign authority has taken upon itself the task of promulgating its commands in a complete form, by means of a code, we find that little progress has been made in this respect. Thus the French Civil Code, while it also abstains from defining rights, is no more explicit on the subject of wrongs than Blackstone on the subject of civil injuries, to which they correspond. We are told that whoever causes damage to another by any act, is under the obligation to repair it ^. It will be observed that here also the expression is of the secondary obligation only, and it is so vague as to give us scarcely any assistance in ascertaining the primary obligation even by inference, 200. No doubt it is this absence of clear expression on the part of the sovereign authority of the duties which it desires to have performed which has caused people sometimes to forget the principle stated above, that all legal duties derive their force from the sovereign authority alone. 201. This neglect of the expression of the law could never Expres- have occurred were it not (as I have already explained ^) that necessary the administration of justice between man and man does not *<> admm- require that the laws of a country should have received any of justice. On the subject of this note I may be allowed to refer to an article in the Law Magazine, vol. iii. p. 410 sqq. ^ Code Civil, art. 1382. I shall discuss this definition more fully hereafter. ^ Supra, sect. 25 sqq. 112 ON THE EXPRESSION OF THE LAW. [Chap. V. full expression. All that the judge absolutely requires is authority to settle all disputes which come before him. In every civilised country the judge will settle all such disputes, whether the law is clearly and fully expressed or not; and even when it is not expressed at all. A tribunal altogether without lawj though scarcely within our experience, is not a contradiction. The question, therefore, how far the precision of legal rules shall be carried, depends upon how far a greater or less precision will produce a more satisfactory administra- tion of justice — a question which, I imagine, ultimately turns upon how far your fixed rules are likely to produce a better result than the unfettered discretion of your judges. Con- sidering the strong dislike which is felt to constant legislative interference, and the frequent recurrence of legislative failures, we may be permitted to doubt whether Bentham did not go too far in wishing to dry Up all sources of law except imperial legislation, and thus to give to that source a new and vastly increased activity. At the same time, however, it is obviously desirable that the rules of law, so far as they go, should be as short, as simple, and as intelligible as we can make them. It is possible that the law may be too precise in detail, but it is impossible that it can be too clearly expressed. Very little 202. The law of England has grown up almost entirely law in the outside the councils of sovereigns and the deliberations of statute ^Yie legislature. Most of it is to be found in the law-reports and in a few authoritative treatises. It would surprise any one not accustomed to such inquiries to find how little of the law which regulates our daily life is to be found in the statute book. This judge-made law consists of certain principles ex- A con- pressed for the most part in technical terms. A considerable portion of portion of these terms, and that the most intelligible, is the law the common property of the western nations of Europe, and of their common r r j r j property descendants scattered throughout the world. They have also ofciyilised j ■ j. -n ■ • mi • tt nations, spread mto itussia, mto Turkey, into India, and into Japan ^. 1 In Eussia, Turkey, and Japan, recourse has generally been had to the French law, especially the Code Civil. In India the language has been Sec. 202.] ON THE EXPRESSION OE THE LAW. 113 Everywhere, of course, we find local Yariations, but we find very few points of entirely new departure. There is scarcely a topic dealt with in this book which has not been discussed by the lawyers of every country in Europe, and upon which the views of any single writer might not be accepted every- where if they commended themselves to our understanding. Hence we seek in the law and legal literature of other countries enlightenment as to the law of our own ; and with this aid we endeavour to arrange and to express our legal principles, and to define accurately our technical terms. This it is which, as I can conceive, elevates law into a science. No doubt a good deal of what is called the science of juris- prudence is occupied in ascertaining the meaning of words, and this has been sometimes made a reproach. The reproach seems to imply that the inquiry is one into which it is not worth while to enter. In this I cannot agree. In law, words are the instruments not only of thought but of action. They are the means by which our conduct is tested when it is challenged by human authority ; and by which we have to guide our actions when we desire to fulfil our duties as citizens. borrowed from English sources, scarcely, I fear, to the advantage of our fellow- subjects in the East. CHAPTEE VI. THE CEBATION, EXTINCTION, AND TEANSFEB OE LEGAL RELATIONS. 203. Every law afEects the legal relations of those to whom it is addressed, by the creation, extinction, or transfer of rights or duties. 204. Eights and duties can be created by the sovereign authority when and how it pleases, either directly, by a com- mand that they shall exist, or indirectly, as the pre-arranged consequences of certain sets of circumstances which we call events. 205. So too rights and duties may be extinguished directly, or their extinction may be the pre-arranged consequence of certain events, 206. Rights and duties already in existence are, in the view of the law, things, and they are within certain limits capable of being transferred from one person to another. This transfer may likewise be made either directly by a sovereign command that they shall be transferred, or indirectly as the pre-arranged consequences of certain events. Events 207. Rights and duties are not often created, transferred, happening ^^ extinguished directly, but their creation, transfer, and "egalrela- ^^^iiiction are generally the pre-arranged consequences of tions are certain events ; and a great part of the law is taken up in 3.1tGr6(i the enumeration and description of those events. Some of these events are, indeed, so familiar, and so well ascertained. THE CREATION, ETC., OF LEGAL RELATIONS. 115 that we have only to name them. Death, for example, is one o£ the events upon which rights and duties are created, transferred and extinguished : and when we say that a man's rights of ownership are transferred at his death to his heir, the description of the event upon which the transfer depends is complete. But there are many cases in which the law Legal de- 1 • 11 1 I. 1 1 • <• termina- must determme, not merely the result of the event, but, ii tion of the we are to exclude uncertainty, the nature of the event itself, ^^ese** " For example, birth is an event upon which rights and duties events, are created, extinguished and transferred. We are told (for example) that a contingent estate given to an unborn son becomes a vested estate upon the birth of that son, but we have still to ask — what is birth ? And there is so much room for controversy about this, that it has been found necessary ^ to lay down rules on the subject, as I have already stated. There is a vast number of events which the law has more or less accurately ascertained, as, for example, fraud, contract, sale, pledge, tort. 208. The events which I have just now mentioned, ex- Legal and cept the last, are events of which all persons have, or think descrip- they have, some conception. And some of these events have g^'^e been discussed and defined for other purposes than those of event. law. In such cases, therefore, (and they are very numerous,) we get more than one description of the same event ; I mean more than one accurate description of it. We have frequently also a large number of confused popular meanings attached to the same expression. 209. It would be very convenient if expressions used to Desirable describe events having legal results could have meanings only one attributed to them upon which all men could agree, or, at t-g^"^" least, upon which all accurately speaking men could agree; for then it would not be necessary to define expressions ^ That is, practically necessary. But observe that without any such rules the courts would still have decided without hesitation whether or no the event had happened. The question would have been called one of fact and not of law (see sect. 25 sqq.) ; that is, the standard of determin- ation would have been not law, but experience. I 2, 116 THE CREATION, EXTINCTION, AND [Chap. VI. separately for the purposes of law. But since this is not the case, and since the law has to range through a variety of conceptions, moral, physical, and psychological, it is neces- sary, in order to obtain precision, to define beforehand the expressions used. If then our definitions are to some extent arbitrary, it is to be regretted, but cannot be avoided. An ambiguous expression is generally a worse evil than an arbi- trary definition, and that, 210. It is obviously advantageous to use a popular ex- the popu-' pression according to its popular acceptation ; and where lar one ; proper attention is paid to legal phraseology this acceptation is, if possible, never departed from. If from the vagueness or obscurity which attaches to the popular expression it is necessary to attach to it a special acceptation^ it is then best if not, -to attach to it that acceptation which has been attached to it then an accurate by scientific men generally : and if this again is not possible, ojjg . then the law must define the expression for itself. Some- in the last times it is better, instead of giving a new meaning to an old legal one. expression, to invent a new expression altogether ^- 211. Clearness and brevity (which is itself a condition of clearness) can only be attained by great care in the choice of legal expressions ; and above all, by consistency in their use. Far too little attention has been paid to this subject by English lawyers ; and until our legal language has been rectified, all attempts to remodel English law must be unsuccessful ^. 212. It is not unusual to eke out legal expressions by using ■ The use made of Latin terms derived from the Roman lawyers, or from commentators on the Roman law, is due to the accuracy with which these terms have been explained. They have been used (as Ihering says somewhere) till they have become like polished steel. The special pro- nunciation sometimes used by lawyers — as, for example, when they say record instead of record — is intended to indicate that a popular word is used in a technical sense. ' In 1878 an attempt, which proved abortive, was made to introduce a Criminal Code for England. I do not think sufficient care was exercised by the framers in the selection of the terms used to express the grounds of liability. I will give an example. Amongst the various adverbs used to qualify an act and to show the grounds on which it is punishable, I find the following : — unlawfully, not in good faith, with culpable ignorance. Sec. 210-213.] TRASSFEE OF LEGAL RELATIONS. 117 popular expressions in a very special sense, and then to attach Qualifica- to the expression the word ' legal/ or ' constructive/ or ' quasi, pressions to remind the hearer that the use of the expression is a special ^^J'^^ one. Thus we speak of ' legal ' fraud where no one has been ' legal,' J . J „ . . 'eonstruc- deceived ; or ' constructive notice, when nothing has been tive ' or announced ; of a quasi-contract where there has been no *^"''^^* agreement. The poverty of language makes it difficult to dispense with these contrivances. But much care is required in resorting to them, and they are never altogether free from objection. Such an expression as 'legal fraud/ for example, is specially objectionable. To call a thing ' legal fraud ' which is really innocent, is very likely to confuse the distinction between right and wrong, and to make people indifferent about incurring charges of fraud. 213. What follows in this chapter is an attempt to clear Acta the ground by making some general observations upon that very important class of events which we call acts. Many acts, such as contracts, torts, wills, thefts, murders, and so forth, have been separately considered. But there are some general observations to be made about acts in general which will find a proper place here. recklessly, negligently, in a manner likely to injure, with culpable neglect, wilfully, knowingly, with intent, knowingly and with intent, knowingly and unlawfully, knowingly and corruptly, knowingly and wilfully, wilfully and corruptly, wilfully and unlawfully, wilfully and with intent, knowingly wilfully and with intent, by a wilful omission, fraudulently, fraudulently and in violation of good faith, unlawfully and for a fraudulent purpose, wilfully and with intent to defraud, falsely and deceitfully, falsely deceitfully and with intent fraudulently to obtain, from motives of lucre. If these do not represent so many different grounds of liability sufficiently distinct to enable a jury to appreciate the distinction (and this seems hardly credible), some of them are superfluous. I am inclined to think that some are also misleading, from the grounds of liability not having been first made sufficiently clear to the minds of the framers. So too it seems very objectionable that precisely opposite meanings should be attributed to the expression ' good faith ' by the Indian Penal Code (sect. 52) and the English Sale of Goods Act 1893 (sect, 62). Surely some agreement as to the meaning of words might be come to amongst English-speaking legislators. 118 THE CREATION, EXTINCTION, AND [Chap. VT. are events under human control. 214. The first thing to be considered is what kind of event is an act. An act, as I understand it, is an event regarded as under human control. There are few (if any) events which can be said to be wholly within human control. There are, on the other hand, few events by which man is in any way affected, the results of which might not have been changed had his conduct been different. Few events, there- fore, can, strictly speaking, be said to be either altogether dependent on, or altogether independent of, human control. But many events are regarded by the law as under human control, and I know of no reason why they should be so regarded except that the legal result of them depends, in some measure^ upon the conduct of the party who has exercised control over them. 215. I will analyse -"^ a little further the nature of an act. An act is the bodily movement which follows immediately upon a volition. What follows upon an act in connection with it are its consequences. It is necessary to remember this, altiiough, in common language, we often use the word 'act' to express both an act and its consequences; as, for No act example, when we speak of an act of murder. Without 1 bodily ^ bodily movement no act can be done. A silent and motion- '"°™" less man can only forbear. ment. •' A.ct 216. Every act is prompted by some antecedent desire by°desire. which determines the will. This incentive to a determination Motive. of tiig -^yii]^ is called motive, and without it we should not act at all. It follows that in every act we contemplate some result, namely, the result of satisfying the desire. If I yawn or stretch my limbs it is to relieve the discomfort of weariness, and I contemplate this relief as the result of my act. Intention. 217. When the doer of an act adverts to a consequence of ' In this analysis I have closely follovred Austin, Leet. xviii-xxi. His explanation seems to me the most intelligible that has been put forward. His authorities are Locke, especially the chapter on Power in the Essay on Human Understanding, Bk. II, ch. xxi., and Brown's Inquiry into the Eolation of Cau&e and Effect, particularly Part I, sect. i. Sec. 214-221.] TEANSFEB OF LEGAL RELATIONS. 119 his act and desires it to follow, he is said to intend that con- sequence. 218. The contemplated end of every act is the satisfaction of desire, and this which is the end is also the motive. The end and the motive are only the same thing seen from two different points of view. The end is rarely attained directly. In common language. End not a man rarely does an act for the mere sake of doing it. Per- directly, haps we sometimes laugh or shout for no other reason. But generally there are some, and frequently there are many, intermediate events resulting one from another, all of which must happen hefore the ultimate end or purpose is attained. For example, A and B have been competitors for a prize : A is successful : thereupon B's. rage and disappointment are so great that he conceives the desire to do A an injury. B, accordingly, contrives an elaborate plot to injure A. B has no immediate satisfaction in carrying out this plot ; on the contrary it causes him infinite pains and trouble which he would much rather avoid. But he expects and desires, as an ultimate consequence of his act, that A having been injured he will himself find pleasure in the pain suffered by A, and so his own pain of envy will be assuaged. 219. An act must always be intended, although the con- Act sequences of an act may not be so. For an act is always the intended, result of a determination of the will which sets the muscles in motion in order to produce that motion as a consequence, even if no other consequence is desired. This excludes from the category of acts the reflex motions of the muscles, and the motions of a man in his sleep. 220. Intention, then, is the attitude of mind in which Oouse- the doer of an act adverts to a consequence of the act adverted and desires it to follow. But the doer of an act may advert *? "^"^ •' always to a consequence and yet not desire it : and therefore not desired or expected, intend it. 221. Adverting to a consequence the doer of an act may either expect it to follow or not expect it to follow. 120 THE CREATION, EXTINCTION, AND [Chap. VI. Know- ledge. Effect of intention and know- ledge on legal re- sults of acts. Mere ad- vertence without desire or expecta- tion lias no effect. 222. Expectation that a consequence will follow, or, as it is sometimes expressed, knowledge that it is likely to follow, without any desire that it should follow, is an attitude of mind which is distinct from intention, and it is not, I venture to think, permissible to treat the two attitudes as one, as Austin does^. 223. I shall call this second attitude of mind, in which consequences are adverted to and are expected to follow, but are not desired, knowledge. 224. These two attitudes of mind, in each of which there , is advertence to consequences, have the most important effects upon the legal results of acts. There are numberless rights and duties which depend upon the existence of a particular intention or knowledge in the doer of an act, that is, upon the act being done with advertence to particular consequences, and either a desire that they should, or an expectation that they will, follow. 225. If consequences of an act are adverted to and are neither desired nor expected, then there is neither intention nor knowledge ; and so far as any legal result of the act depends upon intention or knowledge it will not ensue. Nor do I think that in any case the simple attitude of advertence without expectation or desire has any bearing upon the legal result of an act. But advertence without expectation or desire, if coupled with one other circumstance, does affect the legal result. If consequences be adverted to and considered as not likely to happen upon grounds which a reasonable man would consider insulEcient, then the legal result^ in many eases, is affected. For example, the doer of an act who stands in this ' The framers of the Indian Penal Code, in their definition of murder, had before them, I think, either Austin's analysis, or a similar one. But they introduce 'knowledge' as a state of mind differing from intention. The objection to this term is that it may either mean ' knowledge with advertence,' or 'knowledge without advertence.' I think it must mean ' knowledge with advertence ' in the Indian Penal Code. The framers of the Draft Criminal Code for England have used the word ' means ' instead of 'intends.' I do not know what is gained by this. See sect. 170 of the Draft Code. Sec. 222-229.J TEAMPEE OP LEGAL EELATIONS. 121 attitude of non-expectation as regards consequences, and who has arrived at this attitude in a reprehensible manner, very often becomes thereby liable, which means that a particular legal result is attached to the act : whereas, if the same act had been done, and the same attitude of mind had been arrived at upon reasonable grounds, he would not be liable. Thus, if I fire at a target, having first taken all proper precautions, and I nevertheless kill a passer by, I may incur no liability ; but if I do the same act, having first taken only insufficient precautions, I may be guilty of manslaughter. 226. When a person does an act adverting to consequences Rashness, which upon insufficient grounds he does not expect to follow, he is said to be rash, and his conduct is called rashness. 227. These are the cases of advertence. I p.ow come Inadver- to consider cases in which consequences not in any way adverted to by the doer have followed from an act. Inadvert- ence, however, taken by itself, like advertence without desire or expectation, does not affect the legal result of an act. But if the inadvertence is due to an absence of that care and circumspection which a man might reasonably be expected to exercise, then the legal result is very often affected. For example, if I fire off a rifle without first looking to see whether any one is in the line of fire and I kill some one, I shall be guilty of manslaughter : but if I buy a rifle of a well-known maker, and, without examining it to see if it has any defects, I fire it off, and it bursts and kills some one standing near, I shall incur no liability at all. 228. When a person does an act without adverting to the Heedless- consequences, and he has failed to do so because he has not used due care and circumspection, he is said to be heedless, and his conduct is called heedlessness. 229. Acting with intention, acting with knowledge, acting with rashness, and acting with heedlessness, are four different conditions affecting the legal result of the act done. It is obvious that in the explanation I have given of these terms there is no pretence of complete scientific accuracy. The 122 THE CREATION, EXTINCTION, AND [Chap. VI. explanation I have given may even be open to objection on psychological grounds. But these terms are in daily use by lawyers, who by means of them describe the conditions under which legal results ensue. I have therefore endeavoured to state what I conceive to be meant by these terms. If lawyers attach any other meaning to them, or if, with the meaning I have attached to them, they express ideas which are false, let this be stated and the error rectified. But at any rate let us endeavour to understand what we ourselves mean ; and when we have arrived at a meaning let us adhere to iti. Other con- 230. If an event be adverted to, the expectation of its minTthau happening, or of its consequences happening, may vary very those de- greatly, and it is conceivable that the legal result should be scribed. o ji o ^ made to depend upon the strength of the expectation. So there are degrees of reprehensibility in rashness and heedless- ness which we endeavour sometimes to express by the use of such words as 'gross' or 'crass.' So the Roman lawyers spoke of culpa lata, culpa levis, and culpa levissima, diligentia, and exacta diligentia. These terms assume the possibility of assigning so many different standards by which to measure conduct. I do not think the use of them, or the neglect of them, affects the analysis of the mental attitude of the doer of an act which I have given above. Forbear- 231. A forbearance is the determination of the will not ance. to act : it is inaction or omission together with advertence to the act which is not done, and a determination not to do it. A forbearance, therefore, like an act, is always intended. The consequences of a forbearance may be desired or not ' If the long catalogue of adverbs extracted from the Draft Criminal Code, given in a note to sect, sji supra, be referred to, it will be seen that all or very nearly all describe an attitude of the doer's mind with or T^ithout an element of reprehensibility in the way in which this attitude is arrived at. I suppose these adverbs have, or aim at having, a definite meaning. One longs to know what jt is. The Indian Penal Code as originally drawn exhibited much care in the choice of these qualifying adverbs ; and even in its present form it is much more precise in this respect than the Draft English Code. Sec. 230-233.] TRANSFER OF LEGAL RELATIONS, 123 desired, expected or not expected, adverted to or not adverted to, and there will accordingly be intention, knowledge, rashness, or heedlessness, under the same conditions as in the case of acts. It is not, therefore, generally necessary to distinguish forbearances from acts. 232. It is, I believe, generally agreed that a mere mental Mental condition unaccompanied by any external act is, legally without speaking, nullius momenti, and produces no legal result ^uceJno whatever. This might well be so for the simple reason Ibs^I ^^- that such a mental condition would in most cases be undis- coverable. It may also perhaps be doubtful whether the mental condition is sufficiently under our control to justify legal results being based upon it. 233. There are, of course, cases in which the legal results either of an act or a forbearance are wholly independent of the mental attitude of the person who acts or forbears. In the earlier stages of law we find this to be largely the case. We find there much more attributed to the act and much less to the attitude of the doer's mind as regards the consequences. Thus in that class of acts which we call contracts we are told that in early times, ' not only are the formalities of equal importance with the promise itself, but they are, if anything, of greater importance. . . . No pledge is enforced if a single form be omitted or misplaced, but, on the other hand, if the forms can be shown to have been accurately proceeded with it is of no avail to plead that the promise was made under duress or misconception^.' The same thing is ob- servable in the early English law. In early times a deed was looked upon as valid and binding, not as a forinal expression of intended consequences, but as an outward and visible solemn act. Only a deed made within the jurisdiction and process of the court could be relied on in an action of debt, And a deed sealed by a party's seal might be good against ^ Maine's Ancient Law, ist ed. p. 313. We must not, of course, forget that the act itself is always intended ; and the forms preclude any doubt as to what kind of act is intended. 124 THE CKEATION, EXTINCTION, AND [Chap. VI. him even though the seal had not been affixed by him or by his directions ^. But now 234. Amongst the cases still existing in which the mental does so. attitude of the doer of an act is entirely disregarded may be mentioned the ofEences of manslaughter and assault under the English law. But these cases are now very few. In the Indian Penal Code it would be difficult to find a single offence which is not made to depend on the way in which the conse- quences of the act presented themselves to the mind of the doer; and in some cases the distinction drawn between two attitudes of mind is very fine indeed : a circumstance which has vastly increased the diilieulty of administering the criminal law in India 2. So too the courts in the present day give themselves the greatest latitude in inquiring into the circum- stances under which a deed is executed^ so as to ascertain the intention of the parties, and the real nature of the proceeding, and this inquiry largely modifies the construction which they put upon the deed. Indeed so much importance is attached to the mental attitude in modern law that it would almost seem as if liability could not in many cases be conceived as arising from an act unless either the consequences were adverted to, or the inadvertence were itself reprehensible. 234 a. This habit of referring everything to intention is ' See Pollock on Contracts, p. 151, third ed. So an accidental destruc- tion of the seal would make the deed void ; Sheph. Touch, p. 67, ed. 1780. Under Mahommedan law, if a husband uses words of divorce they are effectual whatever may have been his intention ; Baillie's Digest of Ma- hommedan Law, p. 208. Some of the rules relating to seisin were founded on the notion that the act without any reference to its intended conse- quences was effectual : and this conception of a deed as something which in itself produces a legal result apart from intention was, no doubt, the origin of the classification of contracts into contracts by deed and contracts by parol. ^ In the Indian Penal Code as it now stands, a very fine distinction is drawn between culpable homicide, which is not a capital offence, and murder. If the accused knows that by the act he is likely to cause death, he is only guilty of culpable homicide. But if he knows that the act is so imminently dangerous that it must in all probability cause death, he is guilty of murder. See sections 399, 300. The original framers of the Code attempted no such nice distinction. Sec. 234-236.] TRANSFER OF LEGAL RELATIONS. 125 shown by that very large class of modern cases in which the courts insist upon declaring that there is a promise, that is an intention to create a legal liability, where it is quite certain that no such promise or intention exists. Possibly this practice originated to some extent in the impediments to the administration o£ justice arising out of the rules as to forms of action. But notwithstanding that the form of an action is no longer material, the ' implied ■" contract or promise still holds its ground, though it would seem to be simpler to refer the liability directly to the facts as they really exist without resorting to a fiction ^- 235. There is a very important class of acts in which the Acts in legal result follows mainly, if not entirely, because that par- i^^^i ticular legal result was itself contemplated and desired as one of ''®s"lts are the consequences of the act. From the fact that legal results plated. are in contemplation in this class of acts, Germans call them Rechtsgeschafte. Frenchmen call them actes juridiques. English lawyers have not yet agreed upon any name for them. The terms ' juristic acts ' and ' acts in the law ' have been suggested. In all such acts the doer (as the phrase is) ' expresses his intention ■" ; that is, he indicates, or is sup- posed to indicate, by some means or other that he desires something. 236. It is probable that before long English lawyers will follow the example of continental lawyers, not only in ap- propriating a name to acts of this class (and whether they are called acts in the law, or juridical acts, or juristic acts, does not seem to me very material), but also in discussing them generally. If we take the commonest examples of this class, contracts, sales, mortgages, wills, and settlements of property, we shall find that up to a certain point the prin- ciples which regulate them are very nearly the same. The ' Of course the implication of a contract or of an authority to make a contract is one of the ways in -which judges conceal that they are legislating. But the legislature itself can discard such fictions, and it does so. In the case of a sale of necessaries to an infant the Sale of Goods Act simply creates a duty to pay (sect. 2). 126 THE CREATION, EXTINCTION, AND [Cbap. VT. mode in which the intention is ascertained, the effect of fraud, misrepresentation, mistake, undue influence, and agency, are, or at any rate might be, and ought to be, much the same in all. Brevity and simplicity, therefore, is attained by discussing these principles once for all, and this I have endeavoured to do to some extent, though in the present condition of English law it is not possible to carry the discussion very far. Mental 237. A mane's mental condition at any given moment, condition, . ... . . how ascer- and his conduct in arriving at that condition, are facts, and, like any other facts, if disputed, they must be proved. There is a special set of rules which the law has prescribed for the conduct of an inquiry into the existence of disputed facts, and amongst them there are special rules which are applicable to the inquiry into the particular facts of a man's mental con- dition at the time when he does an act and into his conduct in arriving at that condition. These rules fall under the head of evidence. Eules for 238. Whatever may be thought of the wisdom of iudgres ascertain- .,.._,. "^ ^ ing. In early times in disregarding to the extent they did the attitude of the doer of an act as regards the consequences of it, there can be no doubt that the difliculty which they appre- hended in ascertaining this condition was not an imaginary one. The mental condition of a person at any time is, unless he chooses to inform us of it, a matter which it is very difficult to ascertain. The inquiry into the conduct by which he arrived at that condition is no less difficult. Yet it is into inquiries of this kind that modern judges, and even modern juries, are daily called upon to enter. There may in some cases be evidence, of the usual kind, of motives which are likely to lead to the absence or presence of the intention imputed. Means of knowledge may also exist from which knowledge may be inferred, and other circumstances may indicate advertence. It is also probable that an ordinary man adverts to and expects the ordinary consequences of his acts. And there are standards of conduct supplied by experience by which heedlessness and Sec. 237-239.] TEAlifSFER OE LEGAL RELATIONS. 127 rashness may be determined. But it cannot be denied that we generally arrive at a conclusion as to a man's attitude with regard to the consequences of his act by a very rough method. We compare the conduct o£ the person doing an act with that of an average man, and by this comparison we determine whether or no he was acting intentionally, or heed- lessly, or rashly. Thus if a man uses language which, under ordinary circumstances would mean one thing, whilst the speaker protests that he has used it to express another, very little attention would be paid to this protest ^. We are com- pelled, when we wish to determine what was intended by the words used, to consider how a man of ordinary intelligence would understand them. So if a man rides over another in the street, it is determined whether he is rash or heedless by considering whether he has acted as an average man ought to act. Such cases might seenl to suggest that the reference of the legal result of an act to the mental attitude of the doer of it in relation to the consequences is but a pretence after all. This however would be an erroneous conclusion. If an act produced a legal result merely because a particular person did it, and not at all because of the mental attitude of that person as regards the consequences when he did it, then the existence of circumstances affecting that attitude would have no effect. But, to take the examples I have just put, we do not, because of the language used by him, impute intention to an insane person, nor do we treat an insane person as rash or heedless because his conduct differs from the ordinary standard of carefulness. 239. Perhaps as strong a ease as any which could be put is the following. Suppose A to have made a will giving a legacy to B. Suppose further that A after having made his will declares in the presence of several persons whose credit is unimpeachable that he has altered his mind and that he ' This is not upon the doctrine of estoppel (a doctrine which English judges are rather fond of resorting to to get them out of all difficulties), but it is one of the rules for inferring intention, 128 THE CREATION, EXTINCTION, AND [Chap. VL revokes tlie legacy. Now a will is an event in which more than in any other case the legal result is said to depend upon that mental condition which is called the intention of the testator. The whole object is said to be to fulfil the testator's wishes. B will nevertheless, in the case put, take the legacy. This is because we are in the habit of arriving at a conclusion as to the existence of a testator's intention by an artificial method : by looking only at what he has written and signed in the pre- sence of witnesses, and to nothing else, however trustworthy it may be. And every artificial method of inquiry into the truth of alleged facts, though, taken on the whole, it may serve the cause of truth in the majority of cases, always involves error in a minority, and the case I have put is one of the minority. But though we make use of this artificial method, the legal result is not independent of the intention. We refer to the surrounding circumstances to explain the directions of the wUl : we ask what were the motives which induced it : we inquire into the state of the testator's mind : and the legal result may be modified by these inquiries. If the legal result of the act were independent of the intention these inquiries would be altogether fruitless. Rules of 240. It is the same with what are called rules of construc- tion, tion; by which I mean those rules which have been laid down for determining what inference is to be drawn as to intention from express manifestations of it. These rules, like the rules of evidence just now referred to, are artificial, and there is no doubt that it is possible, by the application of such artificial rules, to miss the real intention. It is, however, supposed that by the application of these rules the intention is in the general run of cases better ascertained than in any other way ^. The supposition may or may not be correct, but there is no doubt ^ The practice of reporting cases in which the courts have construed documents, and then treating these decisions as authoritative, has led to the formation of a very large body of rules of construction in English lavp ; larger, I think, than could be found under any other system. Doubts have been expressed whether judges are not now too much hampered by these mles. Sec. 240-241.] TRANSFER OP LEOAL RELATIONS, 129 whatever that, whether the rules are efficacious or not, the legal result is still connected with the intention. Thus we constantly hear judges lamenting the result to which some established rule o£ construction drives them because they think that this result was not intended. But the intention which is thus presumed is always treated as a real intention. If there has been fraud or undue influence, or the party using the ex- pressions under consideration is insane, the result is modified accordingly. We never now go back to the view of earlier times and say that the act alone is conclusive. English judges have sometimes said, when applying these arbitrary rules of construction, and referring to the person whose intentions are in doubt, that they will consider non quod voluit sed quod dixit. Roman lawyers, who were less fettered by rules of construction, used to say non quod dixit sed quod voluit. Still the situation of all judges is the same. They can only infer the intention from the language, and in drawing that inference they mnst, whether they resort to rules of con- struction or not, be liable to err, because they must still be guided by their experience as to what ordinary persons would mean by the terms used. 241. In the large class of cases in which the mere fact Acta of that a legal result is intended and expressed is sufficient to object is induce it, the connexion between the expressed intention *^® laten- ' '■ tion to and the legal result is so immediate and direct that we often produce speak as if the legal result was due to no other agency than guit. that of the party or parties expressing the intention. This way of looking at the matter is, however, not strictly correct, and, although the inaccuracy is sometimes harmless, it has, I think, led to some confusion. It seems in some cases to have been thought that it was an easier process to arrive at . liability where there was intention than where there was none ; it being apparently forgotten that the affixing of liability is an independent process, to which the one preliminary requisite, and the only one, is the sovereign will. It is, probably, in consequence of some misunderstanding as to the origin of e: 130 THE CREATION, EXTINCTION, AND [Chap. VI. liability that we occasionally find judges making desperate efforts to base liability upon intention, when they might just as well have explained it without any reference to intention at all. For example, the struggle to explain the right to recover money paid by mistake by an imaginary intention on the part of the receiver to repay it seems to me to be labour wholly thrown away. Formal 242. ^ Manifestations of intention may be either formal or mal mani- informal. A formal manifestation of intention is a manifesta- oTinteiT-^ tion of intention made in accordance with certain forms which tion. the law has prescribed as necessary for producing a legal result. Forms are useful for four reasons : — first, to make us act with deliberation j secondly, to distinguish the preparations which often precede a final determination from the final determination itself ; thirdly, to facilitate proof ; fourthly, to give publicity to the act. Express 243. ^Manifestations of intention may also be express or and tacit. . ... . , , . . tacit. An intention is manifested expressly when it is manifested by any means which are resorted to for that purpose. It is tacitly manifested by any means which, though not resorted to for that purpose, have the effect of disclosing it. The commonest ways of manifesting an intention ex- pressly are by speaking and writing, but any action of the muscles, such as a nod or a wink, may be used for that purpose provided only that it is understood ^. ^ See Savigny, Syst. d. heut. r8m. Eeehts, vol. 3, § 130. In early law the performance of all important acts was generally accompanied by religious solemnities. This, no doubt, was because the Divine authority was called in to sanction the proceeding, and to add the terrors of the Divine wrath to a breach of the obligation. But these religious cere- monies are singularly well adapted to serve the secular purposes stated in the text. See as to a similar function served by the formalities of the stipulatio, Maine, Auc. Law, p. 328. " See Savigny, Syst. d. heut. rom. Eechts, vol. 3, § 131. ' Contracts are sometimes divided into express and implied, as in the Indian Contract Act, where a contract is said to be express if it is made in words, and implied if it is made otherwise than in words. I doubt if it is desirable to distinguish words from other significations of desire- nodding the head, for example. Moreover the word ' implied ' is used for Sec. 242-246.] TRANSFER OF LEGAL RELATTOlSfS. 131 244. When we infer the existence of intention from an act Surrou'nd- or acts not done for the purpose of manifesting it, we always cum- look at the surrounding circumstances to see what light they stances. throw upon the action. How far we can look at the surround- ing circumstances to explain acts which are done for the express purpose of manifesting intention has not, I believe, been discussed generally, but only in reference to those manifesta- tions which we call contracts. I shall not, therefore, discuss that question here, further than to observe that the permis- sibility of a resort to the surrounding circumstances depends in some measure upon whether the manifestation of intention, besides being express, has also been formal. 245. I have referred to the distinction between express and tacit manifestations of intention because it is one frequently made. There seems, however, to be a disposition to attribute to it more importance than it deserves. In some things which are said upon the subject there seems to lurk a notion that an express manifestation of intention and a tacit manifestation of intention operate in different ways. I do not think that this is the case. Whether the manifestation be express or tacit, the endeavour is to decide on the existence of the intention. 246. I have already said that no one can do an act without Action 1 • • -r. (. through puttmg his own muscles mto motion. But a man very often an inter- does no more than communicate motion to some inanimate ™'' ^ ^^' object, as when he fires a gun and hits with a bullet an object at a distance. The blow struck by the bullet is in such a case considered as his act, as much as the pressure of his finger on the trigger. Sometimes, instead of communicating motion to an in- animate object, he communicates a wish for some motion to an animal) as when he sets a dog to hunt game in a field. Here also we consider the hunting of game to be his act. another purpose — to express that the legal result of intention will follow whether the intention exists or not ; and it is in this sense that the Indian Contract Act speaks of the implied authority of an agent ; see sect. 187 and illustration. K a 132 THE CREATION, EXTINCTION, AND [Chap. VL Or tlie wish for the motion may be communicated to a human being; as when a tradesman bids his servant deliver goods to a customer. Here also the delivery is considered as the tradesman's act. Agency. 247. When a human being is employed to do an act he is called an agent. 248. A human being employed as an agent may be either a free person or a slave, a grown-up person or a child, a person of average intellect or one who is non compos. These and other differences in the agent may sometimes affect the legal results of an act done through the agent, but only with reference to particular consequences ; and in the general observations which I am now making I shall not further consider them. Of course, however, no question can arise in English law as to the legal result of an act where the agent is a slave. 249. The general principle of agency is that the act of the agent done under the orders of another person, whom I shall in future call the principal, has the same legal results as regards the principal as if he had done the act himself. 250. So too, if one does an act avowedly as the agent of another, even without any orders of that other, and he on whose behalf the act is done accepts it as an act done on his behalf, the legal result will be the same as if the relation of principal and agent had existed all along, and the case was one of an agent acting under the principal^'s orders. This is the case both where the legal result follows because it is contemplated, and where it is independent of the contemplation. But in cases where an agent does an act contemplating a legal result, whether he does it avowedly as agent or not, the person may by accepting the result put himself in the position of principal. Law of 251. It is sometimes stated in general terms that the law dlrivJcT" of agency has been derived by us from the Roman law. To ^'0™ some extent this may be so. Scarcely any portion of our law law. has wholly escaped the influence of the Roman law. But it See. 247-2S1.] TEAJSrSPER OF LEGAL RELATIONS. 133 is easy to exaggerate this influence, and I think that in the case of agency it has been exaggerated, and that the develop- ment of the law of agency has been rather impeded by a reference to principles which are not applicable. We find, it is true, in the law of agency traces of the law of master and servant, and in the law of master and servant traces of the law of master and slave, but these traces are becoming fainter every day ; and the relation of master and slave, of which the Roman law of agency seems to have been a modification, stands at every point in strong contrast with the relation of principal and agent. It lies, for example, at the root of the Roman law that the relation of master and slave is based, not, like agency, on employment, but upon ownership. A slave could acquire property, but the result was that the property belonged to his master, not because the master employed the slave to acquire the property, but because the master owned the slave. That this is so is shown by the maxim 'melior conditio nostra per servos fieri potest; deterior fieri non potest ■" — a maxim that could have no meaning as applied to agency based upon employment. So too when a slave was owned by two masters it was for a long time doubtful whether, if a slave made a stipulation by the orders of one, it did not enure to the benefit of both — a doubt which could not have been so long maintained but for the stubborn- ness of the principle that it was the ownership and not the employment which was to be looked to. And the view ultimately recognised by Justinian, which gave the whole benefit of the stipulation to him who gave the order, was evidently considered as introducing a new principle-'. So with the very peculiar rule that a stipulation made by a slave who formed part of an haereditas jacens was valid if made on behalf of the estate, but was not valid if made on behalf of the future heir by name, because the slave at the time belonged to the estate and not to the future heir^. On ^ Dig. 45, 3, 6 ; Code Just, 4, 27, 3 ; Inst. Just. 3, 28, 3 ; Puchta, Inst. § 281. ' Dig. 45, 3, 16. 134 THE CREATION, EXTINCTION, AND [Chap. VI. the other hand, in the actio de peculio and the actio tributoria, the slave was considered to be the principal in the transaction which gave rise to the proceeding, and not the master, though the master might indirectly incur liability. The actio quod jussu, by which the master was made liable for what he had expressly ordered, and the actio de in rem verso, by which the master was made liable for benefits actually receiv£d, depend upon a principle which approaches that of agency. And in the actio exercitoria, and in the actio institoria, the principle was approached more closely star. 252. But in the matter of delict the contrast between the relation of principal and agent and that of master and slave is most striking. The master was only liable for a delict which was done by his express orders, or in his presence with his knowledge, and which he was able, but did not choose to pre- vent. The slave was then looked upon as a mere passive instrument in the hands of the master, like a tool or a weapon ; and the act was looked upon as that of the master himself. But for any other delict done by the slave the slave was alone liable; liable, that is to say, to pay with his person. The master only became liable if he refused to give up his slave. That this refusal, and not the employment of the slave, was the true ground of the master^s liability is clear from this — that if the master sold the slave, then he had nothing more to do with the matter, which now concerned the new master only, who in his turn became liable if he protected the slave. So also if the slave were set free the master ceased to be liable, and the freedman was himself proceeded against in the usual way^. Messen- 253. There has been much discussion, especially amongst German jurists, as to what is the true distinction between an '■ The view always taken in Roman law was, not that a contract made by a representative could impose a liability on the principal as for an act of his own, but that a principal might be liable as for the act of another person. Sohm, Inst. R. L. § 88 (Ledlie, p. 447). " Sohm, last. R. L. § 45 CLedlie, p. 232). aers. Sec. 252-254.] TRANSFER OP LEGAL RELATIONS. 135 agent and a mere messenger ^. Some persons deny that there is any distinction, and I am also incHned to think that there is none. It is possible, no doubt, so to narrow the functions of the person employed, and so completely to deprive him of all discretion as to make him the mere ' tool ' of his employer. But from this case up to that of a general agent with the widest discretion, we advance by imperceptible degrees, and I know of no point where the line can be drawn between agents and messengers. So too the principles applicable to agents generally seem to me to be applicable to mere messengers; only the authority of a messenger is so limited, and the act by which he produces legal results affecting his employer is so simple, that it is very rare that any legal question arises about it, any more than about an inanimate intermediary. Thus it has been debated whether a postman is an agent or a mere messenger. It seems to me to be of little consequence whether he is considered as one or the other; nor does it make any difference if for the 'postman' we substitute the ' post,'' and consider this inanimate object as the intermediary. In any case, if we consider the postman as an agent he is an agent for a very limited purpose and with a very limited authority. 254. When I do an act under the fear of some evil with Duress, which I am threatened by some one, not in pursuance of a legal right, and I do it for the purpose of avoiding that evil, I am said to do it under duress. It is also sometimes said that I do the act against my will. To do an act against the wiU of the doer is, however, impossible ; for an act supposes a determination of the will to do the act, and without such determination there can be no act at all. Thus, if by sheer force I put a pen into your hand and trace your name with it, this is not your act done against your will : it is not your act at aU. But if I hold a pistol to your head and threaten to shoot you unless you sign, the signature is then your act, and ' See TJnger, Syst. d. 6sterr. Privat-E. § 90, vol. a, p. 134 ; Say. Obi. R. § 57 ; Sohm, ubi supra. 136 THE CEEATIOjSI, EXTINCTION, AND [Chap. VI. follows on a determination of your will just as much as if you had signed under any other inducement. Having before you the choice of two things, to sign or to be shot, you choose the less disagreeable alternative. 255. An act, therefore, done under duress is as much a man's act as an act done under any other motive. And it is also quite conceivable that a person acting under duress should have the same attitude of mind as a free agent. When under duress I do an act, although I do not desire the con- sequences which follow, still I may know that they are likely. Thus A says to B, ' unless you fire this pistol at C I will kill you.'' If thereupon B fires and kills C, though he does not desire C'^ death, yet he knows that C's death is likely just as well as if A had offered him a bribe to fire the pistol at C and he had done so. 256. In these cases, therefore, there is the same combination of a. mental and physical element as where there is no duress, and if the normal legal result does not follow it is because, for reasons which have appeared sufficient, a different legal result has been assigned. 257. A person may, if he chooses, express an intention to do a future act with a mental resolve not to do it. It is, I believe, a universal rule to give to the words used the same legal effect as if the intention really existed. Sometimes the intention is said to be implied : sometimes the person is said to be ' estopped ' from denying its existence. In any case, what really happens is that the legal result is attributed to the words used ; in this case, without regard to the intention. I think, however, that it is a convenient form of dealing with such cases to presume that the expressed intention really exists. 258. Where an intention is expressed under duress it is very likely not to be the real intention; the party who uses the expression merely pretending that such is his intention. But, according to principle, the normal legal result ought to follow in all such cases. Thus, if the party under duress expresses an intention to promise, there should be a contract \ Sec. 255-261. j TEANSFER OF LEGAL RELATIONS. 137 if to make a testamentary disposition of his property, there should be a will; if to make a conveyance, the ownership should pass : these results being modified, if necessary, by enabling the party charged to set up duress in answer to the claim, or to use the duress as a ground for setting aside the transaction ^. 259. How the law stands in England it is difficult to say. It is nowhere very clearly stated. Indeed we find very little about duress in our law books. It is sometimes mentioned in connexion with criminal liability, and sometimes also in con- nexion with contracts : but in either case only when the duress is an injury affecting life or limb. I think, however, that the normal legal result does always follow as if there had been no duress. But this legal result is counteracted, sometimes by a decree of the court setting it aside ; sometimes by giving the party subjected to the duress a special defence to any claim made against him ; and sometimes by other methods ^. 260. Another matter which is said to affect the legal result Error. of acts, but in a way and to an extent which it is not always easy to perceive, is ignorance or mistake. Ignorance and mistake are generally classed together, and the considerations applicable to them are the same. If it were necessary to distinguish them, I should say that ignorance is not to know of facts which do exist, and mistake is to suppose facts to exist which do not. But both are covered by the word 'error,' and for the sake of brevity I shall use that word only. 261. Of course when a man acts under the influence of ' The important difference between treating a transaction as having failed in producing its normal legal result, and allowing that result to follow whilst giving the party affected the means of modifying it or getting rid: of it altogether, has not been sufBoiently attended to in English law. See the contradiction in the Indian Contract Act, infra, sect. 274 note. " Of course the topic of undue pressure as a ground for setting aside a contract in courts of equity has been discussed very frequently: but many of the reported decisions are based to a considerable extent upon fraud and undue influence. Courts of equity in cases of this kind do not often lay down any strictly defined principles ; it would greatly fetter their discretion were they to do so. The text-books on equity are not more explicit. 138 THE OBBATION, EXTINCTION, AND [Chap. VI. Error when wholly imma- terial. Error in criminal oases. error he nevertheless wills to do that to which his desires lead him. Such phrases, therefore, as 'nulla voluntas errantis' have no real meaning. Nor do I understand what Blackstone means when he says that in cases of error the will and the deed act separately ^. 262. If there is error, then the act which a man wills to do produces consequences other than those which he desired or expected. But in considering the effect of error upon the legal result of an act we may get rid of those cases in which the error is immaterial ; that is, those cases in which there are other consequences as to which there was no error, and which are sufficient to induce the legal result. For example, a bar of metal belonging to A is examined by B, who, without asking any questions, erroneously comes to the conclusion that it is gold. He thereupon offers to purchase it, and the offer is accepted. The error is immaterial, because there is an intention to buy a specific thing which is alone suflEicient to induce the legal result. 263. The law as to error has, I think, got into some con- fusion by not bearing in mind what is and what is not material. Thus a great deal has been made of the distinction between errors of law and errors of fact, and criminals are often told, when they set up an excuse that they did not know the law, that though they may excuse themselves by errors of fact, yet they are presumed to know the law, and therefore they cannot set up as an excuse an error of law. This sounds very unreasonable, and would be unreasonable if it were tnie. But generally speaking it is not true. The intention to break the law, that is, the contemplation of a breach of the law as one of the conseqiiences of the act, is not, in most cases, an element in the offence. Where an intention to break the law is an element in the offence, as in theft as defined by the Indian Penal Code ^, ignorance of the law can be successfully pleaded. ' Comm. vol. It. p. 27. ^ There can be no ' theft ' without an intention to cause either gain or loss by unlawful means. The animus furandi in larceny is not so strictly defined. Sec. 262-265.] TRANSFER OF LEGAL RELATIONS. 139 264. But in some cases, where there is, by reason o£ error, Imputa- no intention or knowledge which would induce the legal result, jn°ention the same result is arrived at by imputing' to the doer of the act "■' J^now- . . ledge. an mtention or knowledge which had no existence. "Whether or no this imputation will be made is a matter of law. 265. In determining whether or no an intention or know- Error of ledge will be imputed when by reason of error the intention fact. or knowledge does not exist, I do not think the law pays any attention to whether the error is one of law or one of fact. The whole question of imputing intention or knowledge is a very intricate one, and depends on a variety of consider- ations, but not on this one. Thus in criminal cases we hardly ever impute intention or knowledge at all, the direct infliction of punishment being reserved for real and not for imaginary offences ^. In transactions between man and man we very often do impute intention, but, as I shall show hereafter, mostly by reason of the assumption that the expressed in- tention and the real intention actually correspond. This ' There is a rough a4;tempt to sanction the imputation of intention ov knowledge In criminal cases concealed under the plausible maxim ' drunkenness is no excuse for crime.' But I doubt whether the imputa- tion is ever really made. The drunken soldier who in a fit of fury fires his rifle at his commanding officer really intends to kill him. There is, however, a formal legislative attempt to impute knowledge (not intention) in cases of drunkenness in the Indian Penal Code, sect. 87. Cases of real difficulty are such as the following; — 'The prisoner was sentinel on board the AchiUe when she was paying off. The orders to him from the preceding sentinel were — to keep off all boats, unless they had officers with uniforms in them, or unless the officer on deck allowed them to approach ; and he received a musket, three blank cartridges, and three balls. The boats pressed ; upon which the prisoner called repeatedly to them to keep off ; but one of them persisted and came close under the ship, and he then fired at a man who was in the boat and killed him. It was put to the jury to find whether the sentinel did not fire under the mistaken impres- sion that it was his duty ; and they found that he did. But a case being reserved, the judges were unanimous that it was, nevertheless, murder.' Kussell on Crimes, by Greaves, fourth edition, vol. i. p. 823. The difficulty of this case cannot be met by any talk about ignorance of law. The best lawyer would have been in the same difficulty as the sentinel : he would have been placed between two confiicting duties. See how the case is met by the Draft Criminal Code, sect. 53. 140 THE CREATION, EXTINCTION, AND [Chap. VL In what cases im- portant. In courts of chan- cery. undoubtedly, in many cases, leads to the imputation of an unreal intention, but one of a very special kind. The as- sumption that the expressed intention and the real intention necessarily agree is justified by our experience that upon the whole this assumption is a useful one. So also intention is imputed where there is what is called 'malice in law,' because in such cases a wrong has been done which the law desires to redress. But, as I have said, in none of these cases is the distinction between errors of law and errors of fact of any importance ^. 266. If, therefore, the distinction between errors of law and errors of fact, which has been made a great deal of, is of any importance at all, it must be so in that class of cases in which the normal legal result having followed notwith- standing the error, there is an attempt made to get rid of that result by the action of the court. That this can be done in one class of cases there is no doubt. Thus if A pays money to B on account of a debt which has already been paid, believing the debt to be still due, the usual legal result of such a transaction follows, namely that the money becomes the property of £ ; but it can be recovered back by A. 267. In this same class of cases also, as the law now stands, the distinction between errors of law and errors of fact is of importance, since if the error is one of law the money cannot be recovered. Why this should be so I cannot say^. 268. There is also a peculiar class of cases in which courts of chancery have endeavoured to undo what has been done under ' The subject of error (mistake) is very fully discussed by Sir F. Pollock in his work on Contracts, fifth ed. chap. ix. There is the customary close running between cases in which it is held that the contract is a nullity, and cases in which it is held that there is a contract which may be set aside. The argument that 'the mind of the signer did not accompany the signature,' and that the document therefore, not only may be set aside, but is a nullity, very often operates to the injury of innocent persons. See infra s. 621. ^ I do not think any continental lawyers recognise the distinction in this case. Dalloz, Eep. s. v. Obligation, art. 5546. Sec. 266-269.] TRANSFER OF LEGAL RELATIONS. 141 the influence of error, and try to restore the parties to their former position. They deal with such cases in a very free manner, and I doubt whether it is possible to bring their action under any fixed rules. But here again, as far as I can judge by what I find in the text-books, and in the cases there referred to, the distinction between errors of law and errors of fact, though very emphatically announced, has had very little practical effect upon the decisions of the courts. The distinction is not wholly ignored, and it may have had some influence, but it is always mixed up with other considerations, which, not unfrequently, altogether outweigh it. 269. The distinction between errors of law and errors of Not an fact is, therefore, probably of much less importance than is distiuc- commonly supposed. There is some satisfaction in this, *'°°" because the grounds upon which the distinction is made have never been clearly stated. Blackstone says that the reason of the distinction is because every man not only may Distinc- know, but is bound to know the law ^. This statement is, explained however, obviously untrue, and even if it were true it would V ^^^''^' ' _ •' ' stone, not explain the distinction. Austin, after rejecting Black- stone's explanation, says, ' if ignorance of law were admitted Austin, as a ground of exception, the courts would be involved in questions which it were scarcely possible to solve and which would render the administration of justice next to impossible ^.' Why so? Alleged errors of fact are as difficult to inves- tigate as alleged errors of law. And neither in the Roman law nor in modern continental systems is the distinction drawn between errors of law and errors of fact with the same sharpness as in England ^- According to the Roman law there were large classes of persons to whom as it was said, in rather quaint language, permissum est jus ignorare. Amongst these ' Comm. Tol. iv. p. 27. ^ Xect. XXV. p. 498 (third ed.). ' See Dalloz, Rep. s. v. Obligation, art. 142 sqq. ; 3. v. Peines, art. 369 sqq. ; Code Civil, art, 1108 sqq. ; Preuss. Allgem. L. E. L 4, 75 ; Unger, Syst. d. asterr. Pr.-B. vol. ii. pp. 33, 34 ; Schwarze, Strafgesetzbuch, § 9 ; Sav. Syst. d. h. rOm. Eechts, vol. iii. Beyl. viii. 142 THE CEEATION, EXTINCTION, AND [Chap. VI. were rustics, minores xxv annis, and persons so placed as not to have ready access to legal advice (jurisconsult! eopiam habere). So too it was considered whether the point of law as to which there was error was a settled one, or one as to which the authorities (auctores diversae scholae) differed ■'. The necessity for the distinction cannot, therefore, rest upon the broad ground of practical convenience stated by Austin, and Sa- 270. Savigny ^, in his review of the Roman law as to error, vigny. . . endeavours to bring all the rules of it under a principle which differs from those of Blackstone and Austin^ He considers, or at least appears to assume, that an error either of law or fact cannot be put forward by the person labouring under the error as any ground either for changing the legal result or for getting rid of it, if the error is caused by his own negligence ; and then he goes on to assume that errors of law are prima facie negligent. How far these assumptions are consonant with the Roman law I cannot say, but it is clear that the English law, if it imputes anything, imputes not negligence but intention. Error as to 271. A suggestion was made in a well-known case by Lord private _ •' rights. Westbury^j that, at any rate, an error in regard to a man's private right must be put upon the same ground as an error of fact. Savigny had already made a similar observation. 'We must distinguish (he says) between jus ignorare and jus suum or de jure suo ignorare*.' It is difBcult, on account of the vagueness of these phrases, to say exactly to what they lead. I suspect that if applied to any considerable extent they would go far to break down the distiuction between errors of law and errors of fact, even in the few cases in which that distinc- tion has had any influence. Error as to 272. A question of considerable difficulty which may arise tkm'of ^^ *° *^6 application of the distinction between errors of law law. ^ See the references in Hunter, Eom. Law, p. 480. 2 Syst. d. heut. rOm. Eechts, vol. iii. Beyl. viii. ' Cooper V. Phibbs, Law Rep., Eng. and Jr. App., vol. ii pp. 149, 170. ' Syst. d. heut. rOm. Rechts, vol. iii. Beyl. viii. p. 327, note c. Sec. 270-274.] TEANSFER OF LEGAL RELATIONS. 143 and errors of fact is this : — Suppose the case to be one in which the law is clear, but the doubt arises whether it ap- plies to the facts, which are also clear. If in such a case an error is made in applying the law where it ought not to be applied, or in not applying it where it ought to be applied, how is such an error to be treated ? As an error of law or as an error of fact ? Doubts have Crossed my mind whether such a case is possible ; but jurists seem to be agreed that it is possible. Savigny says^ not, I think, as Professor Unger seems to suppose, that the case is one of an error of fact, but that the result ought to be the same as on an error of fact ^. The question has scarcely been discussed in England ; but it has been much discussed in Germany, without any decided result at present. 273. There are other circumstances which influence the Infancy, contemplated result of an act, which continental lawyers are and fraud, in the habit of discussing generally, but which for English lawyers can as yet be hardly disengaged from the particular classes of transaction with which they happen to be con- nected. As examples I may mention insanity, infancy, mis- representation, and fraud. I may, however, point out once for all that it is very rare indeed that, on any of these grounds, an act simply fails to produce its contemplated legal result. The matter generally requires a much more delicate adjustment than this, especially where, as is frequently the case, the interest of third persons is concerned. 274. English writers on law generally assume that all the Void and cases in which the legal result of an act is affected by these special circumstances may be covered by saying that the act is ' void ' or ' voidable.^ But these are words of very uncertain meaning. The word 'void^ means, I think, devoid of the legal result contemplated ^. The word ' voidable ■" means that 1 Syst. d. h. rOm. Kechts, vol. iil. Beyl. yiii. pp. 328, 338 n ; Unger, Syst. d. 5sterr. Pr.-R. vol. ii. p. 34. ^ See infra, s. 649, and also Pollock on Contracts, fifth ed. pp. 8, 59. Some- times acts are spoken of as if they were void of all legal result whatsoever. 144 THE CREATION, EXTINCTION, AND [Chap. VI. the result may be made ' void ' by some one. But by whom and by what process ? Continental lawyers make a triple division. First they set apart those cases in which the con- templated legal result fails altogether — as for example a will of lands made by an infant. Such acts they call ' absolutely void.' In the next class they place cases in which, as regards some persons, the act fails altogether to produce its contem- plated legal result, but, as regards others, the result is produced — as for example in the case of a bishop's lease exceeding the period prescribed by the law, which is good as against the bishop but not as against his successor. These acts they call ' relatively void.' Then the third class comprises those acts which produce their legal result ; but this result can be set aside by the action of some person concerned — as for example a contract induced by fraud. These acts are called ' voidable.' I think there is some advantage in this triple classification, but it does not carry us far towards attaching a precise meaning to the terms employed ; and in the hot contests that have taken place whether an act is void, or absolutely void, This is not perhaps impossible, but it must be rare. The word 'void' cannot, I think, be conveniently extended further than I have extended it in the text. Nor does current legal language virarrant our extending even the term ' absolutely void ' beyond this. Thus the contracts of an infant are with some exceptions declared ' absolutely void ' by the Infants' Relief Act, 1874, but if the infant, when of age, is sued on a contract made during minority, and he does not plead infancy, judgment will be given against him ; money paid on such a contract could not be recovered back ; and property delivered in accordance with it would pass to the receiver. See Pollock on Contracts, p. 63, iifth ed. See also Anson on Contracts, seventh ed. p. in. I cannot admit that a transaction which puts a party to his plea of confession and avoidance can be called destitute of legal effect. I may observe that there appears to be some inconsistency in the Indian Contract Act. § 10 makes free consent necessary to the creation of a contract : § 14 says that consent caused by fraud, &c., is not free. Then § 19 says that an agreement when the consent has been similarly caused is a 'voidable contract.' There is a somewhat similar inconsistency in the French Code, which, after declaring that consent is necessary to a contract and that there is ' nullity de convention ' if there is fraud, error, or violence in obtaining the consent, subsequently provides that the contract must be treated as existing until it is set aside by a com- petent court. See Co. Civ. art. 1108-1117. Sec. 275-277-] TRANSFER OF LEGAL RELATIONS. 145 or voidable, it seems to me that the disputants have frequently used the words in different senses. 275. It is in connexion with eases in which the contem- Eestitu- plated legal result has taken effect, but is to be set aside, that we come across the important topic of restitution. There is a large number of cases in which the legal result contemplated will foUow, but it can be set aside by a court, not however simply, bat upon certain conditions. This is called restitution, the parties being restored as nearly as possible to their original condition. This is the course which justice most frequently requires, and it was the inability to order restitution that crippled the action of courts of common law in England, and relegated cases of this class to courts of chancery. But though courts of chancery have been in the daily habit of making restitution, it is remarkable that this convenient word has not yet found a place in accepted English legal terminology. 276. From a consideration of the steps which may be Eatifiea- taken to invalidate the legal result of an act we naturally pass to the subject of ratification. There has been some dis- pute as to what is meant by this term also. What I under- stand to be meant by ' ratification ' is this : — After an act has been done which has had its legal result, but which legal result may by taking the proper steps be counteracted or modified, if the person who is empowered to take these steps signifies his intention not to take them, or does some act by which he loses his right to take them, he is said to ratify the act in question. 277. This, I think, is the proper meaning of the word 'ratification.'' The word is, however, sometimes used by English lawyers to express something different from this^. Thus if an agreement be made by B in the name of A without ^'s knowledge or authority, and then A consents to be bound by the agreement, the legal result is the same ^ See Pollock on Contracts, fifth ed. p. 96 ; Sav. Syst. d. h. rSm. Rechts, § 203, vol. iv. p. 558. L cence. 146 THE CREATION, EXTINCTION, AND [Chap. VI. as if A had antecedently authorised the making of the agree- ment, and A, in such a case^ is said to ratify the agreement. There are various ways of looking at this matter which I may discuss hereafter. All I have to say now is that if this be called ratification, then we give the same name to two things which are essentially different. Convales- 278. There is rather a loose Latin phrase concerning the legal result of an act which is sometimes quoted by English lawyers, but I hardly know what meaning they attach to it ^. The phrase in question runs ' quod ab initio non valet in tractu temporis non eonvaleseit.^ The first question in endeavouring to understand the phrase is, what is meant by ' convalescence ' ? According to Savigny it is this : — There are cases in which an act has not any legal result, or has not the full legal result, because of some hindrance, and in which, when that hindrance is subsequently removed, the full legal result ensues. For example : — I sell a man a horse. At the moment of sale the horse is not mine, and I have no power to dispose of him. But shortly afterwards the horse becomes mine. The sale at once becomes effectual. This, according to Savigny, is convalescence ; and I know of no objection to calling it so ; but if this be convalescence, then the maxim I have quoted is incorrect. Cases of convalescence in this sense are perhaps rare, but, as is shown by the example I have given, they are not unknown. 279. What I think those who use the phrase negativing convalescence intend, is something which is little more than a truism, though it is sometimes overlooked. An act to which the law refuses to attribute its contemplated legal result cannot by any subsequent conduct of the parties con- cerned be made to produce that result. Something which has been begun may be completed. Some act which has once missed its mark may be repeated effectually. But a failure must remain a failure. We are, however, apt to ignore this, and the maxim under consideration may be useful to recall ' Broom's Legal Maxims, p. 178 ; Dig. 50, 17, 29. Sect. 278-281.] TRANSFEE OF LEGAL RELATIONS. 147 it. Thus in the Roman law if a man took as his wife a girl under twelve years of age, and she remained with him, she became his wife as soon as she attained that age. This has been called convalescence, on the assumption that the original invalid marriage became a valid one. But, as Savigny points out^, the true explanation of this case is, that under Roman law no ceremony of any kind is necessary to a marriage, but only an actual cohabitation with the inten- tion to marry. There is, therefore, an actual and complete marriage after the girl has attained the age of puberty, and what happened before is altogether immaterial. The marriage is not then completed, but begun and ended. So in the case of an infant's will of lands : his acts after age might wear th.e form of ratifying the will already made ; but unless they were sufficient to constitute a new will then made, I imagine they would be insufficient. 280. Sometimes in consequence of arrangements made by Measure- the law, or by private individuals in transactions recognised time. by the law, rights or duties come into existence after a certain time has elapsed, or cease after a certain time has elapsed. Thus I may agree to sell a cargo of wheat to you and that I shall be paid for it ten days after delivery; or the law may say that the party who fails in an action may appeal to a higher court within two months after the first judg- ment is given. In these and the like cases we have to see whether the prescribed conditions as to time have been ful- filled; and as this question has to be determined very fre- quently and with great accuracy, certain rules have been laid down as to the measurement of time, which are not, in any special sense, legal rules, but the law has adopted them. 281. The measurements of time now universally used are founded partly upon certain astronomical observations, partly upon calculation, partly upon authority, and partly upon custom. There are certain divisions of time called respectively the day, the week, the month and the year, and all measure- ' Syst. d. h. rOm. Eeohts, § 203, vol. iv. p. 555. L 3 148 THE CREATION, EXTINCTION, AND [Otap. VI. ments of time are made in terms of these divisions. It is tbese divisions, therefore, which have to be accurately measured. Da\-. 282. The exact length of a day is the result of combined observation and computation. It is the mean solar day, that is, it is the time in which the earth would make a revolution on its axis, if the earth moved at an equable rate in the plane of the equator. This computation cannot be made exactly by every one, but no one need go far wrong in his reckoning of days, because each computed day coincides very nearly with an actual revolution of the earth, and each actual revolution of the earth is accompanied by such conspicuous phenomena, that the days at any one place may be easily counted. Hours. 283. The day is divided into twenty-four equal parts called hours, twelve in the forenoon, and twelve in the afternoon. Noon is, therefore, the point of time which fixes the day. This point of time is also the result of observation and com- putation. It is ascertained by observiiig the point of time at which the sun reaches its greatest altitude. This of itself does not give noon, but what is called the equation of time will enable us to calculate noon from it. There is no gener- ally visible natural phenomenon which indicates noon, but a clock indicates it with sufficient exactness. Difference 284. Noon however, as thus calculated, is not the same at different places in different degrees of longitude. Thus noon at Syd- tudes' ^^y corresponds with five minutes to two in the morning at London. The dates, therefore, at these two places will not always correspond. It is already the 2nd of January at Syd- ney whilst it is early in the afternoon of the 1st in London. Persons, therefore, corresponding between these two places might get into a confusion of dates if they were not careful to mention which time they go by. In ordinary business trans- actions, however, the difference is of less consequence, as the change of date generally takes place outside of the hours of business at both places; so that during business hours the dates are the same. The necessity of any nice calculation is Sec. 282-288.] TRANSFER OP LEGAL RELATIONS. 149 also frequently avoided by disregarding fractions of a day, as weU as by limiting the day to those hours of it during which it is usual to transact business. Thus if A were bound to pay a sum of money to £ three days after notice, and notice were given to ji at 10 o^clock in the morning of the 3rd, it would not be necessary for A to make payment by 10 o'clock of the morning of the 6th. He could make the payment at any time during business hours on the 6th. 285. Probably where a thing had to be done at a certain time and at a certain place, all measurements of time would be made to accord with those in use at the place where the thing was to be done. 286. When rights or duties are made conditional upon the Days how lapse of a certain period of time after a certain event, a dis- cussion has sometimes arisen whether, in reckoning the period, the day on which the event happens should be included. The general rule now is that this day is excluded ^. 287. The word ' month ' means either a lunar or calendar Lunar and month. A lunar month is twenty-eight days. The lunar month, month is a period suggested by the moon^s revolution round the earth, exhibiting the phenomenon which we call a change of moon. The true period of a revolution is nearly agi days : and at first every new moon brought in a new month ^. But when the calendar month was introduced, the lunar month was reduced to an arbitrary period of 28 days. 288. The calendar month is the result of an attempt to make the lunar periods correspond with the solar year without resorting to fractions of a day. In Eome, before the time of Julius Csesar, the twelve lunar months, which make 354 days Julian year. ^ See Kules of the Supreme Court 1883, Order IjXLV, no. 972. The Roman law seems to have been otherwise. See Arudt'a Pandekten, § 89 ; TJnger, Syst. d. osterr. Allgem. Land-K. vol. ii. p. 295. ' With us, the term ' new moon ' indicates the change which takes place when the visible portion of the moon passes through the vanishing point and begins again to increase. But the new moon is sometimes reckoned from the time when it becomes full. It is so reckoned in many parts of India. 150 THE CREATION, EXTINCTION, AND [Chap. VI. only, were brouglit up to the solar year by the occasional intercalation of days at irregular intervals. But either from the corruption of the officers whose duty it was to see to this intercalation, or from their ignorance, the calendar got into great confusion, and accordingly Julius Csesar rearranged the calendar, making March the first month and February the last, and varying the number of days in each month so as to give 365 days in each year, except every fourth year, which contains ■>fi6. This brought the civil year very nearly into exact correspondence with the solar year, but not quite ; and by the year 175a the error had amounted to twelve days; so that the 2nd of September in the year 1752 ought to have Altera- been the 14th. Accordingly, by the 24 Geo. II. c. 23 it was in°i7S2 directed that the intervening days — i. e. from the 3rd to the 13th inclusive — should be omitted, and the and of September was followed immediately by the 14th; and further, in order to preserve the true reckoning it was ordered that none of the hundredth years (1800, 1900, and so on) should in future be leap years, except every fourth hundredth year (2000, 2400, and so on). 289. At the same time another important alteration was made. Prior to the act of George II there were two dates for the beginning of the year; one used by lawyers and the other by historians. The lawyers began the year on the a5th of March, whilst the historians began it on the 1st of January. In order, therefore, to fix any date in a given year between the ist of January and the 25th of March, it was necessary to know which year was spoken of. For instance, January 7, 1658, of the lawyers corresponded to January 7, 1659, of the historians : and to prevent mistakes this date was very often written 165I. By the act of George II it was directed that the ist of January then next following should be the ist of January, 1752, for all purposes, and all future reckoning should be made accordingly. This is a very important matter for lawyers to recollect when dealing with dates more than a hundred years old, otherwise they will frequently meet with imaginary inconsistencies. Sec. 289-90.] TRANSFER OP LEGAL RELATIONS. 151 290. The ambiguous word ' month ^ was formally under- 'Month' stood to mean the lunar month of a8 days, unless it was calendar expressly stated that a calendar month was intended. But °'°" " the rule is now reversed. The word ' month •" now presumably means a calendar month ^. This^ it is true, is an irregular period, varying according as the months which it includes are longer or shorter. Thus a calendar month reckoned from the 31st of January expires on the 21st of February, and con- tains 31 days. A calendar month reckoned from the aist of February expires on the aist of March and contains a 8 days only, or 39 if it is in leap year. And a calendar month from the 31st of January cannot be reckoned so as to expire on the corresponding date of the following month, because no such date exists. It is, therefore, usual ta make it expire on the last day of February, that is, on the 28th or a9th according to circumstances; so the second calendar month from the 31st of January would expire on the 31st of March, the third on the 30th of April, and so on. This seems rather an arbitrary method of computation, but it has the advantage that the period can be instantaneously calculated. ' Rules of the Supreme Court, Order LXIV, no. 961. CHAPTEE VII. THE ARRANGEMENT OF THE LAW. Divisions 291. Whenever people have attempted to write syste- matically about law, certain divisions of it have been adopted, not always identical, but running mostly on the same lines. Publioaud 292. The best-known and most widely accepted of these divisions of law is that which separates law into public and private. Not a 293. There has been much said about this division which division Seems to proceed upon the assumption that the division is a scientific one, based upon some principle which can be ac- curately stated and applied. Austin has, I think, clearly shown that there is no such principle, and that the division is not of that character ^. It is only a convenient method of arranging the topics of law for the purpose of discussion. This is how it is put forward in the place where it originally ap- peared, namely in the Institutes of Justinian : ' Jus publicum est quod ad statum rei Romanae speetat, jus privatum quod ad singulorum utilitatem pertinet^.' All that I understand to be meant by the passage is this : — Public law is that portion of law in which our attention is mainly directed to the state ; private law is that in which it is mainly directed to the individual. I do not think it means that these topics are capable of exact separation ; but that our attitude changes in regard to them. And, according as we assume the one attitude or the other, we call law public or private. ' Loot. xliv. p. 770. ^ Inst. I. i. 4. THE AERAJSTGEMENT OF THE LAW. 153 294. The fact that this classification has been used for but more than a thousand years testifies to its convenience : and upon con- i£ it is unscientific, this, though it is a fact which it is "^®ni^"°^- desirable to remember^ does not render it incumbent upon us to discard the division. I may also observe, that though the principle of the division may not be more accurate than I have stated, there has been very little practical differ- ence of opinion as to what branches of law should be placed in each department; and such differences as have existed have been by no means important. 295. If the view that I take of the distinction is correct, it How would obviously be a waste of time to discuss at any length the various attempts that have been made to explain accu- rately the distinction between public and private law. I will, however, notice one of those attempts, being that which has been most generally accepted as successful. It is said that public law comprises that body of law in which the people at large, or, as it is sometimes put, the sovereign, or the state as representing the people, is interested ; whilst private law comprises that body of law in which individuals are interested. This is a forcible, and sometimes a useful way of putting the distinction. But it is still not accurate. For though the interest of the public is in public law con- spicuous or predominant, there is hardly any law in which the interest of individuals is not also concerned. And so also in private law. The interest of the public may be in the background, but it is almost always there. Thus the criminal law of theft ad statum rei publicae spectat, and is always classed as public law, but still private rights are largely concerned with it. So with the law of contract. Here we have to deal mainly with matters of private concern, but the legality of the transaction— in other words, the public concern in it — is not forgotten. So the criminal law of tres- pass and the eivU law of trespass to a considerable extent effect the same objects, though in one the public interest and in the other private interest is chiefly regarded. 154 THE ARRANGEMENT OF THE LAW. [Chap. YII. Law of 296. Private law has again been subjected to a classifiea- things ' tioii which is nearly as celebrated, and which is derived from and pro- ^j^g g^me souTce. In the language of the Institutes, ' jus privatum vel ad personas pertinet, vel ad res, vel ad actio nes ^ ■"; or, as modern authors say, private law consists of the law of persons, the law of things, and the law of procedure. This classification is just as inaccurate and just as useful as the last. In one sense it may be said of every law, public or private, ad personas pertinet. Evdry law is addressed to persons, bidding them do or not do a particular thing. But the objects of law, as they are called, may be either things or persons : and it is with reference to this division between the objects of law that the classification of private law into the law of persons and the law of things has been made. There are however very few laws of which the objects are' exclusively persons or exclusively things. The law, for example, which places the son under the control of the father, gives also to the father the fruits of the son^s labour. And even the law which enforces a contract for the supply of goods affects the liberty of action of the contracting parties. Yet no one hesitates to place the first in the law of persons and the second in the law of things ^. 297. The law of procedure can no more be accurately separated from the law of persons and the law of things than these two can be separated from each other. The rules of procedure which compel a man asserting a right, or defending himself against a claim, to do so in a particular way, do in fact constantly affect the right itself. When the judges say that after a certain time has elapsed we wiU no longer enforce a right, it is impossible to say that this rule of law does not affect rights. So, again, I make a contract. If I make it in a certain form I can sue upon it; If I do not make it in that form, whether I can sue upon it or not depends upon the nature of the defence set up by my adversary. This is because of certain rules of procedure. But my rights under ' Inst. I, 3, 13, Sec. 296-302.] - THE AERANGEMENT OF THE LAW. 155 the contract are clearly affected. So in the ease of adoption under the Hindoo law. Adoption is considered by the Hindoos as a religious act, and respectingj as we do, the religion of the Hindoos, we endeavour not to interfere with it. But we make rules of procedure, and cases have occurred in which adopted sons have lost their rights and sons not really adopted have established their position as such, through judgments based solely upon considerations of pro- cedure. 298. I believe that, as a general rule, absolute duties (duties with no corresponding rights) are classed in public law; whilst relative duties (duties with corresponding rights) are classed in private law. 299. As to the subdivision of private law, it will, I think, be found that in the law of persons we chiefly find rights and duties which are attached to certain classes of the community, that is, a certain indeterminate number less than all. In the law of things we find chiefly rights and duties which affect either individuals or the community at large. 300. When we find an aggregate of rights and duties Law attached to certain classes of the community we call that aggregate (as I have explained above ^) a status, or condition. Hence the law of persons has sometimes been called the law of status or condition. 301. The topics usually discussed under the headings, con- stitutional law, revenue law, and criminal law, are by general agreement placed under public law, Criminal procedure is also placed in public law, and some persons are disposed to include civil procedure also. But most persons agree that whether procedure be placed in public or private law it should be discussed separately. 302. Ownership, possession, security (pledge and mortgage), and servitudes (easements) belong, it is generally agreed, to private law, and to the law of things. ^ Supra, sect, 177. 156 THE ^BEANGEMENT OF THE LAW. 303. The conditions of husband, wife, parent, child, guar- dian and ward belong also to private law, and to the law of persons. 304. Succession is considered to belong to private law, but, after much discussion whether it should be placed in the law of persons or the law of things, it is now generally agreed to class it apart. 305. Ecclesiastical law I should be inclined myself to class under public law. But it is generally classed by itself, without saying distinctly whether it belongs to public or to private law. 806. Obligations, in the sense of duties which correspond to rights of persons against particular persons (jura in per- sonam), are considered to belong to the law of things. But German writers generally class them apart, confining the law of things to rights over things (jura in re) which are available against the world at large (in rem). Under the law of things thus circumscribed they include ownership, possession, security, and servitudes. Also, inasmuch as the conditions which it is usual to consider under the law of persons are those which belong to the family, German writers have substituted for the law of persons the expression ' the law of the family.' Thus with them the subdivision of private law runs thus : — the law of things, the law of obligations, family law, the law of succession, and civil procedure. I shall adopt an arrangement nearly identical with this. CHAPTEE VIII. OWNERSHIP. 307. If we consider any material object, such, as a field^ Eights a piece of furniture, a sum of money, or a sack of wheat, we things. shall see that various rights exist with respect to it. There is the right to walk about the field, to till it, to allow others to till it, and so forth ; there is the right to use the piece of furnitute, to repair it, to break it up, to sell it; there is the right to spend the money, to hoard it, to give it away ,• there is the right to grind the wheat, to make it into bread, to sow it for next yearns crop, and so forth, 308. All these rights, which I have spoken of, are rights over the thing available against the world at large : jura in re and in rem. 309. If all the rights over a thing were centred in one Ownership person, that person would be the owner of the thing: and j.jgj,j.soygj. ownership would express the condition of such a person in things. regard to that thing. But the innumerable rights over a thing thus centred in the owner are not conceived as separately existing. The owner of land has not one right to walk upon it, and another right to till it ; the owner of a piece of furniture has not one right to repair it, and another right to sell it : all the various rights which an owner has over a thing are conceived as merged iu one general right of ownership. 310. A person in whom all the rights over a thing were 158 OWNERSHIP. [Chap. VIII. Absolute centred, to the exclusion of every one else, would be called the own ft I*" ship. absolute and exclusive owner. This means that no one has any right over the thing except himself. It does not mean that he may exercise his ownership in accordance with his uncontrolled fancy. In the exercise of all legal rights, whether of ownership or of any other kind, each, of us is under a certain control arising out of the relation, in which we stand to the ruling power or to other members of the society to which we belong. I cannot exercise my rights in such a way as to infringe the law or the rights of others. To take an example : I am the absolute and exclusive owner of a large quantity of charcoal, sulphur and saltpetre. I am still the absolute owner, although the law forbids me to mis them together and keep them in my house. No one by reason of that restriction has a jus in re over them. Nor is my ownership affected. The restriction is on my liberty of action only. 311. But if I have pledged the saltpetre as security for a loan, then the pledgee has a jus in re over it ; and my right to dispose of it is restricted, not by a mere restriction on my liberty of action, but because one or more of the rights of ownership have been detached and given to another. 312. So if I grant a right of way to a neighbour across my land, or if my neighbour has a right to graze his cattle there, he has a jus in re over my land, and certain rights have been detached from my ownership and transferred to him. 313. Absolute and exclusive ownership is rare : and yet I do not think it is possible to explain what is meant by ownership except by starting with this abstract conception of it. It is to this that we always revert when we are trying to form a conception of ownership. Ownership 314. Ownership, as I have said, is conceived as a single aggregate right, and not as an aggregate of rights. To use a homely ot rights, illustration, it is no more conceived as an aggregate of distinct rights than a bucket of water is conceived as an aggregate of separate drops. Yet, as we may take a drop or several drops Sec. 311-318.] OWNERSHIP. 159 from the bucket, so we may detach a right or several rights from ownership. 315. The distribution of rights detached from ownership Distribu- which we actually find in use is very extensive. Thus, it j-ights. would be no strange thing to find a piece of land, and that A had a right to till it, £ a right to walk across it, C a right to draw water from a spring in it, D a right to turn his cattle on it to graze, U a right to take tithe on it, F a right to hold it as security for a debt, and yet possibly no one of these persons would be considered as the owner. 316. In such a case as this the owner would be stripped Difference nearly bare of his rights, and it may seem, at first sight, ownership purely arbitrary to continue to call such a person the owner, ''"'i J."^^ .'" But this is not so. Though his ownership is greatly reduced, he is still in essentially a different position from that of any other person. So long as the rights I have mentioned are in the hands of any other person they have a separate existence, but as soon as they get back into the hands of the person from whom they are derived, as soon as they are * at home ' as it were, they lose their separate existence, and merge in the general right of ownership. They may be again detached, but by the detachment a new right is created ^. 317. However numerous and extensive may be the de- Descrip- tached rights, however insignificant may be the residue, it is owner. the holder of this residuary right whom we always consider as the owner. An owner might, therefore, be described as the person in whom the rights over a thing do not exist separately, but are merged in one general right. 318. Or an owner might be described as the person whose rights over a thing are only limited by the rights which have been detached from it^. 1 This I take to be the meaning of the maxim 'nemini res sua servit' — a man cannot have a separate jus in re over his own property. ' I do not attempt to define ownership. The following are three attempts which have been made at a definition : — ' Eigenthlimer heisst derjenige, welcher hefugt ist, fiber die Substanz einer Sache oder eines Eeehts, mit Ausschliessung Auderer, aus eigener 160 OWNEESHIP. [Chap. VIII. Presump- 319. This residuary right^ even in its slenderest fornij is of favour* great legal importance. It enables the holder of it to assume of owner. ^ position of great advantage in all legal disputes. All (he can say) belongs to me which cannot be shown to belong to any one else. Every one who intermeddles is an intruder. Unless he can establish his right to do so. Everybody else must take just what he is entitled to and no more. The pre- sumption is always in favour of the owner ^. 320. Having thus endeavoured to explain the conception of ownership, I now advert to an extended use of the word which has given rise to much controversy and to some confusion. Ownership 321. The word 'ownership/ and its English equivalent of jura in in t i • i i re aliena. ' property/ as well as the corresponding words in other lan- guages, dominium, propriete, eigenthum, besides being used to express that relation of a person to a thing which I have just now endeavoured to describe, have been used to describe generally the position of any person who has a right or rights ovef a thing. Any person having a jus in re has been called owner ; not indeed of the thing, but of that right ^. Perhaps this extended use of the term is to be regretted as tending to confuse the conception of ownership. Nevertheless it exists and we must master it. Nor can it be denied that between the ownership of a thing and the so-called ownership of a right there is much analogy. Both owners have jus in re and in rem. Both can deal with the object of their right Maoht, durcli sich selbat, oder einen Dritten zu verfiigen.' Allgem. L.-E. I. 8. i. 'La propriSt6 est le droit de jouir et disposer des choses de la maniere la plus absolue, pourvu qu'on n'en fasae pas un usage prohibS par les lois ou par les rgglements.' Code Civil, Art. 544. ' The ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others.' New York Civil Code, sect. 159. AH these definitions seem to me to be valueless. See the remarks of Sohm, Inst. E.-L. § 61 (Ledlie, p. 827), and the German Biirgerliches Gesetzbuch, J 903, where, prudently, only a description and not a deiinition is attempted. ' See infra, sects. 844 sqq. ^ The ownership of a right is expressly recognised in the Prussian Code. See the quotation in the note above. Also in the Austrian Code, see AUgem. biii-g. Gesetzb. Art. 353, 354. Sec. 319-323.J OWNEESHIP. 161 (with the usual Hmitation i) as they please. The owner- ship of the right as well as the ownership o£ the original thing can very frequently he divided; subordinate rights may be again detached from it and made over to others. Thus, if A be the owner of a piece of land, and he lets it to £ for a term of years, A is still the owner, and, as regards him, B merely has a jus in re aliena. But, as regards other per- sons than A, B will be considered as the owner, not of the land, but of the lease ; and if B then sells his growing crops to C, C will have a jus in re aliena as regards B, namely the right to come on to the land and take the crops when they are ripe ; and there is this further analogy between the position of A and B, that just as ^■'s detached rights, if they went back to A, would merge in A's general right of ownership of the land, so (7's detached right to take the crops, if it went back to B, would merge in ^^s general right of ownership of the lease. 322. In the view of some jurists not only is it wrong to speak of the ownership of a jus in re aliena, but it is wrong to speak of the ownership of anything which is not a material object capable of being perceived by the senses^. It seems to me a strange thing to speak of a thing as erroneous which is universally done ; and especially when, after all, the question is only one of convenience — how shall we shape our conception of ownership ? The Roman lawyers, as a matter of fact, did speak of the ownership of things which had no corporeal existence. They spoke, for example, of the owner- ship of a usufruct ; and they spoke of the ownership of an haereditas; both which the authors of the Institutes^ have been careful to show are incorporeal ; and modem legislation has in the clearest manner adopted the view that things which have an ideal existence may be owned. In England this use of the word ownership has taken deep root. 323. The long-standing discussion as to the ground upon ' See supra, sect. 310. ° See Windscheid, Lehrb. d. Pand.-E. § 168, and the references in the note. ^ Inst, of Just. 2, I, 1. M 162 OWNERSHIP. [Chap. "VIII. Ownership wtich authors, artists, and inventors are protected by the law Hons^^"" seems to me to resolve itself into a question how you choose and copy- j^ conceive ownership. What we call copyright can only be right. , , , I'll conceived as a right ; that is, as a thing having only an ideal existence. Moreover it is not conceivable as a right which has been detached from ownership, or from any other aggregate of rights, but only as an independent right. It may be de- scribed generally as a right to reproduce a certain collocation of words and sentences, or a certain design, and to exclude others from doing so. If we do not admit that there can be ownership of things incorporeal, of course we cannot admit the ownership of copyright. If we do admit the ownership of things incorporeal — and practically most per- sons do make this admission — then copyright seems to me a very proper subject for ownership, and 'owner' seems a very suitable term by which to describe the person who has the copyright. The other way of looking at the matter is to conceive the copyright as a personal privilege of the author, in the same way as we conceive the right of exclusive audience in courts of law as the personal privilege of a barrister, or the right to sit and vote in the House of Lords as the personal privilege of a peer. But whether a right or any particular set of rights is referred to ownership, or whether it shall be referred to personal privilege, or (as it is sometimes called but which comes to the same thing) to personal condition, is after all only a question of convenience. As Austin points out ', some of the rights in rem over persons have been referred to ownership and some to privilege or condition. The right of a master, for example, over his slave is always called ownership, that of a father over his son in modern times is not so called. This is partly perhaps due to sentiment, partly also because the slave is bought and sold and is a source of wealth, which the son is not^. But whatever the ' Lect. xlvii. p. 819. ' See Bentham, Collected Works, vol. i. p. 136. Blackstone evidently thinks that every right in rem belonging to n person over •■■ person or thing must be a right of property (ownership). Thus, he says, ' the child Sec. 324, 325.] OWNERSHIP. 163 reason may be it would make no difference from a legal point of view, so long as the rights were not altered, if what is now referred to privilege or condition were referred to owner- ship, and vice versa. 324. Ownership being the relation of a person to a thing, Ownersliip or to a person considered as a thing 1, the person may be poration. either a human being or a juristical person— a corporation, as we generally call it: and in legal contemplation the ownership of a single individual and of a corporation are the same. But there may be ownership which is neither of an individual nor of a corporation, but of several indivi- duals. The co-ownership of several individuals ^ is something quite distinct from the ownership of a corporation. If a piece of land or a house is owned by a college, or a quantity of rolling stock is owned by a railway company, neither the members of the college nor the shareholders of the company have any right over or interest in these things whatsoever. If a member of the college without the permission of the college were to enter on the land he would commit a tres- pass; if he lived in the house he would have to pay rent for it : if a shareholder of the company took away any of the moveable property of the company he would steal. But in co-ownership the individuals themselves are the owners, only the rights of each are necessarily somewhat limited by the rights of his fellows. 325. Of course this case is quite distinct from that in Owner- which the several rights over a thing are distributed amongst liath no property in his father or guardian as they have in him for the sake of giving him education and nurture.' And further on lie says of the servant, tiiat ' he had no property in the master.' Comm. vol. iii. p. 143. And a modern editor of Blackstone thinks that, since the wife and child can now recover damages for the injury sustained by the death of the husband or father, they have a kind of property in him. Kerr's Blackstone, vol. iii. p. 134. So too the right of a pledgee is called a 'special property.' Co. Litt. 89 a, ; 2 Lord Eaym. pp. 916, 917. See Donald v. Suckling, Law Kep. Q. B. vol. i. p. 595. We have been driven to this by the poverty of our legal language. ^ See sect. 160 supra, and note. ' See sect. 143 supra. M 2 164 OWNERSHIP. [Chap. VIIT. several persons ; as also from that where a thing consists of parts and each part has a different owner; as, for example, a piece of land with a house upon it, where A is the owner of the land, and B of the house : or of a gold ring with a jewel set in it, where A is the owner of the ring, and B of the jewel. We are considering the ease where there is but one object and several persons standing in the relation of owner to that object ; or, as it has been put, where each 'to tins corporis pro indiviso dominium habet^/ Family 326. I think it very probable that co-ownership came owner- ... . ship. originally into use as a modified form of what I will call family ownership. There is ground for believing that family ownership is the oldest form of ownership, and very high authorities think that in its original form it was pretty much the same thing as that which we now call corporate ownership ^. There is no more interesting chapter in legal history than that of the different processes by which this family ownership has been transformed into separate in- dividual ownership, and the intermediate forms of ownership which they have left on the way. These forms survive with us as joint tenancy, tenancy in common, and coparcenary. As far as I am aware the forms of ownership existing on the continent are not materially different. But in India, where the transition from family to individual ownership is still in progress, there are some very peculiar forms of co-ownership, analogous to forms found in Europe, but iden- tical with none. I shall have occasion to speak again of these hereafter ^ Condition- 327. Ownership, or any of the various rights which make al owner- . . . . ship. up ownership, may be subject to conditions : that is to say, may be made to commence or cease upon the ascertainment by our senses that a certain fact does or does not exist. 1 Dig. xiii. 6, 5, 15. ^ It is not possible to avoid using the word ' corporate,' though, of course, it is necessary to be careful in drawing conclusions as to the complete identity of family ownership with corporate ownership. ^ See the chapter on Succession, ss. 780 sqq. Sec. 326-328.] OWNEESHIP. 165 Thus, I may be the owner of a piece of land on condition of paying a certain fixed sum of money annually to the crown ; or I may become the owner of the estate which belongs to you, upon your declining to take the name of a certain family. 328. I am not now about to discuss the rules which regu- Peisevei-- late the transfer of the ownership of property, whether inter tempts to vivos or by succession, testamentary or intestate. I am ceti^on to' however about to refer to them, because many modern owner- ideas upon the subject of ownership were introduced in order to satisfy the eager desire of owners of landed property to direct the course of succession according to their liking, and to thwart the efforts of the legislature to prevent owners from what we call ' tying up ' their property. To exercise and extend to the very utmost the power of directing the course of succession to land has been the steady object of owners of landed property in every country of Europe; and, at this moment, it largely occupies the attention of land- owners in India ^. It has been the policy of the ruling powers in different countries sometimes to increase these facilities, sometimes to diminish them. They were swept away in France by the Revolution of 179*^ and have only been very partially restored^. In England, though many ' See infra, sect. 337 note. ^ See Code Civil, Art. 896, and the observations of M. Troplong, Droit Civil Expliqug, Donations entre Vifs et Testaments, vol. i. p. 138. M. Troplong's observations upon the effect of what at the time was con- sidered a very extreme measure are remarkable. Though strongly repudiating all sympathy with the extreme republican School, he declares his conviction that the abolition of the old law of substitution has been in the highest degree beneficial to France. He says : ' Cette question ne divise plus les esprits. L'abolition des substitutions a pu paraitre un coup hardi a la gfin^ration qui n'en avait pas fait I'epreuve ; mais I'experience d'un demi-sifecle a d^montre h I'epoque actuelle les immenses avantages d'un regime de liberty qui laisse la propriety h, son mouvement legitime, qui en fait un gage sgrieux pour le credit, et un patrimoine assure a chaque membre de la famille. Les substitutions ^taient un obstacle Suorme au dfiveloppement de la richesse publique. EUes avaient, sans doute, un certain avantage de conservation, mais elles pr6f^raient une immobilite sterile au mouvement f^cond qui donne la vie aux interets 6couomiques.' The rapid change of ideas which has taken place in England during the last few years is very remarkable. When this work was first published, 166 OWNERSHIP, [Chap. YIII. attempts have been made to restrict them, they still exist in a form and to an extent nowhere else ever known. Furthered 329. Certain peculiarities o£ the law of ownership in notions 'of England have specially tended to favour the exercise of the owner- power of tying up landed property; and, as far as I am aware, there is nothing analogous to these in any other system of law, ancient or modern. First, by 330. It is not at all uncommon to find in many countries separation . ,, /. • j- i j • j! of owner- two, three or tour persons mdicated as successive owners or ship into property ; the property shifting over from one to the other on the happening of certain events. These persons in their turn become owners of the property^ each taking by substitution for the one who preceded him : each in his turn being com- plete owner ; but each taking nothing till his turn comes. There is a substitution of this kind in English law, when (as frequently happens) a man who inherits an estate is compelled to give up one which he previously held so as to provide for another member of the family. But besides this the English lawyers have invented a way of dealing with the successive ownership of land in a way peculiar to themselves. If land in England be given to A, and after his death to £, and after his death to G, and after his death to I), these four persons are not considered, as they would be anywhere else, to be four successive owners, differing only in the date of the commence- ment and end of their ownership; each taking by substitution^ their turn as it came, but having nothing till that came. The English lawyer views them ia a far different and highly technical light. By an extremely bold effort of imagination, he first detaches the ownership from the land itself, and then attaches it to an imaginary thing which he the remarks in the text were considered somewhat hazardous. Since then a measure radically affecting the principles of the English land law has been carried almost without a dissentient, and further reforms are promised. ' This is a technical term of French law ; it was by means of substitu- tions that succession was tied up under the old French law, and it was by the abolition of substitutions that the great change was effected ; see Code Civil, Art. 896. Sec. 329-331.J OWNERSHIP. 167 calls an estate. This enables him to deal with ownership in a more fanciful way than if it were attached to the soil. He treats the ownership of the 'estate'' in perpetuity as some- thing out of which he may carve (to use his own expression) any number of slices, and confer each slice upon a different person ; each, of whom, though he may have to wait a long time for his enjoyment of the property, is nevertheless the present owner of his slice. English lawyers do not seem to consider this mode of dealing with ownership as anything peculiar ; but it nevertheless is peculiar to English law. Other nations share with us the idea that, as certain events arbi- trarily chosen may happen, the ownership of land may pass from one person to another ; and have invented contrivances, which are, for the most part, restrictions on alienation ', to insure that, when the event happens, the land shall so pass. But the notion of an ' estate,' as it is called, is, I think, unknown in any system which has not taken it directly from us; and tricks have been played with the ownership of an ' estate ' which could hardly have been ventured on with the ownership of the land itself. If I give an estate in my land to you for your life, I am not looked upon as having parted with the land altogether for this indefinite period, at the end of which it will come back to me, or go to some other person. According to the language and ideas of English lawyers the land is in one sense yours, but still remains in another sense mine : and with what is mine I may deal. 331. It is true that the results of both devices for con- trolling the succession to the ownership of land are very often the same. It might come to pretty nearly the same thing, whether I gave land to my eldest son for life, and after his death to his brother, or 'substituted' my younger son for my elder, on the death of the latter. But it does not follow from this that the existence of two different devices ' The ' shifting use ' of English real property law is very little more than a well-conceived device for preventing alienation. 168 OWNERSHIP. [Chap. VIII. does not widen the facilities for tying up succession, though this is not the point to which I now wish to draw attention. What I wish to establish is, that the English method of dealing with the ownership of land is peculiar^. 332. A ease has arisen in India which is remarkable as being one to which it was open to apply either the English or the more general notion; and the actual determination of it may have no little influence on the future development of law in that country. If a Hindoo dies leaving a widow, she sometimes takes his property, but her ownership terminates at her death. It would have been perfectly in accordance, there- fore, with English ideas, though contrary to the general ideas of jurisprudence, to treat her — not as unlimited owner of the property for the limited time, the ownership shifting over at her death to the next taker — but as owner only of what we should in England call an estate for life ; the next taker being at the same time present owner of the rest. But this is one of the instances in which English lawyers have escaped the error of transferring into a foreign system the ideas peculiar to their own. The widow in India, though her ownership lasts only for life, has (as the phrase is) the whole estate vested in her ; and the next taker after the widow has, as he would have in most countries under similar circumstances, nothing, until his turn comes by the death or other determination of the widow^s ownership, when the whole shifts over to him. Leases for 333. There are many other things which an Enghsh land- of years. Owner, but no other landowner, is permitted to do. For instance, whilst it is common everywhere for the owner of ' I confine my observations to land, although the ideas of English law relating to other species of property, the funds for instance, possess some peculiarities ; but I have selected land as the best for purposes of illustration. Nor do I vi^ish to indicate it as my opinion that these ideas could be wholly swept away : though I cannot conceal my opinion that they might be advantageously simplified. This simplification is not effected by the recent Settled Estates Act, though some evils are mitigated ; but it is not improbable that a further advance may be made. Sec. 332-334.] OWNEESHIP. ] 69 land to be allowed to separate the right to use and enjoy the land from the ownership, and to confer it on some person for a limited period, this period has generally been a short one, conterminous with the life of the grantee. English lawyers have adopted the strange device of separating the use and enjoyment of the land from the ownership for periods of as much as a thousand years. As a thousand years is for all practical purposes equivalent to a perpetuity, this is a new mode of creating an owner ; the right to use and enjoy being unlimited. The incidents of this ownership, which we call the ownership of a ' term,' are not the same as the incidents of the ownership of an estate for life, or in tail, or in fee. The owner of the term is the owner of a jus in re alienS. It is for this very reason that the device is resorted to, in order to satisfy the capricious fancies of landowners. It might create a little immediate inconvenience, but it would vastly simplify the law and be a great benefit to posterity, if every grant of the use and enjoyment of land for more than one hundred years were declared to be equivalent to a grant in fee ^. 334. But there is a more extraordinary device still. Restric- . • 1 i VI • ■ J. 1 tiois on Every civilised country has arrived at the opinion not only aiiena- that land may be alienated, but that a free power of alien- '°"" ation is a necessity of well-being. The English law, like all other systems of law, has clearly laid down the principle that restrictions upon alienation are objectionable, and in a general way illegal. ' Also if a feoffment be made upon this condition, that the feofEee shall not alien the land to any, this condition is void ; because when a man is infeoffed of lands or tenements he hath power to alien them to any person by the law ^.' These are the words of Littleton, and the principle they lay down has been reaffirmed by judges innumerable down to the present day ^. And yet every day the prohibition is avoided, and the owner of land is restrained ' See 44 and 45 Vict. u. 41, s. 65, by which a small step is taken towards extinguishing long terms of years. ' Littleton, s. 360. ^ Tudor's Leading Cases in Real Property, p. 971. 170 OWNERSHIP. [Chap. VIII. from alienating by an artifice which is too transparent to deceive a child. The power of alienation is detached from the ownership of the estate when the estate is parted with, and is either retained by the grantor, or given to some one else. Thus the ownership goes one way and the power of alienation goes another. The policy of the law is that they should go together. The evil is that a man should not be able to get rid of land which he cannot manage usefully or profitably. The land gets into a bad condition, and this great source of wealth is diminished. An impoverished owner is an evil, but this is an evil which has a tendency to cure itself, for an impoverished owner is almost always willing to sell. Powers of With US it is possible to check that tendency by putting the sale by , rersons power of sale into the hands of a person who is not the owner, owners. ^^^ ^^° ^^® been selected expressly because he is not likely to be willing to sell ^. Separa- 335 _ Another peculiarity of the English law of ownership legal and arises out of the very strange conflict between common law owner- ^^^ equity. To take a simple ease : — If I gave land to you ship. jj^ trust for myself, at common law I cease to be the owner, in equity I continue to be so. How this came about is an inquiry which belongs to the history of English law, and need not be now pursued. It is only noticed here as an idea of ownership by which the attempts at simplifying the notions comprised under that term have been eluded. The Court of Chancery, had it confined itself to compelling owners of property either to fulfil certain fiduciary relations, such as those of guardian and ward, or to fulfil the wishes of persons from whose bounty they had received the ownership, would have kept within the limits of analogous institutions in other systems of jurisprudence. Had too this been done, not only in those cases where there are special reasons for the exercise of good faith, but in all cases alike, where the owner of land 1 This evil is lessened by the Settled Estates Act. It remains to be seen how far land becomes easily saleable under that Act. Much depends upon the attitude of the Courts. Sec. 335. 336-] OWNEESHIP. 171 had accepted the ownership subject to a condition to exercise his rights for the benefit of some other person, and the ordinary remedies of law were insufficient to compel him to do so — this would have been a stretch perhaps of the doctrines of equity, but would have been very likely beneficial, and would have introduced no entirely new principle. But the English Court of Chancery has done a great deal more than this. It has created an entirely new interest in land ; an interest as com- prehensive, as general, as beneficial, as transferable, as ownership itself — which is ownership in fact, only the rights of the owner are somewhat clumsily exercised; and so it is frequently called. This equitable ownership, or use, or trust estate, or whatever other name we may give it, exists side by side with the common law ownership, and there is no immediate prospect of this double ownership being got rid of. It has been said that the Courts of Common Law are to blame for this conflict ; that it is to their action, and not to the action of Courts of Chancery, that the anomaly is due. It is not the least worth discussing which of these charges is correct. The important thing is to get rid of this double ownership as quickly as possible : and now that the conflict of jurisdiction out of which arose this conflict of law is abolished it ought not to be difficult to accomplish this reform^. Simply to recognise the equitable owner as legal owner would effectually cause the anomaly complained of to disappear, and it would not be in any way difiicult to provide gome new method of enforcing upon owners of property certain fiduciary and other obligations, such as are recognised in all modern systems of jurisprudence, but which, in common with the whole system of trusts, depend in England upon this anomalous double ownership. 336. The doctrine of the Enghsh Court of Chancery in No respect of ownership has been compared first to one, and then ^^ equit* to another institution of tlie Roman law; and if only the ^'^''^ I doubt if we are nearer to it now than we were twenty years ago, and I do not think any attempt is being made to bring it about. 172 OWNERSHIP. [Chap. VIII. ownership germ o£ it were to be there founds its existence in any modern law. system would be more easily accounted for. But there is nothing like it. There is to be found in the Roman law a body of rules supplementing the old stricter law, something like our system of equity. There was what was called bonitary owner- ship and what was called quiritary ownership ; and in theory these two kinds of ownership might co-exist. But where there was a bonitary owner the quiritary owner was entirely excluded. For all practical purposes there was but one owner; there was no conflict. There are also to be found well re- cognised in the Roman law certain relations of a special fiduciary character, which are governed by special rules framed with a view to their nature. Hence much that takes place in our Courts of Chancery, where similar fiduciary relations are specially considered, has its analogy in Roman law. But there is nothing in the Roman law analogous to the relative position of the common law and equitable owners of property. The point of contact has been supposed to be, where the praetor, exercising what may be called his equitable jurisdiction, enforced what was called a fidei commissum. But there was not, as in England, any conflict of ownership in such a case. What the praetor did, was to compel the transfer of the ownership in accordance with the fiduciary request. The other institution of Roman law which has been referred to as analogous to the Chancery ownership is what is called nsus ; and in former times (probably in reference to this supposed connexion) what we now call trusts were then called uses. But the Roman nsus was a wholly different and a far less comprehensive conception. When the Roman owner of a house granted the nstis of it to another, there was nothing fiduciary in the matter ; and the relation created was very like that of an ordinary tenant to his landlord. It was, as the name imports, a right to occupy and make use of the house. It was however a right over the thing available against all the world, and therefore a fragment of ownership : but the grantor remained owner, he did not even lose the Sec. 337.] OWNERSHIP. 173 possession o£ the house. And the same was the ease with the more extended right of usufruct. The grantee of the usufruct had not even the possession ; he had only the bare physical detention, which he held on behalf of the owner. And both these rights were classed among servitudes ; with rights of way, rights to support, and so forth ^- The leading features of the relationship between the common law and equitable owner in England are wholly wanting- — namely, trust and conflict. The rights of the grantee of the Roman use no doubt derogate from the absolute ownership, but the rights of the grantee and the rights which remain in the owner stand clearly separated, and each may use his rights for his own benefit. In England the common law rights of one owner and the equitable rights of the other are constantly in conflict, and the common law owner would be restrained by the Court of Chancery, if he attempted to use a single right on his own behalf 2. 337. I have noticed these peculiarities of the English law Why it is at some length, and have pointed out the fallacy of linking ^^ observe them with institutions of a wholly different character, chiefly *l'f?® P?- _•' ' •' culiarities. because of the very peculiar position which English lawyers occupy, with reference to the law which they are called upon to administer. Englishmen are frequently transferred from the arena of the English courts, and the familiar practice of the English law of real property, to countries in which they have to apply systems of law, which are either altogether different from their own, or which are to a large extent incom- plete. Under such circumstances it is certain that we shall * The force of this distinction will appear more clearly from the Chapter on Possession. ' To the reader who has had no experience of the working of English courts it may seem impossible that these conflicting views could co-exist in any one system. The Courts of Chancery, however, ingeniously contrived to avoid a direct conflict with Courts of Law by giving decrees which were in form in personam only. If the Courts of Law declared A to be the owner, the Courts of Chancery did not deny it, but took measures to compel A so to act as to give the real enjoyment of the property to B. 1 74 OWNERSHIP. [Chap. VIII. be strongly tempted to transfer into the new system the ideas we take with us. Some such transfer may be in some cases forced upon us — in India it certainly has been so — as the only safe and practical method of filling' up the huge gaps in the declared law of that country. But it is most important in all such cases, to distinguish between that which is in con- sonance with the ideas common to most systems of juris- prudence, and that which is anomalous and peculiar to our own. Ideas of the former kind it is sometimes not unsafe to transfer. But to transfer ideas of the latter kind is always very dangerous. The imported principle does not easily fit in with the institutions of the country into which it is introduced, and consequently its introduction is very likely to throw the whole law of that country into confusion ^. Feudal g3g_ rpj^g ownership of land in Enorland is often said to be Jiature ot r o English based on feudal ideas — that is, upon ideas impressed upon it owner- hy the feudal system. It is worth while to inquire what " ^P' j)^''ticular form the ownership of land assumed under that system. This form of ownership is what English lawyers call 'tenure.'' The word 'tenure' indicates, as the books tell us, the feudal relation between a tenant of land and his lord. Now at all times and in all places we find cases in which, two or more persons having rights over a thing, some sort of relation exists between them arising out of those rights. The peculiarity, therefore, of the case under consideration must ' The recent attempts to employ English conceptions of ownership for the purpose of tying up the succession to property in Lower Bengal, are probably intended to counteract the effects of the impulse given under British rule to the counter notion of the right of absolute alienation. It is a curious history. Owners of landed property -in Bengal met the introduction of English ideas as to the absolute right of alienation inter vivos by demanding the right to make a. will declaring the course of succession. This was again met by insisting that, if this were allowed, the English restrictions on perpetuities must also prevail. It may indeed be well doubted whether this method of proceeding can be justified, either legally or politically. Perliaps a compromise acceptable to the natives of India may be one day arrived at, by putting some restrictions on the caprice or prodigality of a single heir, without a wholesale introduction of our cumbrous English law of real property. Sec. 338. 339-] OWNERSHIP. 175 be sought not in the existence of the relation^ but in the nature of it. What is there peculiar from a legal point of view in the feudal tenure ? 339. In examining the nature of the feudal tenure one Various . , , . . ,, forms of meets with the preliminary difficulty that it ongmally feudal manifested itself in very various forms in different parts of Europe : and some of these forms had probably penetrated into England before the Norman conquest. After the Norman conquest the Frank type of feudalism became pre^ dominant^ but from the moment it was planted in Eng^lish soil it became subject to local influences. It is, therefore, a very diflScult thing to give a description of tenure which would be accurate and complete. But for my present purpose this is not necessary. All I am now seeking for is the legal characteristics which distinguish the feudal tenure. And whatever discussions there may be about minor points, the broad legal characteristics of the feudal tenure are well established. In all cases of feudal tenure we find ourselves in presence of two persons — an owner of land, and one who has rights over the land derived from the owner. We also find that there is some kind of mutual obligation between the parties, which obligation (however it may have originated) does not depend for its continuance on any contract between the parties, but is attached to the land. Further, we find that the grantor has parted with the whole use and enjoy- ment of the land to the grantee ; but though the rights of the grantor are thus reduced to a mere right to receive that which has been agreed on, yet the grantor and not the grantee is considered to be the owner of the land; the grantee being merely owner of a right over a thing which belongs to the grantor. But still there is nothing peculiar in any one of these characteristics. They are to be found in the emphyteusis of the Roman law ; and in the modern tenancies of a fanner or other lessee, which are not feudal. There is Chief pe- however, one thing which distinguishes the feudal relation ™ ^^^^.fj from all other relations between the owner of land and his tenure. 1 76 OWNERSHIP. [Chap. VIII. grantee. This consists in the introduction of a very stringent personal relation between the grantor and grantee, or, to use the feudal expression, between the lord and his tenant. This per- sonal relation was created separately from the grant of the jus in re, but as soon as it was created it became inseparably annexed to it, and with it constituted the feudal tenure. It was not concluded in the form of a contract, or of a gift upon condition, but of submission : the tenant binding himself by oath to be faithful to his lord, and the lord undertaking to protect his tenant. Services were attached to the tenure, which varied, and might be altogether absent. But the one essential and distinguishing feature of the feudal relation was the obligation of mutual defence and protection. Political 340. The political importance of such a relation was rather . \ ^ . . than legal immense, and in turbulent times it held out great advantages. taiu;T" -"-^ ^'^^ ^ bond of union as close as that of kinship, which it of it. probably to some extent replaced. It was a ready means of political and military organisation, and it was so used. In England it was carried so far as to embrace the ordinary relation of sovereign and subject, which was united to tenure by the fiction that all land was held xiltimately of the king. 341. It is, I think, obvious that the importance of the feudal system is due almost entirely to the use which was thus made of it for political and military purposes : its special juristical features (if indeed it has any) appear to be mostly accidental. The reciprocal duties of lord and tenant could easily have been created by contract and enforced by action without any legal innovation. That they were not so created and so enforced was a mere matter of convenience. That they were in reality matter of negotiation and arrange- ment there can be no doubt. Even some of the services which are considered specially feudal, because they are found annexed to the feudal tenure, and have not been found except in that connexion in Europe, are common enough in India. The ghatwals of Lower Bengal, for example, the holders, that is, of the agri limitrophi bordering upon hills occupied by hostile tenant an owner. Sec. 340-343. J OWNERSHIP. 177 tribes, are bound to guard the ghats or mountain passes as a condition of their holding. Nothing is wanting but homage to make their relation to the rajahs, who granted them their lands, a feudal one. But just because homage is wanting it seems to be quite unwarrantable to speak of this relation as feudal. 342. The incident of feudal tenure that the feudal tenant Feudal enjoys all the rights of an owner, and yet has only jus in re aliens,, is found in many other arrangements for the enjoy- ment of land. The grantor of the emphyteusis has com- pletely severed his connexion with the land as the feudal lord: the rights of the emphyteuta might be as full and general as those of any feudal tenant; yet the former was still dominus and the latter had only jus in re aliena down to the very latest period. 343. As soon as people came to rely for protection not on Feudal the feudal relation, but on the ordinary courts of justice and unsuited on the government, a feudal tenure ceased to be anything *° ™p* what one is at a loss to see is, in what way that depends upon his having also a power of sale. Still less is it easy to perceive how the nature of the creditor's interest can determine the question, to what remedy the debtor is entitled in case of an unauthorised or wrongful sale. This, as the learned judges ^ Law Reports, Queen's Bench, vol. i. p. 612. See Austin, Lectures, pp. 990, 992, 3rd ed. I may here observe that what Mr. Justice Shee quotes (at p. 603) as Domat's opinion upon the Koman law is really a statement of the French law, differing in this respect, as Domat points out, from the Koman law. Q a 228 SECUBITY. [Chap. XL elsewhere point out in the cases to which I refer, depends upon the contract between the parties, and the effect which is produced by a violation of its terms by one of them ^. True 470. I cannot therefore exactly see why this discussion nature of ... the real about the pledgee having a real right is introduced. Whether the pledgee has a right to sell or not he must always have a jus in re over the thing which he holds as security. I am disposed however to think that there has been some mis- understanding as to the true nature of a real right, or jus in re, which the judges are so desirous to attribute to a pledgee^. A jus in re is, as we know, a right over a specific thing available generally against all persons, as distinguished from a personal right in respect of the same thing which is available against an individual or individuals only; it is therefore a jtts in rem as distinguished from a jus in persmiam. Ownership, for example, is a real right, and it is in fact the sum of all real rights, as explained above ^- The particular kind of real right which the courts were dealing with in the above cases was not the right of an owner, but the right of one person over a thing owned by another ; the right of the creditor in some manner to deal with the debtor's property; a right in kind just like an easement. But whether the pledgee has or has not such a right is wholly unconnected with the right to sell. If he has no more than a mere lien, that is a right over a specific thing available against any one who invades it. Difference 471. Possibly what the learned judges were thinking of real right '^^s, in truth, not a real right but a real security. What and real constitutes a real security has already been explained * : it security. •' j c is the means of getting satisfaction out of a specific thing independently of the will or ability of the debtor. This comprehends a jus in re, or real right, but also a great ' Law Reports, Queen's Bench, vol. i. pp. 6oo, 615, 619 ; id. Exchequer, vol. iii. p. 301. * I may observe that in the case in the Queen's Bench, Mr. Justice Shee, whilst he agrees with Mr. Justice Blackburn, that the pledgee has a real right, comes to a directly opposite decision upon the case before him. ' Supra, sect. 309. ' Supr.i, sect. 447. Sec. 470-474.] SECURITY. 229 deal more; and it is perfectly true that the essence of a real security is the power of sale. But then it must be borne in mind that the possession by the creditor of a power of sale, and his ability to exercise it, in no way affects or is affected by the nature of his interest in the article pledged. This power of sale when exercised operates, not upon the interest of the creditor, but upon that of the debtor, according to a principle perfectly familiar to any English lawyer. 472. The law of security has- been far more satisfac- Pledge of torily dealt with by the Courts of Chancery, at least in courtVof reference to lands. This portion of the law of England chancery, bears a considerable resemblance both in its history and in its ultimate condition to the Roman law, and seems to be, like the latter, the combined result of clear legal ideas and practical business habits. 473. The class of securities with which the Courts of Mortgage. Chancery are specially concerned are called mortgages. I need not here explain at length the nature of a mortgage, as it stood before the Courts of Chancery undertook to modify the rights of the parties, and as it stands now in a Court of Common Law. It is an absolute conveyance, with a con- dition that, if the money be paid by a certain day, the property is to be restored to the owner. If that day is allowed to pass, the ownership of the mortgagor becomes absolute^. At this low point in the development of the law of security, so far as it related to lands, the Courts of Common Law seem to have stuck fast. 474. In stating the law as applied to landed security in Present the Courts of Chancery, I wish for the moment to divert ,^^t attention from the history and course of development of the English law of mortgage, and also to get rid of the terms which the Court of Chancery frequently finds itself compelled to employ because it is cramped by the form of the instrument and the peculiar basis of its jurisdiction. ^ It is somewhat similar to the original _^d«cia : supra, sect. 440. 230 SECURITY. [Chap. XI. Stated in ordinary language, the law is now as follows : — The transaction of mortgage creates a debt by deed under seal secured by the pledge of lands'-. The debtor remains the owner of the property, and may deal with it in any way he thinks proper, provided he does not lessen or impair the security of the creditor. The creditor, whether in or out of possession of the land pledged, has the right to his security and nothing more. If the creditor takes possession he is accountable to the debtor for his management of the Mortgagee property, and for his receipts. The creditor who has a "^^^^^ ^'^^^ mortgage has a real security ; that is, he may, in case the debtor fails to do so, satisfy his own debt by selling the land pledged. The power to sell and satisfy the debt is frequently given by express contract, but even if not given by contract it is given by law^. The concurrence of the debtor in the sale is immaterial; but six months' notice must be given before the power is exercised. The creditor, unless restricted by the contract, may sell privately or by public auction ; in one lot or in parcels ; but not in undivided shares. And though the conduct of the sale is left entirely to the creditor, he must not adopt any mode of selling which would be clearly depreciatory. He is in fact a fiduciary vendor, and must use all reasonable diligence to obtain a fair price. But his power to sell, if unrestricted by contract, cannot be interfered with, even though his conduct be harsh and oppressive : the only course to stay the sale is actually to tender the principal, interest, and costs ^. Chancery 475. Why these clear and sensible rules should have been mortgage confined to the Courts of Chancery one is at a loss to con- might be ggJYe . and why Courts of Common Law should have been shut fixtenned. ' •> out, or should have shut themselves out, from all jurisdiction over landed security it is also difficult to say *. ' Coote on Mortgages, 4th ed., p. i. "^ 23 & 24 Viet. chap. 145, sect. 11 ; Dart, Vendors and Purchasers, 4th ed., p. 48. ' Dart, Vendors and Purchasers, pp. 60, 63. * The recent changes by which all Courts have received jurisdiction to Sec. 475, 476.] SECURITY. 231 476. There has been one attempt at a complete revolu- Lord tion of the ideas of a mortgage security prevailing in the attempted English Courts of Common Law, made by a judge who was *° o^'e"