Olorn^U Ham ^rliaol ffiibrarn 
 
Cornell University Library 
 K 235.M34 1885 
 
 Elements of law considered with referenc 
 
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 Library 
 
 The original of tiiis book is in 
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eORTIELL LAV/ LIBRARY 
 
 ELEMENTS OF LAW 
 
 MARKBY 
 
HENRY FROWDE 
 
 Oxford University Press Warehouse 
 Amen Corner, E.G. 
 
€htinltian ^nss ^mts 
 
 ELEMENTS OP LAW 
 
 CONSIDERED WITH EEPEEENCE TO 
 
 PRmCIPLES OF GENERAL JURISPRUDENCE 
 
 WILLIAM MARKBY, D.C.L. 
 
 LATE A JUDOE OF THE HIGH COTTET OP JUDIOAIUEB AT CALCUTTA 
 
 EEADEE IN IHDIAIT LAW IH" THE USITEEBITT OV OXBOED 
 
 PELLOW OF ALL SOULS OOLLEGJE, AND FELLOW OF BALLIOL COLLEaE 
 
 THIRD EDITION 
 
 AT THE CLAEENDON PKESS 
 
 M DCCC LXXXV 
 
 [ All rights reserved ] 
 
'C"^ 
 
 .•^ 
 
 ^l3^ 
 
PREFACE TO THE FIRST 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 
 
VI PREFACE. 
 
 a serious admission. But I do not think it possible 
 to enter here into an explanation of the cause of 
 this defect. I have indicated it very partially, 
 in one particular, in some observations made in the 
 course of the work. What I maintain is, that when 
 a work is written on English 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, 187 1. 
 
 PEEFACE TO THE THIED EDITION. 
 
 I find that there is still a demand for this book 
 which justifies me in publishing a third edition. 
 It is very far from being as complete as I could wish, 
 but I have made some additions and modifications 
 which I hope will be found to be improvements. 
 
 Oxford, Ajpril, 1885. 
 
CONTENTS. 
 
 PAGE 
 
 INTEODUCTION ix 
 
 CHAPTEE I. 
 General Conception of Law i 
 
 CHAPTEE II. 
 SoTJECBs 01' Law ,5 
 
 CHAPTEE III. 
 Pbesons and Things ^y 
 
 CHAPTEE IV. 
 Duties and Eights oo 
 
 CHAPTEE V. 
 On the Expeession of the Law . . . . log 
 
 CHAPTEE VI. 
 The Ceeation, Extinction and Teansfbr of Legal 
 
 Relations 112 
 
 CHAPTEE VIL 
 The Aeeansement of the Law . . . . 149 
 
Till CONTENTS. 
 
 PAGE 
 
 CHAPTEE VIII. 
 Ownership 154 
 
 CHAPTEE IX. 
 Possession 177 
 
 CHAPTEE X. 
 
 Easements and Peopits-a-peendeb . , , , 203 
 
 CHAPTEE XI. 
 Secueitt 212 
 
 CHAPTEE XII. 
 Acquisition oi- Owneeship .... 234 
 
 CHAPTEE XIII. 
 Pebsceiption 264 
 
 CHAPTEE XIV. 
 Liability 293 
 
 CHAPTEE XV. 
 Liability foe Beeach of Contract . . . . 298 
 
 CHAPTEE XVI. 
 Liability foe Toet 322 
 
 CHAPTEE XVII. 
 Geounds of Non-liability 346 
 
 CHAPTEE XVIII. 
 Succession 31,1 
 
 CHAPTEE XIX. 
 Sanctions and Eemedies 403 
 
 CHAPTEE XS. 
 Peocbdueb 416 
 
INTRODUCTION^. 
 
 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 pro- 
 fession 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 de- 
 sirous of learning law after that fashion. Forensic skill, 
 skill in the art of drawing up legal documents, and skil- 
 fulness in the advice given to clients, were all that was 
 taught, or learnt, by a process of imitation very similar 
 to that in 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 un- 
 disturbed by the bustling activity of the courts. The 
 Chancery lawyers as a rule have retained a higher standard 
 
 b 
 
X INTEODUCTIOSr. 
 
 of culture than those of the Common 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 in- 
 fluenced by these attainments, and no one would venture 
 to assert that they lie in the direct path of a successful 
 professional career. 
 
 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 adminiister the law. Wor 
 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- 
 constitute 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 Uni- 
 versity or Faculty of Law can do anything whatever. 
 That must be done elsewhere, 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 grounding 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 
 
INTRODUCTION, XI 
 
 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 exi- 
 gencies of society, but in its general relations to the several 
 parts of the same system, and to other systems. 
 
 But it is not sufficient 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 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 difficulty 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 sub- 
 jects 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 exist- 
 ing 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 
 knowledge is emphatically not that which is the chief 
 
Xli INTRODUCTION. 
 
 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 ourselves. For this purpose some acquaintance 
 with the Roman Law will be at least desirable, if not abso- 
 lutely necessary ; because the principles of that law, and 
 its technical expressions, 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 pre- 
 sumed 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. 
 
 ^ This is the great dif&oulty 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 
 Roman Law. 
 
ELEMENTS OF LAW. 
 
 CHAPTER I. 
 
 GENERAL CONCEPTION OP LAW. 
 
 1. Law is a term which is used in a variety of different General 
 meanings ; but widely as these differ, there runs throughout ^f law. ' 
 thfem all the common idea of a regular succession of events, 
 governed by a rule, which originates in some power, con- 
 dition, 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 "f ""poj-y^ 
 forms part of the conception of a political society. FuUycal sooietj. 
 to develope the ideas comprehended under the term political 
 society would regfiirca very long discussion. Nor is this 
 
 full developemeu^najtfssary for our present purpose. 
 
 3. For this puij^Bit is sufBcient to observe some of its Character- 
 most striking AaflHI ; and one that mainly distinguishes poyticar 
 « political sooiCTy^Rwn other associations of men is, that^""«*y- 
 in a political societ^Bfc«i»mber, 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. 
 
2 GENERAL CONCEPTION OP LAW. [Chap. I. 
 
 4. It is desirable to observe that this, though a charac- 
 teristic of a political society, does not belong to it ex- 
 clusively, so as to serve as a definition of it. Though not, 
 however, 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. But, 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 still 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 ab- 
 solute right to enforce, and actually does enforce, that 
 obedience. 
 What 5. It is the body of commands issued by the rulers of a 
 
 iBsued in a political Society to its members which lavfyers call by the 
 political name 'law.' There are only two small and very insignifi- 
 
 sooietyare •' .< o 
 
 laws pro- cant classes of the commands so issued which are not laws, 
 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 some- 
 times, but very rarely, address a command to a particular 
 individual or individuals by name. Such occasional and 
 specific commands 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- 
 and laws eluded within the province of jurisprudence and called laws, 
 laws* '°^ which are, nevertheless, not commands ; namely, declaratory 
 
Sec. 4-9.] GENERAL CONCEPTION OP LAW. 3 
 
 laws, and laws which repeal laws. But, as it seems to me, 
 every such law, if it is addressed by the sovereign one or 
 number to its subjects generally, 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, a complete 
 command, when taken in connexion with some other sig- 
 nification of desire. There are, no doubt, cases 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 
 difficulty is insurmountable^. 
 
 7. Most of the orders issued by the sovereign through Orders 
 the ordinary legal tribunals are not strictly laws, being w^^^^j.^^. 
 commands addressed to individuals by name. But though "^'^• 
 these commands are not laws, the tribunals which issue 
 
 them are called legal tribunals, the action of such tribunals 
 is comprised under the general term law, and persons en- 
 gaged in the business there transacted are called lawyers. 
 And these terms are correct. For though the commands 
 ultimately issued by these tribunals are addressed to indi- 
 viduals by name, they are for the most part not original 
 commands, but the pre-arranged consequences of other 
 commands, which are general, and which are therefore 
 law. 
 
 8. A special - order of forfeiture of property made against Orders of 
 
 ,., .1 j.r TIT forfeiture. 
 
 a particular person as a punishment tor 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. 
 
 9. We thus arrive at a conception of the term law which Summary 
 may be summed up as follows. That it is the general bodyt;o„of j^^, 
 of rules which are addressed by the rulers of a political 
 
 ' Mr. Frederic Harrison gives a number of such cases in an article in 
 the Fortnightly Keview, No. 143, N. S., p. 684. But he adds (p. 687), 
 ' I am far from saying that Austin's analysis of law cannot be applied to 
 all these cases.' 
 
 B % 
 
4 GENERAL CONCEPTION OF LAW. [Chap. I. 
 
 society to the members of that society, and which are 
 generally obeyed. 
 Sovereign- 10. The aggregate of powers which is possessed by the 
 *''' 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 ^. 
 This con- 11. That this is the true conception of law is now pretty 
 kwe^stab- well established; though it is only very recently, and after 
 lishedby jjjuch discussion, that all the obscurity in which the con- 
 ception was involved has been swept away. The subject 
 has been elaborately discussed by Austin in his lectures on 
 the ' Province of Jurisprudence ' ; and I have only stated 
 his conclusions^. These conclusions have been since gener- 
 ally accepted by English jurists, and many of them rest 
 upon arguments drawn from Austin's celebrated predecessors, 
 Hobbes and Jeremy Bentham. 
 Austin 12. What, however, Austin's predecessors do not appear 
 
 guiahed to me to have fully apj)rehended, at least not with that sure 
 and firm grasp which proceeds from a fuU conviction, is the 
 distinction between law and morals. We find, for example, 
 that Bentham, when drawing the line between jurisprudence 
 and ethics, classes legislation under jurisprudence ^, whereas, 
 as Austin has shown*, it clearly belongs to ethics. Austin, 
 * by establishing the distinction between 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 
 
 '■ The Queen 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 Queen 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 conmion in Europe. 
 
 ^ See the first, fifth, and sixth Lectui'es. 
 
 " Bowring's ed. vol. i. p. 148. 
 
 * Lecture v. p. 177. 
 
 law from 
 morality, 
 
Sec. 10-13.] GENERAL CONCEPTION OP LAW. 5 
 
 pernicious consequences to which in the hands of his pre- 
 decessors it had been supposed to lead. Laws, as Austin 
 has shown 1, must be legally binding, 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 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 is our 
 moral duty to disobey it ; but it is nevertheless law, and this 
 disobedience, virtuous though it may be, is nothing less than 
 rebeUion. 
 
 13. Austin's conception of law and of sovereignty does not Austin's 
 depend upon the theory of utility discussed and advocated by of law not 
 him in his second, third, and fourth lectures; as the inter- ^^P®?lj.®"* 
 position of that discussion into an inquiry to which, strictly o^ any 
 
 moral 
 
 speaking, it does not belong, has led some persons erroneously theory, 
 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 con- 
 sistent 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, what- 
 soever. It might be accepted by a Hindoo, by a Mahom- 
 medan, or by a Christian; by the most despotic of monarchs or 
 by the staunchest of republicans. All that Austin postulates is 
 that there cannot be two independent sources of legal authority 
 in one and the same community. By sources of legal authority 
 I mean sources from which laws derive their imperative force. 
 There may be any number of sources whence we may receive 
 suggestions as to what law is or ought to be. There may 
 ' Lecture vi. p. 275. 
 
6 GENERAL CONCEPTION OF LAW. [Chap. I. 
 
 be any number of standards by which we estimate conduct 
 
 or the moral quality of laws. But there can only be one 
 
 authority giving force to law. If any one asserts that a 
 
 double authority is possible, then he must view law and 
 
 sovereignty otherwise than as Austin has viewed them. 
 
 There can- 14. As far as I am aware no one ever has asserted in direct 
 
 sources of language that there can be two sources of legal authority in 
 
 thOTitTia ^^® ^^'^ ^^^ ^^^® community. But it is not rare to find this 
 
 the same tacitly assumed. It is an assumption made very frequently by 
 
 commu- _ _ 
 
 uity. conscientious persons who make a desperate eflFort to reconcile 
 
 their hostility to a particular form of authority with a general 
 respect for the law. Moreover, colour is not unfrequently 
 given to this assumption by the language even of those who 
 themselves exercise sovereign authority. They frequently 
 speak as if they were themselves servants of some higher 
 power. In every sense, except the legal sense, this is true, 
 and in every aspect, except the legal aspect, it is of the 
 highest importance. And it is only on comparatively rare 
 occasions that the legal view, which is somewhat galling to 
 the subject, and sounds rather arrogantly in the mouth of the 
 sovereign, has to be put forward. Appeals are constantly 
 made to the law of God, the law of nature, and the law of 
 morality, as if these were superior codes to which all human 
 laws are subordinate. The whole body of the people, or some 
 particular class of them, claim to have immutable and im- 
 prescriptible rights, that is, rights which the sovereign 
 authority cannot abrogate. Sometimes a priesthood wiU claim 
 supremacy in matters in which religion is concerned. Some- 
 times a despot will go so far as to tell his own subjects that 
 they are themselves supreme.^ These are convenient phrases, 
 but they do not mean that there are two really independent 
 forces. This may be seen by observing what takes place when 
 a member of the community from a mere assertion of inde- 
 pendence proceeds to disobedience. The sole and exclusive 
 
 ' Seethe French Constitution of 1848, Chap. i. Art. I. 'La BOUverainetiS 
 r&ide dans I'universalitd des citoyens fran9ai3.' 
 
Sec. 14, 15. J GENEKAL CONCEPTION OF LAW. 7 
 
 supremacy of the sovereign authority, the government, must 
 then be asserted and maintained. If this assertion cannot 
 be made good, either the society falls to pieces, or the seat of 
 government is changed 1. 
 
 15. Although, however, no one, in England at any rate. Criticisms 
 has put forward any conception of law and sovereignty which concep- 
 conflicts with that of Austin, his conceptions have been sub- *'°^ oflaw, 
 jected to a good deal of criticism, some of which I think it element of 
 will be useful to notice. It has been more than once observed 
 that Austin gives somewhat excessive prominence to the 
 element of force, which (it is admitted) is contained in every 
 law, but which is very often so far in the background that 
 it requires a good deal of efibrt 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 circum.- 
 stance. 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 imperative passage. But at the same time it is 
 impossible that law should exist without force, 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 re- 
 minded 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. 
 
 ' This is the real issue between that party in the Church of England which 
 is called High, and that party in the Church of Rome which is called 
 XOtramontane, on the one hand, and civil governors on the other. No govern- 
 ment could concede the claim of the church to independence except with 
 the intention of resuming the concession whenever it seemed desirable. It 
 may be prudent to temporise with such claimants, but no real concession of 
 what they ask can ever be made to them, unless they are prepared to rule. 
 
 " Fortnightly Review, No. 143, N. S., p. 688. 
 
8 GENEEAL CONCEPTION OF LAW. [Chap. I. 
 
 Austin's 16. It has also been pointed out^, and it is no doubt 
 oHaw isTu true, that by pushing our inquiries into remote periods, or 
 abstrac- ^y castins: our observation upon associations of men which 
 
 tion. J n 
 
 have scarcely settled down into order, we may find com- 
 munities in which the conception of law and sovereignty as 
 set forth by Austin is difficult to realise. This, I think, is 
 what we might expect of a conception which pretends to 
 scientific accuracy. It was scientific accuracy above all which 
 Austin was seeking for, in order to render a ' philosophy of 
 law possible ' ; and in this he is thought to have succeeded. 
 Even if it could be shown, as doubtless it might be shown, 
 that there exist, or have existed, communities in which 
 Austin's conception of law and sovereignty could not be 
 realised by any efibi-t, still this would not eflPect its value. 
 We are familiar with scientific conceptions which never have 
 been and never wiU be realised, the conceptions of geometry 
 for example, from which nevertheless we evolve the most 
 important truths. I do not of course mean that the devia- 
 tions of actual society from Austin's conception of it are 
 not of the highest importance both historically and politi- 
 cally. We should commit the most fatal errors if we did 
 not perpetually bear them in mind. But I do not think 
 they affect either the truth or the value of Austin's con- 
 ception. That is the conception towards which political 
 societies constantly tend, unless they tend to disruption. 
 Kules of 17. A different, and to my mind a far more serious, criti- 
 which are cism of Austin's conception of law and sovereignty lies in 
 but !^r^' *^® observation that there are many rules of conduct which 
 enforced by are treated as binding, and which are enforced iust like other 
 
 legal tribu- , , , . , 
 
 nalB. laws, but which nevertheless do not proceed from the sover- 
 
 eign 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 
 
 ' See Maine's Early History of Institutions, Lect. xiii. passim. 
 ^ Eowring's ed. vol. i. p. 263, «. ; vol. iii. p. 223. 
 
Sec. 16-18.] GENERAL CONCEPTION OP LAW. 9 
 
 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 Jail 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 law but upon morality : 
 that aU courts acknowledge the validity of custom ; that 
 all English courts administer law which the sovereign never 
 heard of and which they manufactm-e 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. 
 
 18. Austin has, in part, forestalled and answered this ob- Austin's 
 jection. With regard to any rule which emanates from at^n^^t^g 
 judge he has pointed out ^ that a judge is merely a minister ?«*io» 9^ 
 with delegated powers, and any rules made by him, so longnals. 
 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 
 1 Lect. xxix. p. 547. ' Lect. xxx. p. 560. 
 
10 
 
 GENEEAL CONCEPTION OF LAW. [Chap. I. 
 
 How far 
 the sove- 
 reign com- 
 mands 
 what he 
 permits. 
 
 Rules of 
 conduct 
 applied by 
 courts of 
 equity ; 
 
 and by 
 courts of 
 common 
 law. 
 
 makes rules which are not suggested by custom. Any judge 
 permitted to make rules he considers to be tacitly empowered 
 to make laws. 
 
 19. This answer, so far as it goes, seems to me to be 
 complete. The point at which it has been most strongly 
 attacked is the assertion that the sovereign's acquiescence 
 is equivalent to a command: and if Austin intended to 
 state, broadly and generally, that ' everything which the 
 sovereign permits he tacitly commands,' the assertion is, 
 no doubt, untenable ^. But, as it appears to me, Austin does 
 not say this, nor was it necessary 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 
 by the sovereign authority itself. Nor does this seem to 
 me to be an extravagant assertion. 
 
 20. As regards morality, Austin's opinion seems to be 
 that courts of equity do not now, at any rate, enforce morality 
 as such ; that the 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 ^. 
 
 21. Austin does not consider the case of courts of common 
 law enforcing rules of conduct founded upon considerations 
 of honesty, prudence, skill or diligence. It is not unlikely 
 
 ' Maine's Early History of Institutions, p. 3^4. 
 
 ^ Lect. xxxvi. p. 640. 
 
 ' Lect. V. p. 224. The decision here referred to is probably that of 
 Lee V. 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. 19-33.] GENERAL CONCEPTION OF LAW. 11 
 
 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.' 
 
 22. It is obvious that these answers all depend upon theAuetin'g 
 assumption, first, that the judge has a delegated authority tion of the 
 to make rules of law, and secondly, that, in requiring that ^"^^ "" ?^ 
 the actions of men should conform with any rule of conduct nals inauf- 
 which he 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 
 of law as binding as an act of parliament ; and hundreds of 
 similar instances might be given. 
 
 23. Accepting, however, Austin's explanation as sufiicient 
 in such cases as this, I do not think it solves the whole dif- 
 ficulty. There are, I think, cases which go further, and 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 
 fiirther afield, if we look at the earlier English law, or to 
 modem 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 modem one even in England, and nothing of the kind 
 has ever been recognised except in England, and in countries 
 
12 GENERAL CONCEPTION OF LAW, [Chap. I. 
 
 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. 
 
 Not, how- 24. This admission seems to place the disciple of Austin 
 
 sary'to i^^ ^ difliculty. It seems to show that Austin's conception of 
 
 modify his ^^^ jg j^^^ adequate even as applied to modem English law, 
 
 conception ^ -"^^ a ' 
 
 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 short, it seems to show that Austia's conception of law 
 fails as a general or scientific conception. 
 Judges fre- 25. The difficulty, however, appears to me to be created 
 without hy 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 
 erroneous ; namely, that when the judge has ascertained all 
 the events which have occurred, and which in any way bear 
 upon the matter in dispute, he has nothing 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 endeavom- 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 
 
 ' Speaking of courts in which cases are tried before a jury, it is sometimes 
 said that all questions are questions of law or questions of fact, meaning 
 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. 
 
 law. 
 
Sec. 24-27.] GENERAL CONCEPTION OP LAW. 13 
 
 and mucli 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. We are in the 
 habit of considering law as the very essence of judicial action. 
 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 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 exemplify 
 it now by one of the most modem codes 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 edictwm or fall back, as 
 an English judge can, upon the inexhaustible ' common law.' 
 Curiously enough, the very next article of the Civil Code, 
 the fifth, expressly prohibits 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 
 protit res incidit, and give a merely negative decision. Not 
 at all. He refers to what he calls ' la doctrine et la juris- 
 prudence.' He looks at the case from what he calls the ' point 
 de vue juridique.' He relies on the 'prineipes gen^raux 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 still more apparent to regulate 
 
 ' Code Civ. Art. 4 : ' Le juge qui refasera de juger sons pr^texte du silence, 
 de I'obscurit^, on de I'insuflBsance de la loi, pourra etre poursuivi comme 
 coupable de d^ni de justice.' Art. 5 : ' H est d^fendu aux juges de prononoer 
 par Toie de disposition g^n^rale et r^glementaire sur les causes qui leur sont 
 soumises.' 
 
14 GENEEAL CONCEPTION OF LAW. [Chap. I. 
 
 as well as when we go back to the early history of law. We may 
 disputes^ easily reach a time when we find a species of rude tribunals 
 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- 
 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 Reports how the judges of the 
 Court of Common Pleas used to attend iu 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 case 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 
 
 ' Early History of Institutions, Leot. ix. 
 
 ^ 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 
 Keports, temp. Elizabeth, p. 301 a. 
 
 ^ See the report in Barnewall and Alderson's Reports, vol. i. p. 405. 
 
Sec. 27-29.] GENERAL CONCEPTION OF LAW. 15 
 
 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 
 case was argued upon precedent and authority, precisely 
 in the same way as if the Court had been 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 belonging to different tribes who had 
 accidentally quarrelled. 
 
 28. Cases like these famish 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 efiaced. 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 a Judges and 
 ^'udge is not only to apply law to ascertained facts, but to|,"thgo 
 
 decide or to put in train for decision every dispute which comes outside the 
 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 
 
16 GENERAL CONCEPTION OF LAW. [Chap. I. 
 
 the case in a particular way? If there is, he must apply it 
 whatever 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 
 conduct which judges have transformed into rules of law caiit 
 qmestio, our assumption that the judge has gone outside the 
 rules of law is unfounded i. 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 jadge 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 aU 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 particular command : but this particular 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 English judges have of making rules 
 of law when they want them 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 ands 
 making use of the rules of conduct which they find elsewhere 
 for the purposes of their decision. Consequently there are 
 many rules made use of in English courts of justice which 
 
 ' There are a vast number of broad and general presumptions whicli judges 
 make use of, such for example as potior est conditio possidentis, semper 
 prfi,esumitur pro negaute, &c., which are rules of law, but none of these may- 
 be applicable. 
 
Sec. 30, 31.] GENERAL CONCEPTION OF LAW. 17 
 
 hoTer between law and morality i. Of course such a doubtful 
 condition could only exist in English law. But, nevertheless, 
 it so happens that we can see as clearly in the English courts 
 as in any other 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 respec- 
 tive duties of these two parts of the tribunal directs the judge to 
 decide questions of law himself, and to leave to the jury ques- 
 tions of fact. 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 of Sover- 
 
 ... 1/. eignty not 
 
 law that the sovereign authority is supreme, and irom a capable of 
 purely legal view absolute. Bentham^ has also maintained i™*^'°"^ 
 this, and Blackstone * has been forced to admit it. No doubt 
 
 ' There was at one time a struggle to establish a rule of law as to whether 
 it was a breach of duty for the servants of a railway company to call out the 
 name of a station before a train had reached the platform : for a time 
 it seemed likely to be recognised that this was a matter of law, but it is now 
 settled that each tribunal must determine in each case what is reasonable. 
 See Bridges versus North London Railway Co., Law Eep. Eng. and Fr. App. 
 vol. Va. p. 213. 
 
 ' It may be suggested that since tribunals can act 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 (§5 t sqq.) as to the conception of a 
 political society requires modification. 
 
 " 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- 
 
 
 
18 GENBEAL CONCEPTION OF LAW. [Chap. I. 
 
 we commonly speak of some governments as free, and of 
 others as despotic ; and it would be idle to deny that these 
 terms have 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 among the several 
 ranks of persons that are sharers in it ; 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. 
 Limitation 32. There is only one limitation of sovereign authority 
 
 by express . . 
 
 conTen- 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 eases, 
 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 
 
 thority, in which the jura sammi imperii, or the rights of sovereignty, 
 reside.' 
 ' Bowring's ed., vol. ii. p. 40I. 
 
 tion. 
 
Sec. 32-34.] GENERAL CONCEPTION OP LAW. 19 
 
 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 
 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™^ 
 
 ■' lar politi- 
 
 of the Articles of the Constitution upon the question, whether cal. 
 the sovereign powers of the President and Congress are 
 delegated or supreme, those provisions would fall far shoi^t of 
 the object they were intended to secure, if there were not 
 
 '■ This article provides that Congress, whenever two thirds of both Houses 
 shall deem it necessary, shall propose amendments to the Constitution, 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. 
 
 ' liect. vi. p. 268 (third ed.) So too Mr. Mountague Bernard says : 'Be- 
 hind 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. 
 
20 GENERAL CONCEPTION OF LAW. [Chap. I. 
 
 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 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 Toequeville 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 charac- 
 ter, when the validity of acts of the Government is called in 
 question, though still far from improbable, at least less easy. 
 
 35. Moreover, if the power of the Supreme Court is cor- 
 rectly 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 oflice 
 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 
 
 ' remocraoy in America, vol. i. chap. vi. 
 I Art. 11 sect. 2. cl. 2. s ^j^ jjj_ ^^^^_ j_ 
 
Sec. 35, 36.] GENERAL CONCEPTION OF LAW. 21 
 
 tyrannical ^. Now it is not at all impossible that, so long as 
 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 been ever 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 assemblies, 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 ^^ jjjg j^^,. 
 is the purely legal view of the relation between subjects and^°^"*® , 
 their rulers, does not in any way represent this relation in sovereign- 
 many of its most important aspects. Though for legal purposes 
 aU 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 coun- 
 try we possess nearly all the institutions which have been above 
 referred to as the characteristics of a free government. A regu- 
 lar machinery exists for introducing into the ruling body per- 
 sons taken from all classes of the community, and for changing 
 them, if the measures of those in power become distasteful. 
 
 ' I assume this, and also that the President, the Senate, and the House 
 of Eepresentatives are acting unanimously in their opposition to the Supreme 
 Court. As a check on each other these separate bodies can act 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. 
 
22 GENEEAL CONCEPTION OF LAW. [Chap. I. 
 
 Liberty of the press is everywhere conceded. The humblest 
 subjects, though they may have no defined power, have a right 
 to meet and to state their grievances, provided they do not dis- 
 turb the public peace. And the Government hardly ever refases 
 to listen to such remonstrances, 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. 
 Persona 37. We must also distinguish the independence of the 
 
 sovereT'if sovereign body itself from the independence of the members 
 power are who happen to compose that body. The Queen, the mem- 
 
 generally . . . „ ^ , 
 
 subject to bers of the British Parliament, the Viceroys of India and of 
 Ireland, the President of the United States of America, are all 
 subject to the same general laws as ourselves : only for reasons 
 of convenience the process against them in case of disobedience 
 is somewhat difierent. 
 
 Import- 38. I have dwelt upon these practical qualifications of the 
 
 ance of . 
 
 under- doctrine of the supremacy of the sovereign authority, because 
 
 distinction ^^^^ doctrine has been thought to arm the actual rulers of 
 
 between ^ country with unlimited powers ; to destroy the distinction 
 
 politics, 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 Prance under the Eepublic and 
 
 the Second Empire, to the popular will\ 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. 
 
 Delegation 39. Having then established that the sovereign body, as 
 
 eignty. such, is independent of law, and that the sovereign body lays 
 
 ' The Constitution of the Fourteenth of January 1851, does not, like 
 that of the Fourth of November 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. 37-42.] GENERAL CONCEPTION OP LAW. 23 
 
 down, as positive law, the rules which are to regulate the 
 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 iai 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 deUgated 
 in terms so precise as not to leave something to the discre- 7 ^°^^''" 
 tion of the person on whom it is conferred. On the other 
 
 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 accm-ately into groups by a division 
 founded on the extent of the authority conferred must neces- 
 sarily fail. 
 
 ' Austin, Lecture vi. vol. i. p. 250 (third edition). 
 
24 GENERAL CONCEPTION' OF LAW. [Chap. I. 
 
 43. It is, however, common to mark o£F and classify some 
 
 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^ r£^ confer the power of making laws is the most con- 
 modes of , _ '^ 
 delegating spicuous mode of delegating sovereign authority, and it has 
 
 ty. been sometimes spoken of as if it were the only mode. But 
 
 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 Lieu- 
 tenant-Governor of Bengal, when he grants a pardon, exer- 
 cises a peculiar prerogative of sovereignty. So every Judge, 
 from a Justice of the Peace up to the Lord Chancellor, ex- 
 ercises 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. 
 
 The actual 45. I have deferred until this point any consideration of 
 
 origin of . . „ . „ , . . 
 
 the author- the origm and toundation oi pohtical society ; as to how it 
 
 laws" "^^ ^ ^^® ^^^^ °^^ ^^^ ''^^^ *° make laws for another ; and why 
 
 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. 43-47-] GENEEAL CONCEPTION OP LAW. 25 
 
 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 diflBculty. It grew 
 up very gradually, and probably without even those who 
 were engaged in establishing it knowing exactly what they 
 were about. 
 
26 
 
 GENERAL CONCEPTION OP LAW. 
 
 [Chap. I. 
 
 Present 
 basis of 
 authority 
 to make 
 laws is 
 utility. 
 
 The only 
 guide to 
 the legis- 
 lator is 
 utility. 
 
 48. It is very possible that most, if not all, existing 
 governments had their origin in the passions of a single 
 individual, or a few individuals banded together to oppress 
 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 happiuess is better promoted by leaving the govern- 
 ment 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 govern- 
 ment is better than none at aU, and that the chances of 
 improving an established government are far better than 
 the chances of setting up a new and improved government 
 in the place of one which we have destroyed. 
 
 49. The happiness of the people, therefore, is the only 
 true end of government. No ruler does avow, no ruler dare 
 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. 27 
 
 followed. No utilitarian would object to this, for utilitarians 
 (as Mill observes^) always desire the tendency of actions 
 to be judged not, as their enemies assert, by the con- 
 flicting views of individuals, but by the widest inductions 
 possible. 
 
 50. When, 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 
 because 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. A principle which has been put forward as a safer The princi- 
 and more direct guide to happiness than the principle of freedom, 
 utility is that which is called the principle of 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 subjection of one human being to another 
 is immoral : the subjection of women to men is immoral ; 
 the subjection of children to parents is immoral ; even the 
 subjection of citizens to their rulers is immoral ^. 
 
 62. It is worth while to observe that up to a certain point 
 
 ' Essay on Utilitarianism, p. 24. 
 
 ' Herbert Spencer, Social Statics, ed. 1868, p. 12 j. This is hia 'first 
 principle.' I refer to this book notwithstanding what is said in the Preface 
 to the edition of 1864, because it is still used (and, as it appears to me, with 
 the author's full sanction) for the purpose for which it was originally intended, 
 namely, as a guide in the practical affairs of life. 
 
 = Social Statics, pp. 24, 173, 191, 230. 
 
28 GENERAL CONCEPTION OF LAW, [Chap. I. 
 
 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 
 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 sense in which it is true. The author 
 from whom I quote it seems himself at one time inclined 
 to restrict it to man in 'a perfect state ^.' If so, I have 
 nothing to do with it. What laws, whether any laws, are 
 applicable to man in a perfect state, I do not care to dis- 
 cuss. What I say is, that it is impossible to apply any such 
 principle now. Further I say that to attempt to apply it 
 now will open the door wide to anarchy and confusion. So 
 long as philosophers discuss ethical theories only, we, as 
 lawyers, have nothing to say to them. They are like mathe- 
 maticians discussing the motions of bodies in vacuo, or the 
 measurements of space of more than three dimensions. But 
 when they tell us that they are about to ' give us a guide ^ ' 
 and discuss the existing institutions of law, we must examine 
 their principles and see how they will work. Now the same 
 philosopher who lays down that all government is immoral 
 nevertheless admits that some sort of government must 
 exist ^- But who gave him leave to make this admission? 
 Or, if we grant this, who can compel us to stop here ? The 
 concession in favour of government is too large to be allowed 
 as a purely arbitrary one ; and we also require to be told 
 before we yield, what government will be permitted to ac- 
 complish. This is all the more necessary because we find 
 the principle of equal freedom applied with its full force to 
 crush many of the existing institutions of society, whilst no 
 reason whatever is given for the destruction of these and for 
 
 ' Social Statics, p. 70. ^ See Introduction to Social Statics. 
 
 ^ Social Statics, p. 105. 
 
Sec. 52, 53.] GENERAL CONCEPTION OF LAW. 29 
 
 the preservation of others except the arbitrary choice of the 
 critic. Thus we are told in plain language that 'not only 
 have existing land tenures an indefensible origin, but it is 
 impossible to discover any mode in which land can become 
 private property 1.' This is a deduction from the principle 
 of equal freedom which we are required at all hazards to 
 apply, promptly and with the utmost rigour. Persons living 
 or recently living, and well known, are named and pointed at 
 as oppressors because they claim rights in violation of this 
 principle^. A picture is drawn of the landed class living 
 by injustice, and the rest of the world standing apart and 
 suffering a grievous wrong. This for a while we are per- 
 mitted to suffer patiently, but only whilst matters are being 
 readjusted. The readjustment may be difficult, and if it 
 is found too lengthy it must be hastened. Men having got 
 themselves into a difficulty by disobedience to the law, must 
 get out of it as well as they can^. 
 
 63. This monstrous doctrine (for, notwithstanding the 
 eminence of its author, I cannot refrain from so calling it) 
 is put forward with no other argument to support it than 
 that it is an application of the assumed principle of freedom. 
 Of course any one is at liberty to say, if he can prove it, 
 that the ownership of land is mischievous ; and he may also 
 say, if it is true, that all owners of land are oppressors. Nor 
 need any one care to complain if it were said, without any 
 proof, that in a perfect state there would be no ownership at 
 all. But what I do not understand is this : — when a man has 
 discovered what he calls a universal principle which he does 
 not intend universally to apply, where, if he discards the 
 principle of utiKty, does he get the information which enables 
 him to say, 'here you do well in relaxing the principle and 
 here you do ill'? Why, for example, are we to be compelled 
 to abolish the ownership of land in order that we may con- 
 form to the principle of equal freedom, and then, in spite 
 
 ■ Social Statics, p. 134. ' Social Statics, p. 139. 
 
 ^ Social Statics, p. 142. 
 
30 GENERAL CONCEPTION OF LAW. [Chap. I. 
 
 of that principle, to submit to the jurisdiction of the criminal 
 courts? Why when the judge is about to send me to prison 
 for theft can I not call upon him to recollect that all coercion 
 is immoral? And why, if the judge should reply that this 
 is pushing a doctrine to extremes, may I not answer — ' this 
 is a very favourite style with you lawyers ; you are always 
 trying to reconcile yes and no ; ifs and buts and excepts are 
 your delight; you have faith in the judicious mean; you 
 have a passion for compromises ^.' This is the answer which 
 Mr. Herbert Spencer gives to those who, admitting coercion 
 to be an evil, defend the ownership of land upon considera- 
 tions of expediency, as a practically useful institution, con- 
 ducing, on the whole, to the happiness of mankind at large. 
 Why is it not just as good an answer to those who defend 
 the coercion of the criminal law ? 
 
 54. Every institution of society which has ever depended 
 for its existence upon law could, it is plain, be destroyed by 
 exactly the same argument as has been used by Mr. Herbert 
 Spencer to destroy ownership in land — namely, that it conflicts 
 with the principle of equal freedom ; and I have only specially 
 referred to the case of land because I fear that the enunciation 
 of this principle and its application to land ownership by so 
 eminent a person has contributed largely to the embarrass- 
 ment of a discussion already loaded with difSculty and 
 danger. It also seems to me that we have here a good test 
 of the practical value of the principle of equal freedom, and 
 a help towards estimating whether it is really a better guide 
 than utility in seeking the happiness of mankind. But after 
 all, is it really worth while to inquire into the use of a principle 
 as a guide, which is to be applied or not according to the 
 fancy of the person who happens to take it in hand ? If 
 we are seeking a guide in the practical affairs of life, then 
 between the (so-called) principle of equal freedom and the 
 principle of utility there is really no choice at all. The 
 principle of utility is, at any rate, some sort of a guide. It 
 ' Social Statics, p. 138. 
 
Sec. 54, 55.] GENERAL CONCEPTION OP LAW. 31 
 
 is the one actually in use. We do try to form, and we do 
 succeed to some extent in forming', an idea of what will be 
 the tendency of our actions, imperfect though it may be. 
 And, at any rate, when we have got thus far we know what 
 to do. The priaciple of equal freedom tells us nothing. 
 We know that we oug'ht constantly to be departing from it, 
 but how far, and when, and in what direction, there is nothing 
 to tell us. It leaves us at the mercy of every rogue or 
 charlatan who proclaims the principle, and who can gain a 
 following for the particular application of it which he wishes 
 to make ^. 
 
 55. The principle of equal freedom which I have been The princi- 
 discussing does not differ very materially from that which re^i*gation 
 has been enunciated by a German writer of a very 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 LassaUe for any very destructive purpose in the work 
 I have referred to, but the preface discloses that the author 
 well imderstood 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. 
 
 ' There is a passage at p. 105 in which Mr, Spencer admits the necessity of 
 ascertaining the limitations of his principle, not by scientific methods, but ' by 
 such inferences as obserration and experience enable us to make.' What is 
 this but utility under another name ? 
 
 ^ 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. Beferring, I suppose, to Savigny's definition of a, jural relation 
 (Kechtsverhaltniss) as ' a province of the independent mastery of the indi- 
 vidual will' (System d. h. Kom. Eechts. § 52) LassaUe says (Pref. p. viii.) : 
 'So gilt in Deutschland bekanntlich Savigny, der Chef der historischen 
 Sehule, als ein Haupt-reprafientant der reactionaren Partie ; wahrend seine 
 Principien liber die erworbenen Kechte nooh wahrhaft revolutionar und 
 unwalzend zu nennen waren neben der lacherlioh widerspruchvoUen Stellen 
 welche von den Vertretern des Liberalismus in der Rechtswissenschaft 
 hierbei eingenommen wird.' 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. 
 
32 GENERAL CONCEPTION OF LAW. [Chap. I. 
 
 Utility the 56. Nothing to my mind is more refreshing than to turn 
 tical test from these vague and dangerous speculations to the solid 
 d t g'J'ound of utility. Though there may be use in such specula- 
 tions in their proper place I object to their being thrust 
 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 
 judgement 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 wiU 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 the continuance of 
 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 promote them, more than its aboli- 
 tion 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 pro- 
 perty 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 ques- 
 tion of the age. This (as he says) is the question which 
 
Sec. s6, 37.] GENEBAL CONCEPTIOIT OP LAW. 33 
 
 lies at the bottom of all other questions, and which the mo- 
 ment it is touched makes the chest heave and the pulse 
 beat^. This excitement will certainly lead to bloodshed if 
 we go about telUng- people that aU law is immoral, or that 
 to do right we have only to see that we realise the will of 
 the individual. On the other hand, we may just escape blood- 
 shed 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 Legislation 
 
 £ti 166 Dl 6 
 
 as our guide in legislation, it were said that legislation, even instrument 
 with utility for its guide, is, after all, but a feeble instrument nega!^^'" 
 of happiness, I should be much more inclined to agree. I take 
 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 circumstances be a potent instrument 
 for happiness. Nearly all that the lawgiver can do is to 
 remove impediments to people procuring happiness for them- 
 selves ; and to secure them from being disturbed in the 
 enjoyment of it. Even as regards procuring for persons the 
 necessaries of Hfe, the law can only secure them the fruits 
 of their labour. If this is not sufficient, 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 
 
 ' Preface, p. vii. ' Was ist ea daa den innersten Gruud unseren politisohen 
 nnd socialen Kampfe bUdet 1 Der Begriff des erworbenen Kechts ist wieder 
 einmal atreitig geworden. Und dieaer Streit ist es, der das Herz der heutigen 
 Welt durchzittert und die tief inwendigete Gruudlage der politisch-sooialen 
 Kampfe des Jahrhunderts bildet.' 
 
 D 
 
34 GENERAL CONCEPTION OE LAW. [Chap. I. 
 
 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 
 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 loyalty or aflfection 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 fiilly 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 suiBcient justification of rebellion. 
 Law can 59. We shall, therefore, look for happiness in the wrong 
 crease hap- direction, if we expect it to be conferred upon us by the 
 distribute ^^^' ^o^eover, not only is it impossible for the law to 
 it equally, 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 
 
 ' These somewhat trite, but still useful, observations on the objects of 
 law are set forth in the ' Traites 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'a work, or in Bentham's collected 
 works, vol. i. pp. 301-322. 
 
Sec. 58, 59.] GENEEAL CONCEPTION OF LAW. 35 
 
 attempt to promote it by taking from one man and giving 
 to another could only end m destroying wholesale the sources 
 of happiness. But though it is impossihle that men should 
 ever be made equal in the sense of each 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 m^en 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. We knowj however, that if we did not do so, and 
 that if men did not feel secure in the reward of their labours, 
 they would give up working and we should all be miserable. 
 
 B % 
 
CHAPTER II. 
 
 SOtJECES OP LAW. 
 What is QQ There are several inquiries which have been prosecuted 
 
 meant by • i i i_ i 
 
 sources of 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 noticiag 
 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 
 
 ary source n t i i . n t < 
 
 is declared to be found, the exclusive source of law, is the expressly 
 
 siipreme ^ declared will of the sovereign authority. When the sovereign 
 
 authority declares its will in the form of a law, it is said to 
 
 ' Even with these limitations there is still room for much indefiniteneas 
 in the term ' sources of law.' We generally mean by it, as will appear from 
 the text (sect. 99), something more than mere literature ; I do not pretend, 
 however, that it would be possible to draw an exact distinction between 
 lUeratura and auctoHlas. Lawyers frequently fortify their conclusions by 
 references to opinions which are not, in a forensic sense, authoritative. 
 
SOURCES OP LAW. 37 
 
 / 
 legislate ; and this function of sovereignty is called legisla- j 
 tion : the body which deliberates on the form and substance / 
 of such laws before they are promulgated is called the I 
 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 legislature. 
 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 the 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 Subordi- 
 delegation of legislative power, but nowhere have subordinate lation in 
 legislative authorities been multiplied to so great an extent J"*^'^ j""^^ 
 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 Queen 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 
 there will be great 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. Por 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. 
 
58 SOUECES OF LAW, [Chap. II. 
 
 Methods 64. It may also be desirable here to notice that sovereignty 
 tion^ ^^^' ^® delegated upon two distinct principles in the dependencies 
 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 Queen 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 Queen 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 
 sufficient in the Acts of Parliament which grant colonial con- 
 stitutions to make the very acceptance of them a mark of sub- 
 ordination ^. 
 Indirect 65. Legislative functions are also exercised, not only by 
 
 of legisla- bodies expressly constituted for that purpose, and under the 
 authority ^^™^^ '^^ 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 
 muncipality, which has power to make bye-laws, as they are 
 called, for regulating the conduct of the inhabitants, and even 
 
 '■ 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 Queen alone. But of course no one 
 can doubt that the Queen and the Colonial Parliament are subordinate to 
 the Queen and the English Parliament. See Parliamentary Government in 
 the British Colonies, by Alpheus Todd, pp. 34, 168, i88, 192. 
 
Sec. 64-68.] SOURCES OF LAW. 39 
 
 to impose taxes. So the Privy Council, and sometimes 
 Boards of Revenue, and of Education, frame rules for special 
 objects intrusted to them, which are some of them laws in the 
 proper sense of the term. 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 whoUy uncon- laturea 
 trolled not only in the matter, but in the manner of legislation. "^^^"^ 
 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 
 vmdoubtedly 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 charac- 
 teristic 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 than legis- 
 ffeneral history of the developement of law I do not think I ^^^^"'^ 
 
 " *' ^ are ex- 
 
 could make what I have to say as to the sources of law Intel- plained by 
 
 , • 1 o 1 • 1 • *^* history 
 
 ligible. Without attempting, therefore, anjrthmg approachmg of law. 
 to a complete historical discussion, I propose to give a short 
 sketch of the general developement of law, adverting after- 
 wards to certain peculiarities of its developement in some 
 countries of Europe and of Asia. I hope in this way to be 
 able to throw a little light upon some obscure questions in the 
 history of the sources of English law. 
 
40 SOURCES OP LAW. [Chap. II. 
 
 Early 69. Early in the history of most ancient systems of law we 
 
 of codes?''* find something in the nature of a code, using that term with 
 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. 
 
 oped. 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 efiected. 
 
 Not gener- 71. A code is always an effort of legislation, yet the early 
 
 legislation, 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 modiiying 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. 
 
 Interpreta- 72. 1 Strictly Speaking, interpretation is a process which 
 explained would produce neither extension nor modification of the law. 
 )' a g y, (jj^ygjj^ ^jjg j^-j^g q£ jg^^^ ^Yie 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 
 used, and take them according to their ordinary meaning and 
 construction : this is the grammatical element in the process. 
 
 ' See and compare what is said on the subject of interpretation in Savigny, 
 System d. h. Eom. Kechts, Bk. i. ch. 4, bs. 32 sqq., from which many of my 
 observations are taken. 
 
Sec. 69-75.] SOURCES OP LAW. 41 
 
 Then we may consider each portion of the rule with its con- 
 text, 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 
 scarcely, 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 application of interpretation to 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 hap- 
 pen 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 Eliza- 
 beth relating to leases by ecclesiastical corporations has always 
 been restricted by the ratio legis. 
 
 75. When the grammatical consideration supplies several Interpreta- 
 
 meanings, and neither the logical nor the historical considera- to extend 
 
 tion determines with certainty which is the true meaning, ^^erethe 
 
 then we resort to other considerations. If the rule of law is meaning is 
 
 . ,. . doubtful, 
 
 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 
 
 ' Savigny gives the example of the Senatusconsultum Macedonianum which 
 was passed in consequence of the murder of his father by one Macedo, who was 
 pressed for money to satisfy his creditors (Gluok, 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 ccasion of the cutting off Sir John Coventry's nose. 
 
42 SOURCES OP LAW. [Chap. H. 
 
 with disfavour, we interpret it strictly, that is, so that it 
 may embrace as few cases as possible. 
 
 76. So far we have been considering interpretation proper. 
 But suppose the judge to have before him one of those cases 
 to which I have already alluded, for which there is no rule 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. 
 
 Extenaion 77. It is by this use of his judicial discretion, in cases where 
 ,by analogy. 
 
 a 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, narrows its 
 application. There are indeed cases of bolder extension still 
 which one hesitates to class under extension by interpretation, 
 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 
 
Sec. 76-78.] SOURCES OF LAW. 43 
 
 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 modem codes generally look ^^^^Igg'^ 
 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, ia, 
 now popular : nor do legislative assemblies deal by any means generally 
 successfully with matters of detail. Judicial legislation, onP°5'^*'^' 
 
 •' ° ' and Buc- 
 
 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 Tocem transformare sub eodem ordine eaque consequentia 
 sub qua voces Eomanae positae sunt: .... alias autem legum interpreta- 
 
 tioues, immo magis perversiones eoB jactare non concedimus Si quid 
 
 Tero nt supra dictum est ambigunm fuerit visum hoe ad imperiale cnlmen per 
 judices referatnr et ex auctoritate Augusta manifestetur, cui soli conceBsniu 
 est leges et condere et interpretari.' Co. Just. i. 17. 2. 21. The French legis- 
 lature has taken a middle course. Art. 5 of the Code Civil prevents the 
 ordinary judicial interpretation from becoming authoritative. But by a law 
 of 37 Ventdse, An. viii, art. 88, 'Si le commissaire du gouvemment apprend 
 qn'il ait rendu en dernier report un jugement contraire aux lois ou aux 
 formes de procdder, ou dans lequel un juge ait exc^d^ ses ponvoirs, et 
 contre lequel cependant aucune des parties n'ait r&lam^ dans le d^lai fix^, 
 aprfeg ce d^ai expir^ il en donnera connaisance an tribunal de cassation; 
 et si les formes ou les lois ont ^t4 vioMes, le jugement sera cass^, sans que 
 les parties puissent sc pr^valoir de la cassation pour fluder 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 
 
44 SOURCES OF LAW. [Chap. 11. 
 
 Custom 79. Of the several processes by which law is extended the 
 
 to law''™* next which I shall consider is custom. Some writers say 
 that a custom exists as law wholly 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 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 concep- 
 tion 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. 
 becomes It is however scarcely too much to say that every such 
 
 b^hig'^re- authority, if allowed to continue, in time transforms itself, or is 
 corded and transformed, into a court, and treating its traditional customs 
 
 observed. _ _ _ _ ° 
 
 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 efiect to them, 
 and would ensure their permanence, first, by a precise oral 
 tradition, and afterwards by a written record^- Customs are 
 
 same parties. See Dalloz, Repertoire, o. v. Lois, ss. 458 sqq. In England 
 all judicial interpretation by the superior courts is authoritative, because all 
 their decisions are authoritative. 
 
 ' The old village courts (Schoffen-gerichte) 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 decided prepon- 
 derance to the judicial over the popular element. The tendency to substitute 
 
Sec. 79-81.] SOURCES OF LAW. 45 
 
 suggested hj the habits of the people, but they are preserved, 
 strengthened, and given efiect toby the practice of the courts. 
 
 80. Nothing more is necessary for the growth of a custom 
 then 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 cvmtom 
 The reduction of rules of law into writing has a tendency ^^^ inter- 
 
 _ _ pretatiou. 
 
 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 diflFerence 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 cm-rent ideas of the community mainly a 
 to which they belong, but by representing those ideas, and o°g 
 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 
 
 written rules for oral tradition appears everywhere in the West, even in 
 lay tribunals : ' de constitutionibus autem rusticorum ne penitus memoriae 
 decedat, necesse est ut scribatur.' In the Bast the tendency towards the 
 production of written laws is not so marked. 
 
46 SOUECES OP LAW. Chap. Il- 
 
 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 advance 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 they have doubtless, at different 
 times, 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 
 otherwise. The law may correspond to the legal culture of 
 those who produce it ; it cannot go beyond it. 
 Develop- 82. I wiU now endeavour to illustrate the growth of law 
 Roman ^7 custom and interpretation more particularly by a glance 
 ^™^' at the developement of law in certain countries of the ancient 
 
Sec. 82.] SOURCES OF LAW. 47 
 
 and modern world. I shall refer to tlie operation of their 
 influences upon the law of Rome, upon the Hindoo law, 
 upon the Mahommedan law, upon the continental law of 
 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 Tables. From that time 
 forward the legislative power 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 a process which has been called equity and 
 which I shall speak of again. To a great extent, as ad- 
 ministered at Rome through the praetor's edict, this so-called 
 equity 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- 
 fluence. The issue of the edict by the prsetor was a process 
 more like legislation than a creation of law by a modem 
 judge, in that it announced beforehand 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 
 
48 SOUECES OF LAW. [Chap. II. 
 
 is almost unintelligible unless we remember that the prsetor, 
 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 com- 
 petent 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 ac- 
 ceptable. 
 Develope- 83. Turning to the Hindoo law, we do not find any distinct 
 Hindoo epoch when it was first reduced into a written form, but we 
 ^^' have a number of so-called codes, of which the code of Menu 
 
 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. 
 Antiquity It is doubtful whether any of these codes, though they 
 Hindoo HOW bear the name of an individual, are the product of a 
 codes. 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 in substance they evidently belong to a very 
 early stage of society. For example, in the so-called code of 
 Menu we do not find the ownership of land at all dealt with, 
 undoubtedly because it was not yet known. So too the con- 
 flict 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 a survival of poly- 
 
 1 A Hindoo, as such, accepts what he calls the Shasters as divine, and 
 he cannot do this without making it the basis of his law. If he does not obey 
 the precepts of the divine law he must explain them away by a process of 
 interpretation, or allege a superimposed custom. Historically this may be 
 false : the custom may be in reality more ancient than the accepted Hindoo 
 law of the Brahminical type, but the present basis of custom must be that it 
 has modified the divine precept. 
 
Sec. 83.] SOURCES OF LAW. 49 
 
 andry^. Whenever, therefore, this code may have assumed 
 its present form, it is certain that its matter belongs to a 
 very remote period 2. But the code of Menu, 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 Menu, ' who knows the revealed law 
 [ought] to inquire into the particular wages 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 
 tion 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*- StUl, having no 
 ofiicial 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 
 
 1 Menu, chap. ix. sect. 104. See also chap. viii. sect. 416. 
 
 ° The date of the codes even in the form in which we possess them seems 
 to be still unsettled; but the statement in the text that in substance they 
 belong to a state of society which is very ancient is, I think, incontrovertible. 
 Like the Twelve Tables, they may have been considered a carmen necessarium 
 long after they had been largely supplemented by custom and interpretation. 
 
 ' Menu, ch. viii. sect. 41, 'if,' adds a commentator, 'they be not repugnant 
 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 Kome. I do not observe that the Brahmins, like the ec- 
 clesiastical 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 
 
50 SOUKCES OP LAW. [Chap. II. 
 
 customs upon the old i-ules, and in pointing out (with many 
 apologies and lamentations for the degeneracy of 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 develope- 
 ment of law by interpretation and by the recognition of 
 custom has been actively continued, and it has been ac- 
 celerated by a third process which I shall explain presently, 
 the creation of law by judicial decision^. 
 Develope- 84. The Mahommedan law rests also on a written basis 
 the Ma- which, like the Hindoo, is divine, but, being quite modern, 
 hommedan j^ bears much more directly upon the ordinary affairs of life. 
 There is not, therefore, the same room for its developement, 
 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 Mahommedans have become famiHar 
 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 developement of their law 
 by this direct process. In a few instances, as, for example, 
 the acceptance of interest for a loan, these precepts have been 
 departed from, but every judge professing to admiuister 
 Mahommedan law, and every ruler professing to be guided 
 by its principles, is loaded with fetters. The Mahommedans 
 have made scarcely any attempt to free themselves from this 
 
 ' 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, atten- 
 tion 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 British courts have from the first been liked 
 and respected. 
 
Sec. 84-86.] SOURCES OF LAW. 51 
 
 thraldom. They seem to be paralysed by a sort of super- 
 stitious feeling that it would be irreligious to doubt that 
 the word of the Prophet was sufSeient 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 recognised^; and at some time or other the Mahom- 
 medan lawyers seem to have come temporarily under the 
 influence of the Latin jurisprudence to their very great ad- 
 vantage. 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 Hedarya. But now the Mahommedan law seems 
 to have become so unprogressive that it is impossible for 
 a nation to advance under it. 
 
 85. I now pass on to the developement of law in modern Develope- 
 Europe, where we come upon an entirely new phase. Nonejawin 
 
 of the great nations founded on the continent of Western ™'"^®'^'^ 
 Europe after the fall of the Roman Empire have constructed 
 an independent legal system of their own. Prance, Italy, 
 Austria, Germany, Holland, and Spain have every one ofGeneral 
 
 . , _ , i 1 • 1 adoption of 
 
 them adopted the Roman law as their general or common uoman 
 law, and have only departed from it so far as particular ^^™^' 
 occasions might require. Every gap not filled up by special 
 legislation, or specially recognised custom, has been supplied 
 from the Roman law, and even modern codes to a very 
 large extent only contain the ideas of the Corpus Juris in 
 a nineteenth-century dress. 
 
 86. The history of the process by which the Roman law History of 
 became the common law of the Western portion of the 
 European continent can only be referred to here with ex- 
 
 ' The male agnates (asabah, whom we incorrectly call residuaries) are 
 not mentioned, even casually, in the Koran ; yet they occupy an undoubted 
 and important position as heirs. The old Arabian law of inheritance gave 
 them, no doubt, the entire inheritance, and this rule was modified by Mahom- 
 med, who directs the setting apart of certain shares before the division 
 amongst the residuaries takes place. 
 
 £ 2 
 
52 SOURCES OF LAW. [Chap. n. 
 
 treme brevity and in its broadest features ^ It commences, 
 of course, when the Goths, the Burgundians, the Franks, 
 and the Lombards began to found new kingdoms upon the 
 ruins of the Roman Empire. In none of these were the 
 Roman citizens deprived of the enjoyment of their own laws. 
 The conquering invaders and the conquered inhabitants lived 
 side by side each under their own system, just as the natives 
 of India and Europeans do at the present day^; and when 
 the German races began to conquer each other, especially 
 when several of them were united by Charlemagne under 
 one Empire, the same forbearance was exercised. Each 
 person retained the law indicated by his birth, so that you 
 could find side by side not only two systems, a Roman and 
 a barbarian, but several systems, a Roman, a Gothic, a Bur- 
 gundian, a Lombardic, and so forth. It is the conflict of 
 laws thus produced to which Bishop Agobardus refers in 
 his letter to Louis le Debonaire when he says, 'it often 
 happens that five men each governed by difierent laws, may 
 be found sitting or walking together^.' 
 Law in 87. At this period law was personal : that is, a man took 
 
 Europe at 
 
 ' It will be found at length in Savigny's Gesohiclite des Eom. Eechts im 
 Mittelalter, tlie first volume of wiich has been translated by Cathcart 
 (Edinburgh, 1829). 
 
 " The parallel often drawn between the relative position of the German 
 conquerors and the conquered inhabitants of Europe, and that of the English 
 and natives in India, Is in some points a striking one, but there is this capital 
 distinction, that in one case the conquered, in the other the conquering, race 
 are the higher in civilisation. 
 
 ^ Savigny, Gesch. d. E. K. im Mittelalter, vol. i. § 30. The notion that every 
 one had a free choice (liberum arbitrium) as to the law by which he would 
 be governed has been exploded by Savigny. The law of a man was deter- 
 mined by his descent. So was that of a single woman and widows, A married 
 woman could choose between the law of her father and that of her husband. 
 The Clergy were governed by the Eoman law. Bastards alone had the right 
 of choosing their law : and in private transactions the parties could agree 
 as to the law which was to govern the transaction. Just in the same way 
 in India, until recently, a party used ixequently to be brought into a transaction 
 as (what was called) ' jurisdiction trustee ' in order to ensure, in case of dis- 
 pute, the case being tried before the Supreme Court according to English law. 
 See also Abraham v. Abraham, Moore's Ind. App. vol. ix. p. 195. 
 
Sec. 87, 88.] SOURCES OF LAW. 53 
 
 the law of his parents simply by reason of his descent, and o"® '""e 
 not because he or they were domiciled on any particular spot^^"^^""^ 
 or owed allegiance to any particular ruler. Subsequently 
 law became territorial ; that is to say, a given body of law 
 was made applicable to a district marked out by geographi- 
 cal limits, and applicable to all persons within those limits, 
 because of their inhabitancy and their consequent allegiance 
 to a single government. The influence under which a terri- Law be- 
 torial law and territorial sovereignty were arrived at was, I tonal un- 
 conceive, feudalism. Wherever feudalism prevailed the tenant fnflu^noe 
 began to take his law from the land and not from his descent^. ?^ feudal- 
 
 88. But we have still to see how the several Barbarian laws 
 became welded together with the Roman law and with that 
 which we call the feudal system into one compact body of law 
 for each country. How did the descendant of the vanquished 
 Roman citizen and of his barbarian conqueror come each to 
 lose his distinctive rights ? Of this we know but little. But 
 the amalgamation probably commenced at a very early period 
 after the barbarian conquest : and this amalgamation would 
 be greatly facilitated by the circumstance that even the bar- 
 barian laws consisted of something more than the rude cus- 
 toms which these tribes had brought with them from their 
 native forests. The leges barbarorum all bear obvious traces of 
 having been themselves influenced by the Roman law. This 
 however is for the most part not the Roman law of Justinian, 
 but of the earlier Hermogenian, the Gregorian, and the Theo- 
 dosian Codes ^. 
 
 ' The combination of the notions of universal empire with universal citizen- 
 ship would have the same practical results as the rendering of all law terri- 
 torial, but would not necessarily beget the conception of territoriality. 
 
 ^ It used to be thought that for a time the Roman law was wiped out of 
 Europe, and that it was revived again upon the discovery of the Corpus Juris 
 at Amalfl when that city was taken by the Pisans in 1 1 35. The Pisaus are 
 supposed to have carried away this, the only copy in existence in Western 
 Europe, as part of their booty, and the emperor Lothair the Second (so the 
 story goes) ordered it to be used as law throughout his dominions. It has 
 been shown by Savigny that this is an altogether mistaken view of the fate 
 of the Roman law prior to the twelfth century. See Gesoh. d. Rom. Eechts, 
 im Mittelalter, vol. iii. §§35 sqq. 
 
England. 
 
 54 SOURCES OF LAW. [Chap. 11. 
 
 Language, literature, education, and above all, commerce, 
 were on the side of tlie Eoman lawyers. Still it is not 
 without astonishment that we find the law of the conquered 
 silently displacing the law of the conquerors, and the Roman 
 law adopted everywhere as the law of the land. This adop- 
 tion of the Roman law took place rapidly after the twelfth 
 century. A flourishing school of Roman law arose at Bologna, 
 and another at Paris immediately after ; and the Corpus Juris 
 became the general source of law throughout the continent of 
 Western Europe ^. 
 Influence 89. In England alone we find the overwhelming influence 
 law re- 0? the Roman law successfully resisted. True it is that not 
 S^*^,'^™ a few maxims of the Roman law have been transferred to 
 English Law, but no one has ever been able to quote a 
 text of the Roman law as authority either in the courts of 
 common law or the courts of chancery. It was only within 
 the very narrow jurisdiction which the ecclesiastical courts 
 managed to secure, and in the comparatively insignificant 
 affairs of the admiralty courts (which dealing with foreigners 
 felt the want of a universal law), that the Roman law was 
 accepted. For a long time the ecclesiastics struggled to pro- 
 cure for it a more general acceptance. The crown generally 
 leaned in its favour ^, though occasionally, under the influence 
 of the fear that its introduction might throw too much power 
 into the hands of the church, the sovereign cast his weight 
 into the other scale. But the English lawyers as a body never 
 wavered. The judges with a dogged persistence kept the 
 
 '■ See Weiske's EecHtslexioon, s. t. Quellen des teutsohen Eeohts, vol. viii. 
 p. 846; Brunner in Holtzendorffs Encyolopadie (ed. 1882), p. 266. Theo- 
 retically the Eoman Law was held binding because the German Empire was 
 considered to be a continuation of the Eoman. In the north of France (Pays 
 Contumier) the Eoman law was never, strictly speaking, the common law, 
 but still it had a powerful influence as raison ^crite. ' Ultimo vero loco e 
 jure scripto Eomano mutuamur, quod et aequitati consouum et negotio de 
 quo agitur aptum congruumque invenitur.' Dumoulin, § 110. torn. i. p. 23. 
 Pothier, (Euvres, ed. Buguet, tom. i. p. i. 
 
 " Besides the servile maxim so often quoted, 'quod prinoipi plaouit legis 
 habet vigorem,' which Bracton qualifies, there is much in the Corpus Juris 
 which flatters and favours despotism. 
 
Sec. 89.] SOURCES OF LAW. 55 
 
 Corpus Juris as an authority out of their own courts, and 
 restrained the ecclesiastical courts if they attempted to inter- 
 fere in matters which did not belong to them. The nobility 
 and the commons were equally opposed to the introduction of 
 Roman law. It must at times have been a hard struggle to 
 maintain against the learning and influence of the clergy the 
 ruder customs of England, to which Glanvil, Meta, and Brac- 
 ton can scarcely bring themselves to allow even the name of 
 law ^. And all the writers I have named attempted to intro- 
 duce the principles of Roman law into English courts by 
 incorporating them into works professing to treat of the laws 
 and customs of England. But the attempt met with little 
 success. It was perhaps due to this very admixture of Roman 
 law that the authority of even so accomplished a writer as 
 Bracton was repudiated so emphatically by the judges^. 
 
 • ' Cum autem fere in omnibus regionibus utantur legibus et jure scripto 
 sola Anglia usa est in suis finibua jure non scripto et oonsuetudine. In ea 
 quidem ex non scripto jus venit, quod usus oomprobavit. Sed absurdum non 
 erit leges Anglicanas (licet non scriptas) leges appellare, cum legia yigorem 
 habeat quicquid de consilio et de consensu magnatum et reipublicae communi 
 sponsions authoritate regis sive prinoipis praecedente juste fuerit definitum 
 et approbatum.' Bracton, chap. i. a. a. 
 
 " In a case quoted by Fitzberbert in liis Abridgment (Garde 71), decided 
 in the 35 Hen. VI, the court is represented as agreeing that ' Bracton was 
 never accepted as an authority in our law.' So in the case of Stowel against 
 Lord Zoucb, in Plowden's Reports, vol. i. p. 357, Saunders' argument is thus 
 reported: 'And to this purpose he cited Bracton, not as an author in the 
 law, for he said that Bracton and Glanvil were not authors in our law, 
 but he said he cited him as an ornament to discourse where he agrees with 
 the law.' As far as I am aware, neither Bracton, Fleta, nor Glanvil are 
 ever quoted in the Year Books. Beeves (Hist. vol. iv. p. 186) says that 
 Bracton is ' once or twice ' referred to, but he does not give the references. 
 It may be said that it was not the practice in former times to quote books. That 
 practice seems to have come in after the reformation very gradually, first 
 by reference to Littleton's Tenures, then to Coke's edition of that book, and 
 then to Coke's own works. Other books have by degrees crept in since. But 
 the value attached to a work may be fairly estimated by the demand for it, 
 and of this we have a pretty clear indication. Littleton's Tenures was 
 printed in 1481, again shortly after without date, again in 1528, again in 
 1543. again in 1572, and I think there were other editions. The Year Books, 
 Fitzherbert's Grand Abridgment, a variety of books on the manner of holding 
 courts, a book called the Justice of the Peace, Fitzherbert's Natura Brevium, 
 and several other law-books were frequently printed during the same period. 
 
56 SOURCES OF LAW. [Chap. II. 
 
 Custom 90. The resource of the English lawyers when called on to 
 
 place of the fill tliG gap which was elsewhere supplied by the Roman law 
 Koman ^^^ custom. Of this custom the judges were themselves, in 
 the last resort, the repository. But the judges usually ob- 
 served a discreet silence as to the source from which they 
 derived the rules upon which their decisions were based. 
 Here and there a judge or a counsel arguendo would mention 
 a precedent, but if we may trust the reports contained in the 
 Year Books, even this was rare. Still there appears to have 
 been very little tendency to innovation ; and there was doubt- 
 less a tradition of the courts to which every judge knew that 
 he must conform at the peril of his reputation. Some record 
 of the proceedings of the superior courts of justice was always 
 kept, and we have a series of such records commencing as 
 Character early as the 6 Ric. 11 (i 1 94). These early records might, and 
 reporlir'^ '^ probably did, afford some guide in future eases, though they 
 were not drawn up with that object. Moreover, at least as 
 early as the reign of Edward I the practice was begun of 
 drawing up, in addition to these records, reports of eases heard 
 and determined, the main, and apparently the sole object of 
 which was to furnish judges with precedents to guide them in 
 their future decisions. In these Year Books there is very little 
 argument, but only an ascertainment by oral discussion of the 
 points at issue with the decision of the court. The reporter 
 however frequently criticises the decision, and sometimes 
 indicates in a note the general proposition of law which he 
 supposes the decision to support. Reference is also some- 
 times made by the reporter to other cases involving the same 
 point. The later Year Books give the arguments somewhat 
 more fully, but still we do not find previous cases frequently 
 cited. From this we might be disposed to infer that the 
 
 Britton, on the other hand, was not printed at aU until 1530 ; Bracton was not 
 printed till 1569; Glanvil not tiU 1557; and Fleta not till 1647. And the 
 demand for these books has never increased; none of them have been re- 
 printed more than once until recently. They are now being printed chiefly 
 for. purposes of historical research. I am not aware upon what authority 
 the statement of Braoton's influence on English law rests. 
 
Sec. 90, 91.] SOURCES OP LAW, 57 
 
 practice of citing cases in support of an argument or a judg- Practice 
 ment was still very rare even in the reign of Henry the Eighth, "ases!"^ 
 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 discovered, 
 and also by the popularity of the abridgments made of them 
 by Eitzherbert 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. 
 
 91. It is, however, always as indicating the custom ofDeciaiona 
 England, and not as authority, that the decisions of earlier i^ter times 
 judges were used during all this period and long afterwards. j^^.^°"" 
 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 imme- 
 morial custom. But long before Blackstone's time, and in 
 some measure perhaps owing to the patent of James I, 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. 
 
 ' Pat. 15 Jao. I., in vol. vii. part 3. p. 19 of Eymer's Foedera, ed. 1741. 
 Blackstone, Comm, toI. i. p. 72. 
 
58 SOUECES OF LAW. [Chap. IT. 
 
 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 US what the Roman law does for the rest of "Western Europe. 
 with that j^^ j-jjjg difference between our common law and the common 
 
 01 the 
 
 Roman 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 in certain lines. An English or American 
 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 EngHsh 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 alone 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 have the decisions 
 of judges been systematically treated as authoritative. There 
 seems to have been a good deal of fluctuation under the 
 
Sec. 92, 93.] SOURCES OP LAW. 59 
 
 Roman law as to the authority to be attributed to the im- 
 perial rescripts and decrees given in particular cases. But 
 if these were ever treated 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^. 
 
 93. Well established as the practice of the judges making jural 
 the law has now become in England, it is not easy to reconcile authority 
 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 
 
 ' 'The opinions of law professors and the views taken hy prior judges 
 shall not be in any way considered in future decisions.' Allgem. Land- 
 Eecht, Introduction, b. 6. The stringent provisions of the French Code 
 have been already referred to. Of course provisions 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 jurisprudence' or 'le point de vue juridique.' 
 German judges seem to have no hesitation in referring to treatises, and to 
 the Geriohtsgebrauch or usus fori. Thus a kind of customary law (Juristen 
 recht) is formed by the courts, but linger says that it cannot be applied by the 
 courts in Austria, because the application of all customary law is forbidden 
 by legislation. (XJnger, Syst. d. bster. Privat-E. vol. i. p. 42 : Austrian Civil 
 Code, B. 12.) 
 
 ' See Grote's History of Greece, Part I. ch. xx. 
 
60 SOUECES OP LAW. [Chap. 11. 
 
 notably the case in the treatise of Menu, 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 
 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 Queen's 
 Bench ; and it is as keeper of the king's conscience that 
 the chancellor is said to exercise his authority. 
 Idea of 95. The truth is, as Sir Henry Maine has shown ^, that 
 
 riartrthat^^® idea of law itself is posterior in date to that of judicial 
 of judicial decision ; and it was the actual observation of a succession 
 
 decision, 
 
 of similar decisions of the same kind which gave rise to 
 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 
 
 ' Lect. xxviii. p. 536 (third edition). 
 ' Ancient Law, p. 5 (ed. 1861). 
 
Sec. 94-98.] SOUECES OP LAW. 61 
 
 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 I'elegation 
 the king could really be also judge in all matters of litiga- office by 
 tion. At a very early period this function of sovereignty ^°™'^^*^"' 
 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 office 
 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 Hke the sovereign judge, would give 
 currency to certain rules, and these rules would come to be 
 looked upon as law. 
 
 97. The process by which law is made by judges in the Judicial 
 exercise of their judicial function has been undoubtedly mis- ^ J^^^ ° 
 understood. It has been said, that the exercise by judges "^"T'l'tio"' 
 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 
 purpose in hand, and to leave the judge entirely uncon- 
 trolled. 
 
 98. A very much more important question has been raised, Character- 
 as to the correct appreciation of the process of making law judiciary 
 by judicial decision. Austin has minutely criticised this^^^- 
 process, 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, 
 
62 SOURCES OF LAW. [Chap. 11. 
 
 made up 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 
 ease 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 
 ia Italy, France and Spain, and as has been attempted in 
 India, to state separately and fuUy what French lawyers call 
 the motives, and Spanish lawyers the points of their decisions 
 — 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 EngUsh 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 
 
Sec. 99, 100.] SOURCES OF LAW. 63 
 
 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 Process of 
 be performed in order to extract a rule of law from a number ^tf^^joh 
 of decided eases by elimination of all the qualifying circum- '' ^^ J'^" 
 stances, is a very peculiar and difficult 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 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 literatwra. 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 Competi- 
 from a series of decisions the competition of opposite analo- opposite 
 gies^. Austin considers that this process is not necessarily ^''^ °S'®^" 
 confined to the extraction of law from judicial decisions, and 
 
 that it may as well be employed in the appUeation of ascer- 
 tained rules of law to particular cases. But, as I have said *, 
 
 ^ 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 Court. 
 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 Bule of High Court of Calcutta of July 1867, in Mr. Brough- 
 ton's Civil Procedure, p. 710 (fourth edition). The government saw no usurp- 
 ation of power in this proceeding : on the contrary, the rule is said to have 
 been made at the suggestion of government. 
 
 ' This is consis|ent 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 extraction 
 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. 
 
64 SOURCES OF LAW. [Chap. II. 
 
 it is the peculiarity of English judges 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 ia 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.' 
 Third 101. Closely connected with the law which emanates from 
 
 law: Com- a Series of judicial decisions is the law which is derived from 
 mentaries. j^^ commentaries of great jurists. These are also 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 
 
 I give currency to a rule of law, so by successive recognition 
 
 ! they establish the authority of a commentator; tiU 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, the Hedaya, and the Futwa Alumgiri in 
 
 India. 
 
 DifFerence 103. Between Commentaries and judicial decisions there is 
 
 between ^ distinction of form which it is important not to overlook. 
 
 commen- Judicial decisions are, as we have seen, by their very nature 
 
 and judi- concrete ; all the judge professes to do is to decide the case 
 
 ciary law. 
 
Sec. 101-106.] SOURCES OF LAW. 65 
 
 before him ; and the principle of law which guides him has 
 very often to be extracted with much labour and difiSculty. 
 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 Divine 
 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 
 rules which is set by God to man through inspired revelation^. 1 
 Nearly all nations claim to be possessed of some stich revelation, ; 
 but the nature of it differs considerablyj 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 christians. 
 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. 
 
 106. The Greeks and Romans had scarcely any notion of a Greeks and 
 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 
 
 * Knles 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. 
 
 P 
 
66 SOURCES OF LAW. [Chap. II. 
 
 some special occasion. If it was supposed that there had teen 
 at any time persons, who spoke habitually under divine in- 
 spiration, these were not sages . who directed the conduct, 
 but poets who stirred the feeHngs and imagination of their 
 hearers. 
 Hindoos. 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 life as with the regu- 
 lation of religious observances. The general moral precepts 
 are few, and, consequently, its actual influence on the modem 
 life of a Hindoo is not very great. 
 Mahomme- 108. The extent to which Mahommedans are still under 
 Jews^^ the 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 
 under the direct personal government of God himself, who 
 was supposed to be in constant communication with them. It 
 appears that the Jews felt at times this form of political society 
 to be 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. 
 Divine 109. Modern nations have recognised a very important 
 
 atwa-raen- pi^inciple as to the application of divine rules by human 
 forced. authority, that every divine rule is not to be so enforced. 
 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 
 ' I Samuel viii. 5. 
 
Sec. 107-110.] SOURCES OP LAW. 67 
 
 one example of this in the recognition of the lawfulness of 
 taking interest for the use of money, though I doubt whether 
 a Mahommedan, if asked, would acknowledge any distinction 
 in the obligatory force of divine precepts. We find other 
 examples in the various cases in which under nearly every 
 system of law a man is relieved from the fulfilment 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 not be set aside, because 'a fact 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^. 
 
 110. But though the operation of divine law has been Influence 
 thus limited, it would be idle to deny that it has been a large {"g^^/ 
 source of law. To deny this would be to deny that a large 
 portion of mankind has had any sincere religious belief at 
 aU. But it is a very different thing to suggest, as Black- 
 stone and some other English lawyers seem to suggest^, that 
 there is implied in every human law some sort of reservation 
 or exception in favour of the divine law ; a salvo jure divino 
 absolving men from obedience from the human law if it 
 conflicts with the divine. The 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 
 
 ' See the Dayabhaga of Jimuta Vahana, chap. ii. ss. 28, 29 ; and Strange'g 
 Hindoo Law, vol. i. p. 53. 
 * See Comm. vol. i. pp. 42, 43 ; Fonblanque on Equity, p. 8 (fiftli ed.). 
 
 ra 
 
68 SOUECES OF LAW. [Chap. II. 
 
 that there existed a conflict between a particular divine and 
 a particular human injunction, 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 to institute for himself a comparison between the human 
 and divine law, and that, in case of any proceeding taken 
 against him for disobeying the human law, he may plead 
 the divine precept in his defence, the absurdity of the prin- 
 ciple 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 other- 
 wise, and I decide according to the divine precept,' he wonld 
 be certainly overruled by the court of appeal, and probably 
 declared unfit for his ofiice. 
 
 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 pre- 
 cepts of the Bible have been applied to the institutions of 
 daily life by Christians, to as great an extent as the dif- 
 ference of circumstances will 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 
 
 ' See 21 Geo. III. u. 70. s. 17. 
 
Sec. 111-115.] SOUECES OF LAW. 69 
 
 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 power, 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 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 afiected by the private opinions of 
 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 ac- 
 cordingly. 
 
 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. 
 
 115. What use the lawyer may at any time make of the Use made 
 divine law is clear enough. The judge, being obliged to JdivTnr'^'' 
 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 
 
70 SOURCES OF LAW. [Chap. II. 
 
 I assume in such cases that the sovereign power, if it had 
 I declared its will in the form of a positive law, would have 
 I done so in conformity with the divine precept. And a judge 
 j who acts upon the divine precept in such cases is fully within 
 j 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 
 I 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. it 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 regularly observed amongst men, and which to a 
 considerable degree influence judges in making their decrees, 
 but which are yet neither positive law nor the revealed com- 
 mands 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 lawj 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 diiference of opinion arises as to what the rules 
 
 ' I am not sure that persons who refer the existence of rules of conduct 
 to utility or experience, might not use the term 'moral law' to describe 
 them. But the term generally implies the existence of an innate faculty. 
 
Sec. n6, 117.] SOURCES OF LAW. 71 
 
 are wMeli 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 / 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 reaUy 
 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 diiferent sort, namely 
 the common experience of mankind. And where conduct is 
 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 uncorrupted 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 Roman 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 which, under the name ol jus gentium, or law common to all 
 
 'Fragment on Government, chap. ii. sect. 14; vol. i. p. 8 of Collected 
 Works. 
 
 ^ Maine's Ancient Law, p. 54 (first ed.). 
 ' Grote's Plato, vol. iii. p. 510, u. 
 
72 SOURCES OP LAW. [Chap. II. 
 
 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' marks un- 
 mistakeably, that the source from which this law was actually 
 derived was the same observation of identity. 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 sug- 
 gested : 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 any difference, 
 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 
 
 ' Dans, Lehrbuch d. Gesoh, d. rSm. Eeohts, § 46. 
 
 ^ Maine's Ancient Law, p. 50 (first ed.). 
 
 ' Bentham admits this. He says : ' Those 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 appeal.' Securities against Misrule adapted to a 
 Mahommedan State, sect, i ; vol. viii. p. 562 of collected works. 
 
Sec. H8-I20.] SOURCES OF LAW, 73 
 
 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 we 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 English Chancellors is not wholly dissimilar, and its 
 effects have not been less important. For a full 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 all nations, I must refer the student to the 
 chapter on 'Equity' in Sir Henry 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. 
 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 dispensing 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 i. 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. 
 
 ' Spenoe's Chancery Jurisdiction, vol. i. p. 408. 
 
74 SOURCES OF LAW. [Chap. n. 
 
 Why equi- 121. Notwithstanding this, equity has to a great extent 
 comroom ^o^t in England that feature, which at first sight it would 
 paratively gggj^ easiest to preserve, namely, its elasticity. Sir Henry 
 Maine ^ considers that this is due to courts of equity having 
 originally adopted certain moral principles, which have been 
 carried out to aU 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 difierent 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 
 generalization 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 modification 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, and which 
 even now very largely exists in the popular mind, the 
 function of judges is not so much to enforce the rigid com- 
 mands of a sovereign, as to redress grievances. The com- 
 plete inversion of this conception is marked by the treatise 
 of Austin. The first steps towards it were taken in the 
 respect paid to precedent. Until it was complete, it was 
 impossible to separate the province of law from the province 
 of morality. Both ideas are comprehended under the term 
 'justice.' 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 
 
 ' Ancient Law, p. 69 (first ed.). 
 
Sec. I2I-I24.] SOURCES OF LAW. 75 
 
 administered are rules of law, and with the conception of law 
 which now prevails in jurisprudence. 
 
 123. The elasticity of equity now depends on the same 
 cause which gives elasticity to the common law: — that it 
 is law made by judges in the course of judicial decision ; 
 that it is ex post facto and concrete ; and not, like an act 
 of parliament, prospective and abstract i. 
 
 124. A very curious problem with reference to equity is In India. 
 being worked out in India. We scorn the exclusive maxims 
 
 of the Roman Law, and we emphatically profess to extend 
 the protection of law to all classes of the Queen'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 very important topics, entirely undefined : 
 and there are many topics aifecting all classes on which it 
 would be scarcely possible to lay down a single principle 
 which 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 efiective, if not as obvious, 
 as judges administering common law. Under these restraints, 
 and with ethical ideas generally accepted in an 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 
 ' See supra, sect. 98. 
 
76 SOtJRCES OF LAW. 
 
 perfectly possible (not to speak of minor antagonisms) that 
 in successive courts of 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 illus- 
 trated by a line of argument which I have more than once heard. It is 
 Baid (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 equit- 
 ably. 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. 
 
CHAPTEE III. 
 
 PERSONS AND THINGS. 
 
 125. The terms 'persons' and 'things' occur very fre- Things real 
 quently in law, and it is necessary to try and get some idea^ry™*^^' 
 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 understood 
 that we cannot give physical attributes to imaginary objects. 
 
 126. Objects which are sensible are what we call corporeal, Things 
 as land, gold, corn, and so forth. But if we include amongst and incor- 
 things those objects which we can conceive, we have twoP°^^^' 
 classes of things, corporeal and incorporeal. 
 
 127. Eights are incorporeal things: and the law deals 
 with them as such. Thus a debt or a patent may be pledged, 
 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 A owe a debt to B, the object of ^'s right is money 
 and is corporeal ; but the debt itself treated as the object of 
 pledge, or sale, or bequest, is incorporeal. 
 
78 PEESONS AND THINGS. [Chap. III. 
 
 Things 129. Things are divided into moveable and immoveable; 
 
 ^Tim-^^ and this division corresponds to an obvious physical dis- 
 moveable. tinction. This division of things is not much in use in 
 Things real England. English lawyers prefer to divide things into real 
 sonal!^'^ and personal. A learned modem author suggests that the 
 terms ' real ' and ' personal ' were not in use prior to the 
 seventeenth century^- 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 owner- 
 ship, 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 English 
 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 
 personal 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^. 
 
 ' Williams on Real Property, p. 7 and note. 
 
 » Year Book, 6 Hen. VII, fo. 9. 
 
 ' Bracton Bays: 'nunc cum sit res mobilis quae petatur, eicut leo, boB 
 
Sec. 129, 130.] PERSONS AND THINGS. 79 
 
 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. Real 
 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 generally 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, some- 
 times 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 some- 
 times real and sometimes personal. Partnership property of 
 
 vel aBinus, vestimentum, vel aliud quod consistit in pondere vel mensura, 
 ■videtur, prima facie, quod actio vel placitum esse debeat tam in rem quam 
 in personam, eo quod certa res petitur, et quod possidens tenetur restituere 
 rem petitam. Sed revera erit in personam tantum, quia ille a quo res 
 petitur, non tenetur precise ad rem restituendam, sed sub disjunctione, 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 aotione sua definire precium et 
 
 sic proponere actionem suam Et unde quia non compellitur precise 
 
 ad rem quae petitur, erit actio in ipsam personam, cum implacitatus per 
 Bolutionem tantumdem possit liberari.' (Book III. chap. i. fol. 102 b, vol. ii. 
 p. 134 of Twiss's edition). Braoton 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 Justinian, 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 Gaius iv, i, 2; Beseler, Syst. d. Gem. Deutsh. Privat. 
 B. I 86 ; Holtzendorfifs Encycl. Syst. Th. pp. 526, 547, 554. 
 
80 PERSONS AND THINGS. [Chap. III. 
 
 every kind is personal. And land itself, as soon as it is agreed 
 to be sold, becomes pergonal ; whilst money agreed to be laid 
 out in land becomes real. Now therefore that the distinction 
 between the various kinds of actions is aboKshed it would be 
 difficult 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. 131. 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 fcetus, 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 injuring 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 
 
 ' Blackstone's Comm. i. 130. 
 
 " Unger, Syst. d. osterr. allgem. Land-E. vol. i. p. 232 ; Windscheid, Lehrb. 
 d. Pandekten-E. b. 52; Tangerow, Lehrb. d. Pandekten, § 32. See Dig. 
 I, 6. 7; 50. 16, 129. 
 
 ' Land-K. i. i, 12 ; Dernburg, Lehrb. d. Preuss. Pr. Eechts, vol. i. p. 83. 
 
 * Code Civ. art. 725, 906. 
 
 " Pothier, QLuvr., ed. Buguet, torn. viii. p. 7 ! torn. i. p. 484. 
 
Sec. I3I-I33-] PERSONS AND THINGS. 81 
 
 sbirth is a necessary condition of personality. On the other 
 hand, if we take the view that an embryo from the moment 
 of conception 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 indicate that the fcetus should have advanced to 
 that stage in which it possesses all the organs necessary to 
 continuous Ufe, and should be in other respects capable of 
 living. But there is always great difficulty 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 bom 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 diviaion of the navel string ia 
 not necessary. " Code Civ. art. 725, 906 
 
 ' There seems to be a presumption in favour of viability. See Sirey, Codes 
 Annotes, notes S, 6, and 7 to Code Civ. art. 725. 
 
 G 
 
82 PERSONS AND THINGS. [Chap. HI. 
 
 rarely attainable. The question whether there should be any 
 requirement of 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 
 
 requisition 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. X35. 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 
 
 rarely 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 aUve or dead. So also it is sometimes 
 
 difficult to determine at what exact moment death has taken 
 
 place, if that determination is necessary^. There are certain 
 
 rules which are intended to obviate these difficulties, but these 
 
 belong to the head of evidence. 
 
 Rights and 136. Rights and duties are sometimes attached to an ag- 
 
 attaohedto&'^^g'^*® of human beings in such a way that the individuals 
 
 aggi-egatea composing the aggregate are altogether lost sight of; that 
 
 ' See the subject discussed at length in 'Saviguy, Syst. d. h. Kbm. Eechts, 
 vol. ii. Beil. 3 ; Vangerow, Lehrb. d. Pandekteu, s. 32 ; and particularly 
 Wachter, Pandekten, o. 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. Eom. E. vol. ii. p. 151 ; Dernburg, Lehrb. d. Preuss. Pr. E. 
 vol. i. p. 80; Domat, Liv. prelim. Tit. 2. sect. 2. § 12 ; Code Just. 1. 3. 56. 1. 
 The effect of entering a religious order is very ably discussed by Dr. Friedrich 
 Hellman in a pamphlet entitled Das Gemeine Erbrecht der Eeligiosen ; 
 Munich, 1874. 
 
Sec. 134-I37'] PERSONS AND THINGS. 83 
 
 is, 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 com- 
 mon. As a familiar example of it I will take the case of the 
 University of Oxford. The University of Oxford is an ag- 
 gregate 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, but, 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^. 
 
 137. The attribution of a capacity for rights and duties Eights 
 
 J .. •j.j.i.iij •! attached in 
 
 to an imaginary person is not to be looked on simply as g^j,j ^.j^eg 
 the resource of an advanced and highly technical system of*." ^^""" 
 jurisprudence. The idea, though it has received considerable 
 modern developement, reaches far back into antiquity. Some 
 
 ^ See the Essay on Juristisohe Personen in Savigny, Syst. d. h. Eom. Eeohts, 
 Tol. ii. §§ 85 sqq., which is, as usual, most instructive and interesting. The 
 Eoman lawyers generally said of such an imaginary person 'personae vice 
 fungitur,' and as regards its rights and duties they expressed themselves 
 thus, 'Si quid universitati debetur singulis non debetur, nee quod debet 
 universitas einguli debent,' Dig. 3. 4. 7. i. 
 
 G3 
 
84 TEESONS AND THINGS. [Chap. HI. 
 
 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 
 
 describiag. 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 
 
 legally 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 
 
 iiow°con- rights and duties are attributed a juristical person^. Ajuris- 
 
 ceived by ^^[q^lI person is generally an aggregate of real persons, but 
 
 lawyers, there is no difiiculty in creating an imaginary person which 
 
 beaggre- docs not contain any real person. Thus under the Roman 
 
 gates ot -^g^^ there was an interval between the death of a person 
 
 persons. -^ 
 
 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. 
 
 ' Thibaut uses the expression ' Gemeinbeit ', wbich 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 modified 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 Thi- 
 baut, 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. 138-140.] PERSONS AND THINGS. 85 
 
 Accordingly they made the estate itself into an imaginary 
 person, or, as the phrase was, ' haereditas personae vice fungi- 
 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 
 subject to speak of them as belonging to that subject ^. 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. 
 
 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 ease 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 
 generally mean that the owner of the estate is Hable, but 
 that the liability can only be enforced by seizing or selling 
 the estate, and that on the transfer of the estate the liability 
 passes over to the transferee. If that is our meaning there 
 is no juristical person, but only the use of a figurative ex- 
 pression which indicates shortly the legal situation, but does 
 not fully or accurately describe it. 
 
 140. All lawyers agree that juristical persons should be Difference 
 
 . ,„.. of opinion 
 
 created to some extent. But there is a good deal ot dit- amongst 
 
 continental 
 
 ' This tendency is by no means confined to lawyers and to legal relations. 
 In comnion language we use such expressions as "a school gaining a, dis- 
 tinction.' 
 
86 PERSONS AND THINGS. [Chap. III. 
 
 ferenee of opinion as to what is, and what should be necessary 
 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 ? The 
 lawyers, person who in a court of law or in a legal transaction repre- 
 sents those rights and duties, is he 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 
 through^'' though it produces real efiects. An ideal being can never 
 their repre- really act, but it can be represented by a real person who can 
 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 
 capacity of acting through a representative, English lawyers 
 allow that it is a juristical person, or, as we call it in 
 
 ' See Sav. Syat. d. h. Eom. Eechts, o. 89 ; linger, System d. bsterr. allgem 
 Privat-Eeclits, vol. i. p. 317 ; HolzendorfF, Jurist. Enoyo. a. 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 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 representatives. See Law Keports, 
 Chancery Appeals, vol. ix. p. 343. 
 
Sec. 141-143.] PERSONS AND THINGS. 87 
 
 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. All corporations in England consist of aggregates of Corpora- 
 persons, but, as appears from what has been already said, the England 
 juristical person, the corporation, is something totally distinct ^'^^ a-lways 
 from the persons who compose it : and hence it follows that of persons : 
 no change in the persons who compose the corporation''?*'^ . 
 produces any change in the corporation. If one shareholder tte mem- 
 
 nPPR O.OG3 
 
 goes out of a company which is a corporation and another not affect 
 comes in, the corporation still remains the same corporation ^j^™'^^"^" 
 as before. The shareholders of the New River Company must 
 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 even 
 corporation are not the owners, not even the co-owners, of the ^j^g ^^. 
 corporate property, which is undoubtedly the true view, is ^^""^ ™^"" 
 sometimes obscured by the circumstance that the members of property of 
 the corporation have in their own hands the management of poration in 
 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 
 
 1 I am not sure that some difficulty may not arise on the language of 
 Order xvi. d. 14 of the Bules of the Supreme Court which provides 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 this seems to give a firm 
 capacity to act. 
 
88 
 
 PEESOKS AND THINGS. 
 
 [Chap. III. 
 
 a railway company has a righ.t 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 
 ng an . Q^gg^ j^g^g ^Igo power 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^. 
 
 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 officer, 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 propiio from those which attach to him 
 jure officiij it is permissible to speak of the latter as attached, 
 not to the man, but to his office ; just as it is permissible to 
 speak of rights and duties which pass with the land from 
 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 
 
 Corpora- 
 tions Bole, 
 
 1 It ia 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 Koman law; Dig. Bk. xlvii. tit. 22. See the Italian 
 Civil Code, art, 2. 
 
Sec. 144-145.] PERSONS AND THINGS. 89 
 
 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 Queen 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 incurs 
 liabilities virtute ofBoii. This is because he represents the dissolved East 
 India Company, of which he is the universal successor. If the conception of a 
 corporation sole (with the substitution perhaps of a less ridiculous name) 
 could be extended to all cases where rights and duties were attached to an 
 ofBce it would be convenient. 
 
 ' This I think is the result of what Grant says about corporations sole. 
 See Grant on Corporations, especially p. 635. 
 
CHAPTEK 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. 147. 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 the express 
 or tacit commands of the sovereign authority which we obey. 
 Eight. 149. ' Right ' is a term which, in its abstract sense, it is 
 
 in the highest degree difficult to define. Fortunately, where 
 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 
 
Sec. 146-153] DUTIES AND EIGHTS. 91 
 
 corresponding right. There are, in fact, many duties to 
 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 ; but, as used by 
 lawyers, the term 'right' indicates something which is at- 
 tributed to a determinate person or body of persons. 
 
 151. Of course, as every right corresponds to' a duty, and 
 as every duty is created expressly or tacitly by the sovereign 
 authority, so rights are created expressly or tacitly 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 Eights and 
 every right, that it should be specific. This is necessary gpggifig 
 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 
 ' Austin, Lecture xii. p. 356 (third ed.). 
 
92 DUTIES AND EIGHTS. [Chap. TV. 
 
 to make education in general terms compulsory. Somebody, 
 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 thei 
 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 
 supplied 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, that it is the result of a command, it follows that it is 
 sub'e'ot to necessarily imposed upon some person other than the person 
 dutiea. -who issues the command. No man, except by a strong 
 figu.re 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 subject, it may impose upon a subject 
 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. 
 
Sec. 154-158.] DUTIES AND EIGHTS. 93 
 
 157. But between the so-called rights of the sovereign 
 to a tax, or a fine, and the right of a subject to receive a 
 debt from a fellow-subject, there are, as it seems to me, 
 essential differences. The subject 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 subject, is not only dependent 
 on the vnll 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 difiieulty 
 in conceiving the duty which would arise upon each succes- 
 sive command, it is impossible to conceive a right of so fluc- 
 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 subjects 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 
 
94 DUTIES AND EIGHTS. [Chap. IV. 
 
 respect which men have for legal rights, and the feeling 
 which all men have that legal rights ought to be secure, 
 politicians, 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 persons 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 view which I had already expressed. As instances to the contrary are 
 given the right of the Queen to take criminal proceedings, and the right 
 of the subject to proceed by way of Petition of Kight. That the Queen 
 herself, however, may be party to a proceeding is not denied : and as to the 
 proceedings by way of Petition of Bight, they seem to me to be carefully 
 framed so as to avoid giving even the semblance of a judgment against the 
 sovereign. If there is a judgment against any one it is against the Com- 
 missioners of the Treasury. See 23 and 24 Vict., c. 34. s. 14 ; Holland's 
 Jurisprudence, 2nd ed., p. 95 ; 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..i59-i63-] DUTIES AKD RIGHTS. 95 
 
 160. Rights generally exist in respect of some specific Some 
 person or thing which is called the object of the right. For "o deter-^* 
 example, the right of the pm-chaser of a house to have the ™pat» 
 house delivered to him hy the vendor, or the right of a master 
 
 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"'™^^^^. 
 
 right ^- persons. 
 
 162. Making the various combinations which are possible, Law of 
 we see that we may have (i) rights of persons over persons ;and things. 
 (a) rights of persons over things ; (3) duties of persons to act 
 
 or forbear in respect of persons ; (4) duties of persons to act 
 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 Eights of 
 
 T) PrR OT19 
 
 of law into the law of persons and the law of things is as and things, 
 a convenient arrangement of topics in a treatise or a code. ^^g®^°°j_' 
 As used for this purpose I shall speak of it hereafter. But fication. 
 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 
 
 1 Austin, Lect. xv. p. 400. 
 
 = J. S. Mill (Essays, vol. iii, p. 228) objecta 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 being Is looked upon 
 as dirpdo-oiiros ; or, as Heineceius 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. 
 
96 DUTIES AND EIGHTS. [Chap. IV. 
 
 persons and of the law of things, but of rights of persons 
 and of rights of things ^ Rights of persons there are un- 
 doubtedly ; for all rights are such. There may be also rights 
 over things, and rights over persons ; but rights of, that is, 
 belonging to, things, as opposed to rights of, that is, be- 
 longing to, persons, there cannot be. 
 Eights in 164. Sometimes a right exists only as against one or 
 
 rem and in _ _ . . 
 
 personam, more individuals, capable of being named and ascertained ; 
 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 per- 
 formance 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 rem. 
 
 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. 2. 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 xUv. 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. 
 ^ Supra, sect. 129. 
 
Sec. 164-168.] DUTIES AND RIGHTS. 97 
 
 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 aU 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 EngKsh 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 out heads that a thing, 
 because rights exist in respect of it, becomes a sort of juristical 
 person, and subject 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 of 
 
 . , , the term 
 
 explain the term ' status ' or ' condition, about which, much gtatm or 
 has been written, but, as the writers themselves generally '=°'''^'*'°"- 
 
 1 It is necessary to distinguisli carefully between a right in rem and a 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 inrem. The use of the terms ' real ' and ' personal ' as applied to things 
 has been explained above, sect. 129. 
 
 H 
 
98 DUTIES AND EIGHTS. [Chap. IV. 
 
 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 ; 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. 
 
 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. 
 
 173. 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. 
 In the latter case they are said to depend upon contract. 
 
 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 
 classes may, or may not, depend upon contract. Those also 
 
Sec. 169-177.] DUTIES AND EIGHTS. 99 
 
 which attach to individuals may or may not depend upon 
 contract. 
 
 175. As an example of the rights and duties attaching 
 to the members of 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 their birth. But a person may ac- 
 quire this right by his own act, as, for example, a foreigner 
 who 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 a class dependent on contract, I may give the 
 rights and duties of a husband as such. 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 B 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 Sir Arthur Hobhouse as com- 
 missioner for settling the disputes in Epping Forest under 
 the 41 and 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 difEeulty 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 
 
 H a 
 
100 DUTIES AKD EIGHTS. [Chap. IV, 
 
 generally, used to express the aggregate of rights and duties 
 which are attached to a person as one of a class. Thus 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 them 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 de- 
 pend 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 com- 
 pel 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 
 
 ' Slavery is a status or condition. Perhaps a trace of status may be found 
 in domestic servants. I may observe that although all the rights which 
 a master has over a slave, except the right to use personal violence (and this 
 is not essential to slavery), might be acquired by contract, the status of 
 slavery could not be created. All the master could get would be damages 
 for breach of contract. Herein, I think, lies the real distinction between 
 slavery and free service, and not, as Bentham seems to think, in the per- 
 petuity of the service. See Works, vol. i. p. 344. 
 
Sec. 178-183.] DUTIES AND EIGHTS. 101 
 
 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 is, 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; 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 servant : and it is even begin- 
 ning to show itself 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 iSn^tWe™ 
 called positive ; when the law obliges us to forbear from doing 
 
 an act, then the duty is called negative. 
 
 182. Duties are farther divided into relative and absolute. Relative 
 Absolute duties are those to which there is no corresponding j„^g 
 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 cor- 
 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""" 
 and independently of any other duty; secondary or sane-?*""*'""" 
 tioning duties are those which have no independent existence, 
 
 ' This was the law until recently. But another step in reducing marriage 
 from status to contract has been taken in the Married Woman's Property 
 Act of 1883. 
 
 '^ Austin, Lect. xlv. p. 787 (third edition). 
 
102 DUTIES AND EIGHTS. [Chap. IV. 
 
 but only exist for the sake of enforcing other duties. Thus 
 the duty to forbear from personal injury is a primary one ; 
 but the duty to pay a man damages for the injury which 
 I have done to his person is secondary or sanctioning. The 
 right 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. 
 
 185. Where the duty is relative, that is, where there is 
 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. 
 
 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. 
 
 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 law, by 
 means of a fine or imprisonment ; and as these relative duties 
 
Sec. 184-191.] DUTIES AND EIGHTS. 103 
 
 have, generally speaking, 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 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; 
 which are all primary rights in rem, and the corresponding 
 duties are to forbear from acts which infringe those 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 
 part penalties and forfeitures which are enforced by civil 
 as distinguished from criminal procedure. 
 
 191. In speaking of those duties which have no inde- Sanctions, 
 pendent existence, but only exist in order to enforce other 
 duties, I have resorted to the somewhat clumsy expedient 
 
104 DUTIES AND EIGHTS. 
 
 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 ftom 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. 
 
CHAPTEE V. 
 
 ON THE EXPRESSION OE THE LAW. 
 
 193. Were the law ideally complete, every command with Inade- 
 its appropriate sanction would be expressed clearly and fully the expres- 
 by the sovereign authority. But this not having been done ^^°" °^ *^® 
 a great deal of the time of lawyers and judges is occupied in 
 
 the endeavour to arrange and interpret obscure and conflicting 
 rules. We are perpetually in search of some clear and 
 authoritative expression of the law, which expression we very 
 rarely find. 
 
 194. The imsatisfactory condition of the law is frequently 
 made a reproach to lawyers, and the reproach is not altogether 
 unfounded. A good deal of law, 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 better. 
 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 difiiculties. This is a mistake. 
 The adaptation of language to the endless variety of cir- 
 cumstances 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 not 
 
106 ON THE EXPRESSION OF THE LAW. [Chap. V. 
 
 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 iatricaeies of law is, when you come to examine 
 it, nothing more than to suggest an appeal 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 laymen for your law^. If the law 
 is bad it must be made better by skiUed 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 efibrts. 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 19 e. It is certainly surprising how little has yet been done 
 
 only im- ./ j. o 
 
 plied not 
 
 expressed. 1 gee Geist d. Eom. Eechts, s. 37. The whole seotioB is most instructive, 
 showing the true functions of law and lawyers. 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. 107 
 
 by any one towards expressing the legal duties wMcli it is 
 incumbent upon us to perform. The duties which have been 
 most nearly expressed are those the breaches 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 
 thefb ; 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 
 effectual, but I draw attention to the form of it as remark- 
 able. 
 
 107. None of the ordinary duties of daily life are anywhere Not very 
 folly expressed, and most of them are not very distinctly implied, impii Jd. 
 We should look in vain for any formula 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 case 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, stone, 
 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 
 • Commentaries, vol. i, p. 124. 
 
108 ON THE EXPEESSION OF THE LAW. [Chap. V. 
 
 a state of nature, he calls them absolute rights ; and if it were 
 possible that a man 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 liberty, 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 individuals. 
 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. Turning to the 
 Third Book, which treats of ' Private Wrongs,' 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 distinctions between the forms 
 of action suitable for enforcing the remedy which the party 
 wronged has against the wrongdoer. Nearly all that Black- 
 stone 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 plead- 
 ing, of the ' original writ,' and the ' action on the case.' See Stephen on 
 Pleading, seventh ed., chap. i. and the note ad finem. 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 
 
Sec. 199-201.] ON THE EXPRESSION OF THE LAW. 109 
 
 199. Other writers have escaped the confusion into which <"" ptl^^r 
 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 obKgation 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 Expression 
 have occurred were it not (as I have already explained ^) that gar/'to ^^ 
 the administration of justice between man and man does not !''^™™^^"f 
 
 justice, 
 indictable. Bacon's Abridgement, Indictment (E). On the subject of this 
 note I may be allowed to refer to an article in the Law Magazine, vol. iii^ 
 pp. 410 sqq. 
 
 ' Code Civil, art. 1382. I shall discuss this definition more fully here- 
 after. 
 
 ' Supra, sect. 25 sqq. 
 
no O:^ THE EXPRESSION OP THE LAW. [Chap. V. 
 
 require that the laws of a country should have received any 
 full expression. All that the judge absolutely requires is 
 authority to settle all disputes which come before him. In 
 every eiviHsed country the judge wiU settle all disputes 
 which come before him, whether the law is clearly and fiiUy 
 expressed or not ; and even when it is not expressed at all. 
 A tribunal altogether without law, though scarcely within 
 our experience, is not a contradiction. The question, there- 
 fore, how far the precision of legal rules shall be carried, 
 depends upon how far a greater or less precision will produce 
 a more satisfactory administration 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. Considering the strong disHke 
 which is felt to constant legislative interference, and the fre- 
 quent recurrence of legislative failures, we may be permitted 
 to doubt whether Bentham did not go too far in wishing to 
 dry ixp 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, shoidd 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 
 la^inthe Outside the councils of sovereigns and the deliberations of 
 Statute ^]^Q 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- 
 Biderable Pressed for the most part in technical terms. A considerable 
 portion of portion of these terms, and that the most intelligible, is the 
 common common property of the western nations of Europe, and of their 
 
 civmaed ° descendants scattered throughout the world. They have also 
 
 nations. 
 
Sec. 202] 0¥ THE EXPRESSION OF THE LAW. Ill 
 
 spread into Russia, into Turkey, into India, and into Japan ^. 
 Everywhere, of course, we find local variations, 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 laws 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 callcyi 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 not only the instruments 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. 
 
 ' In Kussia, Turkey, and Japan, recourse has generally been had to the 
 Trench law, especially the Code Civil. In India the language has been 
 borrowed from an English source, scarcely, I fear, to the advantage of our 
 fellow-subjects in the East, 
 
CHAPTEB yi. 
 
 THE CREATION, EXTINCTION, AND TRANSFER 
 OP LEGAL RELATIONS. 
 
 203. Every law affects the legal relations of those to whom 
 it is addressed, by the creation, extinction, or transfer of rights 
 or duties. 
 
 204. Rights 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 the sovereign 
 by a command that they shall be transferred, or indirectly as 
 the pre-arranged consequences of certain events. 
 
 Events ^q^ Rights and duties are not often created, transferred, 
 
 upon the o ' ' 
 
 happening or extinguished directly, but their creation, transfer, and 
 
 of which . , 
 
 legal rela- extinction are generally the pre-arranged consequences of 
 aitereX^ certain events ; and a great part of the law is taken vip in 
 
THE CREATION ETC. OP LEGAL EELATIONS. 113 
 
 the enumeration and description of those events. Some of 
 
 these events are, indeed, so familiar, and so well ascertained, 
 
 that we have only to name them. Death, for example, is 
 
 one of 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 
 
 must determine, not merely the result of the event, but, if yon of the' 
 
 we are to exclude uncertainty, the nature of the event itself, "j^*"^"^® "^ 
 
 tiles 6 
 
 For example, birth is an event upon which rights and duties events. 
 are created, extinguished and transferred. But when we are 
 told (for example) that a contingent estate given to an unborn 
 son becomes a vested estate upon the birth of that son, 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 ^gg"j.;^(,jon 
 thev have, some conception. And some of these events have °^ ^^™® 
 
 •' ' ■■■ event. 
 
 been discussed and defined for other purposes than those of 
 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 fre- 
 quently also a large number of confased 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 oniy one 
 attributed to them upon which all men could agree, or, atJ^J™P" 
 
 ' That is, practically necessary. But observe that without any such rules 
 the courts would still have decided without hesitation whether or no the 
 events had happened. The question would have been called one of fact and 
 not of law (see sect. 25 sqq.); that is, the standard of determination would 
 have been not law, but experience. 
 
 I 
 
114 THE CREATION, EXTINCTION, AND [Chap. VI. 
 
 least, upon which all accurately speaking men could agree ; 
 for then it would not be necessary to define expressions 
 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 arbitrary 
 definition, 
 and that, 210. It is obviously advantageous to use a popular ex- 
 the p^opular pression according to its popular acceptation ; and where 
 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, then to attach to it that acceptation which has been attached to it 
 
 an accurate, . ..f, .. t .pji - • • , ^^ i 
 
 scientific by scientific men generally : and it this agam is not possible, 
 """' 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 i. 
 
 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 ^. 
 
 ' The use made of Latin terms derived from the Eoman lawyers, or from 
 commentators on the Eoman 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 pronunciation sometimes 
 
 used by lawyers — as, for example, when they say vecord instead of j'ecord 
 
 is intended to indicate that a popular word is used in a technical sense. 
 
 ^ I think sufficient care in the choice of expressions has not been used in 
 the draft of the Criminal Code. 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, recklessly, negligently, in a manner likely to injure, 
 
Sec. 2 10-2 14. J TRANSFER OV LEGAL RELATIONS. 115 
 
 212. It is not unusual to eke out legal expressions by using Qualifica- 
 popular expressions in a very special sense, and then to attach y°es°ioBa' 
 to the expression the word 'legal,' or ' constructive,' or ' quasi,' ^y^® 
 
 to remind the hearer that the use of the expression is a special ' legal,' 
 one. Thus we speak of 'legal' fraud where no one has beentive' or 
 deceived; of 'constructive' notice, when nothing has been ' "l"^^'"' 
 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 caU a thing ' legal fraud' which 
 is really innocent, is very likely to confuse the distinction 
 between right and wi'ong, and to make people indifferent about 
 incurring charges of fraud. 
 
 213. What follows in this chapter is an attempt to clear Acts 
 the ground by making some general observations upon that 
 very important class of events which we call acts. Many acts, 
 such as contracts, torts, wUls, thefts, murders, and so forth, 
 have been separately considered. But there are some general 
 observations to be made about acts iu general which will find 
 
 a proper place here. 
 
 214. The first thing to be considered is what kind of are events 
 
 T 1 -I • • under 
 
 event is an act. An act, as i understand it, is an event human 
 regarded as under human control. There are few (if any) *'°" ^° ' 
 events which can be said to be wholly within human control. 
 
 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 »■ wilful omission, fraudu- 
 lently, fraudulently and in violation of good faith, unlawfully and for a 
 fraudulent purpose, wilfully and with intent to defraud, falsely and deceit- 
 fully, falsely deceitfully and with intent fraudulently to obtain, from motives 
 of lucre. If these do not represent bo 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. 
 
 I 2 
 
116 THE CREATION, EXTINCTION, AND [Chap. VI. 
 
 There are, on the other hand, few events by which man is in 
 any way aifeeted, the results of which mig-ht 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, althoug-h, in common lang-uage, we often use the word 
 ' act ' to express both an act and its consequences ; as, for 
 example, when we speak of an act of murder. 
 No act 215 a. Without a bodily movement no act can be done. 
 
 bodily -^ silent and motionless man can only forbear, 
 movement, gie. Every act is prompted by some antecedent desire 
 prompted wMch determines the will. This incentive to a determination 
 Moti^e"^^' °^ ^^® ^^ ^® 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 
 his act and desires it to follow, he is said to intend that con- 
 sequence. 
 End not 218. The contemplated end of every act is the satisfaction 
 
 directly, of desire, and this which is the end is also the motive. The 
 
 ' In tMa analysis I have closely followed Austin, Lect. iviii-xxi. 
 Hia explanation seems to me the most intelligible that has been pxit 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 
 Kelation of Cause and Effect, particularly Part i, sect. i. 
 
Sec. 215-222.J TEANSFER OF LEGAL RELATIONS, 117 
 
 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, 
 a man rarely does an act for the mere sake of doing it. Per- 
 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 before my ultimate end or purpose is attained, 
 For example, A and B have been competitors for a prize : 
 A is successful : thereupon ^'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 sufliered by A, and 
 so his own pain of envy will be assuaged. All these inter- 
 mediate consequences were adverted to and expected, and were, 
 therefore, intended, but as means only, and not as an end. 
 
 219. An act must always be intended, although the con- Act always 
 sequences of an act may not be so. For an act is always the 
 
 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 the Conse- 
 doer of an act adverts to a consequence of the act and desires adverted 
 it to follow. But the doer of an act may advert to a conse- *°^°*g 
 quence and yet not desire it : and therefore not intend it. desired or 
 
 -, „ expected. 
 
 221. Adverting to a consequence the doer or an act may 
 either expect it to follow or not expect it to follow. 
 
 222. Expectation that a consequence will follow, or, as it Know- 
 is sometimes expressed, knowledge that it is likely to follow, 
 without any desire that it should follow, is an attitude of 
 
118 THE CREATION, EXTINCTION, AND [Chap. VI. 
 
 mind which is distinct from intention, and it is not, I venture 
 to think, permissible to treat them 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. 
 
 Effect of 224. These two attitudes of mind, in each of which there 
 
 and know- is advertence to consequences, have the most important effects 
 
 lesal re" upon the legal results of acts. There are numberless rights 
 
 suits of 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. 
 
 Mere ad- 225. If consequences of an act are adverted to and are 
 
 vertence . 
 
 ■without neither desired nor expected, then there is neither intention 
 expecl;ation ^^^ knowledge ; and so far as any legal result of the act de- 
 ^ff^ °° pends 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 
 not consider sufficient, then the legal result, in many cases, is 
 affected. For example, the doer of an act who stands in this 
 attitude of non-expectation as regards consequences, and who 
 has arrived at this attitude in this reprehensible manner, very 
 often becomes thereby liable, which means that a particular 
 
 ' 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, but it is not quite clear. 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. 223-229.] TEAKSPEE OF LEGAL EELATIONS. 119 
 
 legal result is attached to the act : when, 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 insufiicient 
 precautions, I may be guilty of manslaughter. 
 
 226. When a person does an act adverting to consequences Rashness. 
 which upon insufiicient grounds he expects not to follow, he 
 
 is said to be rash, and his conduct is called rashness. 
 
 227. These are the cases of advertence. I now come toinadver- 
 consider cases in which consequences have followed from an *™''^' 
 act, which consequences the doer did not at all advert to. Now 
 inadvertence, like advertence without desire or expectation, 
 
 does not, taken by itself, afiect 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 efiected. For 
 example, the doer of an act, in this case also, very often 
 becomes liable : whereas, if the inadvertence exists in spite of 
 due care and circumspection having been taken, he escapes 
 liability. Thus, if I fire ofi^ a rifle without first looking to see 
 whether any one is in the line of fire and I kill some one, 
 I may 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 kiUs some one 
 standing near, I may 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 
 
120 
 
 THE CREATION, EXTINCTION, AND [Chap. VI. 
 
 Other con- 
 ditions of 
 mind than 
 those de- 
 scribed. 
 
 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 it^. 
 
 230. If an event be adverted to, the expectation of its 
 happening may vary very greatly, and it is conceivable that 
 the legal result should be made to depend upon the strength 
 of the expectation. So there are degrees of reprehensibility 
 in rashness and heedlessness which we endeavour some- 
 times 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- ^ 
 
 281. A forbearance is the determination of the will not 
 
 ance. 
 
 
 ' If the long catalogue of adverbs extracted from the Draft Criminal Code, 
 given in a note to sect. 2 1 1 supra, be referred to, it vrill be seen that all or very 
 nearly all describe an attitude of the doer's mind with or without an element 
 of reprehensibility in the way in which this attitude is arrived at. I suppose 
 these words have, or aim at having, a definite meaning. One longs to know 
 what it is. The Indian Penal Code as originally drawn exhibited much care 
 in the choice of these qualifying adverbs ; and in its present form it is more 
 precise than the Draft English Code. 
 
 ' In the Indian Penal Code as it now stands, a very fine distinction is 
 drawn between culpable homicide, which is not a capital oflFence, and murder. 
 If the accused knows that the act 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 299, 300. The original framers of the Code attempted no such 
 distinction. 
 
Sec. 230-233.] TEAKSPER OF LEGAL KELATIONS. 121 
 
 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 
 desired, expected or not expected, adverted to or not adverted 
 to, and there will accordingly be intention, knowledge, rash- 
 ness, or heedlessness, under the same conditions as in the 
 case of acts. It is not, therefore, generally necessary to dis- 
 tiaguish forbearances from acts. 
 
 232. It is, I believe, generally agreed that a mere mental Mental 
 condition unaccompanied by any external act is, legally ^;^.J^Q^t 
 speaking, nullius momenti, and produces no legal result^"*?™" 
 whatever. This might well be so for the simple reason legal re- 
 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, many eases in which the legal Legal 
 results either of an act or of a forbearance are wholly indepen- ^n act 
 dent of the mental attitude of the person who acts or forbears, ge'ieraiiy 
 
 ^ nowdepen- 
 
 But in modern times the number of these cases has been con- dent on 
 siderably reduced. And some of these very eases illustrate condition, 
 very strongly the prevalence of the idea that the legal result 
 of an act ought to depend upon the mental condition of the 
 doer. For example, it has been said to be the law in England 
 that wherever A so conducts himself towards £ that £ may 
 reasonably infer the existence of an intention on the part of A 
 to do something, the legal result is the same as if that inten- 
 tion existed, whether it really exists or not. And these cases 
 are always put as cases of estoppel : that is, the intention to 
 do this thing is assumed to exist, whether it exists or not. It 
 would be much simpler to attribute the legal result to the act 
 without any reference to the intention of consequences, but no 
 one has ever thought of doing this, so wedded are we to the 
 view that the legal result of an act must depend on the mental 
 condition of the doer of it as regards these consequences. 
 
122 THE CREATION, EXTINCTIOIT, AND [Chap. VI. 
 
 This view 234. No doubt the view that the leffal result of an act 
 
 has been 
 
 recently depends upon the attitude of the doer as regards the conse- 
 eve ope . q^gj^^gg j^g^g been much developed iu later times. We always 
 find in the earlier stages of law much more attributed to the 
 act and much less to the attitude of the doer's mind. 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 disregard of in- 
 tention of consequences is observable in the early English law. 
 In early times a deed was looked upon as valid and binding, 
 not as a formal 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 him even though the seal had not been 
 aiSxed by him or by his directions^. This conception of a 
 deed as something which in itself produces a legal result 
 apart from intention was, no doubt, the origin of the clas- 
 sification of contracts into contracts by deed and contracts 
 by parol. 
 Acts in 235. There is a very important class of acts in which the 
 
 legal legal result follows because that result was itself contemplated 
 
 results are ^^^ desired as one of the consequences of the act. From 
 
 contem- ^ 
 
 plated. the fact that legal results are in contemplation in this class 
 
 ' Maine's Ancient Law, ist ed. p. 313. The forms here spoken of, though 
 they may have no reference to the consequences, always indicate that a, 
 particular act was intended. 
 
 ^ See Pollock on Contracts, p. 151, third ed. So an accidental destruction 
 of the seal would make the deed void; Sheph. Touch, p. 6'j, 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 Mahommedan 
 Law, p. 208. Some of the rules relating to seisin were founded on the notion 
 that the act without any reference to the intention was effectual. 
 
Sec. 234-238.J TEANSFER OF LEGAL RELATIONS. 123 
 
 of acts, Germans call them Reehtsgeschafte. 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 in- 
 dicates, or is supposed 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 
 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. 
 
 237. A man's mental condition at any given moment, Mental 
 and his conduct in arriving at that condition, are facts, and, j^q^ asoer- 
 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, 
 which are called rules of evidence, and there are special rules 
 of evidence applicable to the inquiry into the particular facts 
 of a man's mental condition at the time when he does an 
 act and his conduct in arriving at that condition. These 
 rules I shall consider under the head of evidence. 
 
 238. Whatever may be thought of the wisdom of judges Rules for 
 in early times in disregarding to the extent they did the i^g. 
 attitude of the doer of an act as regards the consequences of it, 
 
124 THE CEEATIOK, EXTINCTION, AND [Chap. VT. 
 
 there can be no doubt that the difficulty 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 modem 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 intentions imputed. Means 
 of knowledge may also exist from which knowledge may be in- 
 ferred, 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 
 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 of 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 seem to suggest that the reference of 
 
 ' 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. If there is no intention, then 
 there must be rashness, heedlessness, or breach of duty to make the party 
 liable; see Smith's Leading Cases, seventh ed. vol. ii. p. 870. 
 
See. 238, 239.] TRANSFER OF LEGAL RELATIONS. 125 
 
 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 him as rash or heedless 
 because his conduct differs from the ordinary standard of 
 carefulness. 
 
 239. Perhaps as strong a case as any which could be put is 
 the following. Suppose A to have made a will giving in due 
 form a legacy to £. 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 revokes the legacy. Now a will is an event in which 
 more than in any other ease the legal result depends upon 
 that mental condition which is called the intention of the 
 testator. The whole object is to fulfil the testator's wishes. 
 B will nevertheless, in the case put, take the legacy. This is 
 because we arC' 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. Now 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 stiU, even in the case of a will, the legal result is not 
 independent of the intention. We refer to the surrounding 
 circumstances to explain the directions of the will : we ask 
 what where 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 
 
126 THE CEBATION, EXTINCTION, AND [Chap. VI. 
 
 were altogether independent of the intention these inquiries 
 would be altogether fruitless. 
 Rules of 240. It is the same with what are called rules of construc- 
 
 construe- 
 
 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 appKeation of these rules the intention is better ascer- 
 tained in the general run of cases than in any other way. The 
 supposition may or may not be correct, but there is no doubt 
 whatever that, whether the rules are really useful or not, the 
 legal result is still connected with the intention. Thus we 
 constantly hear judges lamenting the result to which some 
 established rule of construction drives them because they think 
 that this is not what was 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 aU judges is the same. They can only 
 infer the intention from the language, and in drawing that 
 inference they must be liable to err, because they must be 
 guided by their experience as to what ordinary persons would 
 mean by the terms used. 
 Acts of 241. There are, as I have already pointed out, some acts of 
 
 object is to which the very object is to manifest the intention of the per- 
 manifest gQjj ^]^q ^Qgg them: and these manifestations of intention 
 
 intention. 
 
 play a very important part in law, because to a very large 
 
Sec. 240-242.] TRANSFER OP LEGAL RELATIONS. 127 
 
 extent the mere fact that a legal result is intended and 
 expressed to be intended is sufficient to induce it. The con- 
 nexion here between the expressed intention and the legal 
 result is so immediate that we often speak as if the legal 
 result was due to no other agency than 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 pro- 
 cess, to which the one preliminary requisite, and the only 
 one, is the sovereign wiH. It is, probably, in consequence of 
 some misunderstanding as to the origin of 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 back 
 money paid by mistake by an imaginary intention on the part 
 of the payer to repay it seems to me to be labour wholly 
 thrown away. 
 
 242. 1 Manifestations of intention may be either formal or Formal and 
 informal. A formal manifestation of intention is a manifesta- manifesta- 
 tion of intention made in accordance with certain forms which *"'°^°^ 
 
 intention. 
 
 the law has prescribed as necessary for producing a legal 
 result. Forms are useful for four reasons : — first, to make us 
 act with deliberation ; 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. 
 
 ' See Savigny, Syst. d. heut. Eom. Kechts, 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 ceremonies are singularly well 
 adapted to serve the secular purposes stated in the text. 
 
128 THE CEBATION, EXTINCTION, AND [Chap. VI. 
 
 Express 243. ^ Manifestations of intention may also be express or 
 
 and tacit. ^g^gj^_ ^j^^ 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 eifect 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 ^^ 
 Surround- 244. When we infer the existence of intention from an act 
 stonces. o^ s-^ts not done for the purpose of manifesting it, we always 
 look at the surrounding circumstances to see what light they 
 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 permiss- 
 ibility 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 
 
 ' See Savigny, Syst. d. hent. Kom. Eeolits, vol. 3, § 131. 
 
 ^ Contracts are sometimes divided Into express and implied, as in the 
 Indian Contract Act, vrhere 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 another 
 purpose — to express that the legal result of intention will follow whether 
 the intention exists or no ; and it is in this sense that the Indian Contract Act 
 speaks of the implied authority of an agent ; see sect. 187 and illustration. 
 
Sec. 243-250.] TKANSFEE OF LEGAL RELATIONS. 129 
 
 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 
 putting his own muscles into motion. But a man very often an inter- 
 does no more than communicate motion to some inanimate ™®''y' 
 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. 
 
 Or the 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 tradesnian's act. 
 
 247. When a human being is employed to do an act he is Agency. 
 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 difierences in the agent affect the legal results of an 
 act done through an agent, but they are chiefly of importance 
 with reference to particular consequences ; and in the general 
 observations which I am now making I shall not farther 
 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, 
 
 K 
 
130 THE CEEATIOK, EXTINCTION, AND [Chap. VI. 
 
 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 
 hoth 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 
 
 derived of agency has been derived by us from the Roman law. To 
 ^°™ / some extent this may be so. Scarcely any portion of our law 
 law. I has wholly escaped the influence of the Roman law. But it 
 I is easy to exaggerate this influence, and I think that in the 
 case of agency it has been exaggerated, and that the develope- 
 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 never 
 
Sec. 251, 252.] TRANSFER OF LEGAL RELATIONS. 131 
 
 could have been so long maintained but for the stubbornness 
 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 fiitm-e heir by name, because the slave at the time 
 belonged to the estate and not to the future heir^. On 
 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 received, 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 
 still. 
 
 252. But in the matter of delict the contrast between the 
 relation of principal and agent and master and slave is most 
 striking. The master was only Kable for a delict which was 
 done by his express orders, or in his presence with his know- 
 ledgCj and which he was able, but did not choose to prevent. 
 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 
 
 ' Dig. 46, 3, 6 : Code Just. 4, 27, 3 ; Inst. Just. 3, 28, 3 ; Puchta, Inst. § 281. 
 ^ Dig. 45, 3, 16. ' Hunter's Eom. Law, p. 435. 
 
132 THE CREATION, EXTINCTION, AND [Chap. VI. 
 
 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^ 
 JJeisseu- 253. There has been much discussion, especially amongst 
 ^^^^' German jurists, as to what is the true distinction between an 
 
 agent and a mere messenger ^. Some persons deny that there 
 is any distinction, and I am also inclined 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, however, if we consider the postman as an agent 
 he is an agent for a very limited purpose and with a very 
 limited authority. 
 Duress. 254. When I do an act under the fear of some evil with 
 
 which I am threatened by some one, not in pursuance of a 
 legal right, and I do it for the purpose of avoiding that 
 
 ' The references will be found in Hunter, Eoman Law, p. 21. 
 
 ^ See Unger, Syst. d. Osterr. Privat-E. § 90, vol. 2, p. 134 ; Sav. Obi. E. § 57. 
 
Sec. 253-257.] TRANSFER OP LEGAL RELATIONS. 133 
 
 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 will 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. 
 But if I hold a pistol to your head and threaten to shoot you 
 unless you sign, the signature is then your act, and 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 
 the same in regard to the consequences. When under duress 
 I do an act, I may not desire the consequences which follow, 
 but I may know that they are likely. Thus A says to B, 
 ' unless you kill C I will kill you.' If thereupon B kills C, 
 B, though he does not desire (7s death, yet knows that Cs 
 death is likely just as well as if ^ had offered him a bribe to 
 fire a loaded pistol at G and he had done so. 
 
 256. In these cases, therefore, if the legal result is different, 
 it is not because the attitude of the doer of the act as regards 
 the consequences is different, but because, for reasons which 
 have appeared sufficient, a different legal result has been 
 assigned. 
 
 257. A person may, if he chooses, express an intention 
 which is not really present to his mind. Thus I may promise 
 to give a man si^ when I do not intend doing so. This is 
 what is called a mental reservation. Now it is, I beheve, 
 a universal rule to treat the expressed intention as a real 
 intention, just as it is a rule to treat the unmanifested in- 
 tention as if it had no existence. It is not quite an adequate 
 statement of the matter to say that the mental reservation is 
 disregarded. Not only so, but this is one of the cases in 
 
134 THE CEEATION, EXTINCTION, AND [Chap. YI. 
 
 which the same legal result is attributed to a non-existent 
 intention as would have been attributed to it if it had been an 
 existing' one. 
 
 258. Where an intention is expressed under duress it is 
 very likely not to be a real intention ; the party who uses the 
 expression merely pretending that such is his intention. 
 But, according to principle, this should make no difference. 
 If the party expresses an intention to promise, there should 
 be a contract ; 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. 
 
 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 
 connexion with contracts : but in either case only when there 
 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. 
 
 Error. 260. Another matter which is said to affect the legal result 
 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 
 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 
 
Sec. 258-264.] TRANSFER OP LEGAL RELATIONS. 135 
 
 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 Error 
 produces consequences other than those which he desired or^j^^jjy 
 expected. But in considering the effect of error upon thej™?'^' 
 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, 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 sufficient to induce the legal 
 result. 
 
 263. The law as to error has, I think, got into some Error in 
 confusion by not bearing in mind what is and what is not oases. 
 material. Thus a great deal has been made of the distinction 
 between errors of law and of fact, and criminals are often told 
 
 that 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 
 that they cannot set up as an excuse an error of law. This 
 sounds very unreasonable, and would be unreasonable if it 
 were true. But generally speaking it is not true. The 
 intention to break the law is, in most cases, wholly 
 immaterial. A man is not punished for breaking the law, but 
 for doing an act which is harmful. Where an intention to 
 break the law is an element in the offenccj as in most cases of 
 larceny, ignorance of the law can be successfully pleaded. 
 
 264. But in some cases, where there are no consequences Imputation 
 desired or expected which would induce the legal result, tion or 
 nevertheless the legal result is arrived at by imputing to the l^^iowledge. 
 doer of the act an intention or knowledge which had no 
 existence. Whether or no this imputation will be made is a 
 
 ' Comm. vol. iv. p. 27. 
 
136 THE CREATIOK, EXTINCTION, AND [Chap. VI. 
 
 *'^ 
 
 matter of law. In some eases it would be made, in others 
 not. 
 Error of 265. In determining whether or no an intention or know- 
 
 fact.^'' ° ledge will be imputed when by reason of error the intention 
 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 in- 
 fliction 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, only by reason of the assumption that the expressed 
 intention and the real intention necessarily correspond. This 
 undoubtedly, in many cases, leads to the imputation of 
 an unreal intention, but one of a very special kind. The 
 assumption that the expressed intention and the real intention 
 necessarily agree is justified by our experience that upon the 
 
 ^ There is » rough attempt to sanction the imputation of intention or 
 knowledge in criminal cases concealed under the plausible maxim ' drunken- 
 ness is no excuse for crime.' But I doubt whether the imputation 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 drunken- 
 ness in the Indian Penal Code, sect. 87. Cases of real difficulty are such 
 as the following: — 'The prisoner was sentinel on board the Achille when 
 she was paying ofi". 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 he 
 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 impression 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. But 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 conflicting duties. 
 See how the case is met by the Draft Criminal Code, sect. 53. 
 
Sec. 265-268.J TEANSFEE OF LEGAL RELATIONS, 137 
 
 wliole this assumption is a usefal 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 In what 
 and errors of fact, which has been made a great deal of, is portant. 
 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 B ; but it can be recovered back by A. 
 
 267. In this single 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 In courts 
 chancery have endeavoured to undo what has been done under eery. 
 the influence of error, and to restore the parties to their former 
 position. The courts 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 
 
 ' If I understand him rightly, what Mr. Pollock calls ' real common in- 
 tention' is the intention as it appears from the expressions used. (Contracts, 
 third ed. p. 426.) It was not necessary, perhaps, for him to advert to the 
 possible difference between the expression and the reality, which is, as I have 
 said, practically ignored. But I could not ignore this difference in my 
 endeavour to get at the bottom of the rules of the law upon this difficult 
 subject. See what is said below, in the Chapter on Liability. 
 
138 THE CREATION, EXTINCTION, AND [Chap. YL 
 
 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. 
 Not an 269. The distinction between errors of law and errors of 
 
 important 
 
 distinction, fact is, therefore, probably of much less importance than is 
 
 commonly supposed. There is some satisfaction in this, 
 
 because the grounds upon which the distiaction is made 
 
 have never been clearly stated. Blackstone says that the 
 
 Distinction reason of the distinction is because every man not only may 
 
 plained by know, but is bound to know the law ^. This statement is, 
 
 Black- however, obviously untrue, and even if it were true it would 
 
 StjOI16. 
 
 not explain the distiaction. Austia, after rejecting Black- 
 Austin, stone's explanation, says, ' if ignorance of law were admitted 
 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 difiicult 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 
 quaiut language, permissum est jus ignorare. Amongst these 
 were rustics, minores xxv annis, and persons so placed as not to 
 have ready access to legal advice (jurisconsulti copiam 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 
 
 ' Comm. vol. iv. p. 27. 
 
 '■' Lect. xxv. p. 498 (third ed.). 
 
 ' See Dalloz, Eep. 0. v. Obligation, art. 142 sqq. ; s. v. Peines, ai-t. 369 
 sqq. ; Code Civil, art. iioS sqq.; Preuss. AUgem. L. K I. 4,75; Unger, 
 Syst. d. bsterr. Pr. E, vol. ii. pp. 33, 34; Sobwarze, Strafgesetzbucb, § 9; 
 Sav. Syst. d. h. Rom. Eechts, vol. iii, Beyl. viii. 
 
 ' See the references in Hunter, Eom. Law, p. 480. 
 
Sec. 269-2'72.] TEANSFEE OP LEGAL EELATIONS. 139 
 
 for the distinction cannot, therefore, rest upon the broad 
 ground of practical convenience stated by Austin. 
 
 270. Savignyi, in his review of the Roman law as to error, And Savig- 
 endeavours to bring all the rules of it under a principle which "^' 
 differs from that both of Blaekstone 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. 
 
 271. A suggestion was made in a well-known case by Lord Error as to 
 Westbiuy ^, that, at any rate, an error in regard to a man's r^hts! 
 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 difficult, 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 fer to break down the distinction between errors of law 
 and errors of fact even, in the few cases in which that distinc- 
 tion has had any influence. 
 
 272. A question of considerable difficulty which may arise Error as to 
 as to the application of the distinction between errors of lawj^^of^ia^ 
 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 
 
 ' Syst. d. heut. Eom. Reclits, vol. iii., Beylage viii. 
 
 '' Cooper V. Phibbs, Law Eep., Eng. and Ir. App., toI. ii. pp. 149, 170. 
 
 = Syst. d. heut. Eom. Eechts, vol. iii. BeyL viii. p. 327, note c. 
 
140 THE CREATION, EXTINCTION, AND [Chap. VI. 
 
 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. 
 Infancy, 273. There are other circumstances which influence the 
 
 insanity, 
 
 and fraud, contemplated result of an act, which continental lawyers are 
 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, 
 misrepresentation, 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. 
 
 Void and 274. English writers on law generally assume that all the 
 
 voidable. _ ° . 
 
 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,' where it is used at all accurately, 
 means, I think, devoid of the legal result contemplated^. The 
 
 ' Syst. d. h. Rom. Keclits, vol, iii. Beyl. viii. pp. 328, 338 «; Unger, 
 Syst. d. ijsterr. Pr. E. vol. ii. p. 34. 
 
 ^ See PoUook on Contracts, third ed. p. 7. Soiuetimes acts are spoken of 
 as if they were void of all legal result whatsoever. This is not perhaps im- 
 possible, but it must be rare. The word 'void' cannot, I think, be con- 
 veniently extended further than I have extended it in the text. Nor does 
 current legal language warrant 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' Belief Act, 1874, but they have, 
 nevertheless, important legal effects. If the infant, when of age, is sued, 
 and does not plead infancy, judgment will be given on them; money paid 
 on them could not be recovered back j aiyi I should think it clear that pro- 
 
Sec. 273-275.] TRANSFER OP LEGAL RELATIONS. 141 
 
 word ' voidable ' means, I suppose, that the result may be made 
 ' void ' by some one. But the questions remain, 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 either with or with- 
 out restitution — 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 em- 
 ployed; and in the hot contests that have taken place 
 whether an act is void, or absolutely void, or voidable, it 
 seems to me that the disputants have frequently used the 
 words in difierent senses. 
 
 275. It is in connexion with cases 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 follow, but it can be set aside by a court, not however 
 simply, but upon certain conditions. This is called restitution, 
 the parties being restored as nearly as possible to their original 
 condition. This is the coui'se 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, in a great measure, to courts of 
 
 perty delivered in accordance with them would pass to the receiver. See 
 Pollock on Contracts, p. 63, third ed. 
 
tion 
 
 142 THE CREATION, EXTmCTION, AlfD [Chap. VI. 
 
 chancery. But thoug-h 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. 
 
 Eatifica- 276.^ From a consideration of the steps which may be 
 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 A's knowledge or authority, and then A consents 
 to be bound by the agreement, the legal result is the same 
 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 convalescit.' The first question in en- 
 deavouring to understand the phrase is what is meant by 
 
 ' See Pollock on Contracts, third ed. p. Ii8 ; Sav. Syat. d. h. Eom. Eechts, 
 § 203, vol. iv. p. 558. 
 " Broom's Legal Maxims, p. 178, Dig. 50, 17, 29 ; 
 
 cence. 
 
Sec. 2'76-279.] TRANSFER OF LEGAL RELATIONS. 143 
 
 ' convalescence.' According to Savigny it is this : — There 
 are cases in which an act has not any legal result, or not 
 the full legal result, because of some hindrance, and in which, 
 when that hindrance is subsequently removed, the fuU 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 a 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 imder consideration may be useful to 
 recall 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 in- 
 tention 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 
 1 Syst. d. h. Eom. Beohts, § 203, vol. iv. p. 555. 
 
144 
 
 THE CREATION, EXTINCTION, AND [Chap. VI. 
 
 Measure- 
 ments of 
 time. 
 
 Day. 
 
 case of an infant's will of lands: his acts after age might 
 wear the 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 
 the law, or by private individuals in transactions recognised 
 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 
 frequently 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- 
 ments of time are made in terms of these divisions. It is these 
 divisions, therefore, which have to be accurately measured. 
 
 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 would 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. 
 
See. 280-286.] TRANSFER OF LEGAL RELATIONS. 145 
 
 283. The day is divided into twenty-four equal parts called Hours, 
 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 observing 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. 
 
 284. Noon however, as thus calculated, is not the same at Diflferenoe 
 places in different degrees of latitude. Thus noon at Sydney ;„ different 
 corresponds with five minutes to % in the morning at ''**'*"'^®^' 
 London. The dates, therefore, at these two places will not 
 correspond. It is already the 2nd of January at Sydney 
 
 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. Where the difference is 
 small it is of less consequence, as the change of date takes 
 place in the night, whereas business is mostly transacted 
 in the day ; so that during business hours dates are the same. 
 The necessity of any nice calculation is also frequently avoided 
 by disregarding fractions of a day, and also 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 B 
 three days after notice, and notice were given to ^ 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 
 
 reckoned. 
 L 
 
146 THE CREATION, EXTINCTION, AND [Chap. VI. 
 
 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 ^. 
 Lunar and 287. The word ' month' means either a lunar or calendar 
 
 calendar i * i i • -in mi i 
 
 month. month. A lunar month is twenty-eight days. The lunar 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 29 i 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 38 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 Rome, before the time of 
 
 Julian Julius CsBSar, the twelve lunar months, which make '^KA 
 
 year. ^^^ 
 
 days only, were brought up to the solar year by the occasional 
 intercalation of days at irregular intervals. But either from 
 the corruption of the oflEicers 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 366. This brought the civil year very nearly into 
 exact correspondence with the solar year, but not quite ; and 
 by the year 1 753 the error had amounted to twelve days ; so 
 that the and of September in the year 1752 ought to have 
 Alterations been the 14th. Accordingly, by the 34 Geo. II. c. 33 it was 
 
 made in . 7 
 
 1752. directed that the mtervemng days — i. e. from the 3rd to the 
 
 ' See Rules of the Supreme Court 1883, Order LXIV, no. 972. The 
 Roman law seems to have been otherwise. See Arndt's Paudekten, § 89; 
 linger, Syst. d. iisterr. AUgem. Land-E. vol. ii. p. 295. 
 
 ^ With us, the term ' new moon ' indicates the change which takes place 
 when the moon passes tliroUgh the vanishing point and begins again to in- 
 crease. But the new moon is sometimes reckoned from the time when it 
 becomes full. It is so reckoned in many parts of India. 
 
Sec. 287-290.J TRANSFER OF LEGAL RELATIONS. 147 
 
 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 (3000, 3400, 
 and soon). 
 
 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' year began on the 25th of March, 
 whilst the historians' began on the ist of January ^- In order, 
 therefore, to fix any date in a given year between the 1st of 
 January and the a5th of March, it was necessary to know 
 which year was spoken of. For instance, January 7 , 1 65 8 , of the 
 lawyers corresponded to January 7, 1659, of the historians : 
 and to prevent mistakes this date was very often written 16 ^f. 
 By the act of George II it was directed that the ist of January 
 then next following should be the 1st 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. 
 
 290. The ambiguous word 'month' was formerly under- 'MontV 
 stood to mean the lunar month of 28 days, unless it was gaig^^jj^ 
 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 
 
 2 1st of January expires on the a 1st of February, and con- 
 tains 31 days. A calendar month reckoned from the 3 ist of 
 February expires on the 2 ist of March and contains 28 days 
 only, or 29 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 
 
 1 Eules of the Supreme Court, Order LXIV, no. 961. 
 L2 
 
148 THE CREATION, ETC. OF LEGAL RELATIONS. 
 
 date exists. It is, therefore, usual to make it expire on the 
 last day of February, that is, on the a8th or 29th 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. 
 
CHAPTEE VII. 
 
 THE ARRANGEMENT OF THE LAW. 
 
 291. Whenever people have attempted to write system- Divisions 
 atically about law, certain divisions of it have been adopted, " *^' 
 not always identical, but running mostly on the same lines. 
 
 292. The best-known and most widely accepted of these Public and 
 divisions of law is that which separates law into public and ^"^^ ^' 
 private. 
 
 293. There has been much said about this division which Not a 
 seems to proceed upon the assumption that the division is a division, 
 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 i." 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 
 appeared, namely in the Institutes of Justinian : ' Jus pub- 
 licum est quod ad statum rei Romanae spectat, jus privatum 
 quod, ad singulorum utilitatem pertinet^.' All I understand to 
 be meant by this 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 
 
 1 Leot. xliv. p. 770. ^ Inst. I. i. 4. 
 
150 THE AEEANGEMENT OF THE LAW. [Chap. VII. 
 
 regard to them. And, according as we assume the one 
 attitude or the other, we call law public or private, 
 but 294. The fact that this classification has been used for 
 
 upoiTcon- more than a thousand years testifies to its convenience : and 
 venieuce. j£ j^ ^g unscientific, this, though it is a fact which it is 
 desirable to remember, does not render it incumbent upon 
 us to discard this 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 dif- 
 ference 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. 
 jjo^ 295. If the view that I take of the distinction is correct, it 
 
 explained. ^o,;ii^ 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 in 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 civil law of trespass to a considerable extent 
 
Sec. 294-297.] THE ARRANGEMENT OF THE LAW. 151 
 
 effect the same objects, though in one the public interest 
 and in the other private interest is chiefly regarded. 
 
 296. Private law has been again subjected to a classifica- Law of 
 tion which is nearly as celebrated, and which is derived from thinga, and 
 the same source. In the language of the Institutes, 'jusP'^"'^®^"^®- 
 privatum vel ad personas pertinet, vel ad res, vel ad actiones^' ; 
 
 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. Every law is addressed to a 
 person, bidding him 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 aflFects 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 1. 
 
 297. The law of procedure can be no more accurately se- 
 parated 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 will 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 
 
 ' Inst. I. 2. 12. 
 
152 THE ARRASTGEMENT OF THE LAW. [Chap. VII. 
 
 the nature of the defence set up by my adversary. This is 
 because of certain rules of procedure. But my rights under 
 the contract are clearly affected. So in the case of adoption 
 under the Hindoo law. Adoption is considered by the 
 Hindoos as a religious ceremony, and respecting, 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 
 reaUy adopted have estabKshed their position as such, through 
 judgments based solely upon considerations of procedure. 
 
 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 iudeterminate number less than 
 all. In the law of things we find chiefly rights and duties 
 which affect the community at large. 
 
 Law of 300. When we find an aggregate of rights and duties 
 
 attached to certain classes of the community we call that ag- 
 gregate (as I have explained above i) a status, or condition. 
 Hence the law of persons has sometimes been called the law of 
 status or condition. 
 
 301. The topics u.sually discussed under the headings, Con- 
 stitional 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. 
 
 status. 
 
Sec. 298-306.] THE AEEANGEMENT OF THE LAW. 153 
 
 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 private law. 
 
 306. 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 VTII 
 
 OWNERSHIP. 
 
 Eights 307. If we consider any material object, such as a field, 
 
 thfngs ^ piece of furniture, a sum of money, or a sack of wheat, we 
 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 
 furnitui-e, 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 year's 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. 
 OwnersMp 309. If all the rights over a thing were centred in one 
 riffhts over person, that person would be the owner of the thing : and 
 things. ownership would express the condition of such a person in 
 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 owmer 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 in one generaLxight, of 
 ownership. 
 
OWNERSHIP. 155 
 
 310. A person in whom all the rights over a thing- were Absolute 
 centred, to the exclusion of everyone else, would be called the "^'^^^^ ^^' 
 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 mix 
 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 the land, and certain fragments 
 of ownership have been detached and transferred to him. 
 
 313. Absolute and exclusive ownership is rare : and yet 
 I do not thiitk 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. 
 
 314. Ownership, as I_haye said, is conceived as a single Ownership 
 right, and not as an aggregate j)f_rights. To use a homely aggregate 
 illustration, IFis'no more conceived as an aggregate of distinct "^ "S"^*^' 
 rights than a bucket of water is conceived as an aggregate of 
 
156 OWNERSHIP. [Chap. VIII. 
 
 separate drops. Yet, as we may take a drop or several drops 
 from the bucket, so we may detach a right or several rights 
 from ownership. 
 Mstribu- 315. The distribution of rights detached from ownership 
 rights. which we actually find in use is very extensive. Thus, it 
 would be no strange thing to find a piece of land, and that 
 A had a right to till it, S 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 no one of these per- 
 sons would be considered as the owner, 
 pifferenoe qiq j^ g^gji ^ case as this the owner would be stripped 
 
 between _ _ _ 
 
 ownership nearly bare of his rights, and it may seem, at first sight, 
 re aiiena. purely arbitrary to continue to call such a person the owner. 
 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 ^. 
 Descrip- 317. However numerous and extensive may be the de- 
 
 owner, tached rights, however insignificant may be the residue, it is 
 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^. 
 
 ' This I talce 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 : — 
 
 ' Eigenthiimer heisst derjenige, welcher befugt ist, iiber die Substanz einer 
 
Sec. 31,15-321.] OWNEESHIP. 157 
 
 319. This residuary right, even in its slenderest form, is of 
 great legal importance. It enables the holder of it to assume 
 a 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 also 
 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 con- 
 fusion. 
 
 321. The word ' ownership,' and its English equivalent Ownership 
 ' property,' as well as the corresponding words in other Ian- re aliens, 
 guages, dominium, proprilte, 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 
 over 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 
 (with the usual limitation^) as they please. The owner- 
 
 Sache oder eines Rechts, mit Ausschlieesung Anderer, aus eigener Macht, 
 durchsioh selbst, oder einen Dritten zu yerfiigen.' Allgem. L. E. 1. 8, 1. 
 
 ' La propri^t^ est le droit de jouir et disposer des ohoses de la manifere la 
 plus absolue, pourvu qu'on n'en fasse pas un usage prohib^ par les lois ou 
 par les rfeglements.' Code Ci-ril, 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. 
 
 ' The ownership of a right is expressly recognised in the Prussian Code. 
 See the quotation in the last note. Also in the Austrian Code, see Allgem. 
 biirg. Gesetz B. Art. 353, 354. 
 
 ' See supra, sect. 310. 
 
158 OWNEESHIP. [Chap. VIII. 
 
 ship of the right as well as the ownership of the original 
 thing can veiy frequently be 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 B 
 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 sell 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 as B's detached rights, if they went back to A, 
 would merge in J!b general right of ownership of the land ; 
 so C's detached right to take the crops if it went back to B 
 would merge in B'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 modern 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. 
 Ownership 323. The long-standing discussion as to the ground upon 
 
 of inven- i • i i • ■ 
 
 tions which authors, artists, and inventors are protected by the law 
 
 ' See Windsoheid, Lehrb. d. Pand. K. § i68, and the references in the 
 note. 
 
 ^ Inst, of Just. 2. I. I. 
 
Sec. 322-323.] OWNERSHIP. 15? 
 
 seems to me to resolve itself into a question how you choose and copy- 
 to conceive ownership. What we call copyright can only be 
 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 the 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 modem 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 
 thinka that every right in rem belonging to a person over a person or thing 
 must be a right of property (ownership). Thus, he says, 'the child hath 
 no property in his father or guardian as they have in him for the sake of 
 
160 OWNERSHIP. [Chap. VIII. 
 
 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. 
 Ownership 324. Ownership being the relation of a person to a thing, 
 poration. or to a person considered as a thing \ the person may be 
 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 iadividuals ^ is something 
 quite distinct from the ownership of corporation. If a piece 
 of land or a house is o'vsTied 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 
 trespass ; 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. 
 Owner- 325. Of course this case is quite distinct from that in which 
 
 the several rights over a thing are distributed amongst 
 several persons ; as also from that where a thing consists of 
 
 giving him education and nurture.' And further on he says of the servant, 
 that ' he had no property in the master.' Gomm. vol. iii. p. 143. And a 
 modern editor of Blaokstone thinks that, since the wife and child can now 
 recover damages for the injury sustained by the death of the husband or 
 father, that they have a kind of property in him. Kerr's Blaokstone, vol. iii. 
 p. 1 34. So too the right of a pledgee is called a ' special property.' Co. Litt. 
 89 a; 2 Lord Raym. pp. 916, 917. See Donald v. Suckling, Law Eep. Q. B. 
 vol. 1. p. 696. We have been driven to this by the poverty of our legal language. 
 
 ' See sect. 160 supra, and note. 
 
 ^ See sect. 143 supra. 
 
 ship, 
 
Sec. 324-327.] OWNERSHIP. 161 
 
 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 JB of the house : or of a gold ring with 
 a jewel set in it, where A is the owner of the ring, and £ of 
 the jewel. We are considering the case 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 
 ' totius corporis pro indiviso dominium habet ^.' 
 
 326. I think it very probable that co-ownership came Family 
 originally into use as a modified form of what I will call 
 family ownership. It is now a well established fact that 
 
 this is the oldest form of ownership, and very high authori- 
 ties think that family ownership in its original form 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 
 family ownership has been transformed into separate indi- 
 vidual 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 may have occasion to speak again of 
 these hereafter. 
 
 327. Ownership, or any of the various rights which make Condition- 
 up ownership, may be subject to conditions: that is to say, gjjjp 
 may be made to commence or cease, upon the ascertainment 
 
 by our senses that a certain fact does or does not exist. 
 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 
 
 ■ Dig. xiii. 6, 5, 15. 
 M 
 
162 OWNEESHIP. [Chap. VIII. 
 
 belongs to you, upon your declining to take the name of 
 
 a certain family. 
 Persever- 328. I am not now about to discuss the rules which regu- 
 teipts to late the transfer of the ownership of property, whether inter 
 t'e up sue- vivos or by succession, testamentary or intestate. I am 
 
 cession to i j 
 
 ownership, however about to refer to them, because many modern 
 ideas upon the subject of ownership were introduced in 
 order to facilitate restrictions upon the transfer of owner- 
 ship, and so to satisfy the eager desire of owners of 
 landed property to direct the course of succession according 
 to their liking. 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 landowners 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 1792, 
 and have only been very partially restored ^. In Eng- 
 
 ' See infra, sect. 337 note. 
 
 ' See Code Civil, Art. 896, and the observations of M. Troplong, Droit 
 Civil Expliqu^, Donations entre Vifs et Testaments, vol. i. p. 138. M. Trop- 
 long's observations upon the effect of what at the time was considered 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. 
 Ii' abolition des substitutions a pu paraitre un coup hardi k la g^n^ration qui 
 n'en avait pas fait I'^preuve ; mai^ I'exp^rience d'un demi-sifecle a d^montr^ 
 h IMpoque actuelle les immenses avantages d'un r%ime de liberty qui laisse 
 la propri^t^ h, son mouvement legitime, qui en fait un gage s^rieux pour le 
 credit, et un patrimoine assur^ k, chaque membre de la famille. Les substitu- 
 tions ^taient un obstacle &orme an d^veloppement de la richesse publique. 
 EUes avaient, sans doute, un certain avantage de conservation, mais elles 
 pr^f^raient une immobility sterile au mouvement f&ond qui donne la vie aux 
 int^rfits &onomiques.' The rapid change of ideas which has taken place 
 in England during the last few years is very remarkable. When the last 
 edition of this work was published, the remarks in the text were considered 
 somewhat hazardous. Since then a measure radically affecting the principles 
 of the English land law has been brought in and carried almost without 
 a dissentient. 
 
Sec. 328-330.] OWNERSHIP. 163 
 
 land, though many attempts have been made to restrict 
 them, they still exist in a form and to an extent nowhere 
 else ever known. 
 
 329. Certain peculiarities of the law of ownership in Eng- Furthered 
 land have specially tended to favour the exercise of the power notions of 
 of tying up landed property ; and, as far as I am aware, "^"^^^ 'P' 
 there is nothing analogous to these in any other system of 
 
 law, ancient or modern. 
 
 330. It has been usual, as already observed, to regard First, by 
 
 PI- i.-T- . PT ■ separation 
 
 ownership as capable 01 being limited m point of duration, of owner- 
 Two, three, four, or more persons may be indicated as^g^^j^^"g° 
 the successive owners of property. But in England this 
 limitation of ownership in point of duration has been dealt 
 with in a very peculiar way. If land in England be 
 given to A, and after his death to S, and after his death to 
 C, and after his death to D, these four persons are not 
 considered, as they would be anywhere else, to be four suc- 
 cessive owners, differing only in the date of the commence- 
 ment and end of their ownership; each taking by suhstUution^ 
 their turn as it came, but having nothing till that came. 
 The English lawyer views them in 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 
 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 
 
 ' 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. There is a substitution in English law when a power 
 of appointment ia exercised by which one owner in fee is substituted for 
 another. 
 
 M 2, 
 
164 OWNERSHIP. [Chap. VIH. 
 
 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 EngKsh 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 result of both devices for con- 
 trolling the succession to the ownership of land is very often 
 the same. It might come pretty nearly to the same thing, 
 whether I gave land to my eldest son for life, and after his 
 death to his brother, or whether I ' 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 
 machines does not widen the facilities for tying up succes- 
 sion. Nor is this 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 pecuHar ^. 
 
 ' The 'shifting use' of English real property law is. very little more than 
 a well-concealed device for preventing alienation. 
 
 ^ I confine my observations to land, although the ideas of English law 
 relating to other species of property, the funds for instance, possess similar 
 peculiarities ; but I have selected land as the best for purposes of illustration. 
 
Sec. 331-333.] OWNEESHIP. 165 
 
 332. A case has arisen in India whicli 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 takes his property, but her ownership terminates at her 
 death. It would have been perfectly in accordance, therefore, 
 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 Hfe, has (as the phrase is) the 
 whole estate vested in her ; and the nest 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. 
 
 333. There are many other things which an English land- Leases for 
 
 • 1 T -n ^^^{^ terms 
 
 owner, but no other landowner, is permitted to do. For of years. 
 instance, whilst it is common everywhere for the owner of 
 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 
 
 Nor do I wish to indicate it as my opinion that these ideas could be wholly 
 swept away: though I cannot conceal my opinion that they might be ad- 
 vantageously simplified. This simplification is not affected by the recent 
 Settled Estates Act, but it is not improbable that, if this step is found satis- 
 factory, a further advance may be made. 
 
166 OWNERSHIP. [Chap. VIII. 
 
 practical purposes equivalent to a perpetuity, this is prac- 
 tically a new kind of ownership ; the right to use and enjoy 
 being unlimited. The incidents of this ownership, which 
 we call a ' term,' are not the same as the incidents of the owner- 
 ship of an estate for life, or in tail, or in fee. The owner 
 of the term is the owner of a jus in re aliena. 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 confusion, 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. 
 Eestric- 334. But there is a more extraordinary device stiU. 
 
 tions on . ., . , . , ... , -, 
 
 alienation. Every Civilised country has arrived at the opinion not only 
 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 feoffee shall not alien the land to any, 
 this condition is void; because when a man is infeofied 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 
 from alienating by an artifice which is too transparent to 
 deceive a child. The power of alienation is detached from 
 the ownership of ths 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 
 
 ' Littleton, a. 360. 
 
 ^ Tudor'a Leading Cases in Real Property, p. 971. 
 
Sec. 334, 335.] OWNERSHIP. 167 
 
 profitably. The land g^ets 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 wiUing to sell. 
 We allow the law to check that tendency by putting the Powers of 
 power of sale into the hands of a person who is not the owner, persons not 
 and who has been selected expressly because he is not likely ''■^°®'^^' 
 to be willing to selP- 
 
 335. Another peculiarity of the English law of ownership Separation 
 arises out of the very strange conflict between common law enuitablT 
 and equity ^. To take a simple case : — If I give land to you ownership. 
 in 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 EngUsh 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 eases alike, where the owner of land 
 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 
 
 ' This evil is lessened by the Settled Estates Act, but not removed. It 
 remains to be seen how far land becomes more easily saleable under that 
 
 Act. 
 
 ^ This conflict is not removed by the Judicature Acts. Much remains to 
 be done by the Judges themselves, with whom the c^uestion now mainly rests. 
 
168 OWNEKSHIP. [Chap VIII, 
 
 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 difiicult to accomplish this 
 reform. When, however, the attempt is made to remedy 
 this anomaly, it will be desirable to bear in mind, that 
 simply to require a recognition of the equitable owner as 
 legal owner, though it would no doubt eflfectually cause 
 the anomaly complained of to disappear, would at the same 
 time render it necessary to provide some 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. 
 No^analogy ggg. The doctrine of the English Court of Chancery in 
 equitable respect of Ownership has been compared first to one, and then 
 in Roman to another institution of the Roman law ; and if only the 
 law. germ of it were to be there found, its existence in any modern 
 
 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- 
 
Sec. 336.] OWNEESHIP. 169 
 
 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 are also to be found well recognised 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 ia 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 prastor, exercising what 
 may be called his equitable jurisdiction, enforced what was 
 called a fidei commissuni. But there was not, as in England, 
 any conflict of ownership in such a case. What the prsetor 
 did, was to compel^ the transfer of the ownership in ac- 
 cordance 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 umis ; and in 
 former times (probably in reference to this supposed con- 
 nection) what we . now call trusts were then called iises. 
 But the Roman usus was a wholly different and a far less 
 comprehensive conception. When the Roman owner of a 
 house granted the usus 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 waSj 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 
 possession, of the house. And the same was the case with the 
 more extended right of usufruct. The grantee of the usufruct 
 had not even the possession ; he had only the bare physical 
 detentioA, which he held on behalf of the owner. And both 
 these rights were classed among servitudes ; with rights of 
 
170 OWNERSHIP. [Chap. VIII. 
 
 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^. 
 AVhy it is 337. I have noticed these peculiarities of the English law 
 
 fi-^mrfl nip "fo 
 
 observe at some length, and have pointed out the fallacy of linking 
 Marities**""' ^^^^ vHh institutions of a wholly different character, chiefly 
 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 
 difierent from their own, or which are to a large extent incom- 
 plete. Under such circumstances it is certain that we shall 
 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 
 
 ' 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 only in personam. 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. 
 
Sec. 337-339.] OWNERSHIP. 171 
 
 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 ^. 
 
 338. The ownership of land in England is often said to be Feudal 
 based on feudal ideas — that is, upon ideas impressed upon it j;^gi;sli' 
 by the feudal system. It is worth while to inquire what l^'^'^"'"'^®'"- 
 particular 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 
 be sought not iu the existence of the relation, but in the 
 nature of it. What is there peculiar in the feudal relation ? 
 
 389. In examining the nature of the feudal relation one Various 
 meets with the preliminary difficulty that it originally f°™^j° 
 manifested itself in very various forms in difierent parts of *'*ii"'''*- 
 
 ' 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. 
 Perhaps 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. 
 
172 OWNERSHIP. [Chap. VIIT. 
 
 Europe : and some of these forms had probably penetrated 
 into Eng-land before the Norman conquest. After the 
 Norman conquest the Frank type of feudalism became pre- 
 dominant, but from the moment it was planted in EngUsh soil 
 it became subject to local influences. It is, therefore, a very 
 diSicult 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 special 
 legal characteristics which distinguish the feudal tenure. And 
 whatever discussions there may be about minor points, the 
 broad general 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 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 enjoyment 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 charac- 
 teristics. They are to be found in the emphyteusis of the 
 Roman law ; and in the modern tenancies of a farmer or 
 Chief other lessee, which are not feudal. There is, however, one 
 P^™ ?",'y thing which distinguishes the feudal relation from all other 
 tenure. relations between the owner of land and his grantee. This 
 consists in the introduction of a very stringent personal rela- 
 tion between the grantor and grantee, or, to use the feudal 
 expression, between the lord and his tenant. This personal 
 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 
 
Sec. 340, 341.] OWNERSHIP. 173 
 
 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. 
 
 340. The political importance of such a relation was Political 
 immense, and in turbulent times it held out great advantages, igg^i jm. 
 It was a band of union as close as that of kinship, which it po^tance 
 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 ultimately 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 
 tribes, are bound to guard the ghats or mountains 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. 
 
174 OWNERSHIP. [Chap. VIII. 
 
 Feudal 342. The incident of feudal tenure that the feudal tenant 
 
 l^OT ^" enjoys ^11 1^® rights of an owner, and yet has only jus in re 
 aliena, is found in many other arrangements for the enjoy- 
 ment of land. The grantor of the emphyteusis as, 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. 
 Feudal 343. As soon as people came to rely for protection not on 
 
 unsuited to the feudal relation, but on the ordinary courts of justice and 
 require- ^^ ^^® government, a feudal tenure ceased to be anything 
 ments. more than an arrangement, and that a clumsy one, for ad- 
 justing the pecuniary interest of the superior owner in the 
 lands which he had granted away. Its vagueness gave great 
 power of oppression, and it was in many ways objectionable. 
 These objections have been removed, but the thing itself, 
 which is now a mere shadow, remains. It does no good and 
 it does some mischief, by the perpetuation of obsolete forms. 
 But But it is desirable to remember that the abolition of the 
 
 evils not all remaining traces of feudalism would not, if the above observa- 
 due to tions are correct, suffice to cure the evils of the Eng-lish land 
 
 leudalism. _ ° 
 
 law. Those evils are due, not to feudalism, but to the con- 
 trivances by which English lawyers have been allowed to 
 elude the wholesome maxims which have prevailed elsewhere. 
 In almost every case where the law has forbidden something 
 with regard to the land, the lawyers have set about doing the 
 same thing with regard to an ' estate ' in the land. When 
 not allowed to do it with the ' estate ' they have done it with 
 the ' use.' When not allowed to do it with the ' use ' they 
 have done it with the 'trust,' or with the 'term.' Much 
 more than a complete eradication of feudal ideas is necessary 
 to counteract these devices. Nor would it be sufficient 
 simply to sweep these devices away, since some of them, 
 especially trusts, are in part used for purposes which are 
 advantageous. 
 
Sec. 342-346.] OWNERSHIP. 175 
 
 344. There are many points of view from which, and many Discus- 
 purposes for which, it makes no difference who of several per- ,yji(, jg 
 sons having rights in rem over a thing is considered the"^''®''' 
 owner. The rules as to the mode in which the right is to 
 
 be enforced if denied, or recovered if lost ; the rules by which 
 it is transferred or inherited ; and generally its legal aspect, 
 will be the same whether the person claiming the right be 
 considered as owner or not. The most important, and gener- 
 ally the only question which lies at the bottom of all con- 
 tentions as to the ownership is this — To whom do the 
 accessions belong ? 
 
 345. This right to the accessions is always of importance. Eigtt to 
 It is of special importance wh^re land is let out to be turned 
 
 to profitable use by a tenant, and where it can only be used 
 profitably by adding something to it : and this claim to the 
 accessions is the real question at issue in many of the land 
 controversies of the day. 
 
 346. It is, for example, the question of who is entitled to Zemindais 
 the accessions which is at the bottom of the question which Bengal. 
 
 is being agitated in lower Bengal ^. Whether it is right or 
 wrong to caU the Zemindars owners is in itself a very small 
 matter. Whether the rights conferred upon them by the 
 East India Company constitutes them owners is in itself not 
 more important. The real question is, have they a right to 
 appropriate the fruits of the cultivator's industry and capital ? 
 In order to settle this question we must look, not to names, 
 but to rights. And to estimate rights we must not look to 
 English law, where the ideas are peculiar, but to the ideas 
 of general jurisprudence. Do the rights conferred upon 
 Zemindars necessarily involve the concession of their claims ? 
 If they do not, there is hardly a single person who maintains 
 that they ought to be conceded. The main argument in 
 support of those claims, powerful, it is true, if well founded, 
 
 ' I have chosen this example in order to avoid controversies which have 
 assumed a party character. And the study of the land question in India 
 is very instructive, as it presents familiar topics in a new light. 
 
176 OWNEESHIP. 
 
 is that to deny those claims is to deprive men without com- 
 pensation of their legal rights. It is this which renders 
 it necessary to see exactly what those rights are, and this 
 cannot be ascertained by any discussion about ownership, 
 a name which might be appHed to an infinite variety of 
 rights 1. 
 
 ' A story which illustrates these observations was once told by Lord 
 Lawrence when the question was being debated in the Indian Legislative 
 Council, as to who were the owners of the land in the Punjab. Happening 
 on one occasion to meet a party of hill-men he asked, pointing to the 
 hill side, whose land is this? 'Ours,' they all exclaimed. Then he went 
 to some of the chief men in the village and asked the same question. ' The 
 land is ours,' said they. Then he went to the Rajah, and again asked the 
 same question. 'The land is all mine,' replied the Eajah, 'to whom else 
 should it belong?' Each of these parties had certain jura in re over the 
 land, and might, in a sense, have proved their assertions without settling 
 any real dispute. 
 
CHAPTEE IX. 
 
 POSSESSIOJS-. 
 
 347. The substance of the foUowing chapter is taken from 
 Savigny's well-known treatise on this subject^- Austin, in 
 the Introduction to his Lectures on Jurisprudence, announced 
 his intention of availing himself of Savigny's labours in his 
 discussion of possession ^ ; but he never accomplished this, 
 because he never arrived so far in his intended course. 
 Savigny's treatise is founded upon the Roman Law, and 
 consists in a great measure of minute criticisms of the Latin 
 texts, and an exhaustive inquiry into the actual views on 
 possession held by the Roman lawyers. It is not these 
 parts of Savigny's work which are useful for our present 
 purpose. What I have borrowed is his analysis of the 
 general legal conception of possession. This conception is 
 universal : the rules of Roman Law, though they have been 
 largely borrowed, are not so. We have, therefore, no occasion 
 to trouble ourselves with ascertaining whether in any particular 
 
 ' The original work appeared in 1803. The later editions published during 
 the author's lifetime were considerably altered by him. The last edition 
 was published at Vienna in 1865, to which my references are made. It has 
 been translated by Sir Erskine Perry. 
 
 ^ Outline of the Course of Lectures, vol. i. p. 55 (third ed.). 
 
 N 
 
sion. 
 
 178 POSSESSION. [Chap. IX. 
 
 case our conclusions do or do not agree with those of the 
 Roman lawyers. 
 Physical 348. Possession originally expresses the simple notion 
 
 idea of po3- i-n • ii-i 
 
 session. 01 a physical capacity to deal with a thing as we like, to 
 the exclusion of every one else. The primary and main 
 object of ownership is the protection of this physical capa- 
 city ; and, as pointed out by Savigny ^, if this physical con- 
 dition had alone to be considered, all that could be said upon 
 possession from a juristical point of view, would be contained 
 in the following sentences : — The owner of a thing has the 
 right to possess it. Every one has the same right to whom 
 the owner has given the possession. No one else has that 
 right. 
 
 Legal idea 349. The legal notion of possession, however, is not con- 
 
 sion°^^^^" fiii6<i to this simple physical condition. Possession is treated 
 in law, not only as a physical condition which is protected by 
 ownership, but as a right in itself. From possession, under 
 certain conditions, important legal consequences are derived ; 
 and in advanced systems of law the right of possession is 
 frequently separated from the right of ownership. Moreover, 
 the possession with which the law thus deals is not that 
 simple physical condition which we have described above, and 
 to which, for the sake of distinction, therefore, we give the 
 name detention. It is true that the physical element is 
 never altogether lost sight of; on the contrary, a physical 
 element of some kind or other is essentially necessary to 
 possession in its widest legal sense, as we shall see in the 
 sequel. But this physical element greatly varies under rules 
 prescribed by law 
 
 350. So also, inasmuch as possession is a right in itself, 
 rules are laid down by the law, as in other similar cases — 
 in the case of ownership, for instance — which prescribe the 
 mode in which it may be gained or lost. 
 
 Legal con- 351. There has been a good deal of controversy in Ger- 
 
 sequenoes 
 
 ' Sav. Poss. s. I, p. 27. 
 
Sec. 348-353.] POSSESSION. 179 
 
 many upon the question, What are the legal consequences of posses- 
 of possession ? Savigny maintains ^ that the Roman Law 
 (from which, no doubt, modern jurists mostly derive their 
 ideas on the subject) attributed only two rights to posses- 
 sion; namely, the acquisition of ownership by possession 
 [usucapio), and the protection of possession from disturbance 
 (interdictum) ^. Other lawyers would include, as legal con- 
 sequences of possession, the acquisition of ownership by oc- 
 cupancy or delivery; the advantage which the person in 
 possession has, in a contest as to ownership, that the burden 
 of proof is thrown upon his adversary ; the right to use force 
 in defending possession ; the right of the possessor, merely 
 as such, to use and enjoy (to some extent) the thing in 
 possession ; and some other advantages of a more intricate 
 kind. This controversy is one which it is not necessary for 
 us to pursue. Every known system of law attributes some 
 legal consequences to possession ; and even in cases in which 
 it may be, strictly speaking, incorrect to attribute legal 
 consequences to possession, as in the case of occupancy or 
 tradition, the acquisition of possession may yet be an im- 
 portant element of inquiry, and the subject of legal regu- 
 lation. 
 
 352. I will now proceed to consider what is the concep- ptygicai 
 tion of possession in a legal sense ; and I will first examine ^l^^^it ™ 
 the physical element which, as I have said, lies at the bottom tion of pos- 
 of the conception of possession. 
 
 353^. It is very common to say that possession consists 
 in the corporal seizure or apprehension of the thing possessed 
 by the possessor, and that, in all cases where this corporal 
 contact does not exist, there is not a real, but only a fic- 
 titious possession. And there has been derived from this 
 a theory of symbolical possession, which Savigny considers 
 to be not only erroneous, but to the last degree confusing, 
 
 ' Sav. Poss. s. 2, p. 29. ' lb- «• 3. P- 32- 
 
 ' lb. s, 14, p. 206 sqq. 
 
 N % 
 
 seSBion. 
 
180 POSSESSION'. [Chap. IX. 
 
 when we come k) deal with practical questions, and which 
 Contact he has taken great pains to combat. The truth is that, 
 sary. though we undoubtedly do possess most of the things with 
 
 which we are in corporal contact, and though we come into 
 corporal contact at sorae time or other ynth most of the 
 things which we possess, corporal contact has nothing what- 
 ever to do with the matter. A man walking along the 
 road with a bundle sits down to rest, and places his bundle 
 on the ground at a short distance from him. No one thinks 
 of doubting that the bundle remains in his exclusive posses- 
 sion, not symboKcally or fictitiously, but reaUy and actually ; 
 whereas the ground on which he sits, and with which he is, 
 therefore, in corporal contact, is not in his possession at all. 
 So, as Savigny puts it very forcibly, a man is bound hand 
 and foot with cords — no one thinks of saying that he pos- 
 sesses the cords ; it would be just as true to say that the 
 cords possess him. 
 
 354 ^. Corporal contact, therefore, is not the physical ele- 
 ment which is involved in the conception of possession. 
 It is rather the possibility of dealing with a thing as we 
 like, and of excluding others. If we consider the various 
 modes in which possession is gained and lost we shall re- 
 cognise this very clearly. 
 Acquis!- 355 ^. Take, for instance, first the case of land. A man 
 
 session of ^W^ ^ piece of land. He pays the price, and both parties 
 sign the contract of sale. The buyer goes to take possession. 
 It is not necessary for him to come into physical contact 
 with every part of the land by walking all over it. He 
 enters upon it and stands there ; the seller withdraws or 
 signifies Ms assent ; and the buyer is at once in fi;ll posses- 
 sion. This is on the supposition that the claim to take 
 possession is unopposed. If the seller is there and disputes 
 the purchaser's right to take possession, howeve? unjustly, 
 or if a third person is there who disputes the right of both, 
 
 ' Sav. Boss. d. 14, p. 211. 2 j^ g_ jj^ p_ 212 aqq. 
 
 land. 
 
Sec. 3S4-358-] POSSESSION. 181 
 
 all the walking upon the land in the world, until this oppo- 
 sition is overcome, will not give the buj^er possession; and 
 for this reason — because the physical element which is neces- 
 sary to put the buyer in possession is not corporal contact, 
 but the physical powfer of dealing with the land exclusively 
 as his own. In such a case there are but two modes in 
 which he can obtain possession — either by inducing those 
 who oppose him to yield, or by overcoming their opposition 
 by force. 
 
 356. It is not necessary in order to obtain possession 
 that the purchaser should step on to the land at all. If 
 it is near at hand, and thfe seller points it out to the buyer, 
 and shows that the possession is vacant, and signifies his 
 desire to hand it over to the buyer, whilst the buyer signifies 
 his desire to receive it, enough has been done to transfer the 
 possession. The physical possibility of the buyer deaKng 
 with the thing exclusively as his own, which is all that is 
 necessary, exists, whether he thinks proper to use it by 
 stepping on to the land or not. 
 
 357. If we consider what is necessary in order to retain Possession 
 possession, we shall find the same notion more strikingly ex- retained 
 emplified. In order to retain possession, it is not necessary 
 
 that the possessor should remain on or even near the land. 
 Possession having been once received, it is not necessary that 
 the physical power of dealing with the land as he pleases 
 should be retained by the possessor at every moment of time- 
 He will continue in possession, if he can reproduce that 
 physical power at any moment he wishes it. A man who 
 leaves his home, and goes to follow his business ia a neigh- 
 bouring town, may still retain possession of his family house 
 and property. 
 
 358^. An examination into the mode of acquiring the pos- Acquisi- 
 session of moveable things will lead us to the same result, sesdon of^' 
 Possession of moveable things can undoubtedly be tkken, and moveables. 
 
 1 Sav. Poss. s. 1 6, p. 21-6. 
 
182 POSSESSION. [Chap. IX. 
 
 very frequently is taken, by placing oneself in corporal 
 contact with them. I can take possession of money by 
 putting it into my pocket ; of a coat by putting it on my 
 back ; of a chair by sitting upon it. But this contact is not 
 necessary. I should take possession of the money just as 
 well if it were laid on the table before me ; of the coat, if 
 it were put into my wardrobe ; of the chair, if it were 
 placed in my house. In the same way, if I purchase heavy 
 goods lying at a public wharf, I take possession of them by 
 going to them with the seller, and by his there signifying his 
 intention to deliver them, and by my signifying my inten- 
 tion to receive them. So also, if I buy goods stored in 
 a warehouse, possession is given to me by handing over 
 the keys. So too, timber is delivered by the buyer marking 
 the logs in the presence of the seller ; not because of the 
 corporal contact or prehension which takes place in marking, 
 but because that is the intention of the parties. The marking 
 might take place without any change of possession ; as for 
 instance, if the logs were marked to prevent their being 
 changed, but they were not to be delivered till the price was 
 paid 1. 
 
 359. In all these cases it is a great mistake to suppose 
 that there is anything fictitious, or symbolical, or construc- 
 tive in the acquisition of possession. Each ease depends 
 on the physical possibility of dealing with the thing as we 
 like, and of excluding others. In all the cases above put, 
 except two, the thing is actually present before us. But 
 in one of these two namely, that in which we say possession 
 is taken by placing the thing in my house, we only apply to 
 a particular case a well-known principle, which embodies the 
 very idea we are now insisting on ; namely that a man has 
 the actual custody of all that is in his house, by reason of the 
 complete and exclusive dominion which he has over it^. 
 The other of these two cases is that in which the keys of the 
 
 1 Sav. Poss. s. i6, p. 2ig. ^ lb. ti. 17, p. 226. 
 
Sec. 359-361.] POSSESSION, 183 
 
 warehouse, where the goods are stored, are handed over by 
 the seller to the buyer. But there cannot be a more complete 
 way than this, of giving to the buyer the power of dealing 
 with the things sold exclusively as his own ^. 
 
 360. And as in the case of immoveable things, so in Possession 
 the case of moveables, when possession of them has once aWerhow 
 been taken, it may be retained so long as the power exists retained. 
 of reproducing the physical capacity of dealing with the 
 thing and of excluding others. Thus, if after handing 
 over and receiving possession of goods at a public wharf 
 both buyer and seller go away, the goods remain in possession 
 of the buyer. Not so, however, if the goods are in the ware- 
 house of a private person, unless the owner of the warehouse 
 agrees to give the buyer the use of the warehouse as a place 
 for keeping his goods. 
 
 361 ^. Instructive illustrations of the conception of posses- Capture of 
 sion may also be gained by a consideration of the possession of ^^injais 
 live animals. Those animals which ordinarily exist only in 
 a domestic state, such as cows and horses, hardly differ from 
 other moveable property. Animals, on the other hand, which 
 are in a wild state, are only in our possession as long as they 
 are so completely in captivity that we can immediately lay 
 hold of them. We do not possess the fish in a river, even 
 though the river, and the exclusive right of fishing in it, 
 belongs to us. We do not even possess the fish in a pond, if 
 the pond be so large that the fish can escape from us, when 
 we go to take them. But we do possess fish, when once they 
 are placed in a stew or other receptacle, so small that we can 
 at any moment go and take them out. Animals that are 
 born wild, but have been tamed, are generally considered 
 to be in the same position as animals which are born tame, 
 so long as they do not escape if let to go loose. A wild 
 animal that has been wounded mortally by us, is not in 
 our possession until we have laid hold of it ; for not only is 
 
 1 Sav. Poss. ri. 16, p. 223. ^ lb. 3. 31, p. 342. 
 
184 POSSESSION. [Chap. IX. 
 
 the physical Control yet wanting, but a thousand things may 
 happen which will prevent us ever getting it. Another 
 larger animal may seize it and carry it off ; it may get into 
 a hole ; we may lose its track ; and so forth i. 
 Lossofpoa- 362. The consideration of the modes in which possession 
 
 session of . . 
 
 moveables, is lost will make the result clearer still. Every act by 
 which our physical control is completely destroyed puts 
 us out of possession. It makes no difference whether the 
 person who does the act himself gains possession thereby, 
 or indeed whether any one does so. Thus, if I take any- 
 thing belonging to you, and throw it into the sea, you 
 lose possession, though no one gains it. We may also 
 lose possession of a thing, not only by the act of another 
 person in removing it, but simply because, under the circum- 
 stances, we cannot any longer exercise that control ; as, for 
 instance, if a tiny jewel drops from my hand in passing 
 through a dense forest, or a captured animal of its own 
 accord escapes back into the wild. So also, if we leave a 
 thing somewhere, but cannot recollect where, and search for 
 it in vain, we have lost possession of it. There is said to 
 
 ^ Por the purpose of explaining possession, I state the law relating to the 
 capture of wild animals as derived by continental lawyers from the Roman 
 Law. This law has, in England, been very considerably modified, by reason 
 of the more exclusive privileges generally conceded to owners of land. There 
 ia not the least difficulty in a man having possession of that of which he 
 is not the owner ; and it was not inconsistent with the idea which attaches to 
 our word 'close,' to treat the owner of enclosed land as in possession of all 
 the game which at any time happens to be there. If so, it was correct to 
 decide (as has been decided) that when a trespasser kills game on my land 
 the game is mine. See the case of Blades against Higgs, reported in the 
 Common Bench Reports, new series, vol. xx. p. 214. But the idea analo- 
 gous to that expressed by the word 'close' hardly existed under the Roman 
 Law, and I doubt if there is anything quite analogous to it on the continent. 
 We find, however, that the French Law does not apply the restrictions as to 
 killing game to a person doing so ' dans ses possessions attenant Si une habitation 
 et entourees d'une cl6ture continue faisant obstacle k toute communication avec 
 les h&itages voisins.' Loi du 3 Mai, 1844, sur la police de la chasse; art. i. 
 sect. 2. This is probably because the nature of the locality is inconsistent 
 with the absence of possession, and the absence of possession as well as owner- 
 ship is assumed in all the French laws on the sulpject of game. See infrSi 
 sect. 482. 
 
Sec. 362-365.] POSSESSION. 185 
 
 be an exception to this where the thing, though it cannot 
 be found, is still in the owner's house, or on his adjoining 
 premises ; as, for instance, if I drop a coin in ray garden, and 
 cannot, on searching, find it, it is said that I do not lose 
 possession of it. But there is a reason for this which shows 
 that it is no real exception. Everything in a man's house, 
 and in his garden, is, on a principle already adverted to ^, and 
 widely recognised by the law, considered to be in the 
 immediate custody of the owner of the house and garden, 
 by reason of his exclusive control and dominion over them 
 and all persons residing therein. 
 
 363. On the other hand, a man does not lose possession 
 of a thing by leaving it in a place which he knows, and 
 to which he can return. Thus, if I leave my hatchet in 
 a wood, intending to return the next day and continue my 
 work, I retain possession of the hatchet all the time ^- But if 
 any one else should find it, and should take it away, from that 
 moment I lose possession. 
 
 364. The same general rule applies to the loss of immove- Lossofpos- 
 ables. The possession lasts so long as there is any physical land. 
 control over them, and ceases when that physical control 
 
 ceases. I do not lose possession of my house by filling it 
 with my friends and servants, even if I should go away, and 
 leave them there. But should they, on my return, refuse me 
 admittance, declining upon some pretext to acknowledge my 
 rights as owner, then, until I have ejected them, I have lost 
 possession. 
 
 365^. There was a rule in the Roman Law that if, in my Lossofpoa- 
 absence, a piece of land, which had hitherto been in my ;^trudon'!' 
 possession, was occupied by another, who would oppose me if 
 I attempted to return and exercise my rights over the land, 
 I did not thereby lose possession until I was informed of 
 the intrusion. Such a rule is clearly in conflict with the 
 
 ' Supra, sect. 359; Sav. PoBS. s. 31, p. 340. 
 
 ^ Sav. Poss. ti. 31, p. 341. 
 
 = Sav. Poss. s. 31, pp. 348, 353. 
 
186 POSSESSION. [Chap. IX. 
 
 notion of possession, as it has been developed above. The 
 physical power of dealing with a thing as we like being 
 necessary, according to our conception, to constitute possession 
 in a legal sense, it follows that when I have lost this, whether 
 I know it or not, I have lost possession. The question then 
 is, whether we must, in consequence of this rule, modify our 
 general conception of possession, with which it does not 
 harmonise ? Savigny has examined this at great length, and 
 has decided that we ought not, but that it ought to be treated 
 as an exceptional case. It is in fact a fiction, introduced, as 
 fictions generally are, to avoid consequences that are con- 
 sidered to be inconvenient or unjust. The fiction is that I 
 remain in possession when I have really ceased to be so ; and 
 it no more modifies the general notion of possession than the 
 similar fiction on which was founded the old action of 
 ejectment. It has never (as far as I am aware) been ex- 
 tended to moveables ; and, of com-se, it can only be applied in 
 those systems of law in which it has been expressly recog- 
 nised. 
 Mental ele- 366 1. The physical element, however, forms only one portion 
 conception of the conception of possession. Besides this, there is what I 
 sion. may call a mental element, without which the physical rela- 
 
 tion will remain as a mere fact, having no legal consequences, 
 and not in any way subject to special legal considerations. 
 In order to constitute possession in a legal sense, there must 
 exist, not only the physical power to deal with the thing 
 as we like, and to exclude others, but also the determination 
 to exercise that physical power on our own behalf. 
 Transfer of 367. This important feature in the legal conception of 
 
 detention . ^ 
 
 witliout possession may be illustrated by the consideration of a simple 
 possession. ^^^^^ ^ person has a valuable article of jewelry which he 
 wishes to send from London to his house in the country ; and 
 for that purpose he gives it to his servant with instructions 
 to take it to his house, and there deliver it to his wife. The 
 servant does not thereby gain possession of the jewelry, nor 
 ' Sav. Poss. B. 20, p. 246. 
 
Sec. 366-369.] POSSESSION. 187 
 
 does the master lose it. True it is that the servant has the 
 physical control over the jewelry ; but, if he is obedient to his 
 master's orders, he has no intention of exercising that control 
 upon his own behalf. The master, on the other hand, by 
 delivering the jewelry to his servant, does not for one moment 
 lose possession of it, if his orders be carried out. Through 
 his servant, who is obedient to his orders, he has the physical 
 control which is necessary to possession ; and he has also 
 determined to exercise that physical control on his own 
 behalf. 
 
 368. The position, that possession (in a legal sense) con- Transfer of 
 
 •j. j.1'1 1-1 11 1-1 possession 
 
 sists not only m the physical control, but also m the by change 
 determination to exercise it on one's own behalf, is equally qj^„ 
 apparent, if we consider how possession is transferred. Sup- 
 pose that you and I are living together in the same house ; 
 that you are the owner, and that I am a lodger. And 
 suppose that you, being in want of money, sell the house 
 to me ; that you receive the money, and formally acknowledge 
 me as the owner, agreeing to pay me a weekly sum for permis- 
 sion to continue to reside in the house. No external change 
 whatever need have taken place in our relative position ; we 
 may continue to live on precisely as before ; yet there can be 
 no doubt that I am now in possession of the house, and that 
 you are not. 
 
 369. In order to constitute possession (in a legal sense) Intention 
 
 to possess 
 
 it is not necessary that the intention to possess should be need not 
 constantly present to my mind. If I have once determined presentT^ 
 to exercise my physical control over a thing on my own 
 behalf, and so completed my possession, it will be sufficient 
 for the purpose of retaining possession, that I should, if I 
 adverted to it, keep to that determination. Savigny seems 
 to go further, and to think that, provided the physical con- 
 trol continues, the possession continues also until I have ad- 
 verted to it and changed my determination 1. Whether this 
 is so or not ; whether it is necessary, in order to lose possession, 
 
 083. B. 32, p. 355. 
 
188 POSSESSION. [Chap. IV. 
 
 that I should advert to it ; or whether it is sufficient that, if 
 I adverted to it, I should determine not to exercise that 
 physical control any longer, or at least not on my own behalf, 
 we need not further discuss : because in this, as in every other 
 case, where we have to inquire into the state of mind of a 
 person, we can only judge of it from external circumstances : 
 and the external circumstances from which we should infer 
 that after advertence a change of determination had taken 
 place, are precisely those which upon advertence would render 
 a change of determination likely. For instance, we infer that 
 the gold digger has abandoned his possession of the quartz 
 from which he has extracted the gold, because we know that 
 he could have no further use for it, and men do not generally 
 care to keep what is useless ; and we should draw the same 
 inference, whether an actual determination to abandon is 
 necessary or not. In many such cases we affirm that the 
 possession is gone, without troubling ourselves with the 
 inquirjr when exactly it was parted with. 
 How 370. Questions however sometimes arise which render it 
 
 mind as- necessary to determine with exactness the point of time wheu 
 certamed. possession is lost ; and if the physical control does not pass 
 at once into any other hands, this is frequently a question of 
 no little difficulty. If indeed the party in possession chooses 
 publicly to declare his intention to abandon it, the diffi- 
 culty is then solved. But in the absence of such a declaration, 
 we have not only to infer the change of mind from the 
 surrounding circumstances, but also the date of that change. 
 For instance, if the person who has been in possession 
 of a piece of land neglects to cultivate it, or make any other 
 use of it for some years, we may pretty safely infer that he 
 has abandoned it. But if it is necessary to determine exactly 
 when he abandoned it, we can hardly tell. He may have 
 omitted to cultivate, in the first instance, from want of means, 
 and only have abandoned his possession when he finally dis- 
 covered that to procure such means was hopeless : or from 
 the experience of previous years he may have concluded that 
 
Sec. 370-373.] POSSESSION. 189 
 
 cultivation at present prices was unprofitable ; but may not 
 then have abandoned all hope of a better market. Thus, the 
 date at which his determination to possess finally changed 
 may have been considerably later than the first season for 
 cultivation which he allowed to pass. In such a case, how- 
 ever, iu the absence of all evidence to the contrary, it would 
 be usual to take the date of the first indication of an intention 
 to abandon — that is, of the first omission to cultivate — as the 
 date of that determination, leaving it to those interested to 
 establish any other date, if they could. 
 
 371^. That a person can be in possession of a thing by I'osaession 
 
 . 1 Ti through 
 
 his representative has never been doubted. But there has repreaenta- 
 not been a complete agreement amongst jurists as to the 
 nature of that possession. It has been frequently treated 
 as a fictitious possession ; but against this Savigny argues, 
 and, it appears to me, successfully. 
 
 372. The error of treating possession through a represen- " real 
 
 „ . . . . , . , , possession. 
 
 tative as fictitious or constructive possession only is a branch 
 of the error noted above, which treats corporal contact as 
 necessary to true possession. All that is necessary to my 
 possession being the power to resume physical control, and 
 the determination to exercise that control on my own behalf, 
 it is clear that I possess the money in the pocket of my 
 servant, or the farm in the hands of my bailiff, just as much 
 as the rings on my iinger, or the furniture of the house in 
 which I live. 
 
 373. This, however, presumes a representative who is Eepresent- 
 obedient to my commands. In other words, whilst, in order assent. 
 
 ^ Sav. Poss. d. 26, p. 304. The idea of possession through another person 
 varies somewhat with the relation between the parties. It is strongest (if 
 I may use the expression) where the relation is that of master and slave ; 
 less strong where the relation is that of master and servant; but neve;'- 
 theless stronger here than where the relation is that of ordinary principal 
 and agent. The difference between theft by a servant, and criminal misap- 
 propriation, in the Indian Penal Code depends upon this variation. See 
 ss. 381 and 405. 
 
190 POSSESSION. [Chap. IX. 
 
 to constitute possession of a thing through my representative, 
 I must determine to exercise control over it on my own behalf, 
 the representative must also determine to allow me to exercise 
 that control. As soon as my representative determines to 
 assume control on his own behalf, or to submit to the con- 
 trol of another than myself, my possession is gone. If there 
 be any cases in which this rule does not apply, they are ex- 
 ceptions which the law has introduced to obviate the effects 
 of fraud, or for some similar purpose ; as in the case already 
 discussed, where some one has intruded upon the property 
 of an absent owner ^- 
 Subse- 374. It is not necessary, in order that the principal may 
 
 sent^of §^^ ™^° possession, that he should have had his attention 
 principal turned to the fact that his representative has brouarht the 
 
 IS sufficient. _ '- _ _ ° 
 
 thing under his control. It will be sufficient that the 
 representative has this control ; that he means to exercise 
 it, not for himself, but for his principal; and that in so 
 doing, he acts within the scope of the authority conferred 
 upon him. Probably also English lawyers would consider 
 that, even if without my authority you assumed control 
 over a thing on my behalf, and I subsequently assented to 
 your act, I was in the same position as if the act had been 
 done originally by my order. But my possession would not 
 really commence till my assent was given. 
 Posisession 375 2. Jt ig desirable here to point out how the doctrines 
 andluna- of representative possession are appKed to such persons as 
 infants and lunatics, whom the law considers as labouring 
 under incapacity. The case of these persons appears at 
 first sight to present considerable difficulties. It may be 
 said that, as possession in the legal sense comprises a de- 
 termination of the will, it follows that persons whom the 
 law considers as incapable of making such determination — 
 such as children under a certain age and lunatics — are in- 
 capable of acquiring possession ; that, however completely 
 they may have obtained physical control over a thing, they 
 ' Supra, sect. 365. ^ Sav. Poss. d. 21, p. 248. 
 
 tics. 
 
Sec. 374-3770 POSSESSION". 191 
 
 can have no possession in a legal sense ; that it is (as the 
 Roman lawyers expressively said) as if one were to put a 
 thing into the hand of a person asleep i- Nor can they 
 acquire possession through the act of a representative; for 
 the assent of the lunatic or infant as principal would still 
 be necessary to complete it, and this the infant or lunatic 
 is equally incompetent to give. 
 
 376. To solve this diiBculty we must remember that 
 the only representative of an infant is his parent or guar- 
 dian, and that the only representative of a lunatic is his 
 committee. Now the relation of parent or guardian to the 
 infant, and the relation of committee to the lunatic who 
 is intrusted to his care, is not the simple and ordinary 
 relation of principal and representative — it is a very special 
 one ; and the primary feature of it is, that the representative 
 here supplies the mental deficiency of the person whom he 
 represents. His determination on behalf of his incapacitated 
 principal has the same result as the determination of a 
 principal of full capacity on behalf of himself. Hence it 
 follows, that if the guardian, for instance, acquires the phy- 
 sical control over a thing, and determines to exercise that 
 physical control on behalf of his ward, though it might 
 be a straining of language to say that the ward was in 
 possession, yet between the guardian and the ward, who 
 are in a manner identified, there is one complete person 
 who is in complete possession — which possession has pre- 
 cisely the same results for the benefit of the infant as the 
 possession of a fully competent person. So too, where the 
 ward himself obtains the physical control over the thing, 
 the guardian can supply what is necessary to complete the 
 possession. For the ward is under the control of the guar- 
 dian, so that the guardian can determine that the control 
 which his ward has obtained shall be exercised by the ward 
 on his own behalf ; and thus the possession is complete. 
 
 377. It is no doubt curious to find ideas presented in this 
 
 ' Dig. 41. 2. 1. 3- 
 
192 POSSBSSIOIT. [Chap. IX. 
 
 somewhat inverted order — to find the representative ae- 
 qmescing in the act of the principal, instead of the principal 
 acquiescing in the act of the representative. And diffi- 
 culties naturally arise out of this inversion in some cases. 
 But many have been cut short by simply solving them in 
 favour of the disabled persons. 
 Conditions 378. Reverting to the main subject of consideration, 
 necessary ^^ ^^^ that, in order to constitute possession in a legal sense 
 sentatiye through a representative, three conditions must be fulfilled : — 
 first, the representative must have the physical control over 
 the thing ; secondly, the representative must determine that 
 this physical control shall be exercised on behalf of his 
 principal ; thirdly, the principal must assent to its being so 
 exercised. 
 
 379. If either the representative has not the physical 
 control over the thing, or if the principal does not assent to 
 that physical control being exercised on his behalf, then the 
 possession is gone. So too, if the representative changes his 
 determination to hold the thing for his principal, and deter- 
 mines to hold it for himself, or for another, then, properly 
 speaking, the possession is gone. But here again the law 
 sometimes steps in to prevent the consequences of fraud. For 
 instance, if the thing were land, and if the representative 
 were simply to change his determination, from a determination 
 to hold the land on behalf of his principal to a determination 
 to hold it on behalf of himself, I think that in every system of 
 law the possession of the principal would be treated as unin- 
 terrupted — at least, until the denial of the principal's right, 
 or some unequivocal act inconsistent with that right, had been 
 brought to the knowledge of the principal. Such a case 
 would be very closely analogous to that mentioned above ; 
 namely, where a man's land is taken possession of by a 
 stranger in his absence, in which ease he does not lose 
 possession till he becomes aware of the intrusion i. 
 
 380. Indeed the law of England as to the possession of 
 * Supra, sect. 365. 
 
Sec. 378-383.] POSSESSION. 193 
 
 land through a representative goes further. It is almost 
 impossible for you, if you have received land from me, upon 
 the understanding that you are to hold it on my behalf, to 
 change this into a possession on behalf of yourself, and so to 
 oust me without my consent. No declaration that you could 
 make — no act, however inconsistent with my possession, could 
 have that effect. So long as you hold the land, the law 
 insists that I am in possession, and not you^. 
 
 381. I am not aware that this exception has been 
 extended to moveables, and therefore, if my representative 
 determines to exercise his control over them either on behalf 
 of himself, or of another person, my possession is at an end ; 
 but the fraudulent character of this act often prevents the 
 legal consequences of possession taking effect. 
 
 382^. Derivative possession is the possession which one Derivative 
 person has of the property of another. The physical control 
 of a representative is sometimes called his possession ; though, 
 as we have seen, the legal possession in this case is in the 
 principal. But derivative possession is true legal possession ; 
 the holder of the thing having the physical control over it 
 coupled with the determination to exercise that physical 
 control on behalf of himself. 
 
 383. Hence, between the bare detention of a representative. Distinction 
 which is not possession in a legal sense at all, and derivative a^^ repre- 
 nossession, which is true legal possession, though detached^™***"® 
 
 r ' o i > o possession. 
 
 from ownership, there can be no confusion. But there are 
 many well-known legal relations, in which the transfer to one 
 man of the physical control over the property of another 
 forms an essential feature ; and it is frequently a question to 
 be determined, whether or no, subsequently to this transfer of 
 the physical control, the possession is in the owner through 
 
 ' Notwithstanding this there is one case, at least, in which the representa- 
 tive gets the same benefit as if he had had possession ; namely, that of the 
 tenant who has held twelve years without payment of rent. But this must 
 be considered exceptional. 
 
 ' Sav. Poss. sect. 33, p. 282. 
 
 
 
194 POSSESSION. [Chap. IX. 
 
 the transferee as his representative, or whether the transferee 
 
 holds it derivatively on behalf of himself. 
 
 In what 384. The relations in reference to which this question arises 
 
 possession are very numerous ; but it most frequently occurs in reference 
 
 ferred ^" ^° ^^® relation of principal and agent, of lender and borrower, 
 
 of letter and hirer, of pledgor and pledgee, or of bailor and 
 
 bailee. 
 
 385. These are relations which constantly arise out of the 
 commonest transactions in daily Hfe ; and they are of course 
 subject to express stipulation, as well upon the question of 
 possession as upon any other ; but such express stipulation is 
 very rare. And the difficulty is to determine, in the absence 
 of express stipulation, in whom the possession remains. 
 Under the 386. The Roman lawyers would seem to have proceeded 
 law. upon the principle that, where an owner transfers to another 
 
 the physical control over a thing without the ownership, the 
 transferee should hold the thing as a representative, and that 
 the possession should remain in the owner in all cases ; unless 
 it was necessary for the enjoyment of the other rights which 
 the transferee was to have, that he should have the right of 
 possession also. 
 
 387. Nevertheless there has been very considerable conten- 
 tion, even under the Roman law, in reference to some of the 
 relations enumerated above, as to where the possession is, after 
 the physical control is transferred. Savigny thinks that 
 under the Roman law in the case of the agent, the borrower 
 the hirer, and the bailee, the possession is never transferred ; 
 but that in the case of the pledgee it is. And he makes no 
 distinction between land and moveables ^. 
 Possession 388. The English law would, I think, generally coincide 
 tenants '^ '^'^'^'^ t^^i^ ! ^^^ ill ^^^ c^se, that of letting and hiring land, it 
 English''* is very difficult to seize the position taken by our law, because 
 law. it has remedied special inconveniences by provisions which 
 
 are hardly consistent with each other. Inasmuch as the 
 tenant of land has in every case an action for any disturbance 
 ' Sav. PoBS. sect. 23, passim. 
 
Sec. 384-388.] POSSESSION. 195 
 
 of his physical control over the land which he holds, not only 
 against strangers, but against his own landlord ; seeing too, 
 that in case of loss he recovers the enjoyment of his physical 
 control hy a judgment precisely similar in form to the judg- 
 ment by which an owner recovers ; and that the landlord 
 is not nominally either plaintiff or defendant in any action 
 relating to possession, whilst his land is let to a tenant ; it 
 would seem as if it were impossible to deny that the tenant 
 has, in contemplation of law, the possession of the land which 
 he holds under his tenancy. Nevertheless English lawyers 
 still maintain that this is not so. Their view is, that the 
 occupier of land for purposes of cultivation has no interest in, 
 and therefore, a fortiori, if he accepts that position, no 
 possession, of the land which he occupies. In this view the 
 tenant is treated merely as a sort of bailiff for the owner, 
 paying the owner a fixed sum out of the profits, and retaining 
 the remainder as his remuneration. There is no reason what- 
 ever why the relation of landlord and tenant should not be of 
 this character. A similar view has been taken of the position 
 of the colonus in Rome, of the pachter in Germany, and, I 
 believe, of the bailleur in France : and when it was adopted 
 into the English law, it was probably universal in similar 
 eases throughout Europe. But when the law gave to the 
 tenant rights wholly foreign to the bare relation of bailiff and 
 employer, one might expect to find that the rule, as to which 
 of these parties was in possession, would have been recon- 
 sidered. But this was not done. Moreover the notion that 
 the tenant takes no interest in the land which he occupies, 
 and only represents his landlord, who remains in possession 
 through his tenant, which was reasonable enough when 
 applied to mere cultivating tenancies, has been extended 
 to all cases of lessor and lessee without distinction — to cases 
 where the rights of the owner have been surrendered to the 
 tenant so completely and for so long a period that the latter 
 is not only the occupier, but, for the time, almost the owner. 
 Thus suppose (in order to make the matter clearer) that I let 
 
 o 3 
 
196 POSSESSION. [Chap. IX. 
 
 my land to you to cultivate for ten years, there is no reason 
 why you should not be considered to hold the land merely as 
 my representative, cultivating it under a contract with me, 
 and having no other rights than such as arise directly out of 
 the contract. But the law has given the cultivating tenant 
 a better position than this, and has conferred upon him rights 
 and remedies which belong properly to possession, and not to 
 contract. This being done it would seem natural to treat his 
 position in reference to the land as thereby changed ; in fact 
 to treat him as in possession. But so far from this, if I 
 grant land to you for a term of years, however long, and 
 whether for cultivation or for any other purpose, you take, as 
 grantee, no interest in the land whatever ; and taking no 
 interest in the land, you can only have detention of it, and 
 not possessioji, under the grant. You cannot even have 
 derivative possession of it ; and you must, therefore, hold it 
 only as my representative, and I must remain in possession ^. 
 
 Possession 389. These anomalous views upon the subject of the 
 tenants in relation between the occupier of the land and the owner have 
 caused a good deal of trouble in India. It so happens that, 
 though the variations in the relation between the owner of 
 the land and the cutivators of it are almost infinite, the 
 external features of that relation very rarely differ. We 
 almost always find a cultivator in occupation, making an 
 annual payment, or handing over some share in the annual 
 produce, to the owner. Our early Indian administrators 
 (as persons would naturally do, who had never become 
 acquainted with any but one system) took for granted, that 
 the legal relation which these external features represented 
 in India must be the same as that to which we are most 
 accustomed at home ^ ; and transferred to zemindar and ryot 
 
 ' No doubt this is a case in which the language of the law requires to be 
 reformed. At present it runs counter to the facts. 
 
 ^ I think that Lord Comwallia and Sir John Shore, though they dififered 
 considerably upon some points, both assume that, if the zemindar be recog- 
 
 India. 
 
Sec. 389-390.] POSSESSION, 197 
 
 the notions applied by us to landed proprietors and tenants 
 holdings without a lease. This was highly advantageous to 
 the zemindar, whom some persons had looked upon up to 
 that time as only a farmer of the revenue, and as having no 
 interest in the land at all. But it would have been ruinous 
 to the ryot, if it had been pressed unreservedly against him, 
 as it placed him entirely at the mercy of the zemindar, who 
 could, consequently, raise his rent, or eject him at any 
 moment. 
 
 Fortunately several causes combined to prevent the ze- 
 mindar taking full advantage of this position. But some 
 legislative protection of the ryot has been found necessary, 
 and the contrivance at last hit upon is to give the ryot, 
 under certain circumstances, what is called a ' right of occu- 
 pancy,' not at a fixed rent, but at a rent to be assessed be- 
 tween the parties by a court of law. There has been scarcely 
 any attempt to ascertain precisely to what class of rights 
 this ' right of occupancy ' belongs ; but, as there seems to 
 be, on the one hand, a decided inclination to treat the ryot, 
 not as in possession of the land on his own behalf, bat as 
 representative of the proprietor, whilst, on the other hand, 
 his right of occupancy is clearly one which is available 
 against all the world, and not merely by way of contract 
 against the proprietor (in rem and not in personam), it follows 
 that the right must be one in the nature of a jus in re 
 aliena. 
 
 390. It is at the present day almost irresistible to en- 
 deavour to find some analogy between European and Indian 
 institutions ; and, provided this be done with due caution, 
 the process may be of service both to the Indian and to 
 the European lawyer. Thus I find that it is not uncommon 
 
 nised as owner, no interest in tlie soil can be given to tlie ryot. (See 
 Fifth Eeport of the Select Committee of the House of Commons, 1812, Ap- 
 pendix, pp. 478 and 486.) Even Act x. of 1859 has only given the ryot a 
 jus in re alien^ of the lowest kind. The earlier provisions in the ryots' 
 favour aim at the inconsistency of restricting the zemindar in the exercise 
 of proprietary rights without transferring any of those rights to the ryots. 
 
198 POSSESSION. [Chap. IX. 
 
 to compare the position of a ryot to that of a copyholder 
 under the English law holding at a customary rent, hut 
 I douht whether much is to be gained by a comparison 
 with anything so anomalous and pecuUar. Moreover, if 
 modern speculations as to the origin of a -ryot's tenure be 
 correct, the history of these two classes of occupiers has 
 been exactly reversed. The ryot had almost dwindled from 
 a proprietor to a mere tenant-at-will, from which position 
 he has been only rescued by legislative interference. The 
 copyholder, on the other hand, from less than a tenant- 
 at-will has substantially made good his position as a pro- 
 prietor. A more useful comparison might, I think, be 
 drawn between a ryot's right of occupancy and the emphy- 
 teusis^ of the Roman law, or an institution well known 
 and widely spread on the continent of Europe, which French 
 economists have called by the name of bail hereditaire^. But 
 there is still this important distinction. The hereditary 
 occupiers both of ancient and modern Europe are assumed, 
 in the descriptions which I have seen of their tenure, to 
 hold under a right founded upon a contract, made with the 
 proprietor, from whom they derive their interest, and under 
 whom they hold ; whilst the ryot is generally supposed to 
 have originally held his rights altogether independently of 
 the zemindar, or any other proprietor. For some time, 
 however, before the British occupation of the country, the 
 ryots in India appear to have frequently taken pottahs 
 from the zemindars, and to have held their tenures, in form 
 as well as in substance, as mere dependents on the will of 
 the zemindar. 
 
 ' For an explanation of the nature of emphyteusis see Smith's Dictionary 
 of Antiquities, s«6 vote,. I may observe generally that nearly all the ex- 
 pressions of Bomau law which occur in the text will be found explained 
 in this Dictionary. 
 
 ^ See a very interesting, though rather rhetorical, and perhaps, from a 
 legal point of view, not quite accurate account of the hail Mriditaire as it 
 exists in Holland, Portugal, France, Italy, and Germany, in the Eevue des 
 Deux Mondes, vol. loi, p. 64. 
 
Sec. 391-394.] POSSESSION. 199 
 
 391. The term possession, as we have hitherto explained Quasi pos- 
 it, clearly assumes some tangible existing thing, over which incorporeal 
 the party in possession may exercise his physical control : *'"§'■ 
 but the Roman lawyers extended the idea of possession to ab- 
 stractions ; to things which are not preceptible to the senses ; 
 
 to incorporeal things, as they are usually called by lawyers. 
 
 392. Possession, in a legal sense, as distinguished from 
 the mere physical control or detention, does not rest upon 
 a notion exclusively applicable to things corporeal. The 
 notion upon which the legal idea of possession rests is that of 
 making the simple exercise of this physical control a subject 
 for legal consideration and protection, apart from ownership. 
 But the simple exercise of any right may, it is obvious, be so 
 considered and protected. 
 
 393. We must not conclude from this, that all that we To what 
 have said about possession may be applied, without discrimi- apSlmble, 
 nation, to the exercise and enjoyment of any rights whatever. 
 Many of the rules which govern the question of possession 
 
 are founded on the existence of something which may be seen, 
 felt, and handled, and it is only by a metaphor that these 
 rules can be extended to a right which may be enjoyed. 
 This is an easy metaphor when confined withiu certain 
 limits; as, for example, when we speak of a person who 
 enjoys the use of a pathway, or a watercourse running over 
 the land of another, as being in possession of the way, or of 
 the watercourse. But it would be at the least a bold metaphor 
 to speak of a doctor in large practice as in possession (in a 
 legal sense) of his practice. 
 
 394. The Roman lawyers contented themselves with ex- 
 tending the legal idea of possession to those rights which 
 they denominated servitudes — a, class of rights similar to, but 
 more extensive than, that class of rights which we call ease- 
 ments. And they constructed for the protection of the enjoy- 
 ment of rights of this class rules closely analogous to those 
 for the protection of the physical control over things cor- 
 poreal. Modem lawyers have attempted to give to the idea 
 
200 POSSESSION. [Chap. IX. 
 
 of possession a much wider extension ; and this extension 
 with us is somewhat indefinite. Thus by statute the posses- 
 sion of an advowson is expressly protected as distinguished 
 from the title to it: so also a person collecting tolls has 
 been treated as in legal possession of the right to take tolls : 
 and it has been even suggested that we might treat a person 
 collecting the interest of a debt as in possession of a debt. 
 
 395. Whether or no such an extension of the idea of 
 possession is useful, this is not the place to consider. It is 
 certain that the extension, if made at all, should be made 
 with some circumspection. Care must be taken in each new 
 application, not only that the nature of the subject is such 
 that the idea of possession is capable of being analogically 
 applied to it, but also that it is one to which the legal con- 
 sequences of possession are suitable. To apply those con- 
 sequences to the exercise of all rights, without discrimination, 
 would produce the greatest confusion. 
 
 396. To whatever extent the idea of possession has been 
 carried, the discussion of it has remained within the limits 
 assigned by the Roman lawyers, namely, the possession of 
 things corporeal, and of servitudes. All, therefore, that we 
 can say further on this subject, must be in connection with 
 the latter class of rights, which we shall hereafter consider ^ 
 
 Only one 397. It is a fundamental principle, which is obscured bv 
 
 person in . 
 
 possession language m ordinary use, but which must never be lost sight 
 a a ime. ^^^ ^j^^^^ ^^^ ^^^ person can be in possession of the same 
 thing at the same time. This principle is easily deduced 
 from what has been above stated as to the legal notion of 
 possession. Possession, in a legal sense, is the determination 
 to exercise physical control over a thing on one's own behalf, 
 coupled with the capacity of doing so ; and is, therefore, of 
 necessity exclusive. 
 
 398. This principle has, however, been obscured by the 
 double meaning of the term possession. Possession some- 
 ^ See infra, cliap. x. 
 
Sec. 395-399.] POSSESSIOK. 201 
 
 times means the physical control simply ; the proper word 
 for which is detention. And of course, one person may have 
 the detention and another may have the possession in the 
 legal sense of the term. Thus the money which is in the 
 hands of my servant is under his immediate control, and in 
 popular language is in his possession ; but in a legal sense, 
 inasmuch as that control will be exercised on my behalf 
 exclusively, it is in my possession, and not in his. 
 
 399. A more diflBcult case is that of co-ownership. But the Possession 
 English law has expressed itself on this subject by a phrase g^g"" ^ 
 which recognises in a very remarkable manner the distinction 
 between possession, in the sense of simple detention, and pos- 
 session in a legal sense ; and by so doing clears away, so far 
 as co-owners are concerned, any difEculty as to the proposition 
 which we are now considering. The rule of English law laid 
 down by Littleton^, and adopted by every succeeding lawyer 
 up to the present time, is, that if there be two co-owners each 
 is in possession of the whole and of the half What this must 
 mean is, that whereas each owner has access to, and control 
 over every part of the property, and so may be said to have 
 possession in the sense of detention of the whole, yet he exer- 
 cises that control, not on behalf of himself alone, but partly 
 on behalf of himself, in respect of his own share, and partly as 
 representative of his co-owner, in respect of his co-owner's 
 share. In contemplation of law, therefore, he is only in posses- 
 sion of his own share. However many co-owners there may 
 be, each will in contemplation of law be exactly in the same 
 position ; that is to say, each wiU be in possession of his 
 
 share. 
 
 1 Sect. 288. 
 
 NOIB. — Some of Savigny's positions have been contested by Ihering in his 
 Grund des Besitzschutzes, and by Bruns in his Besitzklagen, but I do not think 
 that they touch anything which I have extracted. Ihering's inquiry, as he 
 himself says, is into the 'legislative oder rechts-philosophische ' connexion 
 between possession and ownership (p. 46). Bruns says that he is considering 
 
202 POSSESSION. 
 
 the 'inneren philosophischen oder legielativen Grund' of the protection of 
 possession (p. 263). Of course, I say that the true ground of the law on the 
 subject of possession is utility, but whether it is or ia not I do not think 
 that I need enter into any dispute as to what is the ' philosophical ' nature 
 of existing institutions. According to Wamkonig, ' philosophia juris est nihil 
 aliud nisi philosophica naturae juris investigatio, qua non solum summas 
 omnis juris causas et fundamenta sed etiam ipsius justi naturam justitiaeque 
 principia philosophia optima magistra cognoscere studemus ' (Philosoph. Jur. 
 Del. p. 3). Savigny, no doubt, diverges into considerations which wonld fall 
 within this description, but I have made no use of them, nor do the views 
 stated in the text appear to me to depend upon them. 
 
CHAPTER X. 
 
 EASEMENTS AND PEOEITS-A-PRENDKE. 
 
 400. The rights which I propose to consider in this chapter These 
 are those comparatively few out of the innumerable juraj^rain^re. 
 in re which exist over a thing upon which English lawyers 
 
 have bestowed the names easements and profits-a-prendre. 
 
 401. In most systems of law we find certain jura in re 
 classed apart and specially treated. Thus in the Roman Servitudes. 
 law certain jura in re are classed apart and are called 
 
 ' servitudes.' This is a metaphorical expression, at the 
 bottom of which seems to lie the idea of a thing used by and 
 placed under the control of a person who is not the owner of 
 it. Between the owner of the thing and the person who has 
 this right there is no direct legal relation : the control being 
 not over the person of the owner, but over the thing : res 
 servit, as the expression was. 
 
 402. In English law we have not the term 'servitude' 
 but we have the idea. We call the thing over which the 
 right exists the ' servient ' thing. The continental nations 
 of modern Europe have adopted the term ' servitude ' or 
 an equivalent one^, and the law relating to servitudes is 
 in those countries substantially the same as the Roman law. 
 
 ' In German, Dienstbarkeit. 
 
204 EASEMENTS AND PROPITS-A-PfiENDBE. [Chap. X. 
 
 403. Neither easements alone, nor profits-a-prendre alone, 
 
 nor both taken together, correspond to the servitudes of the 
 
 Roman law ; the classification of jura in re with us, so far as 
 
 it has proceeded, being different. But nevertheless the English 
 
 law of easements and of profits-a-prendre has been, and still 
 
 is, largely influenced by the Roman law. It will therefore, 
 
 I think, be found useful, if I give a brief general description 
 
 of the leading features of the Roman law ^- 
 
 Positive 404. Servitudes under the Roman law were either positive 
 
 tive servi- 01" negative. A positive servitude was a right to do some- 
 
 tudes. thing on, in, or in respect of, a thing owned by another, 
 
 which the owner, as such, might have done, and which no 
 
 one else, except under special circumstances, might have done. 
 
 A negative servitude was a right to prevent the owner of 
 
 a thing from doing something, which, as owner, he might 
 
 have done if unrestrained. 
 
 Servitudes 405. Both kinds of servitude correspond to a duty on 
 
 to'a^dutY ^^^ P^^ ^^ ^^^ owner to forbear. A positive servitude 
 
 to forbear, corresponds to a duty on the part of the owner to forbear to 
 
 exercise his right of preventing an interference vrith his 
 
 property. He must endure that interference (patientia). A 
 
 negative servitude corresponds to a duty on the part of the 
 
 owner to forbear to exercise some right of ownership. The 
 
 right to compel a person to do an act in respect of a thing 
 
 does not fall within the conception of servitude ; and it has 
 
 been doubted whether it was brought by Roman lawyers, 
 
 as it has been by modern lawyers, within the conception of 
 
 a jus in re^- 
 
 Prasdial 406. Servitudes were divided by the Roman lawyers into 
 
 personal ' prsedial ' and ' personal.' The conception of a personal ser- 
 
 servitades. yitude is simple enough. There is a person to whom the 
 
 ' The authorities will mostly be found, briefly and conveniently stated, in 
 Salkowshi's Lehrbuoh der lustitutionem, 3rd ed., pp. 216 sqq. 
 
 ^ Vangerow, Lehrb. d. Pandekten, § 338, Amn. 2, i. The phrase of Koman 
 law was that servitus in faoiendo non consistit. As will appear later we 
 have a thing, which we call a ' service ' : it is a jus in re aliena, and it con- 
 eists in faciendo. See sect, 430. 
 
Sec. 403-408.] EASEMENTS AND PEOPITS-A-PEENDEE. 205 
 
 jus in re aliena belongs, and a res aliena over wMcli it is 
 exercised. The conception of a prsedial servitude is more 
 complicated. Besides the res aliena over which the right is 
 exercised, there is another res to which the right is attached. 
 The owper of this second res is the person who enjoys 
 the servitude : and the enjoyment of the servitude always 
 accompanies the ownership of the second res, though it is, 
 of course, not merged in it. The meaning of a right being 
 attached to a thing, which is an expression we often meet 
 with, is, I take it, that the enjoyment or exercise of the 
 right follows the ownership of the thing to which the right 
 is attached. In a prsedial servitude each res, that over 
 which the servitude is exercised, and that to which it is 
 attached as a right, is a prsedinm, that is, a piece of land or 
 a house. 
 
 407. It is not inconceivable that a servitude should exist Servitudes 
 the burden of which is attached to one res and the benefit ed to move-i 
 to another without the additional circumstance that each*'^'®'' 
 
 res is either land or a house. But, as far as I am aware, 
 no such servitude was known to the Roman law. 
 
 408. Probably the origin of prsedial servitudes is to be Origin of ' 
 found in the gradual introduction of the stricter notions of 
 exclusive ovraership. Without some modifications of these 
 notions neighbours could not have lived comfortably together. 
 
 Hence in prsedial servitudes it is always assumed that the 
 two prsedia are not far apart. Hence also it was a rule 
 that the right of a landowner over the land of his neighbour 
 must not only be advantageous to him, but advantageous 
 to him qua landowner, or, as it is sometimes put, advan- 
 tageous to his land. So again it followed that, if the 
 landowner who had the right sold the land for the benefit 
 of which the right existed, he could not himself retain the 
 right. It passed with the land to each successive owner 
 of the land. Exactly in the same way, if the land over 
 which the right was exercised were sold, the land remained 
 burdened with the servitude, following out the idea that 
 
206 
 
 EASEMENTS AND PEOFITS-A-PRENDRE. [Chap. X. 
 
 Perpetua 
 causa of 
 prsedial 
 servitudes 
 
 the servitude was attached to both lands, to one as a benefit, 
 and to the other as a burden. 
 
 409. The land or house to which the servitude was at- 
 tached as a benefit was called the locus superior j that to 
 which it was attached as a burden was called the locus 
 inferior. 
 
 410. It was a rule that prsedial servitudes must have what 
 was called a perpetua causa, and this rule appears to have 
 been applied with considerable strictness. Thus, if there was 
 a hole in the wall of a house to let oiF water used in washing 
 the floor, through which the water escaped on to the neigh- 
 bouring land, there could not be a prsedial servitude to receive 
 the water carried through such a hole. But there might be 
 a prsedial servitude to carry off the rain water through a hole 
 of this description. The reason is thus given : — ' Neque enim 
 perpetuam causam habet quod manu fit; at quod ex caelo 
 eadit, et si non assidue fit ex natural! tamen causa fit ; et 
 ideo perpetuo fieri existimatur^.' So the right to take water 
 from a lake or a pond could not be prsedial servitude ^. But 
 these rights might exist as personal servitudes. 
 
 Vicinity of 411. It was not necessary that the dominant prsedium and 
 wMclTser- ^^^ servient prsedium should actually touch. But it follows 
 vitudes are fj-Qjjj^ what have been said that the two prsedia must have 
 
 attached. 
 
 been near, as otherwise the servitude would be useless to the 
 dominant prsedium. 
 
 412. A prsedial servitude could exist only so far as it was 
 actually useful in respect of the land to which it was at- 
 tached. Thus a man might have a prsedial servitude to dig 
 clay in his neighbour's land in order to make vessels to hold 
 the wine which he made on his own land ; but he could not 
 have a prsedial servitude to dig clay in order to make vessels 
 for sale^- 
 Mustbe 413. A prsedial servitude must always be exercised with as 
 exercised, little injury as possible to the servient prsedium. 
 
 Prsedial 
 servitude, 
 must be 
 useful. 
 
 ^ Dig. viii. 2. 28. ^ Dig. viii. 2. 28. 
 
 Dig. viii. 3. 6. 
 
Sec. 409-418.] EASEMENTS AND PEOFITS-A-PRENDEE. 207 
 
 414. A praedial servitude could only be exercised by the Could not 
 owner of the dominant land, or by his servants and family on ferred. 
 his behalf. Not only the servitude itself could not be trans- 
 ferred, but the mere rig-ht to enjoy it could not be tem- 
 porarily conferred upon another. 
 
 415. Prsedial servitudes were classed into urban and rural, Urban and 
 according as the servient prsedium consisted of buildings or yitudes. ' 
 land. All buildings were called prasdia urbana, whether they 
 
 were situate in town or country ^. 
 
 416. Any jus in re attached to land or buildings both asEestricted 
 a burden and as a benefit was, as I understand the law, called predial 
 
 a prsedial servitude, and subject to the restrictions I liave '®"'^''"'^®^* 
 stated. It can be easily understood that, owing to these 
 restrictions, prsedial servitudes were not very numerous or 
 common. The most common rural servitudes were rights of 
 way, rights to take water, rights to convey water, and rights 
 to water cattle. We also meet with the right of pasturing 
 cattle, the right to dig and burn lime, the right to dig sand, 
 and the right to cut wood. But always with the limitation 
 that the servitude must be of such a nature as to contribute 
 continuously to the enjoyment of a neighbouring tenement. 
 
 417. Personal servitudes were not subject to the same Personal 
 restrictions. Any use that could be made of a thing either 
 moveable or immoveable, or any right to take its produce, 
 could be made into a personal servitude. But there was this 
 important restriction, that no personal servitude could last 
 longer than the life of the person in whose favour it was 
 created, or, in the case of a juristical person, longer than one 
 hundred years. 
 
 418. I wiU now endeavour to describe and to distinguish Eaaementa 
 
 n mi 1 j.1. • • and profits- 
 
 easements and pronts-a-prendre. ihese are both jura m rea-prendre 
 
 aKena, and in both the servient res must be land, or a building f**^"^^"^*" 
 
 attached to land, or water standing or flowing on land, all 
 
 ' Just. Inst. II, 3. I. This classification is not very clear, but it is not 
 very important. It seems only to have been applied to the oldest and best 
 known servitudes. 
 
208 EASEMENTS AND PEOFITS-A-PEEKDEE. [Chap. X. 
 
 which English lawyers call by the name of land. A jus in 
 re aliens, may exist where the servient res is not land, hut 
 such a right would not be either an easement or a profit-a- 
 prendre. 
 Difference 419. An easement is a right to do something on, in, or in 
 easements respect of the Servient land, or to prevent the owner of the 
 a^Midref ^^^^ doing something on, in, or in respect of his own land. 
 A profit-a-prendre is a right to take something from the 
 servient land. This is a cardinal distinction. There cannot 
 be an easement to take something from the servient land. 
 Why these 420. The Only object, as far as I am aware, of taking 
 are^epar*- "ne Set of jura in re, classing them apart, and calling them 
 ately easements, and taking another set of jura in re, classing 
 
 them apart, and calling them profits-a-prendre, is in order 
 to regTilate their acquisition. Easements might be described 
 as jura in re which can be acquired by one set of methods ; 
 profits-a-prendre as jura in re which can be acquired by 
 .another set of methods. Then there are other jura in re 
 which are neither the one nor the other, and which can only 
 be acquired by a third set of methods ; whilst some jura 
 in re cannot be acquired at all. When therefore it is said 
 that there cannot be an easement to dig clay in your neigh- 
 bour's land, all we mean is that you cannot acquire that 
 right in the ways in which easements are acquired ; but 
 there still may be a profit-a-prendre of that description : 
 that is, the right may be acquired in an appropriate manner. 
 Easements 421. There are two kinds of easements known to the 
 ten^t and EngUsh law. The first and commonest kind are those where 
 m gross, ^j^g ijenefit as well as the burden are attached to land ; such, 
 for example, as the right of the owners of Blackacre to cross 
 the neighbouring field Whiteacre ; or the right of the owners 
 of a house on one side of a street to prevent the owners of 
 land on the opposite street to build so high as to darken his 
 windows. These are what Roman lawyers would call prasdial 
 servitudes. We call them easements appurtenant. The 
 second and rarer kind of easements are those where the 
 
Sec. 419-424.] EASEMENTS AND PEOPITS-A-PEBKDRE. 209 
 
 benefit is enjoyed by the inhabitants of a particular district or 
 persons carrying on a particular trade ; such, for example, as 
 the right of the inhabitants of a village to dance in a parti- 
 cular close ; or for licensed victuallers to erect booths on the 
 waste of a manor during a fair. These are called easements 
 by custom, because it is only by custom that they can be 
 claimed ^- 
 
 422. A right to take potwater, that is, to take water for Eight to 
 domestic use from a running stream, is an easement and may water. 
 be claimed by custom. It might be thought that it was a 
 profit-a-prendre, but it is not so considered ; the reason assigned 
 being that flowing water, like air, is in motion ; it is now here 
 
 and now there, and for this reason is not considered as in the 
 ownership of the person on whose land for the moment it 
 happens to be. This is supposed to distinguish it from a profit- 
 a-prendre^. 
 
 423. What the Roman lawyers expressed by the word 
 'prsedial' as opposed to 'personal,' English lawyers express by 
 the word ' appurtenant ' : and what the Roman lawyers 
 expressed by the word 'personal,' English lawyers express by 
 the words ' in gross.' There can be no easement in gross in 
 the English law except by custom. In other words, an 
 easement must be claimed by a man either as owner of a 
 certain piece of land, or as the inhabitant of a particular 
 locality, or as carrying on a particular trade. 
 
 424. It is not unfrequently said that an easement must be Easement 
 without profit. This cannot mean that the easement must profit, 
 
 • Writers on the law of easementa seem a little doubtful whether they ought 
 not to call this second class of easements by the name of ' customs,' and ezclude 
 them from easements altogether. As the only object of the classification of 
 jura in re is to determine the mode of acquisition, and as these easements 
 can only be acquired by custom, it would, perhaps, be better to exclude them. 
 
 ^ Kace V. Ward, Ellis and Blackburn's Eeports, vol. iv. p. 702. But the 
 water taken is in the possession of the landowner : and I am not sure that in 
 aU profits-a-prendre the thing taken is the servient owner's property. Thus 
 a right to take fish in a running stream is certainly not an easement, and 
 it seems to be considered as a profit-a-prendre. Peers v. Lucy, Modem 
 Keports, vol. iv. p. 363 ; see Goddard on Easements, p. 7. 
 
 P 
 
210 EASEMENTS AND PEOPITS-A-PEENDEE. [Chap. X. 
 
 he valueless, for that would be nonsense. On the contrary, 
 unless the easement were advantageous to the dominant 
 tenement it could not be maintained. It means that the 
 easement must not include the taking of anything away, for 
 then it would be profit-a-prendre and not an easement. The 
 requirement that the easement must render the enjoyment of 
 the dominant tenement more advantageous certainly exists. 
 Perpetua 425. There is no direct authority that an easement must 
 
 causa 01 _ "" 
 
 easements, have a perpetua causa, though it seems to be suggested that 
 
 some such restriction exists ■^- 
 Eight of 426. The right to support, as it is called, that is, the 
 
 support. . o J. J. 
 
 right of one neighbour to prevent another digging away 
 his soil so as to let down the soil of the adjoining land, is 
 one that has been much discussed lately. It can hardly 
 be doubted that such a right may exist both in respect of land 
 which has been built on, and in respect of land which has 
 not been built on. The hotly contested question, therefore, 
 whether or no it should be called an easement, resolves itself 
 into a question as to how such a right can be acquired : it being 
 supposed that there are certain modes of acquisition which are 
 applicable to it if it is an easement, but not otherwise ^. 
 
 ^ The more recent editions of Gale's "work on Easements (p. 14) seems 
 to suggest this. Bracton, whom Gale quotes, would be no authority upon 
 such a point, as he puts down a good deal of Roman Law which was never 
 adopted. Tlie case of Arkwright v. Gell, Meeson and Welsby's Reports, 
 vol. V. p. 303, has no connexion with the Boman law doctrine of perpetua 
 causa, though, in so far as it lays down that an easement cannot be acquired 
 in a temporary watercourse, it leads to an analogous result. 
 
 " See the case of Angus v. Dalton, Law Reports, Appeal Cases, vol. vi. 
 p. 740. The word 'easement' is used in the Prescription Act, but the right 
 of support is not otherwise mentioned. The question whether it is a positive 
 or negative easement is of importance, because the evidence that the 
 enjoyment is ' as of right ' is very different for positive and negative ease- 
 ments. Infra, chap. xiii. It is diflBcult to say e.xactly what the judges in the 
 above case severally understood by ' positive,' or, as they prefer to call it, 
 ' affirmative,' and ' negative ' easements. But according to the definition I 
 have given above (sect. 404) I should say that both the Lords Justices, 
 Lindley and Bowen, consider the right of support to be negative, though they 
 think that where the land has been built upon so as to increase the burden that 
 might have been treated as an actionable wrong, and if so the right of support 
 would have become positive in that case. See pp. J63, 784, 793, of the Report. 
 
Sec. 425-430.] EASEMENTS AND PROFITS- A-PEENDRE. 211 
 
 427. Any right attached to land as a burden and also No restric- 
 
 tion in 
 as a benefit, which is recognised by law, and which is not kinds of 
 
 a profit-a-prendre, would, I think, be called an easement. 
 
 There cannot be many such rights, but the list of them 
 
 is not perhaps yet complete. The last one recognised was 
 
 the right of the owner of an inn to place a signboard on 
 
 a neighbouring house ^- 
 
 428. Profits- a-prendre may (as I have said) be either 
 appurtenant or in gross: but if the profit-a-prendre be 
 appurtenant it can only exist so far as it is advantageous to 
 the enjoyment of the dominant tenement to which it is 
 appurtenant ^. 
 
 429. There does not seem to be any express authority Eestriction 
 as to how far it is possible to create rights in the nature a-prendre. 
 of profit-a-prendre under English law. The multiplication of 
 
 rights of this nature is looked upon as undesirable, but their 
 creation does not seem to have been expressly restricted^. 
 
 430. Both in an easement and in a profit-a-prendre the 
 owner of the servient tenement has simply to forbear : to 
 forbear, that is, from exercising his ordinary rights as owner 
 of excluding others from his land, and disposing of it in 
 accordance with his wishes. But because neither an ease- 
 ment in the English law, nor a servitude in the Roman law, 
 can consist in compelling the owner of the servient tenement 
 to do something, it must not be supposed that a jus in re 
 of this nature cannot exist. What is called a fee farm rent 
 is a jus in re aliena to compel the owner of the res to pay 
 a certain sum of money at fixed intervals to the person to 
 whom the fee farm rent belongs. This is what English 
 lawyers call a ' service.' 
 
 ' See the case of Moody i;. Steggles, Law Eeporta, Chancery Division, vol. xii. 
 p. 261. See Bome curious rights enumerated in Goddard on Easements, p. 74. 
 
 ' See the case of Bailey v. Stephen, CommonBenoh, New Series, vol. xii. p. 91. 
 
 ' See the observations of Mr. Justice Willes in the case of Bailey v. 
 Stephens, at p. in of the Common Bench Eeports, New Series, vol. xii. 
 
 P % 
 
CHAPTEE XL 
 
 SECUEITY. 
 
 Insecurity 431. One of the most ordinaiy results of the various 
 tions/^ transactions into which people are daily entering is that they 
 fall under legal obligations of various kinds. For many 
 reasons the performance of these obligations is more or less 
 insecure ; sometimes the debtor is obstinate ; sometimes he is 
 careless ; sometimes he is positively unable to do what he 
 ought. 
 Debtor and 432. I have spoken here of the debtor. That word is 
 generally used by English lawyers to signify a person who 
 owes money to another ; I shall use it to signify any person 
 who owes a service to another which is capable of being re- 
 presented in money '^ ; and I shall use the word creditor to 
 express any person to whom such a service is due. 
 
 '■ The expression by which Professor Kuntze in the portion of his work 
 of which I have made such extensive use below, indicates the kind of demand 
 for which security may be given as ' die kunftige Leistung eines Vermogens- 
 werthes.' I am not sure that I have used an expression exactly equivalent 
 to this : but it is clear that only demands which could be satisfied by a 
 money payment, or at any rate only demands so far as they could be satisfied 
 by a money payment, could have been in the learned author's contemplation, 
 because he speaks of a real security as being, in all cases, ultimately attained. 
 Security may be given for any demand, but a real security will only produce 
 money or a money value. (See infra, sect. 447.) 
 
Sec. 431-436.] SECUEITY. 213 
 
 433. I shall also use the word security to express any Meanitij^; 
 transaction between the debtor and creditor by which the °sec!™ity.' 
 performance of such a service is secured. Unless this liberty 
 
 of choosing my own expressions be conceded to me, I could 
 not attain even a reasonable degree of conciseness and pre- 
 cision in the discussion of this subject. 
 
 434. It has been often said that the English law of security English 
 is derived from the Roman ; and it is certainly true that security 
 whenever questions of difBculty have arisen upon this subject, ^^""^'6'i 
 English lawyers have almost invariably looked to the Roman Eoman. 
 law for assistance. 
 
 435. Unfortunately, instead of applying to the best sources Not from 
 of information, the Digest or the Code itself, or even availing sources. ' 
 themselves of the labours of the best modern commentators, 
 English lawyers have placed themselves completely under the 
 dominion of Story. I am not sufficiently acquainted with 
 Story's writings to venture to appreciate exactly the value 
 
 of his authority on general subjects. In questions of Roman 
 law he appears to rely chiefly upon Domat and Pothier: 
 which would be like relying in chemistry on Lavoisier and 
 Priestley. The labours of these great men have been long 
 ago eclipsed by later discoveries. As to the Roman law of 
 pledge, at any rate, Story's knowledge appears to me to be 
 incomplete ^. 
 
 436. It is perfectly clear that if we are to rely upon the Advan- 
 Roman law for assistance at all, we must try to comprehend a compre- 
 its principles according to their latest and fullest interpreta- ^^"^J'^j ^ 
 tion. I have, therefore, given here a short general statement oftheRo- 
 of the Roman law of security borrowed from the work 01 a 
 learned living author^; and I believe it will serve to give the 
 student a good general grasp of the principles upon which 
 
 this portion of the law must always be administered, what- 
 
 • Story on Bailments, sects. 286, 290 ». He was perhaps puzzled, like 
 Pothier, by what appeared to be irreconcilable statements in the Eoman 
 law. 
 
 ' Cursus des Bomischen Eeohts, Lehrbuoh fiir den Academischen Gebrauch, 
 von Dr. Johannes Emil Kuntze. Leipzig, 1869. 
 
214 
 
 SECURITY, 
 
 [Chap. XI. 
 
 ever diversity there may be in particular rules. I also think 
 that it is well worthy of study, not only as illustrating and 
 explaining our own law, but as a striking combination of plain 
 good sense with scientific accuracy of expression. I know 
 nothing in jurisprudence more sound, more forcible, or more 
 acute. 
 
 Earliest 
 form of 
 security. 
 
 Entirely 
 personal. 
 
 Creditors 
 "want real 
 security. 
 
 437. From the earliest times the Roman creditor never 
 seems to have thought of relying solely on the good faith or 
 ability of his debtor for the satisfaction of his demand. By 
 the nexum, the oldest form of contract, the debtor was handed 
 over bodily to the creditor, becoming, in fact, his slave ; and it 
 was no easy matter for the debtor to escape from his obligation. 
 Upon entering into the nexum he had to procure six fellow- 
 citizens as witnesses to, and assistants in the formalities of 
 the transaction. This gave strength and precision to the ob- 
 ligation. But the presence of these witnesses was in later 
 times further utilised in a way which ultimately led to a 
 great advance in the law. By means of the other ancient 
 form of contract, the sponsio, it was easy to secure the con- 
 current engagement of these six persons, in addition to that of 
 the principal debtor, that the obligation should be performed ; 
 so that, in case of the failure of the latter, the creditor might 
 have recourse to them. 
 
 438. It -will be observed that the creditor was thus to 
 some extent secured not only against the unwillino-ness 
 but against the inability of his debtor. Still the prevailino- 
 idea was that of pressure brought to bear upon the will of 
 the contracting party ; of some inconvenience to be suffered 
 if the engagement were not fulfilled; and this was quite 
 consonant to the spirit of the old Eoman law. But it did 
 not long suffice for all the wants of a busy practical people. 
 What was wanted by creditors was a tangible means of 
 obtaining satisfaction for their claims wholly independent 
 of the will of the debtor. This was actually obtained, thouo-h 
 only after a very long struggle. The creditor at length got 
 
Sec. 437-44I-J SECURITY. 215 
 
 what is called real security ; that is to say, he got, not only 
 the promise of the debtor and a means of compelling him to 
 fulfil that promise, but he also got a right over a specific 
 thing which ensured to him the performance of the promise, 
 quite independently of the wishes or ability of the debtor ; 
 so that at last not only the will of the debtor, but even the 
 debtor himself was so little regarded that, in the latest period, 
 it almost seemed as if the thing which was made security 
 was treated as the debtor, and not the original party to the 
 obligation. The progress of the Eoman law from a simple 
 pressure upon the will of the debtor to this its ultimate 
 development is in the highest degree interesting. 
 
 439. The first advance upon the nexum and sponsio was Fiducia. 
 the transaction called fiducia. This was a formal proceeding, 
 suitable to any ease in which it was desired to transfer to 
 another a specific thing under conditions. It therefore was 
 
 not confined to the taking of security, but was also used in 
 cases of deposit or loan. Ultimately, however, it came 
 specially to signify the taking of security. 
 
 440. In the transaction of fiducia the various conditions A complete 
 upon which the thing was to be returned were defined by of the 
 the contract under which it was transferred. If it was a pi'°P®'^*y- 
 case in which security was to be given, the creditor got the 
 
 debtor to make over to him the full ownership of the thing, 
 binding himself to return it as soon as the obligation was 
 fulfilled. This was an easy and eflectual way of obtaining 
 security, and it remained in use even after the introduction 
 of the other modes which will be hereafter described ; indeed, 
 it was well known to the western world, at least in Italy, 
 up to the time of the Christian Emperors. It was, in fact, 
 a proceeding similar to an English mortgage, but without 
 a power of sale or foreclosure. 
 
 441. There were, however, many things which were in This not 
 every way suitable to be used as security for the performance yenient!""^" 
 of an obligation, but to which, on account of certain well- 
 known difliculties, the proceeding by way of fiducia was 
 
216 SECUEITY. [Chap. XI. 
 
 inapplicable^. I need not enter at length into the nature 
 of these difficulties ; they were no doubt technical, but were 
 too deeply rooted to be swept away for a special purpose 
 without destroying the symmetry (elegantia) of the law, 
 and thus causing confusion. The Roman lawyers, therefore, 
 
 Pignus. introduced another proceeding called pignus, the effect of 
 which was to get rid of the transfer of ownership altogether, 
 and to substitute for it a transfer to the creditor of the bare 
 possession, of course under the same condition as to its return, 
 when the debt was satisfied. 
 
 Defects of 442. In both these processes, however, there were inherent 
 
 both 
 
 fiducia and defects. In the case of fiducia the debtor was dependent on 
 piguua. ^-j^g good faith of the creditor for the restoration of his pro- 
 perty, for if the creditor had parted with it, he had only 
 a personal remedy against him ; on the other hand, the 
 creditor could not consistently with his contract obtain any 
 material satisfaction out of the thing transferred to him, 
 which was, perhaps, not even in his possession. So, in the 
 case of pignus, the creditor was exposed to the risk of the 
 property being sold by the debtor to a third person in fraud 
 of his security ; in which case, if the thing pledged were 
 land, the creditor was wholly unprotected against this third 
 person's claim ^. Indeed this defect was so serious that, 
 until it was removed, land was very rarely given in pignus. 
 The pignus too, like fiducia, produced no material satisfaction 
 of the claim, but only a pressure upon the will of the debtor, 
 
 ' Either a mancipatio or an in jure cessio seems to have been necessary 
 to bring back the property, and I should suppose also to convey it, in the 
 first instance, to the creditor. See Smith's Diet. Antiqq., ». v. Fiducia. 
 
 " It was this inapplicability of pignus in its original form to land, com- 
 bined with the false etymology of the term (a pugno), which led to the 
 saying that pignus properly (proprie) could only be given of moveable 
 property. This has misled Story (Bailments, sect. 286), who translates 
 proprie 'generally,' and seems to think that the distinction between pignus 
 and hypotheca was a fundamental one, though occasionally lost sight of: 
 the truth being that it was one of little importance and very rarely noticed. 
 In later times a pignus in which the possession was not transferred, and a 
 pignus of land, were every-day transactions. 
 
Sec. 442-444.] SECURITY. 217 
 
 arising from the inconvenience of being kept out of Ms 
 property. So far, therefore, the law was still under the 
 dominion of the idea that it was the wiU of the debtor which 
 was to be acted upon. 
 
 443. The most important improvements in the Roman Security- 
 law of security were not introduced until, by the extension of landowners 
 the Roman dominion beyond the confines of Italy, very large *^^°™ ^^^'■^ 
 estates first became common. From this time large numbers 
 
 of slaves and even of free persons ^ began to be employed in Latifun- 
 cultivating these properties. Small estates also were some- 
 times let out to farm. Hence the necessity that the land- 
 lord should have some security for his rent became apparent 
 at Rome, as it has in all places where the land of one person 
 is cultivated by another. 
 
 444. Under the old law it was not easy for the landlord They could 
 to obtain this security from the cultivator. Generally the it under the 
 only property which the cultivator had was his farming stock °^^ ^*'^' 
 (invecta et illata) ; and it was obvious that this could neither 
 
 be assigned to the landlord by a fiducia, nor given into his 
 custody by a pignus. It was therefore necessary to devise 
 some other means of effecting security ; and the mode adopted 
 was, to allow the tenant by a simple agreement, without any 
 formalities, to pledge his farming stock to his landlord as a 
 security for the rent. The validity of such an agreement was Origin of 
 first recognised by a praetor of the name of Salvius, who thus ^^° ^°^' 
 led the way to the most important changes in the law 
 of security. The property of the tenant could be followed, 
 if it had been removed by him off" the farm in fraud of his 
 agreement with his landlord. At first, however, this could 
 only be done within very short periods of time after the 
 removal. If the property were still in the hands of the 
 tenant, the landlord could have it brought back within 
 the year. If it had passed into the hands of a third person, 
 
 ' This is Prof. Kuntze's statement. Sir Henry Maine is of opinion that 
 there were no free cultivators (Ancient Law, first ed., p. 299). But see 
 Plin. Bp. iii. 19 ; and for an account of the colonua see Kuntze, Excursus, 
 p. 299. See also Phil. Mus. 2. 117. 
 
218 
 
 SECURITY. 
 
 [Chap. XI. 
 
 Of Greek 
 origin. 
 
 Identified 
 subse- 
 quently 
 with 
 pignus. 
 
 Did not 
 originally 
 give a real 
 security. 
 
 then it could not be pursued, if the latter had held it either 
 for a year, or, at least, for as long a time as it had been upon 
 the land of the tenant. This strict rule of limitation, how- 
 ever, was considered to make the security too perilous ; and 
 another praetor, named Servius, removed this limitation, and 
 gave to the landlord the ordinary time to sue for and recover 
 the thing alienated. 
 
 445. These provisions did not long remain confined to the 
 claims of landowners. The Servian action, by which the 
 thing pledged could be followed into the hands of any person 
 to whom it came, was extended to all kinds of property, 
 and to security for all kinds of claims. Thus an entirely 
 new kind of right was created, a jus in re aliena available 
 against the world at large : and this right could be acquired by 
 means of a simple agreement without any special formality. 
 
 446. This form of security was called by the Greek name 
 hypotheca, and it was probably of Greek origin, being copied 
 by the Romans from the Greeks of southern Italy, where 
 they had become familiar with it. It was only a develop- 
 ment of the original pignus, although it was at the same time 
 a very considerable advance upon it ; and the Roman law did 
 not henceforth keep up any distinction between pignus and 
 hypotheca. Whether the possession was actually transferred 
 or not, the agreement by one man that his property should be 
 a security to another was in later times called indifferently 
 hypotheca or pignus. 
 
 447. Still we have not reached the point aimed at. Though 
 the creditor had what has been called a real right ^, but 
 which is better called a jus in re, he had no real security. 
 He could assert that the thing pledged ,to him remained 
 subject to the pledge wherever it happened to be, but he had 
 no means in his own hands of satisfying his claim if the 
 debtor neglected to do what he ought. This had yet to 
 
 '■ The term ' real right ' to English ears means a right over land as opposed 
 to ' personal right.' That is the reason why the expression is objectionable. 
 Where chattels are given as a security there is equally a jus in re. 
 
Sec. 443-449-] SECURITY. 219 
 
 be provided for, and the mode of doing so was suggested 
 by an ancient rule of the Roman law, that in the case 
 of land pledged to the state (praedia), the state could sell Power of 
 the property and satisfy its own debt. It became customary 
 for private creditors to stipulate for a similar right ; and this 
 right of sale, coupled with the rights conferred by the 
 pignus, or hypotheca, gave to the creditor the means of satis- 
 fying his claim, and rendered him entirely independent of 
 the debtor. It was necessary at first for the creditor to 
 obtain the right of sale by a special concession, but in later 
 times it was always presumed to exist. Indeed, the law 
 went even a step further. A positive agreement by the 
 creditor not to sell had only the effect of rendering three 
 several notices to the debtor necessary, instead of the single 
 one which would otherwise suffice. 
 
 448. These were the steps by which the law was developed Extended 
 in the case of pignus and hypotheca. In the case of fiducia 
 
 the result was the same, though the method of arriving at it 
 was different ; there the ownership was already transferred 
 to the creditor ; and the most obvious course in the case of 
 the debtor's feilure was by express agreement to make 
 the creditor's ownership absolute. Indeed, this could at 
 one time be done. But as soon as the right of the creditor 
 in the case of pignus to sell and satisfy the debt was fully 
 established, the right to do this was attributed to the creditor 
 in the case of fiducia also ; and thenceforth the clause of 
 forfeiture '^ or foreclosure fell into disuse, a sale by the creditor 
 being in every respect more in accordance with the spirit 
 of the law as. administered under the Christian Emperors than 
 a foreclosure. 
 
 449. Henceforth the right to sell and satisfy the debt Import- 
 {distractio) came to be considered as the very essence ofpo-^erof 
 the law of security. The person in whose favour the security ^^'®- 
 
 ' This clause in the agreement was called lex commiasioria. It was declared 
 by Constantine to be illegal; Smith's Diet. Antiqq. s. v. Fignus. But the 
 creditor might still agree to • purchase at a fair price. See Windscheid, 
 Lehrbuch des Pandekten-Eechts, sect. 338. 
 
220 SECUEITY. [Chap. XI. 
 
 was given always had this right ; and therefore, as a pledge 
 might in all cases result in a sale, nothing could be pledged 
 which could not be sold. Subject to this, however, everything 
 which we should eaU property might be given as a security; 
 any beneficial right to the use or enjoyment of land, and even 
 easements might be so dealt with ; the only test appearing 
 to be whether it was possible for the creditor to extract 
 from the thing pledged satisfaction of his demand. Debts 
 due to the debtor could be given as a security; the creditor 
 being able to obtain satisfaction by causing payment to be 
 made to himself, or by selling the debt to a third person. 
 Pledgee 450. So too a creditor could give the thing pledged as a 
 
 plede-e Security for a debt of his own ; but subject, of course, to the 
 over. rights of the original pledgee. If therefore the original debt 
 
 was paid off, the second pledgee lost his security ; but he could 
 prevent this by giving to the original creditor a proper 
 notice. 
 
 451. I pass over the rules which relate to the constitution 
 
 of several pledges for one demand, and successive pledges of 
 
 the same thing for several demands, and I proceed now to 
 
 state more particularly the nature of a security under the 
 
 Roman law, and the position of the debtor and creditor after 
 
 it has been given. 
 
 Obligations 452. The particular nature of the obligation of which the 
 
 maTbe ™ performance was to be secured was immaterial, and a security 
 
 secured, might be given for the whole of a debt or for a part. It was 
 
 also of no consequence whether the debtor himself gave the 
 
 security, or some one else for him ^. A pledge might even be 
 
 given for a claim which could not be enforced by law, such as 
 
 a mere debt of honour, or a moral duty. A security also, like 
 
 an obligation, could be conditional or futm-e. 
 
 Ownership 453. Giving a thing in pledge did not prevent the owner 
 
 b°* ll^^e^ dealing with it as he thought proper, provided that he did not 
 
 interfere with, or lessen, the security of his creditor. Any 
 
 ^ There was, of course, the limitation above referred to (sect. 432 note) that 
 the security could only produce money to the creditor in satisfaction of his claim. 
 
Sec. 450-456.] SECUEITY. 221 
 
 dealings which would have that eifect were null and void 
 as against the purchaser from the creditor, should the latter 
 exercise his right of sale. But in the case of moveable pro- 
 perty the pledgor was not allowed to alienate it without the 
 consent of the pledgee ; the alienation was not absolutely void, 
 but the pledgor was personally liable as for a misappro- 
 priation, and of course such a sale did not displace the 
 creditor's security. 
 
 454. The use and profits of a thing given as security Use and 
 belonged entirely to the pledgor, unless it were expressly f™ ^^ ^' 
 agreed to the contrary. If the pledgee were in possession, pledgor. 
 then he was bound to make as good a profit as he could out 
 
 of everything from which his debtor had made a profit, being 
 responsible for not doing so. It was only where there was 
 a loan of money, and no agreement at all about interest, that 
 the creditor in possession of a security could take the profits 
 himself, and then he could do so only to the extent of a 
 moderate rate of interest ; of course he could not take them if 
 interest had been expressly excluded. Sometimes the parties 
 expressly agreed that the whole profits should be taken in lieu 
 of interest, and this was allowed. 
 
 455. The Roman law recognised to some extent the prin- Tacking. 
 ciple of what English lawyers call ' tacking.' If the creditor 
 
 had any other claims for money in writing against the debtor, 
 he could retain possession of the security, notwithstanding 
 that the debt for which it had been originally given was 
 satisfied, whether these other claims were created before or 
 after the security was given. But, as far as I am aware, the 
 unjust rule of English law, that the first creditor has a priority 
 over a subsequent pledgee even in respect of unsecured debts, 
 was never adopted ^. 
 
 456. Of course the right to sell the thing pledged and Power of 
 satisfy the debt was the most important of all the rights of exercised. 
 
 ' The wiole doctrine of tacking seems very questionable. There has 
 been an attempt in England to get rid of it, but it has failed. See Coote 
 on Mortgages (ed. 1880), p. 827. 
 
222 SECURITY. [Chap. XI. 
 
 a secured creditor. This right could not be exercised until 
 the debt was actually due and notice had been given to pay 
 it. The sale was conducted by the creditor, who was looked 
 upon as an agent of the debtor. Not that agency is, strictly 
 speaking, the legal ground of the transaction ; the creditor, 
 when selling, acted in his own right ; but the creditor was so 
 far an agent that he had specific duties to perform in order to 
 protect the interests of the debtor when the security was 
 brought to sale. For instance, it was his duty to advertise 
 the sale, and to give notice to the debtor when and where it 
 would take place, so that the latter might know exactly what 
 was being done, and might interfere if necessary. This notice 
 was quite distinct from the notice to pay the debt prior to the 
 exercise of the right of sale. And though the conduct of th.e 
 sale was left to the creditor, he was bound in all things to 
 consult the interests of the debtor as far as possible. If 
 no suitable purchaser could be found, then the creditor could 
 ask that the thing given as security might be adjudged to 
 belong to himself; but in such a case it could still be re- 
 deemed by the debtor at any time within a year. The only 
 other case in which the creditor could obtain the ownership 
 absolutely for himself was where there had been an express 
 stipulation that, if the debt were not paid, the creditor 
 should become the absolute owner (whilst such an arrange- 
 ment was allowed 1), or by an agreement to purchase at a fair 
 price. 
 Creditor 457. It was the duty of the creditor to get in the money 
 
 could claim ^ , in • , 
 
 fordefi- from the purchaser, and after paymg himself to hand over 
 cienoy. ^-^q surplus to the debtor. Of course if there was not suffi- 
 cient to discharge the debt, the balance remained due. 
 Involun- 458. A pledge might be created either voluntarily or 
 pledges. involuntarily. A voluntary pledge might be created by 
 contract, or by will ; an involuntary pledge might be created 
 either by express order of com-t, or be attributed by tbe 
 law as an incident of certain transactions. 
 ' See supra, sect. 448, note. 
 
Sec. 457-462.J SECURITY. 223 
 
 459. I do not propose to state at length the particular Only one 
 modes in which a security was created by contract, by will, gecurity. 
 by operation of law, or by the order of Court. I would only 
 
 note that the Roman law had this great practical convenience, 
 that there were general rules applicable to all kinds of 
 security alike by whatsoever means created. There was no 
 difficulty about this, the general object and character of the 
 transaction being the same throughout; and it conduced 
 greatly to brevity, clearness, and precision of the law that 
 this should be so. 
 
 460. A security was not necessarily restricted to a single General 
 thing, but there might be a pledge of several things, and 
 even a general pledge of all a man's property. But here an 
 important distinction must be borne in mind. A general 
 pledge of all a man's property is not a pledge of his property 
 viewed as a whole (universitas) ; for then the debts due by 
 
 him would be included ; but it is a pledge of each several 
 thing now belonging or hereafter to belong to the debtor. 
 
 461. The following are the principle methods by which Extinction 
 a security came to an end: (i) when the pledgee became" ^* ^^^' 
 the owner of the property given in pledge ; (3) when it 
 
 was agreed that the property should be released ; (3) when 
 a third person had held the property honestly as his own for 
 twenty years; (4) when the obligation, the performance of 
 which was to be secured, was discharged; (5) when the 
 pledgee exercised his right of sale. 
 
 462. No one can have a right of any kind over his When not 
 own property except the general right of ownership. If, guigh'ed. 
 therefore, I am owner of property I cannot hold that pro- 
 perty as security. But I may have this right : — that if 
 
 any one else who has a security over it endeavours to satisfy 
 his claim, he shall leave something for me. This is a right 
 which is sometimes called a right of security, and the Roman 
 law gave such a right to the owner in some cases. It gave 
 it, for example, to a person who having already a first 
 charge bought the property himself. It thus enabled him 
 
224 SECUEITY. [Chap. XL 
 
 to protect himself against the claims of subsequent security 
 holders ^. 
 Priority. 463. How to settle the claims of several creditors, each 
 
 holding- security upon the same property and each claiming 
 to exercise his rights, has always been a problem of some 
 difficulty. The Roman lawyers acted almost exclusively upon 
 the principle that the creditor earliest in point of time had 
 the prior right, and they justified this by their view of the 
 nature of the right of the pledgee, namely, that it was a right 
 in rem, or real right — a right like ownership available against 
 all the world, which no subsequent dealing to which the 
 pledgee was not a party could invalidate or impair. No 
 regard was paid to the mode in which the pledge had been 
 acquired, nor did it make any difference that another creditor 
 had obtained possession; as a rule the date alone was 
 looked to. 
 Exception 464. There were, however, exceptions to this rule. Thus 
 priority'by when money had been advanced for the express purpose 
 date. Qf preserving a thing from destruction, the lender could 
 
 claim a priority ; as, for instance, in the case of a bond for 
 money advanced to equip or repair a ship on a bottomary 
 bond as we should call it ^. The claims of the state for 
 public dues had also a preference over those of private 
 persons. 
 Eight of 465. The rights of a subsequent pledgee were the same as 
 
 subsequent . „ . 
 
 pledgees, those of any other secured creditor, subject only to the rights 
 of the pledgees who preceded him. He could bring the 
 property to sale, and could even compel a prior pledgee to 
 do so. He had also the special right to pay off any prior 
 
 ' It is intereeting to compare the English doctrine as to letting in subse- 
 quent incumbrances. See Coote on Mortgages, 4th ed., p. 465 ; also Vangerow 
 Lehrbuch der Pandekten, sect. 392 ; Windscheid, Lehrbuch d. Pendekteu- 
 Eeohts, sect.225, 248, 249. 
 
 ' This priority was founded on what was called an in rem versio, and was an 
 application of the general principle that one person ought not to be enriched 
 at the expense of another. Windsoheid, Lehrbuch des Pandekteu-Eechts 
 sect. 246. 
 
Sec. 463-468.] SECURITY. 225 
 
 creditor and take his place ; and if the prior creditor refused 
 to take the money, he might deposit it in Court. If the 
 first pledgee sold the propfcrty, and the produce was more 
 than sufiicient to pay his debt, the next pledgee could claim 
 to be paid out of the surplus. 
 
 466. Having thus stated shortly the Roman law of Security, English 
 
 law of 
 security. 
 
 I proceed to consider the English law : and, first, as it is ^"^ ° 
 
 administered in the Courts of Common Law. 
 
 467. The law is here certainly in a backward condition. Distinction 
 These courts can hardly be said to possess any method of '^^^^^g^^j^^ 
 giving security over immoveable property, and as to move-^'^n. 
 able property the law appears to me to be somewhere about 
 
 in the same state of development as the Roman law at 
 the time of the First Punic Wai. The common lawyers 
 insist very strongly that possession is necessary to create 
 the security, and upon the difierence between a pledge and 
 a lien. They consider a lien as a mere personal right of 
 detention which gives the creditor no means of satisfying 
 his debt, but only produces a pressure upon the will of the 
 creditor, arising from the inconvenience of being kept out of 
 his property ; whereas (they say) a pledge is something more. 
 The cases are not very explicit as to the distinction, but 
 I gather that a pledge is constituted by adding to a lien the 
 permission to the creditor in case of default to sell and satisfy 
 the debt. It is not however altogether clear when this right 
 of sale exists and when it does not. 
 
 468. It is easy to understand that creditors, dissatisfied iruauthor- 
 with a dry right of detention which is very often burdensome, 
 frequently attempt to sell the property pledged; and no 
 subject has vexed English judges more than the question, 
 
 what remedy a debtor has for a wrongful, a premature, or 
 an unauthorised sale by a creditor of the property which he 
 holds as security. The knot has been partly cut by the 
 Factors' Acts: but it is a question which still frequently 
 arises where these acts do not apply. It is now pretty 
 
 Q 
 
226 
 
 SECURITY. 
 
 [Chap. XI. 
 
 Pledgee 
 has a real 
 right. 
 
 This does 
 not depend 
 on power 
 of sale. 
 
 True 
 nature of 
 the real 
 right. 
 
 well settled that the debtor can only recover such actual 
 damage as he may have suffered ; and no one can complain 
 of the injustice of the result thus arrived at. But I confess 
 I do not understand a good deal of the reasoning on which 
 this opinion is based, and I think some advantage may be 
 gained by examining it. It is in these cases particularly 
 that so much learning and ingenuity have been expended 
 in establishing that the creditor got not only a lien but a 
 pledge, that is, not a right of detention only of the article 
 pledged, but also a right to sell and apply the proceeds in 
 satisfaction of the debt under the conditions of the contract ; 
 wliich right, they say, gives the creditor a ' specific interest 
 or property ' in the article, that is to say, a jus in re ^- 
 
 469. Now it is no doubt perfectly true that the pledgee 
 has a ' specific interest or property ' in the nature of a jus 
 in re ; but 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 elsewhere point out in the cases to 
 wliich 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 ^. 
 
 470. I cannot therefore exactly see, why this discussion 
 about the pledgee haviag a real right is introduced. 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 
 
 ' Law Reports, Queen's Bench, vol. i. p. 6l2. Mr. Justice Shee calls it 
 aj'«s in re (p. 595). But he means the same thing; see Austin, Lectures, 
 pp. 990, 993, third ed. I may here observe that what Mr. Justice Shee 
 quotes (at p. 603) as Domat's opinion upon the Roman law is really a state- 
 ment of the French law, differing in this respect, as Domat points out, from 
 the Roman law. 
 
 ° Law Reports, Queen's Bench, vol. i. pp. 600, 615, 619; id. Exchequer, 
 vol. iii. p. 301. 
 
Sec. 469-472.] SECUKITY. 227 
 
 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 ; a jus in rem as distinguished from a jus in personam. 
 Ownership, for example, is a real right, and it is in fact 
 the sum of all real rights, as explained above ^- The par- 
 ticular 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. 
 
 471. Possibly what the learned judges were thinking of Difference 
 was, in truth, not a real right but a real security. What real right 
 constitutes a real security has already been explained^: it ^^^^^^^^ 
 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 
 
 deal more ; and it is perfectly true to say 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 afiected 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 gourtVof 
 reference to lands. This portion of the law of England chancery. 
 
 ' 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. 
 
 2 Supra, sect. 309. * Supra, sect. 447. 
 
228 
 
 SECTTRITT. 
 
 [Chap. XI. 
 
 bears a considerable resemblance both in its history and its 
 ultimate condition to the Roman law, and seems to be, like 
 the latter, the combined result of clear legal ideas with 
 practical business habits. 
 Mortgage. 473. The class of securities with which the Courts of 
 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 
 the Courts of Chancery, I wish for the moment to divert 
 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. 
 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 2. 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 
 property, and for his receipts. The creditor who has a 
 jnortgage has a real security; that is, he may, in case the 
 
 ' It ia somewliat similar to the original fidmia : supra, sect. 440. 
 ^ Coote on Mortgages, 3rd. ed., p. i. 
 
 Present 
 law of 
 mortgage. 
 
 Mortgagee 
 can always 
 sell. 
 
Sec. 473-476-] SECUEITY. 229 
 
 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 ^- 
 
 475. Why these clear and sensible rules should have been Chancery 
 confined to the Courts of Chancery one is at a loss to con- mOTtgao-e 
 ceive : and why Courts of Common Law should have been shut ™'g'i* ^e 
 
 •' extended. 
 
 out', or should have shut themselves out, from all jurisdiction 
 over landed security it is also difRcult to say ^. 
 
 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 !° extend 
 fearless of innovation, and to whose hands innovation might 
 
 have been safely trusted. The question arose in this way. 
 A person having a leasehold interest in land assigned it to 
 another by way of security, in the usual form of a mortgage 
 of land. Of course, in strict law, this was an absolute 
 assignment, and the assignee became liable to the lessor 
 
 ' 23 and 24 Vict. 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 
 do complete justice in every case will lamentably fail of their object unless 
 the common law doctrines as to mortgages are completely eradicated ; and 
 surely it is unnecessary that the old clumsy forms should 'be retained. 
 
230 
 
 SECUEITT. 
 
 [Chap. XI. 
 
 Defeated 
 by Lord 
 Kenyon, 
 
 upon the covenants in the lease. In an action, however, 
 by the lessor against the assignee of the lease, upon a cove- 
 nant contained in the lease, judgment was unanimously 
 given for the defendant by the court of Queen's Bench, 
 consisting of Lord Mansfield and Justices Willes, Ashurst, 
 and Buller. Lord Mansfield argued that in order ' to do 
 justice between men it is necessary to understand things 
 as they really are, and to construe instruments according 
 to the intention of the parties.' He therefore refused to 
 treat the mortgage as if it was in reality (what it no 
 doubt was in form) a complete assignment of the lessee's 
 interest, and considered it as a mere security ■'^. Had these 
 views been adhered to, there can be little doubt that the 
 position of mortgagor and mortgagee in Courts of Common 
 Law would have been in a great measure, if not entirely, 
 assimilated to their position in the Court of Chancery. It 
 is perhaps, therefore, not surprising that they were firmly 
 opposed by Lord Mansfield's very conservative successor. 
 Lord Kenyon^, who seems to have treated Lord Mansfield's 
 opinion and that of the other judges who concurred with him 
 almost with contempt, and declared that he would over-rule 
 it ' without the least reluctance ^.' 
 Holder of 477. I can scarcely say why, but even Coui-ts of Chancery 
 moveaUes'' have sometimes shown something of the same timidity as 
 
 cannot ig shown by Courts of Common LaWj when they have had to 
 always sell. , , . . 
 
 deal with security over property other than land. If goods 
 
 be mortgaged exactly in the same form as land is usually 
 mortgaged, the mortgagee's rights are not considered to be 
 so full and complete * : and when a security has been esta- 
 blished in the nature of a lien, Courts of Chancery have not 
 ventured any more than Courts of Common Law to give 
 effect to the security by permitting a sale. In a recent 
 
 ' See the case of Eaton against Jaques in Douglas' Reports, p. 455. 
 " Coote on Mortgages, third ed., p. 120. This learned author was also 
 evidently alarmed at what he calls Lord Mansfield's ' equitable innovations.' 
 ^ Coote on Mortgages, ubi supra. 
 * Dart, Vend, and Purch. p. 48, 4th ed. 
 
Sec. 477-479-] SECURITY. 231 
 
 case, where the Court of Chancery was pressed to exercise 
 its jurisdiction by directing a sale, Lord Hatherley (then 
 Vice-Chancellor) expressed his opinion that it would be 
 dangerous to do so^. 
 
 478. There are still, therefore, many cases in which the Bare right 
 creditor has a bare right of detention, and can neither by tion often 
 his own right, nor by the assistance of any court, obtain any "re^;tor*° 
 satisfaction of his claim if his debtor is obstinate, however 
 beneficial to all parties a sale might be. Thus a vendor 
 
 of goods may before delivery retain, and in some eases may 
 even after delivery retake, possession of them, and hold 
 them as a security for the unpaid price ; but he cannot 
 sell them ; and so this detention may continue till the 
 goods become valueless, when the creditor will have lost 
 his security and the debtor his property ^. 
 
 479. There are however cases in which this narrow con- Bum 
 ception of the law of security as applied to moveable property carvallio. 
 appears to be dropped without hesitation, and the widest 
 possible validity is given to arrangements made by debtors 
 
 for giving to creditors security for their claims. I do not 
 know upon what distinction this change of view proceeds. 
 Of course every variety of right may be created by agree- 
 ment, but the difference in the agreement in some of these 
 cases is very slight, and I suspect a good deal more depends 
 on the inclination of the court when determining the in- 
 tention of the parties, than on the exact words. In the 
 case before Lord Hatherley above referred to^ the debtor 
 actually agreed with his creditor, who had already a lien 
 or bare right of detention, that the property should at 
 
 ' See the case of The Thames Iron Works Company against The Patent 
 Derrick Company, Law Journal Reports, Chancery, vol. xxix. p. 714. 
 
 ^ If the remarks of such able and experienced lawyers as Lord Blackburn 
 and Mr. Benjamin upon the rights of the unpaid vendor be considered, it 
 will be apparent that my observations upon the unsatisfactory condition of 
 the English law are neither presumptuous nor unfounded. See Blackburn 
 on Sale, pp. 320 sqq. ; Benjamin on Sale of Personal Property, book v. 
 chap. iii. 
 
 ' Supra, sect. 477. 
 
232 SECUEITY. [Chap. XI. 
 
 some future time be mortgaged for the claim with a power 
 of sale. There the creditor was helpless. Yet in another 
 case^, where there was nothing but a fature promise by the 
 debtor to 'hand over' to his creditor property of an amount 
 equivalent to the debt, it was held by Lord Cottenham 
 that this promise alone gave the creditor a right to have the 
 property applied to liquidate and satisfy his debt. This is a 
 decision which has been since frequently followed, and the 
 incidents of the transaction, as well as the effect which was 
 so readily given to it, are worthy of remark. In this case 
 nothing was specified; the promise related to 'any property' 
 in the hands of the debtor's correspondent abroad ; the nature 
 and value of the property was wholly unknown ; the amount 
 of the debt due was also wholly unknown, it being probable 
 that the debt had been partly paid ; the right was considered 
 to be created by the promise to the creditor alone (the Lord 
 Chancellor says so expressly in his judgment ^) before it had 
 been even communicated to the debtor's correspondent. But 
 what is most important is the result. The mere promise to 
 transfer the goods to the hands of the creditor was considered 
 to create, not merely a right to hold them until the debt was 
 paid, but a right to apply them at once, and mthout any 
 formality or delay, in satisfaction of the debt : the creditor, 
 as soon as he got possession, which he did not do until after 
 his debtor had become bankrupt, sold the goods without 
 further notice or ceremony, charging all expenses incurred 
 upon his debtor. 
 Compared 480. I do not at all suggest that this decision was erroneous. 
 
 with other . • ■ , 
 
 decisions. Experience has shown that the principle on which it proceeds 
 is (commercially speaking) convenient, and there is no legal 
 difficulty whatsoever in carrying it out. But there is certainly 
 to my mind a difficulty in seeing so great a difference 
 
 ' This is the well-known case of Burn against Carvalho, reported in the 
 fourth Tolume of Mylne and Craig's Eeports, p. 690. The same case had 
 previously been before a Court of Common Law, and an opposite view taken. 
 See the report in Adolphus and Ellis, vol. i. p. 883. 
 
 ^ See p. 703 of the report. 
 
Sec. 480-481.] SECURITY. 233 
 
 between the agreement in this case and that in the case 
 before Lord Hatherley, as to lead to such totally different 
 results. 
 
 481. Fi-om this account of the English law of security it is 
 apparent that no clear, consistent, and comprehensive state- 
 ment of principles can be made with regard to it. At any rate 
 this has never yet been done. On the other hand, no difficulty 
 is found in preparing such a statement of the law of security 
 either as it existed under the Roman Empire, or as it now 
 exists in countries were the Roman law has been adopted 
 with a real and comprehensive inowledge of what that law 
 was, and the principles upon which it was based 1. I think 
 therefore that there can be no escape from the conclusion that 
 the faults of the English law are due, not to its connexion 
 with the Roman law, but to the imperfect manner in which 
 the Roman law has been understood. I have therefore, 
 borrowing the results of the labours of others, given a pretty 
 full statement of the Roman law, in which I think it will 
 be seen that the principles recognised are not altogether 
 different from the principles of our own law, but they are 
 fewer, simpler, and more consistently followed. 
 
 ' See, for instance, the AUgemeinee Landreoht fur die Preussischen Staaten, 
 Part I. tit. 20. sections 1 and 2. This composition is not to be compared 
 for clearness and precision with some portions of the more recent AUgemeine 
 Deutsche Handelsgesetzbuoh, yet it is incomparably better than anything to 
 be found on the subject of pledge in the English language : and although it is 
 in many parts tediously minute, the subject only occupies forty-six octavo 
 pages ; not as much as our Mutiny Act. 
 
CHAPTEK XIT. 
 
 ACQUISITION OF OWNERSHIP. 
 
 Acquiai- 482. The acquisition of ownersliip may take place either 
 
 al°or°a?™' ^^ respect of a thing which had no previous owner, or in 
 
 transfer, respect of a thing which had a previous owner. If the 
 
 thing had a previous owner, then the ownership of one 
 
 person is transferred to another. If it had not a previous 
 
 owner, then a new ownership is created ^. 
 
 Occupancy 483. If a thing be without an owner, and be at the same 
 
 nuUius. time not in the possession of any one, it becomes the property 
 
 of any one who takes possession of it, if he chooses that 
 
 it should so become. This method of acquisition is called 
 
 ' occupancy.' But there is in English law-books very 
 
 little upon the subject of occupancy, for the reason that 
 
 except fish in the sea there is very little to which it 
 
 can be applied. Fish in a river and wild animals on land 
 
 are considered to be in the possession of the person upon 
 
 whose land they happen to be, and when killed or captured 
 
 they belong to the landowner and not to the captor ^. 
 
 ' It does not seem imposaible to analyse every transfer of ownership into 
 the extinction of the ownership of the transferor and the creation of a new 
 ownership in the transferee, but I do not think it would tend to simplicity 
 to do so ; on the contrary, the idea of transfer carries with it the idea that 
 the incidents of ownership are not changed, which is an idea we wish 
 generally to preserve. 
 
 ^ This question has been warmly contested in France and Germany. See 
 
Sec. 482-485.] ACQUISITION OF OWNERSHIP. 235 
 
 484. The real interest which attaches to acquisition of Ori^n of 
 ownership by occupancy of a res nullius is not in connection n™h^pl^ 
 with its modern application, which is rare, but in connection occupancy. 
 with the origin of ownership. Until recently it was almost 
 always assumed that the acquisition of ownership by occupancy 
 
 was so simple, so obvious, and so universal, as to be deemed 
 natural, and that it was, in fact, the original mode of acquir- 
 ing all ownership. That assumption is not now accepted. 
 Nevertheless occupancy and ownership are historically con- 
 nected, and the history of that connection is not without 
 its importance in modern controversies^. 
 
 485. The finder of a thing which has an owner, but Finding of 
 an unknown owner, cannot acquire ownership by merely pertv"^" 
 taking possession of it, for it is not a res nullius. He 
 
 may, however, if it is not in the possession of any one, take 
 possession of it, and by lapse of time he may acquire the 
 possession like any other possessor. In some countries, where 
 the owner does not at once come forward to claim the lost 
 property, it is transferred by a special law to the state, or 
 to the principal officer of justice, or to the church ; and this 
 sometimes with, and sometimes without a share to the 
 finder. In England it is only the crown, or its grantee, 
 which has ever asserted a claim to property lost by th 
 owner, and this only in respect of wreck, waifs, and estrays. 
 But the right, even to this extent, is now rarely asserted^. 
 
 Dalloz, E^pertoire, s. v. Chasse, art. 172; Wachter, Pandekten, § 134, and 
 Beil. I. As to the English law, see supra, sect. 361 note. 
 
 ^ Some interesting observations upon the relation of occupancy to owner- 
 ship will be found in the 8th chapter of Sir Henry Maine's Ancient Law. 
 We find an example of occupancy without ownership in the (so-called) Insti- 
 tutes of Menu. The ownership of cultivated land (as distinguished from the 
 homestead and the pasture immediately attached thereto) is not mentioned 
 in that work ; and as there are no rules as to how such land is to be disposed 
 of when the family breaks up, it seems clear that when that book was written 
 it was not owned, but only occupied. 
 
 ^ See Blackst. Comm. vol. i. p. 299 ; Code Civ. art. 717, and the observations 
 of Marcadfe in his edition of the Code ; Demburg, Lehrb. d. Preuss. Pr. E. 
 vol. i. § 23a. 
 
236 
 
 ACQUISITION OF OWNERSHIP. 
 
 [Chap. XTI. 
 
 Whales 
 
 and 
 
 sturgeons. 
 
 Ti-easure 
 trove. 
 
 Produce of 
 trees and 
 animals. 
 
 Alluvion 
 
 and 
 
 Diluvion. 
 
 486. The erown has, by an ancient statute called Preroga- 
 tiva Regis of uncertain date, the ownership of whales and 
 sturgeons taken in the sea or within the realm. The right 
 is still sometimes claimed in respect of whales hy the grantees 
 of the crown. 
 
 487. Treasure trove is not strictly speaking a res nullius. 
 It is property which once had an owner, and which has 
 been hidden (not abandoned or lost) by him ; and on its 
 being discovered it will be considered as treasure trove 
 if all hope of tracing the owner is lost. If hidden in a 
 place which is itself owned, as in a house or a field, it 
 would, according to English principles, be in the possession 
 of that owner ; but it does not belong either to that person 
 or to the finder. It belongs to the crown, and it is an offence 
 not to give notice of its discovery. 
 
 488. The acquisition of treasure trove has always been 
 governed by special rules. By the Roman law half was 
 given to the owner of the spot where it was found, and half 
 to the finder^- This is the rule which generally prevails 
 on the continent of Europe ^. 
 
 489. If a tree bears fruit, or a domestic animal bears 
 ofispring, the produce in each case belongs to the same 
 person as the tree or animal, unless it has been parted with. 
 This has been called ' acquisition by accession.' 
 
 490. The transfer of ownership by what is called alluvion 
 and diluvion is of considerable importance in those countries 
 where the magnitude and violence of the rivers cause a great 
 shifting of the soil, and frequent changes in the course 
 of the stream. In England disturbances of this kind are 
 rare, and, so far as they occur at all, generally occur in tidal 
 rivers and in creeks and arms of the sea. The open sea 
 also sometimes advances or recedes. 
 
 491. The shore of the open sea — that is, the strip of land 
 between high and low water mark which we commonly call 
 
 ■ Just. Inst. ii. J . 39 ; Wachter Pand. §134, Beil. 2 . 
 
 ' Code Civ. art. 716; Dernburg, Lehrb. d. Preuss. Pr. E. vol. i. § 233. 
 
Sec. 486-493.J ACQUISITION OP OWNEESHIP. 237 
 
 the sea shore — is vested in the Crown or its grantee. And it 
 makes no difiference where this strip of land is situate. If the 
 sea advances, this strip of land advances also, and is taken 
 from the adjoining estate. If the sea recedes, there will be a 
 space between this strip and the adjoining estate. To whom 
 does this intervening space belong ? Lord Hale seems to think 
 that this depends on whether the sea has simply receded, or 
 whether the sea is shut out, as it were, ' by the casting up and 
 adding sand and stubb to the adjoining land ' : and he seems 
 to assume that the former would be a sudden, and the latter 
 a gradual process. If the sea were gradually shut out, he 
 considers that the owner of the adjoining estate would gain 
 the newly formed strip by accretion. If the dry land were 
 formed by the sea receding, he considers that it would belong 
 to the Crown, as it did whilst it was covered with water. 
 Blaekstone makes the whole question depend on the gradual 
 or sudden nature of the change, giving the newly formed 
 land to the Crown in the latter case and to the adjoining 
 owner in the former^. 
 
 492. The margin of creeks and arms of the sea intra fauces 
 terrae, and of tidal rivers between high and low water mark, 
 as well as the beds of such creeks, arms, and rivers, belong to 
 the Crown, or to its grantee ; and this ownership shifts as the 
 water advances or recedes ; that is to say, the margin and beds 
 of these creeks, arms, and rivers will belong to the Crown, 
 whatever their local limits may be at any one time. As to 
 the intervening space between the margin and the adjoin- 
 ing estate which may be left by the receding or shutting 
 out of the water, I imagine that the same rules would be 
 applied as in the case of the receding or shutting out of 
 the open sea. 
 
 493. The beds of inland rivers belong to the adjoining 
 proprietors, and it is doubtful whether any change in the flow 
 of the river, causing dry land to appear in one place and dis- 
 appear in another, does, as a general rule, cause any change 
 
 ' See Hale de Jure Maris, cap. vi. and Blackst. Comm. vol. ii. p. 262. 
 
238 ACQUISITION OP OWNERSHIP. [Chap. XII. 
 
 in ownership^. The root of this doubt appears to be, that 
 where the land is not res nullius, then the ownership of it 
 cannot depend on whether or no it happens to be covered 
 with water. This was certainly so in the Roman law ; and 
 the doctrine of acquisition of ownership by alluvion and 
 diluvion, as developed in that law, depended on the prin- 
 ciple that the beds of rivers were not owned by anyone. 
 The acquisition, therefore, was an acquisition of a res nul- 
 lius. But in every case where there is acquisition of land 
 in England, the thing already, though possibly not owned 
 exactly in the sense that private property is owned, is 
 certainly not a res nullius. The acquisition of land, therefore, 
 by alluvion and diluvion, if not excluded altogether, must 
 depend with us, not on the acquisition of a res nullius by 
 occupancy, but upon some other principle. Lord Hale seems 
 to have perceived this, and tries to put it on some special 
 ground which is not clear ^- It is better to admit at once 
 that it is a special transfer of ownership ensuing upon some 
 physical change : nor is there any doubt that such a transfer 
 does tate place for which no other account can be given ; as, 
 for example, when by the advance of the sea private land 
 becomes sea shore, and is transferred to the Crown. 
 
 494. There is one large tidal river in England, the Severn, 
 in which, or at least in one part of which, the rule is that the 
 manors on either side are bounded one against the other by 
 
 ' See the case of Foster versus Wright, in Law Reports, Common Pleas 
 Div., vol. iv. p. 447; and that of the Attorney General versus Chambers, 
 reported in De Gex and Jones' Reports, vol. iv. p. 55. Also the observations 
 of the Privy Council in Lopez versus Muddun Thakoor, Moore's Indian 
 Appeals, vol. xiii. p. 467. 
 
 " See the passage in Hargrave's Tracts, vol. i. p. 31. He says, 'If the 
 soil of the sea which is covered with water be the king's, it cannot become 
 the subject's because the water has left it. But in the case of alluvio maris 
 [i.e. gradual deposit] it is otherwise ; because the accession and the addition 
 of the land by the sea to the dry land gradually is a kind of perquisite, 
 and an accession to the land.' But these observations, even if they amount 
 to anything, would apply only to the surface. And I very much doubt 
 whether Lord Hale's distinction between the sea receding and being shut out 
 by gradual deposit is a sound one. 
 
Sec. 494-496.] ACQUISITION OF OWNEESHIP. 239 
 
 the filum aquae, or central line of the stream : so that the 
 boundaries are shifted if the river in any way changes its 
 course ^- This also appears to be the rule in America, where 
 the boundary between two estates is a fresh-water river, the 
 soil of which belongs to the adjoining proprietors^: and a 
 similar rule is found in some parts of India ^. 
 
 495. If the goods (moveable property) of one man become Confusion. 
 mixed with the goods of another the ownership may be- 
 come thereby changed, and the rules applicable to such a 
 
 case have occasioned some discussion. But in England the 
 question is not of much importance, because the English 
 law in the action of trover provides means by which a person 
 whose goods have been mixed vdth those of another person 
 can recover compensation for the loss of his property (which 
 is probably all he wants) without entering into the question 
 of whose the goods are subsequently to the mixture having 
 been made. Consequently, if I take another man's goods 
 and mix them with my own, I am liable to pay for the value 
 of the goods, and damages for their detention ; but the 
 very nice question as to the ownership of the mixture could 
 hardly arise in England ; and it has not been discussed. 
 
 496. English lawyers generally take it for granted that Quidquid 
 when the moveable property of one man is attached to the ^^^ ^^ 
 land of another it is at once transferred to the landowner, who "edit, 
 sweeps off everything. This somewhat ruthless doctrine is 
 based upon the maxim, 'quidquid plantatur solo solo cedit.' 
 
 This, or something like this, is to be found in the Koman law, 
 but it was not applied in the unqualified manner in which 
 English lawyers apply it For example, under the Roman 
 law the materials of a building did not become the property 
 of the person on whose land the building was placed, but 
 remained the property of the builder. This, though it seems 
 to us rather clumsy, must have operated as a practical quali- 
 
 1 Hale de Jure Maris, cap. vi. at p. 35 of vol. i. of Hargraye's Tracts. 
 
 2 Kent's Conun. vol. iii. p. 428. * See Keg. xi. of 1825, sect. 2. 
 
240 ACQUISITION OP OWNERSHIP, [Chap. XII. 
 
 fication of the rights of the landowner, probably forcing him 
 to make some compensation. So too the right, so tardily 
 recognised by us, of the lessee to be compensated for his im- 
 provements, was distinctly recognised by the Eoman law \ 
 
 497. The French law gives whatever is affixed to the 
 soil to the landowner, but then it also makes some careful 
 provisions in favour of the party who thereby loses his pro- 
 perty, upon the just principle 'neminem cum detrimento 
 alterius locupletari^'. 
 
 498. The German law does not appear to recognise the 
 rule quidquid plantatur solo solo cedit as a universal one. 
 Thus, if a man builds upon the land of another, whether he 
 does so bona fide or not, the building always belongs to the 
 builder, and the owner of the soil has three courses open to 
 him. He can either acquire the building by paying for it ; 
 or he can compel the owner of the building to pay for the 
 land on which it stands ; or he can insist upon the building 
 being removed. But this only in case the landowner did 
 not know of the building, or knew it and forbad it. If he 
 knew of the construction and did not interfere, the land passes 
 to the builder, who pays to the owner its value ^. 
 
 Forfeiture. 499. Sometimes a man is deprived of his property as 
 a punishment for an offence : that is, his property is trans- 
 ferred to the Crown. This is called forfeiture, and is of some 
 importance in connexion with the criminal law. So too 
 there is a kind of forfeiture where property is held upon 
 
 ' 'Id quod in solo tuo aediiioatum est, qnod in eadem causa manet, jure 
 ad te pertinet. Si vero fuerit dissolutum, ejus materia ad pristinum domi- 
 num redit, sive bona fide sive mala aedificium exstructum sit.' Code Just, 
 ii. 32. 2 ; see Just. Inst. ii. i. 29. The position of the mala fide builder has, 
 however, been doubted ; see Vangerow, Lehrb. d. Pandek. § 329 ; and see 
 also Dig. vi. i. 59. The words of the Digest as to a lessee are remarkable ; ' in 
 conduoto fundo, si conductor, sua opera aliquid necessario vel utiliter auxerit, 
 vel aedificaverit, vel instituerit, cum id non convenisset, ad recipieuda ea quae 
 impendit ex conduoto cum domino fundi experiri potest,' Dig. xix. 2, 55. 
 
 " Code Civ. art. 555. See Marcadfe, ad loc. 
 
 ' PreusB. AUg. L. B. i. 9, 327; Dernburg, Lehrb. d. Preuss. E. E. i. 236. 
 
Sec. 497-505.] ACQUISITIOj^ OF OWNERSHIP. 241 
 
 some condition, which, not being satisfied, the property is 
 forfeited. Such conditions may be created by the declared 
 intention of the parties interested. 
 
 500. When a man becomes bankrupt his property is Bankrupt- 
 transferred to trustees to be turned into money and dis-"^' 
 tributed amongst his creditors. This is a topic of much 
 importance in connexion with the law of bankruptcy. 
 
 501. Property is not unfrequently transferred from one Execution, 
 person to another by judicial process. This may be done 
 directly by a decree of the court, or by a seizure and sale 
 
 of the property. Though the transaction may take the form 
 of a sale there is no true contract, and no real sale in the 
 ordinary sense of the term. 
 
 502. There is a transfer of ownership which takes place Succession, 
 at the death of the owner, and which is of vast importance. 
 
 This I shall consider in a future chapter. 
 
 503. Long possession of property by a person who isPrescrip- 
 not the owner may have the effect of transferring ownership, ^™' 
 upon a principle which is called prescription, and this also 
 
 I shall consider presently. 
 
 504. Quite independently however of the transfer of owner- How far 
 ship which takes place in consequence of long possession by^f mo^g.^ 
 prescription, there is in the case of moveable property a^^^^^ 
 transfer of ownership which takes place merely, if I might possession, 
 say so, by reason of the refusal of the law to follow moveables 
 
 from one hand to another, and the ease with which ownership 
 in the case of moveables is presumed from possession. 
 
 505. The position of a person who has lost possession of Difference 
 moveable property is essentially different from the position moveables 
 of a person who has lost possession of immoveable property, ^g'^g^'j^g 
 A person who has lost possession of immoveable property 
 
 may after a considerable lapse of time lose his ownership, 
 which ownership another person may have acquired by pre- 
 scription. But the owner of immoveable property has ample 
 remedies provided him for following his property wherever 
 he may find it, and for recovering it in specie. This 
 
 E 
 
242 ACQUISITION OF OWNERSHIP. [Chap. XII. 
 
 Owner of the Owner of moveables can very rarely do. As a general 
 cannrt ^^ ^^6, whatever may be the form of action in which he pro- 
 reoover ceeds, and even if his ownership be established, he can only 
 specie. recover the value at which the property is assessed, and not 
 Transfer of the property itself, although the defendant is able to give 
 byreoovery it up. The result of the payment of the value, or of the levy 
 of value, ^^ ^j^g^^ amount in execution, or other satisfaction of the judg- 
 ment, is that the ownership is divested from the plaintiff and 
 transferred to the party in possession, and the case is likened 
 to one of an involuntary sale. Of course, if the plaintiff 
 himself chooses to take the value of the goods instead of 
 the goods it is reasonable that he should be understood to 
 have parted with his property. But it is peculiar that he 
 should be compelled to do so. Possibly the reason of this 
 may be that there is a great advantage to the plaintiff in 
 suing in a form of action which enables him to recover 
 damages instead of the property. He need not then prove 
 that the defendant is still in possession of the property. 
 
 506. Whether the plaintiff will be allowed as an excep- 
 tional case to have judgment for a return of the property 
 with the process necessary to compel it, is decided by the 
 court after considering whether the property is of such 
 a nature as that damages or its value will not be a suffi- 
 cient satisfaction. This, however, as rather a matter for 
 the plaintiff's own decision, and the law would be much 
 simplified if the plaintiff were left to choose whether he 
 would sue for the property or for its value ^. 
 Transfer of 507. But besides the transfer of the ownership of moveables 
 by mere which takes place when compensation is recovered for their 
 change of j^^^^ there are still to be found traces of a system, once 
 widely prevalent, that in the case of moveables the ownership 
 followed the possession. The origin of this view, like the 
 
 ' The most recent case on the subject is that of Ex parte Drake, in Law 
 Reports, Chancery Division, vol. v. p. 866, which however proceeds entirely 
 upon authority, and contains no elucidation of the legal principle applicable 
 to the case. 
 
Sec. 506-S09.] ACQUISITION OF OWNERSHIP. 243 
 
 origin of nearly all views of law which proceed upon a 
 distinction between moveables and immoveables, must be 
 sought, not in the Roman law, but in the law of Germany. 
 The Roman law protected by the same procedure the owner- 
 ship both of moveables and immoveables. It is a character- 
 istic of the early German law that whilst the ownership of 
 land was almost indestructible, the ownership of moveables 
 had only a very precarious protection. 
 
 508. The old German law expressed this view as to Early 
 moveables in the maxims ' Hand muss Hand wahren,' and law. 
 
 ' Wo man seinen Glauben gelassen hat, muss man ihn wieder 
 finden.' The meaning of these maxims, and the exact state of 
 the law which they represented in the remote times when 
 they were applicable, are too much disputed for me to venture 
 on any exact explanation of them. In a general way it may 
 be said that they indicated that when a man parted with the 
 possession of goods he must himself provide means for their 
 recovery. He could not, merely relying upon his previous 
 ownership, put .forward a claim against any person who 
 happened to be in possession of them. Against the person 
 to whom he entrusted them he might have a personal 
 action, if the circumstances were such that any obligation 
 to restore the goods existed. 
 
 There was one exception to this which seems to be as 
 old as the maxims themselves. If the goods had been 
 taken from the owner by violence they might be retaken 
 by him. 
 
 509. In modern times the protection of moveable property Develop- 
 has extended everywhere considerably beyond these limits, law owner- 
 An historical inquiry into the development of it would be ^^P J^^^^jg^^ 
 extremely interesting. It seems to have proceeded upon two 
 
 lines : first, the personal action for the restoration of the goods 
 seems to have been extended so as to be maintainable under 
 certain circumstances against persons who were not included 
 in the undertaking to restore ; secondly, the exceptional right 
 to retake the goods seems to have been made exercisable in a 
 
 K a 
 
244 ACQUISITION OF OWNERSHIP. [Chap. XTI. 
 
 larger number of cases, and to have been used as a foundation 
 of proceedings for an inquiry into the ownership. 
 Modern 510. Perhaps the nearest approach to the early German 
 
 Law. law^ which can be found in modern times is in the maxim 
 
 adopted in the French Civil Code, ' en fait de meubles 
 j)Ossession vaut titre^.' Its only exceptions are where the 
 property has been stolen from or lost by the owner. In 
 the modern French law also we still see in a modified form 
 the ancient process by which a person asserted his ownership, 
 namely, by actual seizure. When under the French law such 
 an assertion is allowed, the first step still is, under the au- 
 thority and with the assistance of the court, to seize the goods 
 claimed, and after that is done, then the contest as to the 
 ownership is continued before the court ^- 
 Action of 511. The action for the recovery of the goods based upon 
 a personal obligation to restore them is in English law 
 represented by the action of detinue. It is true that the 
 action of detinue is not now restricted to cases where such an 
 obligation exists : it is equally applicable to all cases in which 
 one party is wrongfully in possession of the goods of another. 
 But the notion still lingers that the action of detinue is 
 founded on a contract, that is, a contract to redeliver the 
 goods ^, and Blackstone thought that it was a necessary 
 condition to the action that the defendant came lawfully into 
 possession of the goods*. The proceeding by which a person 
 
 ' Code Civ. art. 2279. 
 
 '' Co. Proc. Civ., art. 826 ; Pothier, CEuvres, vol. x. p. 240, ed. Biignet. 
 The process is called saisie vindication. It follows very closely our pro- 
 ceedings in replevin. 
 
 ^ See the case of Bryant against Herbert, reported in the Law Reports, 
 Com. Pleas Div., vol. iii. p. 189. 
 
 * Comm. vol. iii. p. 152. See Year Book, 6 Henry VII. fo. 9, where Brian, 
 C. J., repudiates the contention that a tortious taking cannot change the 
 property. The reason he gives is, that the person who is so put out of 
 possession cannot have any action of detinue : to which action it is necessary 
 that the plaintiff should be owner at the time of action brought; and that 
 he should allege that the defendant came by the goods lawfully. But he 
 thinks that the person who has lost the goods by a tortious taking might 
 have replevin ; that is, he might get the goods back into his possession, and 
 
Sec. 510-512.] ACQUISITION OP OWNBESHIP. 245 
 
 who had lost possession of his goods without his assent Action of 
 could assert his ownership by retaking them is traceable in 
 the action of replevin. In replevin the party could recover 
 possession through the sheriif, giving security to restore it if 
 the right were adjudged against him. This procedure was 
 generally considered applicable only to cases of goods seized 
 for a distress. But I apprehend that it was not necessarilj' 
 confined to such cases, and that the sheriif could act whenever 
 it was alleged that one party had wrongfully taken possession 
 of the goods of another. The party who complained of the 
 wrongful taking by recovering possession put himself in a 
 position to assert his ownership, which he could not do other- 
 wise. If the other party also claimed the goods as his own, 
 the proceedings were taken out of the sheriff's hands and tried 
 in the regular way. And, as it appears to me, this was at one 
 time a legitimate way, and indeed the only legitimate way, of 
 raising the question of ownership. Afterwards, by the intro- 
 duction of the action of trover, a person was enabled to claim 
 goods of which he was out of possession, even when he could 
 not prove any undertaking to return them, without resorting 
 to any preliminary seizure : and hence the procedure by a 
 retaking of the goods fell into disuse. 
 
 512. Whatever may be the system of procedure there will Practical 
 always be considerable difficulty in following up the owner- j.ggQ°"j,;^g 
 ship of moveables. The ownership of moveables very often ""of eables. 
 changes so rapidly that to restore them would disturb a 
 great many transactions, the majority of which are perfectly 
 fair and honest. Nevertheless the English law has gone 
 very far in recent times in allowing the ownership to be 
 followed up. Not only is it now impossible for a man 
 to give himself a title by a wrongful act, but even third 
 persons, who have acted in perfect good faith, may be 
 
 BO put himself into a position to assert Ms ownersHp, wMcti, before retaking, 
 he could not do. Brian seems to have thought that it was impossible to 
 separate the ownership of moveables from the possession. Perhaps in so 
 thinking he was rather behind the age in which he lived. 
 
246 
 
 ACQUISITIOIf OF OWNEESHIP. [Chap. XII. 
 
 Owner fre 
 
 quently 
 
 satisfied 
 
 with 
 
 damages. 
 
 Difficulty 
 attending 
 English 
 law. 
 
 successfully sued by the owner seeking to recover possession 
 of his goods ^. And this, not only in cases where the owner 
 has been deprived of his possession against his will, but 
 even where he has consented to part with his ownership, 
 if he has been induced to give his consent by fraud ^- 
 
 513. To some extent this somewhat extreme view of the 
 English lawyers has been modified by statute, and in com- 
 mercial transactions persons who honestly deal with those 
 who are entrusted by the owner with the possession of goods 
 are protected ^. Moreover the ownership follows the posses- 
 sion in the case of coin and negotiable instruments : and even 
 goods stolen which have been sold in market overt belong to 
 the purchaser. 
 
 514. In the English law, therefore, as well as in other 
 systems, there is in some cases a transfer of the ownership of 
 moveables which takes place when the owner is out of pos- 
 session, though wrongfully so, and quite independently of 
 his consent, or of any acquisition of title by means of pre- 
 scription. It would be difficult to say exactly when and under 
 what circumstances this change of ownership takes place, 
 since the subject has never been considered thoroughly and 
 as a whole. But the general attitude assumed by the English 
 law has certainly been in recent times to protect the owner 
 of moveable property so far as to aUow him to assert his 
 ownership, until he has parted with it by some act of his 
 own. On the other hand, the English law is rather lax in 
 
 ' See the case of Cundy f. Lindsay, Law Reports, Appeal Cases, vol. iii. p. 459. 
 
 ^ This is the remarkable feature in the case of Cundy v. Lindsay. The 
 plaintiff had not only parted with the possession, he had also parted with 
 his ownership, as he thought ; but, because he had parted with the ownership 
 to A, believing A to be B, the Court thought he had not really parted with 
 the ownership. Lord Cairns holds, not that there was a contract vitiated by 
 fraud, but that there was no contract, and he seems to think it idle to consider 
 whether the ownership could pass by the transfer without a contract. But I 
 do not think that is a view which all jurists would accept ; and it is only 
 a modem view in England. 
 
 ' See the Factors Acts, 5 and 6 Vict. u. 39 ; 40 and 41 Vict. c. 39 : and the 
 Bankruptcy Act, 46 and 47 Vict. c. 52, s. 44. 
 
Sec. 513-516.] ACQUISITION OP OWNEESHir. 247 
 
 assisting the owner of moveable property to recover posses- 
 sion of it, even where it allows him to assert his ownership. 
 He must, as I have said, generally be satisfied with a money 
 compensation ^. 
 
 515. The transfer of ownership which we meet with most Transfer 
 frequently is that which takes place either on gift or sale, g^f 
 These modes of transfer have been very much discussed, 
 
 and many of the principles which govern these two transac- 
 tions are common to them both. In both the transfer is a 
 voluntary one. They both involve a declaration of intention 
 by two persons, a transferor and a transferee. On the whole 
 I have found it most convenient to discuss these two modes 
 of transferring ownership together. The observations I shall 
 make are of a very general kind. 
 
 516. If we attend only to the present aspect of law we Lands ori- 
 are very apt to speak of the free right of alienation of pro- ^^^ hi"°* 
 perty, that is, the free right of voluntary transfer by gift or 
 
 sale, as one of the so-called natural rights of man ; meaning, 
 I suppose, that it is a right which primA facie belongs to him 
 at all times and under all circumstances : and we are thus 
 accustomed to treat all forms, restrictions, and conditions, 
 which have been imposed upon the exercise of the right 
 of alienation, as so many infringements of this natural right. 
 It is only when we come to look into the history of the 
 matter that we find this aspect reversed. We see then 
 that the general right of alienation which now exists has 
 been slowly and painfully gained. It has been concluded 
 by inquirers that, in its earlier form, ownership was not 
 individual ownership at all ; that ownership was not vested in 
 individuals but in families ; in other words, it was (as we 
 
 1 If the ovmer elects to take compensation there appears to be a sort of 
 'relation back' as it is called. The transactions which have taken place 
 between the time when the owner lost possession and that when he parts 
 with his ownership by receiving compensation are treated in the same way 
 as they would have been treated if the ownership and possession had been 
 parted with simultaneously. But this kind of restitution becomes very 
 complicated when the transactions are numerous. 
 
248 ACQUISITION OP OWNERSHIP. [Chap. XII. 
 
 should now say) corporate and not sole ^ : and alienation, 
 which was under such circumstances of course diiEcult, was, 
 if not altogether unknown, at least very rare. 
 Interven- 517. Even long after individual ownership had come to 
 public. tie recognised, the right of the individual owner was not 
 considered to extend to alienation at his own will and 
 pleasure. Either the family, or the tribe, or the state, 
 must consent to the alienation in order to render it effec- 
 tual ^. This idea is traceable in both the two most im- 
 portant forms of transfer under the Roman law. In the 
 mancipatio five witnesses were required besides the actual 
 parties to the transaction. This number is, I think, not 
 to be referred to the imperfection of oral testimony ^, but 
 to the requirement that the transfer should take place in 
 the presence of and be consented to by the community at 
 large, whom these five persons may be taken to represent *. 
 So in the case of in jure cessio, or transfer under judicial 
 cognizance, I scarcely think the transaction is to be ex- 
 plained solely upon the ground of laxity of judicial procedure ^ ; 
 it was a public act to which superior validity attached ; 
 just as it now attaches to the judicial transfer (gerichtliche 
 
 ' Maine's Ancient Law, first ed., pp. 258 sqq. 
 
 ^ The author of the Mitacshara speaks of the consent of townsmen, of 
 kinsmen, of neighbours, and of heirs, to a transfer of land ; but apparently 
 he considers that the only consent really indispensable is that of the parties 
 actually interested in the property; Mitacshara, chap. i. sect. i. verse 31. 
 This treatise is perhaps a thousand years old (see the Preface to Colebrooke's 
 Translation), and it is evident that a number of lingering traditions just 
 then becoming obsolete are here alluded to. 
 
 ^ See Maine's Ancient Law, first ed., p. 204. 
 
 * Like the panchayut or assembly of five in India. 
 
 ' See Maine's Ancient Law, first ed., p. 289. The notions upon which 
 our Fine and Eecovery are founded are different. These were in fact two 
 wholly distinct proceedings, each being based on a suit, but in the former 
 the suit was compromised by the parties, whilst in the latter it was carried 
 on to judgment. Both were simultaneously resorted to, in order to give 
 a complete title ; their eflfeots being different. They combine a variety of 
 principles — limitation, warranty, and finality of judicial decision ; and they 
 have been helped out by statute. The general assertion that common 
 recoveries are due to the decision in Taltarum's case is not borne out by 
 the report in the Year Book, 12 Edw. IV. chap. 19. 
 
Sec. 517-520.] ACQUISITION OF OWNERSHIP. 249 
 
 Auflassungi) of modem German law. And the consent of 
 the state, in which the consent of the ■ family and of the 
 tribe have probably merged, still plays a part, though a 
 small one, in private transfers. It is asserted by German 
 lawyers that their law to some extent still holds fast to the 
 old principle that every claim to land, to be valid, must be 
 recognised by public authority ^ ; and we shall see hereafter 
 that the French law exhibits a remnant of the same idea ^. 
 
 518. The real significance, however, of institutions which Modem 
 require external consent to the transfer of land has now ofpjjt,ii(. 
 changed. Though it is agreed to be desirable that property J^*e"en- 
 of all kinds should be transferable without impediment, it is, 
 
 at the same time, perceived to be of first-rate importance that 
 such transfers should be certain and notorious. It is in order 
 to secure this certainty and notoriety in the case of land that 
 the nations of the continent retain as a requirement the 
 interference of some public authority. 
 
 519. The difficulties which have been felt about securing Certainty 
 the certainty and notoriety of transfers of property would riety. 
 have been much less had the ownership of property usually 
 remained unseparated from the possession of it. Except in 
 
 the case of wrongdoers and intruders we should then have 
 been able to see at once to whom a thing belonged. But, 
 as we know, the tendency of legal development is to separate 
 ownership from possession. The question is therefore of 
 constantly increasing importance, can the ownership be trans- 
 ferred without a transfer of possession ? 
 
 520. Fixing our attention for a moment on the Roman Eoman law 
 law, we can hardly doubt that at first, in order to complete delivery. 
 
 a transfer of ownership it was necessary in all cases that the 
 actual possession should be transferred from the transferor to 
 
 * AUgemeinee Landrecht, Part i. tit. 10. 
 
 ' Gerber, Syst. d. DeutBcli. Pr. K. § 89 ; Demburg, Lehrb. d. PreusB. Pr. 
 E. § 240. Bluhme, Enoyclopiidie, sect. 190. Bluhme speaks of judicial cog- 
 nizance as taking tlie place of delivery ; but it also takes tlie place of the 
 consent of the community, and makes the transaction a public act. 
 
 * Pothier, OEuvres, vol. ix. p. 425, ed. Bugnet; infra, sect. 529. 
 
250 ACQUISITION OF OWNEKSHIP. [Chap. XII. 
 
 the transferee, simply because ownersMp without possession 
 was not ^ legally recognised situation. If it occurred it was 
 by accident or wrong, and was a defective condition to be 
 remedied as soon as possible. What more was necessary 
 to a change of ownership than a change of possession de- 
 pended upon circumstances. Some things, as for example 
 the res ne mancipi, could be transferred by the mere agree- 
 ment of the parties followed by tradition. Other things 
 could only be transferred when the transfer was carried out 
 by a special procedure. 
 
 521. The original object of this procedure as well as of 
 tradition was, undoubtedly, to accomplish the transfer, which, 
 it was supposed, could not be accomplished without it. But, 
 as simpler means of accomplishing this object suggested 
 themselves, then it was probably seen that the acts which 
 accompanied a transfer served another purpose. It was 
 probably perceived that, besides accomplishing the transfer, 
 which might now be accomplished otherwise, they served as 
 formalities which were useful for the purpose of giving 
 notoriety and certainty to the transaction. 
 
 522. The possibility of a transfer of ownership by arrange- 
 ment between the parties unaccompanied by a transfer of 
 possession had certainly occurred to the Roman lawyers, 
 because they prohibited it. When it first occurred to them, 
 which probably was about the time when it was first pro- 
 hibited, I do not know. The prohibition occurs in the Code ^, 
 and it is from thence that it is usually quoted. I am equally 
 unable to say when the idea of transferring ownership with- 
 out transferring possession became familiar in post Roman law. 
 To some minds it can scarcely be said to be familiar stilP. 
 
 ' Codex Just. 3. 2. 20. 
 
 ^ Heineceius, Book ii. tit. i. sect. 2.39 (quoted by Austin, vol. ii. p. 997), 
 solemnly declares it to be a uniTeraal maxim of law that there can be no 
 acquisition of ownership without tradition. He is refuted by Austin ubi 
 suprk. An English lawyer, Mr. Serjeant Manning, has made a similar 
 assertion (Manning and Eyland's Reports, vol. ii. p. 568 note) ; and he 
 has been answered by Mr. Justice Blackburn (Contract of Sale, p. 189). 
 
Sec. 521-525.] ACQUISITIOK OP OWNBESHIP. 25l' 
 
 523. There are many reasons why delivery of possession Reasons 
 has not held its ground as a necessary condition to the liyery not 
 transfer of ownership. Its most strenuous supporters must "°^ "^''®^" 
 admit that there are many transactions in modem times 
 
 to which the condition of delivery is imsuitable ; and to 
 restore it we should have to revert to a simplicity which 
 it would be now found impossible to maintain. Moreover, 
 the rapidity with which it is generally desired that all 
 business should be transacted would render the cumbrous 
 process of actual delivery intolerable, even where it was 
 possible. Whether or no mankind has, upon the whole, 
 gained or lost by the abandonment of delivery as a condition 
 to the transfer of ownership is not, of course, a question to be 
 considered here. At any rate the change is one which has 
 been very widely accepted. 
 
 524. It is by no means an easy thing to give even the 
 most general idea of the course which the laws of different 
 countries have taken upon the subject of delivery as a condition 
 of the transfer of ownership: and yet some such general 
 survey is almost necessary if we are to look upon our own law 
 as something not merely arbitrary and accidental. One thing 
 can be affirmed generally — that a broad line of distinction is 
 everywhere drawn between the transfer of moveables and 
 immoveables : though of course this distinction is a post 
 Roman one. 
 
 525. It is also desirable to remember, as a general propo- Delivery 
 sition, that though modem systems of law do not generally ,?jjjgj,^^jjt_ 
 make delivery a necessary condition to the transfer of property, 
 delivery of possession is still a matter of very great moment 
 
 in such transactions. It is a large step in legal ideas, and 
 one fraught with consequences of the highest importance, to 
 estabKsh clearly that, if I sell property to you, the property 
 becomes yours immediately the contract is concluded ; that 
 
 These refutations are interesting and instructive, but they were really not 
 necessary ; for, as the Hindoo lawyers say, ' a fact is stronger than a hundred 
 texts.' 
 
252 ACQUISITION OP OWNERSHIP. [Chap. XII. 
 
 you not only have a right to obtain the ownership, but that 
 
 the ownership is actually obtained. But, notwithstanding 
 
 this, it is well to remember that the ownership so obtained 
 
 is, as compared to ownership accompanied by the possession, 
 
 of a very risky kind. 
 
 Precarious- 526. This is very conspicuous in the case of moveables, 
 
 title to which are very frequently and very easily transferred. For 
 
 witho^^^^ example, if A sells a horse to B, the horse may become ^'s 
 
 possession, though he remains in A's stable, and B has never been near 
 
 him during the transaction. But under some systems of law 
 
 if A subsequently sells the horse to C, and G purchases it 
 
 in good faith, then if C takes the horse away it becomes the 
 
 property of C. 
 
 527. The general principle upon which this and numberless 
 similar cases rest is that the transactions of life could hardly 
 be carried on, if, in the case of moveables, it was not safe to 
 deal with the person in possession on the hypothesis that he 
 was the owner. But it is obvious that we have here two con- 
 flicting ideas ; and by the concessions made to both we almost 
 seem to take away with one hand the ownership conferred by 
 the other : in other words, without delivery we give an owner- 
 ship, but one which is so precarious that it scarcely seems to 
 be ownership at all. 
 Trench 528. This appears most strongly in the condition of the 
 
 Law as to , , , , • , , , 
 
 sale with- French law, where there is an actual controversy as to whether 
 delivery ^J ^ ^^^ without delivery the ownership is transferred, though, 
 I confess, I cannot doubt on M^hich side the truth lies. The 
 Code Civil says in express terms that, as soon as a bargain 
 is concluded, without anything more, the ownership passes. 
 But it also recognises in a very large and general way the 
 preferential title of a person who is in possession over one who 
 is not : so that ownership which has been acquired without 
 delivery is especially risky under the French law. Thereupon 
 it has been maintained that until delivery has been made the 
 ownership is not transferred at all ; or what is worse still, that 
 it is transferred or not transferred according as it is the seller 
 
Sec. 526-529.] ACQUISITION OF OWNERSHIP. 253 
 
 or an honest third party who raises the contention. It seems 
 to me clear that those commentators are right who maintain 
 that the ownership is transferred ; a result fraught with con- 
 sequences of the most important and beneficial kind, which 
 would be greatly impaired if any doubt were thrown upon the 
 transfer. But the transferee must remember that there are 
 conveniences which he can only fully enjoy when he is 
 dealing with persons in whom he has full confidence. In 
 dealing with a suspected person the only safe course is to get 
 possession^. 
 
 529. With regard to land the development of the law has Delivery 
 been somewhat different. In the first place, the delivery of ""nd!^^ °^ 
 land is not the same thing exactly as delivery of moveables. 
 Moveables can be placed under lock and key. Land, if it is 
 of any extent, and still more if it is unenclosed, cannot be 
 placed so entirely under the control of the intended possessor : 
 and the possession cannot easily be made notorious. Now 
 notoriety is one of the very things which we desire to secure, 
 and delivery ia order to give notoriety to the transfer must 
 be something more than nominal. On the other hand, another 
 and a very simple and convenient method has been hit upon 
 of giving notoriety and exactness to the transfer of land 
 without troubling ourselves about possession. This may be Publicity 
 described as the insertion in a public office of an account ""lYy^ecur- 
 of the transaction between the parties by which the transfer ^? ^y ^®" 
 
 gistration. 
 
 takes place ; which account is acknowledged by the parties 
 
 '■ See Austin's Lectures (3rd ed.) p. 1003. It will perhaps be onvenient 
 if I quote some passages of the French Code, Art. 11 38, 'EUe (I'obligation 
 de livrer la chose) rend le crdancier propridtaire .... encore que la tradition 
 n'en ait point iti faite;' Art. 1383, "celle (la vente) est perfaite entre les 
 parties, et la propri^t^ est aquire de droit U I'acheteur k lYgard due ven- 
 deur, dfes qu'on est convenu de la chose et du prix, quoique la chose n'ait 
 pas encore 6t4 livrfo, nile prix pay^;' Art. 1141, 'si la chose qu'on s'est 
 oblig^ de donner ou de livrer h deux personnes successivement, est pure- 
 ment mobilifere, celle des deux qui en a 6t6 miso en possession r^elle est 
 pr^f&^e et en demeure propri^taire, encore que son titre soit post^rieur en 
 date, pourru toute fois que la possession soit de bonne foi.' See the 
 observations of M. Marcad^ on these articles. 
 
254 
 
 ACQUISITION OF OWNERSHIP. [Chap. XII. 
 
 Insijiuatio; 
 the origin 
 of registra- 
 tion. 
 
 Extended 
 from gifts 
 to pledges 
 and 
 transfers. 
 
 Notary. 
 
 before a public ofBeer to be correct. It is generally in 
 : fact a copy of the instrument executed between the parties 
 .themselves. The practice of inscribing a copy of private 
 docaments in a public register seems to have been originally 
 introduced by the Emperor Leo in reference to gifts i; the 
 object being, it is said, to enable heirs to ascertain to what 
 claims the estate was liable before deciding whether to accept 
 the inheritance. The proceeding was called itisimiatio, and 
 under that name it survived in the French law down to the 
 time of the Code Civil ^- 
 
 530. The requirement of registration thus established in 
 reference to gifts seems to have been applied in the next 
 instance to the pledge of land. The reason of this was 
 obviously in order to supply the publicity which was wanting 
 in a pledge ; this being a transaction to which delivery was 
 earliest resolved not to be suitable. But a pledge always 
 contemplates a possible sale, and consequently pledges and 
 sales are very closely connected : whence we find that rules of 
 registration are frequently extended from pledges to sales 
 also ; and in fact to all dealings with land whatsoever. 
 
 531. The law of registration on the continent of Europe 
 can hardly be comprehended, even generally, without advert- 
 ence to an officer scarcely known in England in connexion 
 with land, but who in other countries plays a very important 
 part in all transactions of business : I mean the notary, or 
 notary public^. The resort, which is had upon almost all 
 occasions in France and Italy to a notary to draw up the 
 documents relating to any business in hand, is no doubt 
 partly based on the rigid adherence to forms, which has 
 prevailed in countries of which the legal systems are based 
 upon the Roman law. It is also partly based upon the 
 
 ' Codex Just. Book viii. tit. 54. sect. 30. 
 
 " Pothier, CEuvres, vol. i. p. 364 ; ed. Bugnet. 
 
 ^ The Latin term which appears to correspond most nearly with ' notary ' 
 in the modern sense is tahellio. For an account of the many changes in the 
 nature of the office of notary, see Savigny, Geschichte dea Eomischen Rechts, 
 chap. 2. sect. 16; chap. 6. sect. 140. 
 
Sec. 530-534.] ACQUISITION OF OWNEESHIP. 255 
 
 immense convenience which results to the parties from the 
 credit which attaches to a notarial transaction ; such a trans- 
 action being always presumed to be valid and binding, until 
 it has been impeached and set aside, by a separate proceeding 
 instituted for that purpose. But still it would be incorrect Notarial 
 to consider the notary as the mere private agent of the tiona are 
 parties, or merely as a person of superior fidelity. Under P"^""" ^°*^- 
 the French law the notary is clearly a public ofiicer, and his 
 intervention is looked upon as the intervention of the public 
 authority, which through its officer ratifies the transaction. 
 
 532. In France all documents executed in the presence ofTranaorip- 
 a notary having any reference to the creation or transfer of 
 
 an interest in land are transcribed by him in a public register, 
 which register is most carefully kept and is rendered as far as 
 possible available for general information'. 
 
 533. In Germany the transfer of ownership in land is a German 
 strictly judicial proceeding. The private transaction between 
 
 the parties which leads them to desire the transfer is not 
 noticed. They apply to the court for a transfer and that is 
 enough. This application assented to by the court forms 
 one stage in the proceedings (Auflassung), and the other 
 is the entry of the transferee's name on the register (Ein- 
 tragimg) ^- 
 
 534. There is no registration of the kinds above described No regis- 
 
 tration 
 
 ^ The following references may be useful, if more information is desired 
 upon this subject than is given in the above slight sketch. The transcription 
 of pledges at the Bureau des Hypothi?ques is provided for in France by 
 the Code Civil, art. 2146; the transcription of gifts iiiter vivos by art. 939. 
 The registration of all documents relating to land when executed privately 
 (sous signature privie) is required by the Loi du 22 frim. an xi. The general 
 regulations as to the office and duty of a notary are contained in the Loi 
 du 35 vent, an xi. See the Italian Civil Code, art. 1315 sqq., Dell' atto 
 publico, and art. 1932 sqq. Delia trasorizione. 
 
 " See Eonne, Staatsrecht der Preussischen Monarchie, sect. 362 (Grundbuch 
 und Hypotheken-wesen) ; and the rules relating to the oflace and duty of 
 notary, o. 364. See also Dernburg, Lehrb. d. Preuas. Pr. E. vol. i. §§ 193, 
 240. The transfer of land by fine and recovery in England and the statute 
 of enrolments has some resemblance to the transfer by judicial act of con- 
 tinental law. 
 
256 ACQUISITIOK OF OWNEESHIP. [Chap. XII. 
 
 necessary in England. The registration of Middlesex and Yorkshire 
 
 to sale of r-'i 1 TCI ■ 1-1 
 
 land in does not lumish a complete record of the transactions which 
 ng an . ^^ff^^^ ^]^q ]3ji^(J . ^qj. jg ^ registered transferee even safe against 
 subsequent transactions. In Ireland registration is more 
 effectual ; but even there registration is not essential to the 
 validity of a transfer : all that the law says is that a registered 
 transfer is to be preferred to an unregistered one^. The 
 subject of registration has been much discussed in England 
 during the last thirty years, and more than one attempt to 
 establish a system of registration has been made without 
 success. But it has never been even contemplated to make 
 registration essential to the transfer of ownership and other 
 rights over land. Now unless this be done the security 
 afforded by registration can never be fully attained. If some 
 body who is not on the register has got rights over the land, 
 the person who is on the register may be affected by them. 
 He may have a prior claim, but priority is a very different 
 thing from exclusion : it is not so effectual, and it is very 
 easily lost. 
 
 535. Whilst, however, in England we have no record of the 
 history of transactions relating to the ownership of land in 
 the public archives, that record is generally found to exist 
 to some extent in certain documents which every owner 
 of land possesses. It is the almost universal custom to 
 narrate in private documents, at great length, and with 
 very frequent repetition, the history of every transaction 
 relating to landed property ; and many other events which 
 affect the ownership besides actual transfers are there stated, 
 such as mortgages, trusts, marriages, deaths, and so forth. 
 All the documents containing this narrative are carefully 
 preserved, and form what are called the 'title deeds' of 
 the property ; and unless this narrative is tolerably complete, 
 and can be either handed over to the purchaser or rendered 
 otherwise accessible to him, it is scarcely possible to take 
 
 ^ Report on Eegistration of Title, 1857, P' '5 > Second Report of Eeal 
 Property Commissioners, p. 35. 
 
Sec. 535-537.] ACQUISITION OP OWNERSHIP. 257 
 
 land into the market at all ^. And the protection afforded Their use 
 by this practice is in some respects analogous to that which tection to 
 is afforded in other countries by registration. Claimants P""'"'^''^®'^^' 
 who do not appear upon this private record are not absolutely 
 excluded. Nevertheless, if after the most thorough and 
 careful examination of this record by persons of great skill 
 and experience, there be still any claim to or upon the 
 property which has not been discovered by the purchaser, 
 he wiU, at least if he has actually got into possession, most 
 probably be protected against it. But if he has, or might 
 have had by due diligence what is called notice of the claim, 
 he must give up the property or buy off the claimant. 
 
 536. On the other hand, the very act of bringing together 
 every transaction relating to land and placing them all in a 
 lump rmder the eye of the proposed transferee is in one 
 respect a positive disadvantage, at least in England. For in 
 England the transactions of landowners with their land are 
 so numerous and complicated, the powers of disposition are so 
 wide, and the interests in land are so various, that even with 
 a complete history of the property before you, it involves 
 a very long, troublesome, and expensive inquiry to ascertain 
 whether as a result of all these numerous transactions the 
 transferor has or has not a good title to deal with the 
 property in the way he proposes. There are many of these 
 transactions which have long ago ceased to have any 
 operation upon the property; but of course a careful person 
 will desire to assure himself that this is the case, and this 
 is a very costly operation. The small advantages, therefore, 
 of registration in England are balanced by serious disad- 
 vantages. 
 
 537. The matter is mixed up with the complications 
 arising out of the competing systems of law and equity. This 
 I can best illustrate by an example. Suppose A agrees to 
 sell his land to S but does not execute a conveyance: and 
 
 ' An owner who brought his land to market without deeds would be looked 
 upon with suspicion : Sugden, Vendors and Purchasers, 14th ed., p. 438. 
 
 S 
 
258 ACQUISITION OF OWNERSHIP. [Chap. XII. 
 
 he afterwards agrees to sell tlie same land to C and does 
 execute a conveyance to C. C is the legal owner of the land: 
 and B must sue A for his breach of contract. But B has 
 been all along the equitable owner : this equitable ownership 
 will, however, be annihilated upon the conveyance being made 
 to C, provided that C was not aware of the sale to ^. If C 
 was aware of the sale to B then C's ownership is annihilated, 
 and the real ownership is maintained in B. Hence the 
 very ignorance of C may be that which furnishes his 
 protection^. 
 Notice. 538. It will be seen from what I have said in the last three 
 
 paragraphs that the doctrine of notice plays a very important 
 part in the transfer of ownership of land. This doctrine 
 is founded, no doubt, on a perfectly correct and just principle. 
 For some purposes and to some extent the apparent owner 
 of property must be treated as the real owner, and whilst 
 our law allows almost unlimited freedom in the creation 
 of rights over things, and has almost whoUy abolished or 
 declined to adopt the rules which require that the creation 
 of such rights should be completed by some public and 
 notorious act, it still protects those who have purchased in 
 good faith from persons who are reputed to be, and have 
 all the appearance of being, owners. But, on the other hand, 
 persons who know of the existence of claims to or over 
 the property which they seek to acquire have not the same 
 right to this protection. From this point of view the doctrine 
 Cannot be of notice is unimpeachable. The objection to the doctrine 
 defiue^^ ^ ^^ notice is that it combines technicality with cumbrousness 
 and extreme indefiniteness. If we consider notice as merely 
 signifying knowledge, we have even then a question of fact 
 which it is sufficiently difficult to determine. But notice 
 
 ' Hence the endeavours used by conveyancers to ' keep off ' from their title 
 transactions which might give rise to troublesome inquiries. Sometimes 
 vendors protect themselves by special stipulations against the necessity of 
 satisfying these inquiries, and recent legislation has facilitated the obtaining 
 this protection. 
 
Sec. 538-539.] ACQUISITION OP OWNERSHIP. 259 
 
 has by no means this simple signification. It means some- 
 thing more than this, but what more no man can tell. 
 It is described sometimes as constructive notice ; sometimes 
 as implied notice ; sometimes as notice in law. An ex- 
 perienced conveyan,cer could, indeed, in most cases, make 
 a very fair guess whether the Courts of Chancery would 
 treat a thing as notice or not. But for a private person 
 to attempt to form an opinion upon this point would be 
 highly dangerous, and the attempt to instruct people as 
 to what notice is by giving a description of it has been 
 given up as hopeless^- The consequence is that all trans- Great ex- 
 actions relating to landed property in England have to be ^vestigat- 
 conducted by several sets of very highly qualified, and ^'^ *'*'^®- 
 therefore of course also very highly paid experts ; and 
 the most difiicult and intricate inquiries have to be made 
 on every occasion that any such transaction takes place. 
 The enormous expense and cumbrousness of such transac- 
 tions no doubt operate very extensively as a check upon 
 the alienation of landed property : and^ this result has made 
 this inconvenience less unpopular with landowners than it 
 would otherwise assuredly have been ^. 
 
 539. I do not profess that this is at all a complete state- Difficult to 
 ment of the law of England on this subject, which is ofj^^^^f 
 extraordinary compKcation ; partly on account of the very transfer. 
 large licence allowed to owners of property in loading it 
 with trusts, and in making posthumous and substitutional 
 dispositions of it ; partly because our law has not been made 
 on any plan, and has been allowed, to some extent at least, 
 to grow out of selfishness and caprice ; but chiefly on account 
 of the peculiar conflict which exists between courts of law 
 
 ' Sugden, Vendors and Purchasers, p. 781, I4tli ed. 
 
 " The recent acts relating to the conveyance of land have prepared the way 
 for an extensive simplification of the law, but that simplification remains still 
 to be made. The scheme of the framers of these acts seems to be to make the 
 law easier to work upon the old principles ; a considerable boon, no doubt ; but 
 all that is required cannot be obtained by working upon the old lines, and 
 merely improving the old machinery. 
 
 s a 
 
260 ACQUISITION OF OWKEESHIP. [Chap. XII. 
 
 and equity : one set of courts recognising one person as 
 owner, the other set of courts recognising another person 
 as owner, of the same property at the same time, and under 
 the same circumstances ; and each set of courts persistently 
 keeping out of view that which the other recognises : for 
 which reason no proposition about the transfer of ownership 
 can be stated very accurately, and at the same time afSrmed 
 to be generally true. But what I have said may serve 
 to give the student some notion of the point of view from 
 which the matter is dealt with by English lawyers. 
 Bills of 540. It is observable that whilst the English law has not 
 
 Bale. .... „ 
 
 adopted any general system of registration in respect oi 
 land, the registration of sales of personal property, when 
 possession is not taken by the transferee, is necessary. The 
 registration is, however, necessary in this case, not in order 
 that the ownership may pass to the transferee, but in order 
 to prevent the transferee being deprived of the ownership 
 which he has acquired. This annulment of the transferee's 
 ownership can only be demanded on behalf of the creditors 
 of the transferor: the principle of the act being that a 
 transfer made under such circumstances is not void, but 
 presumably fraudulent. 
 Effect of 541. The effect of the omission of the formality is, I 
 fonnalitiea. think, in this case clear. The ownership is in the transferee 
 without registration, and it is not affected until the transfer 
 is impeached by a creditor. But there are other cases in which 
 it is doubtful whether a formality, which is clearly neces- 
 sary to make a title unimpeachable, is also to be considered 
 as a condition which must be fulfilled before the ownership 
 can pass. A doubt of this kind has, it will be remembered, 
 arisen with regard to tradition under French law ; and the 
 same doubt has arisen in Germany with regard to the 
 position of persons who, from no fault of their own, have 
 not got their names upon the register, but have got into 
 possession'^? In England a person to whom a complete 
 
 ' See Dernburg, Lehrb. d. Pr. E. vol. i. § 240. 
 
Sec. 640-542.] ACQUISITION OF OWNEESHIP. 261 
 
 conveyance had not been made, but who was entitled to 
 demand it, would be looked upon as equitable owner, which 
 in all essential particulars differs only from legal ownership 
 in this, that it is liable to be defeated by a subsequent pur- 
 chaser for valuable consideration without notice who has got 
 the legal estate. 
 
 542. There is also a set of rules which affect the mode of Rnles as to 
 transferring ownership and other rights over things which transfers 
 are based upon a principle distinct from that of securing . ®° ''^^' 
 
 r r r o ing neces- 
 
 publicity, but which also work to that end. These are rules sary. 
 which are primarily intended to prevent litigation by securing 
 facility of proof. Every transfer of ownership in the nature 
 of a sale or gift, involves a contract which may be coin- 
 cident with the transfer of ownership, but is very often 
 separated from it by an interval of time. Moreover a sale 
 very frequently, and a gift less frequently, may be a com- 
 plicated transaction. The exact extent of the ownership 
 transferi-ed has very often to be scrupulously defined ; certain 
 jura in re are frequently reserved, and the transaction is 
 generally, not a mere transfer of a simple right, but is 
 accompanied by covenants, agreements, and conditions be- 
 tween the parties, giving rise to a variety of rights in rem 
 and in personam. Unless, therefore, the sale be of articles of 
 immediate consumption, the possession of which is at once 
 transferred^ and the price paid, the terms of the contract may 
 come into question some considerable time after it has been 
 concluded. Having regard, therefore, to the fallibility of 
 oral testimony as to past transactions, the parties to the 
 transfer are in many cases required by the law to put their 
 intentions into writing, so as to avoid the endless disputes, 
 and evea fraud and perjury, which would inevitably arise if 
 important transactions were entrusted to the memory of 
 witnesses. Thus the Statute of Frauds in England, as a 
 general rule, requires a writing in all transactions relating 
 to land, or to goods valued at over ten pounds. In Prussia 
 it is required in all contracts of the value of seven pounds 
 
262 ACQUISITION OF OWNERSHIP. [Chap. XII. 
 
 ten shillings ^ ; in France in all contracts of the value of 
 six pounds ^. But as soon as a transaction has been recorded 
 in writing it is much more likely to become notorious than 
 if it had passed by word of mouth only. 
 Otter 543. Sometimes other solemnities besides a writing have 
 
 besides been necessary in order to render a sale effectual, which have 
 ■»^>tiiig- heQ^o. introduced in order to secure facility of proof. The 
 French law, for example, contains some very minute and 
 irksome provisions as to the form of signing and drawing 
 up contracts^. And before the art of writing was as well 
 known as it is now, instead of a writing some other for- 
 malities were in use in order to make the intention clear, 
 and to impress the transaction on the memory of the parties * ; 
 such as shaking of hands, nodding the head, the repetition of 
 certain formulae, giving of earnest money, and so forth. 
 Some of these forms still linger in the habits of the 
 people. 
 Distinction 544. There is an important distinction between the two 
 rules^o? classes of ceremonies which I have above referred to. For 
 
 proof and -^Yhereas omission of ceremonies of the first-mentioned class, 
 other rules. 
 
 such as delivery or registration, usually only affects the 
 
 validity of the transaction as regards third parties — that is 
 to say, it affects only the transfer of the ownership or right 
 in rem, but not the creation of the obligation or right in 
 personam — the omission of those of the last-mentioned class 
 affects the validity of it as regards the parties to the trans- 
 action itself. This is a consequence of the political origin of 
 the two sets of rules. FaciKty of proof is as much required 
 between the actual parties to the transaction as where third 
 parties are concerned : whereas publicity only concerns third 
 parties, and the rules which ensure it therefore only come 
 into play when third parties come forward. It is for this 
 
 ' Fifty thalers; Allgemeines Landreoht, Part i. tit. v. sect. 131. 
 
 ^ One hundred and fifty francs ; Code Ciyil, art. 1341. 
 
 " Loi dui 25 vent, an xi. sect. 2 ; Roger et Sovel, Lois Usuelles, p. 574. 
 
 * Bluhme, Encyclopadie, sect. 80. 
 
Sec. 543-544.] ACQUISITION OF OWNERSHIP. 263 
 
 reason that the two sets of ceremonies must be kept apart. 
 In point of fact, however, all the rules as to solemnities do 
 co-operate in enforcing both the objects mentioned above; 
 all of them tend to make the transaction public ; all of them 
 assist in facilitating proof. 
 
CHAPTER XIII. 
 
 ON PEESCEIPTION. 
 
 Aoquisi- 
 tion of 
 rights by 
 time. 
 
 How 
 
 justified. 
 
 Koman 
 Law, 
 
 545. In nearly every system of law it is recognised that, 
 if a person has been in possession of a thing, or in the 
 enjoyment of a jus in re aUena for a considerable time, defects 
 in his title or in his manner of acquiring ownership are cured. 
 Sometimes all these defects are cured ; at other times some of 
 them only : and some defects are more quickly cured than 
 others. 
 
 546. The justification of this institution is to be found in 
 the inconvenience and hardship of disturbing a possession 
 which has been long enjoyed. 
 
 547. In the Roman law we find at a very early date this 
 principle acknowledged. It was there called usus or usucapio- 
 By the law of the Twelve Tables it was ordered, ' usus auc- 
 toritas fundi biennium, ceterarum rerum annus esto.' ' Usus ' 
 here signifies possession, and ' usu capere ' signifies to acquire 
 ownership by possession ^. In the early Roman law owner- 
 ship was acquired after two years in the case of land ; and 
 in one year in other cases. But to have this effect the 
 
 ' The principle by which ownership is made in the case of moveables to 
 follow possession independently of usucapio (supra, s. 506 sqq.) was, I believe, 
 unknown to the Roman Law. 
 
*^ee. 54S-550.J ON PKESCEIPTIOK. 265 
 
 possession must have been acquired on a justa causa, whicli, 
 I think, an English lawyer would translate ' under colour of 
 right,' and the possessor must also have acted bona fide : so 
 that really the only defects cured were defects in the manner 
 of acquiring ownership ; defects of form, as we say, and not 
 defects of substance ^. 
 
 548. The rules of Roman law relating to the acquisition of Recast by 
 ownership by prescription varied from time to time. They 
 
 were recast by Justinian, and in this process, or soon after it, 
 a change of name was effected which it is important to 
 understand, but to explain which I must first go a little out 
 of my way to notice another institution. 
 
 549. Side by side with the usucapio, and at many points Eules of 
 closely connected with it, was a rule which simply said that ;™Koman 
 persons who sought the protection of the law must seek it 1*^- 
 within a certain prescribed period after the cause of complaint 
 
 had arisen. There were many cases in which a person 
 against whom a claim was asserted could meet it by simply 
 saying that it was asserted too late. This plea of the 
 defendant was called by the Roman lawyers ' praescriptio.' 
 The first general rule requiring all actions to be brought 
 within a specified time is found in the Theodosian Code, 
 which fixes the time at thirty years, but it existed in par- 
 ticular cases long before that time ^. 
 
 550. It is plain that a plea that the claim is asserted too Effect of 
 late (prsescriptio) efiects some of the objects which are more 
 
 fully attained by usucapio. If A has got into the possession of 
 the property of JB, and JS seeks to recover the property, it 
 will answer just as well, in order to repel £, to say that he 
 has made his claim too late, as to say that his ownership is 
 transferred to A by lapse of time. But if A were out of 
 possession and the thing had got into the possession of C the 
 
 ' As a general statement this is, I believe, true ; but there was in certain 
 special cases usucapio which cured the graver defects of title, and which, 
 on that account, was called ' luorativa.' 
 
 ' Cod. Theod. 4. 14. Cod. Just. vii. 39. 3. Demburg, Syst. d. Preuss. Pr. 
 Rechts, vol. i. § 163 ; Windscheid, Lehrb. d. Pandekten-rechts, s. 105. 
 
266 
 
 ON PRBSCEIPTION. 
 
 [Chap. XIII. 
 
 Change in 
 tlie mean- 
 ing of pre- 
 scription. 
 
 Prescrip- 
 tion in 
 English 
 law. 
 
 difference between usucapio and a simple plea that the action 
 is brought too late becomes at once apparent. If there has 
 been usucapio A can successfully sue C, but the plea is here 
 useless to him. 
 
 551. But it appears that in many cases a person who, 
 strictly speaking-, could only have had the benefit of the plea 
 that a suit against him to recover the property was brought 
 too late, was allowed by the praetor to recover the property 
 from a third person who had got possession of it. Prac- 
 tically, in all these eases the praetor gave to the party who 
 had the plea the benefit of usucapio, though the ownership 
 thus given was only bonitary and not quiritary ownership. 
 But Justinian abolished the distinction between these two 
 kinds of ownership, and he also gave the ownership in a good 
 many cases where previously the possessor would only have 
 had as a defence the plea that the action was brought too 
 late ; and partly perhaps for this reason, and partly also 
 because there was some confusion as to the true nature of 
 the two institutions, the term usucapio was dropped out of 
 use by writers on the Roman law subsequent to the Code, 
 and the term prescription was applied to both. This has 
 been continued down to the present day. Thus in France and 
 Italy whether a man claims that ownership is transferred to 
 him by possession, or whether he defends himself on the 
 ground that the action is brought too late, he calls it pre- 
 scription. In Germany the acquisition of ownership by 
 possession is called 'Ersitzung,' and the bar to the action 
 ' Verjahrung.' We use in England the terms prescription 
 and limitation. And inasmuch as the two things are really 
 different it is better to have the two names. 
 
 552. In England the word 'prescription' (as defined by 
 Lord Coke) ^ signifies the acquisition of title by length of 
 time and enjoyment. This would serve as a general de- 
 scription of usucapio, but nevertheless we shall see that 
 the prescription of English law differs in some important 
 
 » Co. Litt. 113 b. 
 
Sec. 551-553.] ON PKESCEIPTIOK. 267 
 
 particulars from both the usucapio of the earlier Roman law 
 and the prescription of the later. 
 
 553. As regards the eifect of time upon the right, there are 
 three positions to consider. A right may either be transferred 
 by possession, or it may be barred by non-claim, and if barred 
 by non-claim, it may be either extinguished altogether, or only 
 denuded of its ordinary legal protection. So at least it is con- 
 sidered by jurists, and many disputes have arisen as to which 
 view ought to be taken ^. The difference is not unimportant : 
 for a right may be useful for some purposes, even where it is 
 not enforceable by action. If, for example, the owner out 
 of possession gets back peaceably into possession, and his 
 ownership has been in the meantime transferred by prescrip- 
 tion, he is in possession wrongfolly. If his ownership has 
 only been extinguished he may not be in possession wrong- 
 fully, and he may be in possession as owner, but not of his 
 old ownership. If his former ownership were not extinct, 
 but only his action, he would be restored to his old ownership 
 with aU the rights attaching thereto. 
 
 554. Nearly all English lawyers, led by Blackstone, lay it Prescrip- 
 down as a general rule that the acquisition of the ownership pUed to 
 of land by prescription is unknown to the English law^. ^^ ' 
 This is not the language of either Littleton or Lord Coke, 
 
 and I do not think it is correct. No doubt the form of 
 English legislation has generally been to bar the action : 
 and the principle of acquisition of ownership in land by 
 possession has nowhere been directly affirmed. But such 
 acquisition appears always to have been, and still to be, 
 possible. 
 
 555. The early method of legislation on the subject is Early 
 
 T-, , o rm • -n 1 T legislation. 
 
 thus described by Lord Hale^: — 'The use was m England 
 to limit certain notable times within the compass of which 
 those titles which men designed to be relieved upon must 
 
 ' See Unger, System d. osterr. Allgem. Pr. B. vol. ii. p. 435. 
 ^ Blackstone, Comm. vol. ii. p. 264. 
 ^ History of the Common Law, p. 122. 
 
268 ON PEBSCRIPTION. [Chap. Xm. 
 
 accrue. Thus it was done in the time of Henry III by the 
 Statute of Merton, cap. 8, at which time the limitation in 
 a writ of right was from the time of king Henry I, and by 
 that statute it is reduced to the time of king Henry II, and 
 for assizes of mort d'ancestor they were thereby reduced 
 from the last return of king John out of Ireland, and for 
 assizes of novel disseisin a prima transfretatione regis in 
 Normanniam . . . And this time of limitation was also after- 
 wards, by the statutes of Westm. I. cap. 39 and Westm. II. 
 cap. a, 46, reduced unto a narrow scantlet, the writ of right 
 being limited to the first coronation of king Richard I.' 
 
 Modern 556. This practice of renewing from time to time the 
 
 periods of limitation for the recovery of land was afterwards 
 discontinued, and a general period of twenty years was fixed 
 by the 33 Hen. VIII, c. a, and ai Jac. I. c. 16. The law was 
 amended by the 3 and 4 Will. IV, c. 37, and the period was 
 reduced to twelve years by 37 and 38 Vict. c. ^J. 
 
 Possession 557. Now to Understand the position of a person in pos- 
 
 as evidence -pit ■ • t • 
 
 of title. session of land under these statutes it is necessary to bear in 
 mind that possession itself is presumptive evidence of title. 
 This is certainly so in English law. And this presumption 
 would of itself alone be sufficient both to protect the pos- 
 sessor against intruders, and to enable him to recover against 
 any person who wrongfully deprived him of possession, were 
 it not that it can be turned against himself. For if it can 
 be shown that some one else was in possession earlier still, 
 the presumption may be that that person was the owner, and 
 this presumption the second possessor can only meet by show- 
 ing that the ownership has really passed to himself ^- 
 
 Operation 558. But here the statutes come in and greatly assist the 
 
 of statutes. j. i i -l i i • • j_ j_ xi 
 
 party who has been long enough m possession to get the 
 benefit of them. Suppose, for example, that A is the owner 
 of land, of which B gets into possession and remains in pos- 
 session for twelve years, and after that C gets into possession. 
 
 ' See and compare Doe v. Carter, Queen's Bench Eeports, vol. ix. p. 863, 
 and Doe v. Barnard, ib. vol. xiii. p. 945. 
 
Sec. 556-560.] ON PRESCEIPTIOK. 269 
 
 If B sues C he can ask to have his title presumed as against 
 C from his prior possession. And if G sets up the still prior 
 possession of A he will be met by the statutes of limitation. 
 For the modern statutes of limitation, after the necessary 
 period has elapsed, certainly extinguish ^'s title. That is 
 a settled point of English law. The title of A cannot, there- 
 fore, be set up against B, and B's title will be impregnable. 
 
 559. This is the case of one man (B) holding for twelve 
 years. If several persons in succession hold the property, 
 then also after the lapse of twelve years ^'s title will be 
 extinguished. But whether the person actually in posses- 
 sion has an impregnable title would depend upon circum- 
 stances. If a period of twelve years could be made up by 
 successive possessors succeeding each other by descent, will, 
 or conveyance, the last of such persons would be secure^. 
 No presumption would arise from any previous possession 
 which would injure him. The doubtful case is where the 
 necessary period is made up by a succession of persons who 
 are strangers to each other, no one of whom has himself held 
 for twelve years. This is a very rare case, and it is not easy 
 to say how it is provided for by English law. But setting 
 aside this doubtful case, the statement that there can be no 
 acquisition of ownership of land in English law can hardly 
 be maintained. 
 
 560. From the peculiar way in which the law on this Bona fides 
 subject has grown up in England certain restrictions which causa. 
 are elsewhere placed upon the acquisition of ownership by 
 possession, are neglected in the English law. It is a general 
 
 rule of jurisprudence that neither bona fides nor justa causa 
 are in question when the defendant pleads limitation as a bar 
 to an action. But it is also a general rule of jurisprudence 
 that when it is asserted that a title has been gained by 
 prescription, then the judge ought to see how the party got 
 into possession, and ought not to allow a title to be acquired 
 dishonestly, or, at least, he ought not to allow it to be ac- 
 ' See the case of Aslier ». Wiitelock, Law Kep., Q. B,, vol. i. p. 1. 
 
270 
 
 OK PEESCBIPTIOE'. 
 
 [Chap. XIII. 
 
 Preserip 
 tion ap- 
 plied to 
 
 quired so soon. But in the English law this distinction has 
 been to a great extent overlooked, probably because we have 
 not kept clearly distinct the principle of limitation by which 
 actions are barred, and the principle of prescription by which 
 titles are acquired. 
 
 561. As regards moveables the question whether and when 
 the ownership of them is transferred by prescription very 
 
 movea es. ggj^^Qj^ arises, because, whatever may be the form of action, 
 all that the owner of moveables can, except in very rare cases, 
 obtain, is compensation for his loss, and not the goods 
 themselves in specie. And this claim for. compensation is very 
 soon barred. The question might arise in practice if the 
 party to whom the goods originally belonged got back into 
 possession, after all his remedies for the recovery of the goods 
 or their value had been barred. It would then be necessary 
 to decide whether his ownership had been extinguished, as in 
 the case of land ; and it would be somewhat strange if the 
 courts were to hold that the ownership of moveable property 
 remained, when under analogous circumstances the ownership 
 of land was extinguished. If it were considered that the 
 ownership of moveables was extinguished, there might still be 
 a question, who has acquired the ownership ? Practically this 
 would come back to the question of the effect of possession as 
 affording presumption of title, for, as in the case of land, pos- 
 session of moveables is presumptive evidence of title. 
 
 562. The acquisition by prescription of jura in re has, in 
 the English law, got into considerable confusion. Conse- 
 quently, whenever questions arise upon this topic of law, 
 judges find themselves in serious difficulties. This confusion 
 has, I think, arisen from the principles which govern prescrip- 
 tion proper not having been distinguished from the principles 
 which govern another institution to which English lawyers 
 also apply the name of prescription, but which ought to be 
 kept distinct. The English law of prescription as applied to 
 the acquisition of jura in re aliena, besides covering the 
 acquisition by enjoyment for a certain definite time, also 
 
 Prescrip- 
 tion ap- 
 plied to 
 jura in re 
 aliens. 
 
Sec. 561-564.] ON PRESCEIPTION. 271 
 
 comprehends the acquisition by enjoyment from time im- 
 memorial. Now the principles of acquisition in the two 
 cases are distinct : and I shall endeavour to explain the 
 distinction. 
 
 563. The acquisition of rights by enjoyment from time Enjoyment 
 immemorial is a principle of very wide application. At the immem?-^ 
 present day it is by no means confined to the acquisition of "''^^ 
 jura in re aliena. It is even applied in public law. Savigny 
 gives an instance of this from the history of England ^. For 
 a considerable period after the Revolution of 1688 many 
 conscientious persons felt doubts as to the legality of the 
 existing government. But before the death of the last of the 
 Stuarts in 1806 those doubts had ceased. This could not be 
 because the existing government had gained a right by 
 ordinary prescription, for there could be none in such a case. 
 The principle which operated was that of acquisition by 
 ' time immemorial,' which is thus stated by Savigny : — ' When 
 a condition of things has lasted so long that the present 
 generation never knew any other, and their forefathers knew 
 no other, then it must be assumed that this condition of 
 things is so bound up with the convictions, feelings, and 
 interests of the nation that it cannot be disturbed.' Savigny 
 considers that in the Roman law the principle of time im- 
 memorial applied only to three kind of rights — viae vicinales ; 
 rights connected with the prevention of floods ; and rights 
 connected with the supply of water. He seems to think that 
 it was as being matters of pubKc concern that the principle of 
 time immemorial was applied to these rights. The notion of 
 the Roman lawyers seems to have been that in regard to a 
 thing ' cujus memoriam vetustas excedit,' if the public were 
 interested in it, they ought to treat the case in the same 
 way as if a lex had authorised it^. 
 
 564. As regards the length of time which would be Length of 
 considered time immemorial the common expression is ' cujus required. 
 
 1 Safigny, Syst. d. L. Pr. E. §. 195. ' lb. § 196. 
 
272 
 
 ON PRESCRIPTION. 
 
 [Chap. XIII. 
 
 Preaump- 
 tion of 
 
 origin. 
 
 Com- 
 parison 
 between 
 English 
 and Eomau 
 Law. 
 
 contrarii non exstat memoria^.' The ' contrarii memoria ' seems 
 to mean a recollection of the time when no such right existed. 
 If there is memoria of this, any presumption in favour of the 
 right is excluded. And the result of two passages in the 
 Digest upon the subject appears to be, that if any person 
 comes forward and can say, either from his own recollection 
 or from the information of others speaking from their own 
 recollection, that the thing was at one time illegal, the pre- 
 sumption will be excluded. But more ancient information 
 than this as to any illegality would not be sufficient^. 
 
 565. There have not been wanting persons who consider 
 that between acquisition by prescription and acquisition by 
 enjoyment from time immemorial there is no real distinction 
 of principle : that the root of the acquisition in both cases is 
 the long enjoyment ; and that if time immemorial cures any 
 defects which prescription does not, that is only because in 
 the former case the enjoyment has lasted longer. The other 
 view is, that in the case of time immemorial there is no 
 acquisition of right, but only presumption in favour of the 
 legal origin of a right which has been long enjoyed*. The 
 two views are entirely distinct, and the difference is of great 
 practical importance. For if there be an assumption of a 
 legal origin, that assumption may be rebutted by the party 
 opposing the claim bringing evidence to show that the 
 assumption is unfounded. Of these two theories the English 
 law has adopted that of the presumption of a legal origin 
 with the consequence indicated, that the right can be 
 defeated by showing that at some time within legal memory 
 the right did not rest upon a legal basis. 
 
 566. If we consider the English law we shall find that 
 an English lawyer when he speaks of prescription is nearly 
 always thinking only of the acquisition of jura in re aliena, 
 
 , § 198. An equivalent, though more general expression ia 
 'vetustaa,' § 196 note (p). The 'contrary' in English law means simply 
 ' a different condition of things.' 
 ^ lb. § 199 (p. 517) and § 206 ad. fin. » lb. § 206. 
 
Sec. 565-567.] ON PRESCEIPTIOK. 273 
 
 and having in his mind rights of this kind he frequently says 
 thab our rules of prescription are derived from the Roman law. 
 It has indeed been said, that the law of England ' as cited by 
 Lord Coke from Bracton, exactly agrees with the Civil law^,' 
 by which is probably meant the Corpus Juris Romani as 
 understood by the commentators upon it. But to this extent 
 I am unable to go. I doubt whether the present law of 
 England on this subject can be identified with that laid down 
 by Bracton ; or that laid down by Bracton with what is called 
 the Civil law. I must first remark that Lord Coke, in the 
 passage referred tOj misquotes Bracton. He applies to the 
 acquisition of things incorporeal words which Bracton ex- 
 pressly limits to the discussion of the acquisition of things 
 corporeal; the acquisition of rights over things incorporeal 
 being reserved by Bracton for the following chapter, which 
 contains nothing directly bearing upon the subject of pre- 
 scription ^- Bracton, indeed, as far as I can discover, nowhere 
 treats directly of the acquisition by prescription of rights other 
 than ownership, except in the single case of common of 
 pasture ; to which passage Lord Coke also refers, but which 
 again he does not correctly quote ^. 
 
 567. Moreover, neither as regards corporeal things, nor as 
 regards incorporeal things (so far as he treats of them), would 
 it, I believe, be safe to affirm that Bracton's rules of pre- 
 scription are identical, either with the strict Roman law, or 
 any modification of it, which may at any time have been 
 
 ' Gale on Basementa, p. 122. 
 
 ^ Coke upon Littleton, fol. 113b. The passage of Bracton to which Lord 
 Coke refers is in book ii. chap. xxii. fol. 51b. The words are, 'Dictum est in 
 precedentibus, qualiter rerum corporalium dominia ex titulo et justS, causS 
 aoquirendi transferuntur per traditionem. Nunc autem dicendum qualiter 
 transferuntur sine titulo et traditione per usucaptionem scilicet per longam, 
 continuam, et pacifioam possessionem, ex diuturno tempore et sine traditione.' 
 The acquisition of things incorporeal commences (as he tells us) in chrpter 
 xxiii. I have not overlooked the passage at the end of chapter xxii., where 
 Bracton undoubtedly speaks of easements, but only of their possession, which 
 he certainly does not say will confer a title, and rather implies the contrary 
 (' ita quod taliter utens sine brevi et judicio ejici non poterit'). 
 
 ^ Bracton, book iv. chap, xxxviii. fol. 222 b, 
 
 T 
 
274 ON PEESCEIPTION. [Chap. XHT. 
 
 known as Civil law. As regards corporeal things, Bracton 
 ignores the distinction, so important in the Roman law, 
 and never lost sight of by the commentators upon it, between 
 possession which is founded on a just title and possession 
 which is not ; contenting himself with the far less compre- 
 hensive requirements, that the possession must be continuous 
 and peaceful^ As regards the acquisition of incorporeal 
 things, the rules of Roman law varied so greatly at different 
 times, and so greatly also in reference to different kinds of 
 rights, that any general statement of identity would be most 
 hazardous. Upon the cardinal point just referred to, I very 
 much doubt whether here again Bracton did not rather reverse 
 than follow the Roman law. I doubt whether he was prepared 
 to admit the acquisition by prescription of incorporeal things 
 in any case without just title ^. At any rate he is not explicit 
 on the point : whereas the Roman law did (as an exceptional 
 case) admit such acquisition in respect of certain special 
 rights ^ ; and the modern English law, as I shall show 
 presently, admits it generally. It is therefore incorrect, as it 
 seems to me, to identify the English law of prescription with 
 the rules laid down by Bracton, or the rules laid down by 
 Bracton with those of the Roman or Civil law. 
 Littleton's 568. If we desire to see clearly the connexion between 
 time im- the Roman law and the English law in the matter of 
 
 ' Book ii. chap. xxii. fol. 51 b. See the passage quoted above. He says 
 expressly that ownership may be acquired sine titulo et traditione, which he 
 opposes to ex titulo etjustd causd. 
 
 " I do not state this positiyely ; but it is remarkable that in the passage 
 above referred to, where he speaks of the acquisition of the right of common 
 of pasture he says, 'item [acquiritur] ex longo usu sine coustitutione [not sine 
 titulo] cum pacificS possessione [not per pacificam possessionem] continua et 
 non interrupttt, ex scientiS negligentia et patieutia dominorum, non dico bal- 
 livorum, quia pro traditione accipiuntur.' I take Eracton'a meaning to be this i — 
 ' Common of j asture is acquired without any express intention to transfer it 
 (see Dirksen, Manuale Latinitatis, a. v. Constitutio) by reason of long enjoy- 
 ment coupled with quiet possession, continuous and uninterrupted, on account 
 of the knowledge, negligence and endurance of the owners — not of his baUiffs, 
 because these things stand in the place of delivery.' (See Croke's Reports in 
 the time of James the Fiist, p. 142.) 
 
 ^ Digest, Book viii. art. 5. sect. 10. 
 
 memorial. 
 
Sec. 568, 569.] ON PRESCRIPTION. 275 
 
 prescription as applied to jura in re aliena, we must, I think, 
 go to a writer who was of far greater authority than Bracton^. 
 Littleton while discoursing of tenure in burgage goes off to 
 a discussion of customs, and from that to a discussion of 
 prescription. He says that title by time immemorial and by 
 prescription are all one in law, but he seems to have been in 
 doubt whether a man could make a title by time immemorial 
 at common law : and he states the opinion that this could be 
 done thus : — ' lis ont dit que il y auxy un auter title de pre- 
 scription que fuit a la common ley devant ascun estatute de 
 limitation de briefe, &c. ; et ceo fuit, lou un custome, ou un 
 usage, ou auter chose, ad este use de temps dont memorie 
 des homes ne curt a le contrarie. Et ils ont dit, que il est 
 prove per le pleder un title de prescription de custome. II 
 dirra que tiel custome ad este use de tempore cujus con- 
 trarium memoria hominum non existit et ceo est autant a 
 dire quant tiel matter est plede que nul home adonque en vie 
 ad oye otcun proofe a le contrary ne avoit ascun conusans 
 a le contrary.' This passage clearly has reference to the time 
 immemorial of the Roman law, and it is applied by Littleton 
 to aU sorts of rights (custome ou usage ou auter chose). 
 
 569. Now the doubt which is here expressed by Littleton, Remarks 
 and which he does not resolve, as to whether in his time ton's view. 
 the party in possession could set up time immemorial at 
 common law, is of no interest. It has long been resolved that 
 in many cases he can do so ^- Three things are remarkable in 
 this passsage, (i) Littleton identifies prescription and time 
 immemorial ; (2) he says nothing about the presumption 
 of a legal title ; (3) he assumes that, if there is time 
 immemorial at common law, it is the time immemorial of 
 the Roman law, i.e. 'that no man then alive hath heard 
 proof to the contrary nor hath any knowledge to the con- 
 trary.' 
 
 1 S. 170. I give Littleton's own -words in preference to Coke's translation, 
 in case there is any doubt as to their meaning. 
 
 ^ See the quotations in Viner's Abridgment, Prescription (M). 
 
 T a 
 
view. 
 
 276 ON PRESCEIPTION. [Chap. XIII. 
 
 Modifica- 570. The passage I have quoted from Littleton's Tenures 
 Littleton's Contains, I believe, the key of the English law on the subject 
 of prescription as applied to the acquisition of jura in re 
 aliena. The English lawyers, following Littleton, have 
 adopted time immemorial as the basis of their law. They 
 have also (in this respect not following Littleton, but very 
 likely acting with logical consistency) adopted the principle 
 that time immemorial is not a mode of acquisition but only 
 affords a presumption of leg-al origin. And if they had 
 adhered to the view that time immemorial was such as 
 Littleton described it, and as the Roman lawyers understood 
 a, there would have no inconsiderable protection to the party 
 who had been in long enjoyment of a right when it was 
 attacked. There would still have been the danger that the 
 presumption of a legal origin might be rebutted, but this 
 would not be easy, and the full benefit of the presumption 
 w£>uld be acquired within a reasonable time, so long as time 
 immemorial meant within the recollection of those living, 
 and what they had heard from others speaking from their 
 own recollection. 
 
 571. This protection, however, was greatly weakened by an 
 entirely artificial interpretation of the expression ' time imme- 
 morial,' which was introduced either by Lord Coke or some 
 later lawyers. The interpretation which we find accepted in the 
 middle of the last century, and probably introduced earlier, was 
 that nothing was beyond the memory of man which had hap- 
 pened since the time of Richard the First ^- Only a right which 
 had existed as long as this, was safe against the assumption 
 that it had not a legal origin ; and to prove that a right had 
 existed so long as this was extremely difficult. The judges, 
 therefore, assisted the person in possession by admitting a 
 presumption that a right which had been enjoyed for a con- 
 siderable period had been enjoyed from the i Ric. I, and they 
 did all they could to enforce this presumption, but like all 
 presumptions of the kind it was liable to be defeated, and in 
 
 ' Viner's Abridgment, Prescription (M). 
 
Sec. 570-573.] ON PEESOEIPTIOK. 277 
 
 this case it was very often easily defeated. For example, 
 if a man claimed a right of way to a house, and he rested 
 his claim upon proof that it had been enjoyed for one 
 hundred years, it would be defeated by showing that the 
 house itself had not existed for more than two hundred 
 years. 
 
 572. It is, I think, certain that at one time this defective Insufficient 
 protection was the only protection afforded by English law to of EngS 
 persons who had been in long enjoyment of rights, but could ^^^' 
 
 not show how they came into existence. It was obviously 
 not only a very slender protection, but it was dwindliag away, 
 as the time which had elapsed since the reign of Richard the 
 First became longer. The judges, therefore, began to east 
 about for some better means of protection. 
 
 573. As far as I can ascertain, it seems to have been Modern 
 thought that any alteration in the period of time immemorial 
 must be made by the legislature. It was suggested by one 
 writer that as the time for bringing a writ of right was 
 limited to sixty years, time immemorial ought to be limited 
 
 to sixty years also ^ The suggestion was a good one as far as 
 it went, but the hint was not taken by the legislature. The 
 judges accordingly hit upon a new plan. About the end of 
 the last century they began to tell juries that when a right had 
 been enjoyed for twenty years they ought to presume from 
 that alone, without any enquiry as to whether the right had 
 lasted from time immemorial, that there had been a ' modem 
 lost grant.' Of course juries ought to presume this, if they 
 reaUy believed that such a grant had been made : but this 
 is not at all what the judges meant. They meant the jury 
 to find that there was such a grant, whether they believed in its 
 existence or no. The object was laudable, but it was a most 
 unsatisfactory method of accomplishing it. It was asking 
 the jury to find an obvious untruth. It was, however, more 
 successful than one could expect, and juries generally did as 
 they were told. If they did not, the judges had the courage 
 ' See Viner's Abridgment, ubi supra. 
 
278 
 
 ON PRESCEIPTION. 
 
 [Chap. Xni. 
 
 Prescrip- 
 tion Act. 
 
 To what 
 cases the 
 Act ap- 
 plies. 
 
 Quasi pos- 
 session of 
 jura in re. 
 
 — I ought perhaps to say the efifrontery — to set aside the 
 verdict as against the evidence ■"■- 
 
 574. On the top of this clumsy, though not altogether 
 ineffectual contrivance, came the Prescription Act, the 2 
 and 3 William IV. c. 71. The object of that act is declared 
 to be t© shorten the period of prescription. Strictly speaking 
 ^?hat it does is this : — it makes the presumption of a 
 legal origin conclusive after an enjoyment of twenty years. 
 It does not make the prescription of the EngHsh law any- 
 thing different from what it was before. It does not do 
 away with the presumption of a legal origin. Nor does it 
 even apply to all kinds of jura in re aliena, but only to 
 those mentioned in the act. The protection of other rights 
 remains as before, and juries are still often gravely asked to 
 presume that grants have been lost which no one believes 
 ever to have existed. 
 
 575. The language of the act has been severely criticised, 
 and it is certainly somewhat obscure and ill-worded, but if 
 it can be got to operate its operation is effectual, for the 
 presumption of a legal origin would cure defects of every 
 description. It is, therefore, of the first importance to con- 
 sider exactly when the presumption is to be made. The 
 effect of the act combined with the previous law is, that 
 the presumption is to be made, whenever the right claimed 
 has been actually enjoyed without interruption for a period 
 of twenty years, by a person 'claiming right thereto,' and 
 who alleges and can prove that the enjoyment has been 
 ' as of right.' 
 
 576. In order to understand what is meant by the ex- 
 pressions ' claiming right thereto ' and ' as of right,' which 
 are the expressions used by the act to qualify the enjoyment, 
 we must first consider a question which I deferred in a 
 former chapter, namely, what is the general conception of 
 the enjoyment or quasi-possession of a jus in re which we 
 
 ' See the observations on this practice in the First Keport of the Eeal Pro- 
 perty Commissi oners, p. 51. 
 
Sec. 574-577.] ON PRESCEIPTIOK. 279 
 
 have in view, when we are contemplating the legal results 
 of that condition, ^ ? 
 
 577. This is a matter which has been very fally discussed 
 by Savigny in his Treatise on Possession, to which I have 
 already so frequently referred^. Savigny considers that 
 the conception of the quasi-possession or enjoyment of an 
 incorporeal thing is analogous in all respects to the con- Analogy to 
 
 ,- f-.i • n iji- pi-i possession 
 
 ception or the possession 01 a corporeal thing ; 01 which ^f corpo- 
 conception it is an extension ^. Thus, in order that there ^^^^ ttmgs. 
 may be quasi-possession of an easement, it is not necessary 
 that the right should be actually exercised *, any more than 
 it is necessary that there should be corporal contact, in 
 order to constitute possession of a thing corporeally existent. 
 The physical possibility of exercising or enjoying the ease- 
 ment, coupled with the determination to exercise and enjoy 
 it on one's own behalf, constitutes quasi-possession, just as 
 a similar combination of physical and mental elements con- 
 stitutes possession of land or goods. Neither the physical 
 possibility of enjoyment, nor the actual enjoyment, will alone 
 constitute quasi-possession. I may walk across your land 
 whenever I like to pay you a visit, or to transact business 
 with you at your house, but I am still not in quasi-pos- 
 session of any easement in the nature of a way across your 
 land. In walking across your land I am only using the 
 means, which all owners of houses provide for their friends 
 and neighbours, of obtaining ready access to them as occa- 
 sion may require : should you lock the gate, I should not 
 feel that I had anything to complain of, and should not 
 attempt to force my way in. To use the exact expression 
 
 ' Supra, sect. 396. 
 
 ' What follows is chiefly a paraphrase of parts of sect. 46 of the Treatise on 
 PosBCSsion. But, in order to make it more easy of comprehension, I have 
 occasionally amplified Savigny's very condensed expressions, and inserted two 
 or three illustrations. 
 
 ' Supra, sect. 391 sqq. 
 
 * The phrase 'actually enjoyed' occurs in the 2 & 3 William IV, c. 71, 
 but it is obvious that an easement may be enjoyed even when it is not being 
 exercised. 
 
280 ON PEESCEIPTION. [Chap. XIIT. 
 
 of Savigny, to constitute quasi-possession of an easement, 
 it is not sufficient that there should be an exercise or 
 enjoyment of it which is merely de facto, or accidental, it 
 must be as of right {tanquam suo jure) ; and there must be 
 not only the permission, but the submission (^patientid) of 
 the person upon whose land the easement is exercised or 
 enjoyed. So, on the other hand, if my neighbour grants 
 me a way across his field, and consequently removes from 
 his gate a lock which has hitherto prevented my using it, 
 and informs me that the road is at my service, I am just 
 as completely in possession of the way by such a ceremony, 
 as if, in assertion of my right, I actually walked along the 
 road in question. 
 
 578. In the case of positive easements, that is to say. 
 Positive easements which consist in doing something upon your 
 tive"^^^ neighbour's land, there is not much difficulty in deter- 
 easements. mining whether or no the circumstances constitute quasi- 
 possession of them ; and the distinction above pointed out 
 between the mere de facto exercise or enjoyment, and 
 exercise or enjoyment as of right, has always been recog- 
 nised with tolerable clearness. But the quasi-possession 
 of negative easements, that is, of easements which consist 
 in your neighbour abstaining from doing something on 
 his land — of which the easement not to build so as to 
 obstruct the passage of light is the most frequent ex- 
 ample — -is far raore difficult to comprehend, and has not 
 been so well understood. Savigny has discussed the 
 quasi-possession of negative easements very fully, and he 
 points out, first, that we must carefully distinguish between 
 acquiring the right itself, and acquiring the quasi-pos- 
 session of the easement, which may be with or without 
 the right; just as we may acquire possession of land with 
 or without acquiring the right to possession, or ownership. 
 For acquiring the right a simple grant is sufficient : but 
 suppose two strangers to be adjoining owners, how does 
 one of them get into quasi-possession of negative easements 
 
Sec. 578, 579.] ON PRESCEIPTION. 281 
 
 over the land of the other? That is the question to be 
 solved. 
 
 579. One case of acquisition (he says) of the possession Enjoymeiit 
 of this kind of easement is undisputed ; namely, when the right.' 
 act, which is opposed to the servitude, is actually attempted 
 by the owner of the servient land, but prevented ; whether 
 by the simple protest of the owner of the dominant land, 
 by force, or by the decree of a court of justice. As, for 
 instance, if I claim as an easement the uninterrupted flow 
 of a stream issuing from a spring in your land, I should 
 clearly be in possession of it, if, upon your damming up 
 the stream before it left your land, I complained to you, 
 and you thereupon re-opened it; or if I myself cut the 
 dam, which act you did not resent ; or if I obtained an 
 order of court, that it should be re-opened. Where no 
 such actual attempt to do the act, which is opposed to the 
 easement, is made and prevented, some persons have main- 
 tained that, in order to put the owner of the dominant land 
 in possession of the easement, a pretence must be made by 
 the owner of the servient land of doing the act opposed to 
 the easement — as, for instance, a pretence of damming up 
 the stream by throwing in a few shovelfuls of earth — to 
 be followed by formal opposition on the part of the dominant 
 owner, and that again by a pretended submission on the 
 part of the servient owner. Savigny protests strongly, as 
 he always does, against this sort of symbolical action, which 
 he considers as unsuitable to the idea of possession, as it 
 is undoubtedly unknown in practice. Others hold an exactly 
 opposite opinion, which Savigny himself at one time shared ; 
 maintaining, that the simple omission by the servient owner 
 to do any act opposed to the enjoyment of the easement, 
 puts the dominant owner in possession of it^- But this leads 
 
 ' I have not been able to refer to the earlier editions of Savigny's Treatise 
 on Possession, but he states in a note to the subsequent editions, that he was at 
 first one of those who thought that the mere inaction of the ser-vient owner put 
 the dominant owner in possession, in a legal sense, of any negative servitude 
 which the dominant owner de facto enjoyed. See p. 493. 
 
282 ON PEESCEIPTION. [Chap. XIII. 
 
 at once to the conclusion, which Savig-ny, with good reason, 
 declares to be nothing less than monstrous, that every land- 
 owner is in legal possession, and entitled to all the advantages 
 which result from that possession, of numberless easements, 
 as against all his neighbours ; so that, for instance, the 
 moment a man builds a house, he is, not of course entitled 
 to, but in possession of, and (as it were) on the road to ac- 
 quire by enjoyment, an easement which prevents all his 
 neighbours from building within a certain distance of him. 
 The error of the latter opinion consists in this : that it loses 
 sight of that which is so important, when we are considering 
 what constitutes quasi-possession in a legal sense; namely, 
 that it is founded, not upon every enjoyment or exercise of 
 the easement, but only upon an enjoyment or exercise of 
 it as of right ; not upon the mere inaction of the other party, 
 but on his submission (^patientia) to necessity. Anjiihing 
 which establishes that the exercise or enjoyment is of this 
 character, and not merely de facto or accidental, is sufficient 
 to establish quasi-possession in a legal sense. This is clear 
 enough in the undisputed case mentioned above, where there 
 has been an actual attempt to do the act opposed to the 
 easement, followed by a protest submitted to or enforced. 
 So, where the right itself has been granted, no formal or 
 symbolical induction into the exercise or enjoyment of ease- 
 ment is necessary. The exercise or enjoyment of the ease- 
 ment and the passiveness of the other party are now, not 
 merely de facto or accidental, but directly referable to the 
 right, which has been acquired by grant. 
 Coinoi- 580. It is Certainly not a little remarkable that Lord 
 
 expressions Tenterden, who has generally been supposed to have drawn 
 ^^ T\T the Prescription Act, and who does not generally evince any 
 
 sonption '■ o J ./ 
 
 Act. very strong desire to adopt the strict and accurate technical 
 
 language of the Roman law, should have chosen almost exactly 
 the expression which Savigny, against much opposition and 
 after a considerable change in his own opinions, has fixed 
 upon, in order to characterise that kind of enjoyment of a 
 
Sec. 580, 581.] ON PRESCEIPTION. 283 
 
 right which leads to its acquisition. I do not think there 
 can be any doubt that the Prescription Act is here identical 
 with the Roman law, from which the expression was borrowed 
 either hj Lord Tenterden, or some one of his predecessors ; 
 for, I think, the expression had been used on the English 
 Bench before^. 
 
 581. There is one easement which the Prescription Act Easement 
 allows to be acquired in a different way from all other ease- 
 ments^. This is the easement of light. As to this easement 
 the act says that it may be acquired by actual enjoyment 
 simply, the qualifying words 'by a person claiming right 
 thereto' not being added. There is no doubt that the in- 
 tention was to give to the mere de facto and accidental enjoy- 
 ment of light for twenty years the same benefit, which in 
 other cases is only conferred upon enjoyment as of right. 
 We have seen how nearly the desire to render the enjoyment 
 of light under similar circumstances continuous and secure, 
 had perverted the interpretation of the Roman law on the 
 general question of acquisition of negative servitudes * The 
 obvious cause of the proneness to error on this point is, that 
 the ordinary law of prescription is not suited to the circum- 
 stances of that particular easement ; questions as to which 
 generally arise where habitations are closely packed, and 
 where the respective parties stand to each other in special 
 and exceptional relations. Most European countries have 
 dealt with the subject in a similarly exceptional manner, 
 only this has been done avowedly ; whilst we have caused 
 
 ' Lord Wensleydale treats the words of section 5, ' as of right ', as conveying 
 the true meaning of the legislature. See the ca^e of Bright against "Walker, 
 Crompton Meeson and Eoecoe, Reports, vol. i, p. a 1 9 ; Gale on Easements, 
 p. 128. But the two phrases together show clearly that what is meant is tan- 
 quam mi juris. 
 
 '^ It might have been possible to argue that, as section 5 of the Act is 
 general in its terms, the words ' as of right ' in this section apply to the ease- 
 ment of light as well as other easements. But, I think, it is agreed that these 
 words in sect. 5 must be read as explanatory of the words ' claiming right 
 thereto' in sect. 3, and that they have no application to the easement of 
 light. 
 
 ^ Supra, sections 379 and 400. 
 
284 ON PRESCEIPTIOK. [Chap. XIIT. 
 
 a good deal of confusion by so long a struggle to meet 
 the difficulty by the application of general principles '^- 
 
 But all necessity for straining the law for this purpose in 
 England is avoided by the framers of the Prescription Act 
 having made a special provision to meet this ease. The 
 provision was at first rather misunderstood, but all difficulty 
 has disappeared since it has been recognised that it is one of 
 this exceptional kind. 
 Enjoyment 582. EngKsh judges, besides requiring that enioyment of 
 
 mnst be . . . . -, 
 
 peaceable an easement in order to, give rise to the presumption of a 
 °^™' legal origin must be as of right, have also held that it must 
 be peaceable and open. In requiring these conditions they 
 are probably wise. The words ' peaceable ' and ' open ' cor- 
 respond to two expressions of the Roman law, which required 
 that possession should be nee \i nee clam. I do not think 
 it worth while for an English lawyer to examine very accu- 
 rately the meaning of these expressions in the Roman law, 
 for this part of the Roman law, though it may have given 
 a hint to our judges, has not served them as a model, nor 
 do I think it could be made to do so without a radical change 
 in our views as to prescription. Expressions to the effect that 
 the enjoyment is to be open and peaceable have long been 
 used by English lawyers, but they do not occur in the Pre- 
 scription Act. And the judges, I venture to think, have 
 gone entirely wrong, in endeavouring to discover the con- 
 ditions which these expressions embody, in the words ' as of 
 right ' or the analogous words ' claiming right thereto.' This 
 construction of the Act would lead to great confusion. We 
 must never forget Savigny's caution, not to confound the 
 acquirement of the title to the right with the acquirement of 
 
 * The distinctly exceptional character of this provision was, I believe, first 
 pointed out by Mr. Justice Willes, in the case of Webb against Bird, where 
 the owner of a windmill claimed, as an easement appurtenant to his mill, the 
 free and uninterrupted passage of air. It is reported in the tenth volume of the 
 Common Bench reports, new series ; see pp. 284, 2S5, and exactly accords with 
 the conclusions of Savigny as to the acquisition of the possession of negative 
 easements. 
 
Sec. 582, 583.] ON PRESCRIPTION, 285 
 
 the possession of it ^ ; and I think this caution is forgotten 
 when we find these words ' as of right ' interpreted, as Lord 
 Wensleydale seems desirous to interpret them, as if they 
 meant ' rightfully ^ .' I do not think it has ever been doubted 
 that the acquisition of rights may commence in the English 
 law by an act which is a pure trespass ; and that the enjoy- 
 ment may continue to be a trespass until by prescription it 
 has grown into a right. It would have been impossible to 
 apply the statute to half the cases to which it has been 
 applied, if such a trespasser could not in the view of the 
 English law enjoy as of right. To exchange the necessary 
 and (if I may use the expression) scientific interpretation of 
 the phrase 'as of right' for that which Lord Wensleydale 
 suggests, would throw the law into the greatest possible 
 confusion ; and it is a sufficient answer to the attempt to 
 use language for one purpose, that it has already been ap- 
 propriated to another, and an inconsistent one. We must, 
 therefore, treat the conditions which require the enjoyment to 
 be peaceable and open as introduced upon the authority of 
 judicial decision ; a stretch of power at which, after what has 
 happened on other occasions, we need not be very much 
 alarmed. 
 
 It is desirable to observe that, if the view which I take Conditions 
 of the general conception of the quasi-possession of a right toTcqui-^ 
 in the nature of an easement, and of the conditions which are ^J^'^°^ «f 
 
 jura m re 
 
 necessary to the acquisition of the right, be correct, these con- other tlian 
 ditions will apply not only to the easements specified in the 
 act but to all easements, and also to all jura in re which can 
 be acquired by prescription. 
 
 583. I have explained above what is meant by derivative Derivative 
 possession. There may be derivative possession of a thing ^^^^ ^ot" 
 which belongs to another, or there may be derivative quasi- "^"y^^"'^' 
 possession or enjoyment of a right over a thing which belongs 
 
 ' Sav. P08S., sect. 46, p. 492. 
 
 ' See the case in Crompton, Meeson and Eoscoe's Keports, vol. i. p. 219 
 Gale on Basements, p. 128. 
 
286 ON PEESCRIPTION". [Chap. XIII. 
 
 to another. Thus, if the owner of Whiteaere grants to the 
 owner of Blackacre a right of way over Whiteaere for a fixed 
 period of twenty years, the grantee by using the way takes 
 full quasi-possession, of the right, and enjoys it as of right. 
 He can also during the twenty years assert his right against 
 the grantor, and under most systems of jurisprudence (perhaps 
 also under our own) against all the world besides. But he 
 cannot use this possession for the purpose of gaining the 
 benefit of the Prescription Act, or for any other like purpose. 
 The true and only reason of this is that his possession, like 
 that of the pledgee or the lessee, is derivative. Benefits of 
 the kind we are now considering are never conferred by 
 derivative possession, either in the way of true prescription 
 or time immemorial, or on any similar principle. It is also 
 desirable to observe that this is a wholly different case from 
 that of a person who enjoys something merely under a 
 permission which may be at any moment withdrawn. Such 
 an enjoyment likewise fails to produce the benefits we are 
 considering, but for a diflferent reason. A person who enjoys 
 a thing by permission is not in possession of the thing in 
 a legal sense at all. The de facto enjoyment produces no 
 legal results. The tradesman who for twenty years opens my 
 gate and walks up to my door is never in possession of an 
 easement in the nature of a right of way. The grantee of 
 the way in the case above put is, as I have said, in pos- 
 session of it, and as of right, but only derivatively so. Both, 
 therefore, are excluded from prescription, but for entirely 
 difierent reasons. Though, therefore. Lord Wensleydale was 
 undoubtedly right when, in a well-known case, he treated 
 both these persons as excluded from the benefit of the 
 Prescription Act, he was, I think, wrong if he meant to 
 assert that they were both excluded upon the same principle. 
 Exceptions. 584. I may further illustrate the general truth of the 
 principles above stated by referring to the cases in which 
 they have been really or apparently departed from. Thus 
 where land is given in pledge, and the pledgee takes 
 
See. 584, 585.] ON PEESCRIPTION. 287 
 
 possession, by the English statute the ownershij^ of the Pledgee of 
 pledgor is in some cases ^ extinguished, and he can take 
 
 no proceedings to recover the land of which he has given 
 up possession. Practically also the land is transferred to 
 the pledgee. Now the pledgee's possession being derivative, 
 it ought never, according to the principles above stated, 
 to operate in his favour. But possession which was once 
 derivative may have ceased to be so. If the pledgor has 
 not manifested for a very long period any intention to 
 redeem the land, it is not unreasonable to presume that the 
 pledgee has taken to the land in lieu of the debt ; that he 
 has ceased to hold derivatively, and has determined to hold 
 on his own behalf. We know that a derivative possessor can- 
 not always do this ; he cannot change at will the character 
 of his possession from derivative possession to possession on 
 his own behalf as owner. But this is a protection given to 
 persons who part with the possession of their property to 
 others, retaining the ownership: and there is ample reason 
 for not extending this protection to cases where persons 
 are so inactive in regard to their own interests as in the 
 case imder consideration. 
 
 585. So in the provisions^ as to what are called tenancies Tenancies 
 at will and tenancies from year to year, where there has been where pay- 
 no payment of rent, or it has ceased. The result of these pro- ™^t*j, 
 visions is, that a period of dispossession which bars the remedy ceased. 
 and extinguishes the title, commences at the end of the first 
 year of the tenancy, or if rent be paid, at the last time when 
 the rent was received. Now the possession of a tenant in 
 such a case would be at least derivative, and probably re- 
 presentative ; and, therefore, it is contrary to the rules we 
 have laid down, that the statute should, in any case, operate 
 for his benefit. And we know how jealously the English law 
 
 ' See 3 and 4 William IV. chap, xxvii. section 28. This section describee 
 the position of the pledgee as it really is, and not as it is called in our clumsy 
 law language. 
 
 ' See 3 and 4 William IV. chap, xxvii. sections 7 and 8. 
 
288 ON PRESCRIPTION. [Chap. XIIT. 
 
 in most cases applies to tenants the rule, that neither a re- 
 presentative nor derivative possessor can change possession 
 on behalf of his principal, into j}ossession on his own behalf. 
 But again, this rule is itself only a qualification of a more 
 general principle : and vrhat the provision under consideration 
 really does, is to refuse the benefit of this qualifying rule 
 to the landlord, who has allowed a tenant to hold for twenty 
 years, without any agreement fixing the termination of his 
 tenancy, without collecting any rent, and without taking 
 any sort of acknowledgment of his title. In such cases a 
 tenant is allowed to assert that his possession during this 
 period has been not derivative, but adverse ^. 
 Indian law 586. Substantially the same principles as those which 
 scription. have been adopted in the English law of prescription are 
 recognised in the Indian statutes. The period which brings 
 the statute into operation is in India generally measured 
 from a date which is described as that 'when the dispos- 
 session occurs^.' No suit can generally be brought to recover 
 any property but within so many years after that date. No 
 further technical definition of this date is given, as in the 
 English statute, but it is obvious that the cases in which the 
 statute afiects ownersliip are those in which there has been, 
 or might be a dispute as to possession ; and the position of 
 hostility thus implied requires that the party in possession 
 should hold, not for, but against the other ; should hold also 
 as owner, and not derivatively ; not consistently with the 
 ownership of the other, but adversely. And, if a person has 
 been in possession, thus adversely, of land or moveables for the 
 
 ' It is convenient to continue the use of the word ' adverse ' to describe the 
 position of a person vehose possession is not derivative, notwithstanding the 
 somewhat unfortunate history of that word in English law. Prior to the 
 passing of the statutes of William the Fourth, a doctrine of adverse possession 
 had been set up which the ablest lawyers declared to be unintelligible, and one 
 of the main objects of these statutes was to sweep away this unintelligible 
 doctrine. But there is no impropriety in now using the word 'adverse' in 
 what appears to be its natural meaning. 
 
 ^ Act ix. of 1871, Sched. 
 
See. 586-589.] ON PRESCEIl'TIOU". 289 
 
 necessary period, and the means of recovering them by any 
 other person are taken away, it is considered in India, though 
 not so expressed in the law, that the ownership follows the 
 possession^. 
 
 587. Certain rules relating to the acquisition by prescrip- 
 tion of rights over land other than ownership have been 
 introduced into an act recently passed by the Indian Legis- 
 lature. These rules expressly provide that easements both 
 positive and negative may be gained by enjoyment which is 
 peaceable, and open, and as of right, but they make the dis- 
 tinction that the enjoyment of the easements of light and air 
 is not required to be open ^. 
 
 588. I do not think that the English law of prescription Suggested 
 will ever be put upon a satisfactory footing ■ until the notion men t°In 
 is got rid of that all prescription presumes a grant, and until E'^glisl' 
 prescription is recognised here, as on the continent of Europe, 
 
 as a means of acquiriag ownership. The grant is only a 
 fiction, and the fiction here is not a useful one. It does not 
 indicate the principles to be applied. The relation of the 
 owner of the servient tenement to the person who has the 
 right over it is not really that of grantor and grantee, nor 
 is it analogous to that of grantor and grantee. And though 
 I think that fictions are useful and may be defended in 
 the hands of lawyers, I consider it indefensible to place them 
 before a jury. 
 
 589. Probably the best thing that could now happen to the 
 English law of prescription would be that it should be wholly 
 recast by the legislature, acknowledging in the first place, in 
 the case of both ownership and jura in re aliena, that they 
 could be acquired by possession for a certain time : and that 
 the title so acquired was just as good in all respects as a title by 
 conveyance from the owner. This possession must, of course, 
 
 > See Moore's Indian Appeals, vol. xi, p. 361. 
 
 ^ The easement of access of air is not mentioned in the Prescription Act, 
 btit it is so in the Indian Act, (Act xv. of 1877.) 
 
 U 
 
290 ON PRESCRIPTION'. [Chap. XIII. 
 
 be as of right, and it would also be necessary to consider what 
 defects in the possession besides actual fraud should stand in 
 the way of acquisition. And, at this point, it is probable 
 that our law, especially as regards the acquisition of land, 
 would require some substantial modification. It is hardly 
 likely that on such a point we should be right and all the 
 rest of the world wrong. And if it were decided that some 
 defects in possession should be a bar to the ordinary pre- 
 scription, a longer period might be named after which even 
 this defective possession might be considered sufficient for 
 a title ^ Time immemorial might, I think, pass unnoticed. 
 Not that it would be thereby abolished ; for it still might and 
 would give rise to a presumption of a legal origin, but only 
 a presumption of which the judge or jury (whichever had to 
 decide the question of fact) would form an opinion ^. 
 
 590. There are other rights besides ownership and jura in 
 re aliena to which prescription can be applied. The Roman 
 law applied it to marriage : and it is applied to such rights 
 as to take toll, or hold a market. I have selected ownership 
 and jura in re aliena for discussion because of their impor- 
 tance, and because they best illustrate the principles of 
 prescription as understood by English lawyers. 
 
 591. I foUow the ordinary use of language, when I say 
 that rights may be gained or lost by lapse of time, but it 
 must be borne in mind how far that expression is correct. 
 Of course what creates or destroys the right is the sovereign 
 
 ^ Even in a system so little advanced as the ancient Hindoo law tlie advan- 
 tages of a ' just title ' are recognised. The Mitacshara lawyers would allow 
 a right to be gained in twenty years, but only if the party already held under 
 a title which though defective was just. See Mitacshara, chap. 3, § 3, Of 
 the Effect of Possession. Jaganatha, a more recent author, says nothing 
 about a just title, but then he leaves undetermined the period of possession 
 which would transfer the right, which would probably, therefore, be short- 
 ened in favour of an honest purchaser. 
 
 " Bentham (vol. i. of Collected "Works, p. 327) has committed himself to the 
 opinion that no time however long ought to give a title where the possession 
 is dishonestly obtained. His observations are rather rhetorical, and I am not 
 sure he has not lost sight of his own principle of utility, in laying down so 
 sweeping a proposition. 
 
Sec. 590, 591.] OlS" PRESCEIPTION. 291 
 
 authority alone, which is the source of all rights as well as 
 of all obligations : and lapse of time, combined with other 
 circumstanceB, is only a frequent occasion for the exercise of 
 this authority. For instance, when a man gains by prescrip- 
 tion the right to take toll from all persons passing over a 
 certain bridge, what really happens is that, after he has 
 collected toll for a certain number of years, the courts of law, 
 exercising delegated sovereign authority, will recognise his 
 right to do so. But generally, other circumstances must 
 combine. He must have collected the toll as of right. It 
 must not be on a bridge which forms part of the street of a 
 town. If it is in a public thoroughfare the claimant must 
 show that he has always kept the bridge in repair ; or what- 
 ever else may be the restrictions which the sovereign authority 
 thinks fit to impose on the acquisition of the right. When, 
 therefore, we say rights are gained or lost by lapse of time, 
 we only use a convenient and compendious expression which 
 fixes our attention on that part of the matter which we wish 
 to bring into prominence. 
 
 u a 
 
CHAPTER XIV. 
 
 LIABILITY 1. 
 Meaning of 592. LIABILITY is the term used in the English law to 
 
 liability. . ... . 
 
 express three things. First, it is used to express the position 
 of a person who has undertaken to do or to abstain from doing 
 something by contract with another person. Such a person 
 is said to be liable to fulfil his contract. 
 
 593. Secondly, liability is used to express the condition of 
 a person who has failed in the performance of some duty, and 
 who is consequently called upon to make compensation to 
 some person who has suffered damage thereby. Such a person 
 is said to be liable to make compensation. 
 
 594. Thirdly, liability is used to express the condition of a 
 person who has not failed in the performance of any duty, but 
 who has done an act which has caused damage to another for 
 which he is required to make compensation. Such a person 
 is said to be liable to make compensation^. 
 
 ^ An Analysis of Criminal Liability has been recently published by Professor 
 Clark (Cambridge, 1 880), to wMch I refer the reader for a full and able discus- 
 sion of the principles here stated. 
 
 ^ Strange as this may sound, it seems impossible to escape the conclusion 
 that there are cases where a man is liable to make compensation for damage 
 
Sec. 592-598.] LIABILITY. 293 
 
 595. The duty to fulfil a contract is a primary duty. The Includes 
 duty to make compensation for damage caused by a breach of andsecon- 
 duty is a secondary duty. The duty to make compensation ^^^7 
 
 for damage caused by an act which is not a breach of duty is 
 a primary one. 
 
 596. To discuss liability, therefore, is to discuss both 
 primary duties and secondary duties, and this seems clumsy. 
 As every secondary duty assumes a primary duty, it would 
 seem simpler to discuss primary duties first and together. 
 But in the present state of English law this is impossible. 
 Even the legislature generally discusses breaches of duty and 
 the results arising from them, and not duties themselves, and 
 judges naturally only interfere where there is a breach of duty 
 committed or at least apprehended. Hence that very im- 
 portant class of primary duties, the breach of which gives rise 
 to liability, have not been discussed. Moreover, liability ex 
 contractu, which is liability to a primary duty, and liability 
 ex delicto, which is liability to a secondary duty, have always 
 been treated as two subdivisions of the same class in all 
 modem European systems of law, as also in the Roman law. 
 I should, therefore, depart too far from established notions if 
 I were to attempt to deal with primary duties separately. 
 
 597. I am compelled, therefore, to discuss liability, but I 
 propose to do no more than to examine some of the terms 
 and phrases current upon the subject. This in the present 
 state of the law is all that is possible. 
 
 598. It is sometimes said that all liability arises out of Contract 
 contract or out of delict. The Roman lawyers seem to have 
 
 had some similar notion, and they tried to squeeze all liability 
 under these two expressions by adding to each class a number 
 of things which did not properly belong to it, which they 
 called ' quasi-contract ' and ' quasi-delict.' Very likely they 
 
 done, tut under no duty to abstain from the act : this, for example, is generally 
 so where a man does a thing ' at his peril.' In some cases it is extremely 
 difficult to say whether there is a duty to abstain from an act, or whether 
 there is only a duty to compensate if the act be done and damage caused. 
 
294 LIABILITY. [Chap. XIV. 
 
 Lad some good practical reason for so doing. BngKsh lawyers 
 seem to have kept up the distinction between contract and 
 delict mainly because of the rule which once existed as to 
 joinder of actions ; a prominent branch of that rule being 
 that causes of action arising on a breach of contract could 
 not be joined with causes of action arising on a delict^. 
 But there is a good deal of liability which is never considered 
 as arising out of either the one or the other : the liability of 
 trustees for example, or the liability of a person who has used 
 a ferry to pay the toll. Of course it would be possible to 
 extend the word ' delict ' so as to cover any breaches of duty, 
 but this extension has never been made. By delicts only 
 certain classes of breaches of duty are intended. EngUsh 
 lawyers generally call them ' torts.' 
 Civil in- 599. Liability is not unfrequently divided into civil and 
 crimes^'^ crimiaal liability. This classification of UabiLity is not based 
 upon any distinction in the nature of the two kinds of 
 liability, but upon a difference in the tribunal in which the 
 party liable is proceeded against. If the court where the 
 party is proceeded against be what is called a criminal court, 
 or court of criminal jurisdiction, the Kability is considered 
 to be criminal, and the breach of duty is called a crime 
 or an offence ^. If the court in which the proceedings are 
 taken be a civil court, or court of civil jurisdiction, the 
 liability is considered to be civil, and the breach of duty is 
 called a civil injury. But there are some courts which 
 exercise both jurisdictions, and there is then some difficulty 
 in distiaguishing criminal and civil liability. By long habit 
 we have come to consider certain kinds of personal violence, 
 
 ' Some peculiar expressions in English law, such as a tort founded on 
 a. contract, or a tort flowing from a contract, were perhaps invented to 
 get rid of the objection of misjoinder. The only questions now affected by the 
 consideration of whether a claim is founded on a contract or on a tort seem 
 to be the amount of costs to be allowed in an action, and the jurisdiction of 
 county courts. See Campbell on Negligence, 2nd ed., p. 19. 
 
 " Curiously enough even in a Penal Code the duty is never defined : only 
 the breach. 
 
Sec. 599, 600.] LIABILITY. 295 
 
 certain breaches of the laws which protect property, and 
 certain kinds of fraud to be crimes. But where there is no 
 such tradition as, for example, in the case of the refusal 
 of a father to support his bastard child, it has been found 
 very difficult to determine whether or no the breach of duty 
 is a crime. The French law draws the line between civil 
 and criminal liability by means of the Code. Civil in- 
 juries are those breaches of duty which are dealt with by 
 the Code Civil. Offences are those breaches of duty which 
 are dealt with by the Code Penal. Offences are divided into 
 'crimes' (specially so-called), 'delits' (using in a narrower 
 sense the same word as is used to describe a certain class of 
 civil injuries), and ' contraventions de police ' ; the latter 
 class containing a good many matters which we should bring 
 under civil liability. 
 
 600. Whilst too we find that in modern times the Origin of 
 division between civil injuries and crimes is fluctuating and between"" 
 uncertain, we observe that in the earlier stages of society, ?'^l ™" , 
 
 _ _ •' Junes and 
 
 if it existed at all, it was based on entirely different notions 1. orimes. 
 To exact for all injuries both to person and property a pay- 
 ment in money to the person injured appears to have been 
 the first form of legal liability for injuries to private persons 
 alike in Greece, in Rome, and among the Teutonic tribes. The 
 first idea of criminal law, as distinguished from this, seems 
 to have grown out of the punishment by the sovereign 
 authority of ofiences directly against itself And the impulse 
 to the more general development of criminal Kability in later 
 times seems to have been due, in this country, to an exten- 
 sion of this last notion. It is supposed, by rather an odd 
 fiction, that by every offence the ' King's peace ' is disturbed^ 
 and his 'dignity' offended. And it was formerly necessary 
 in all cases that it should be so stated in the indictment; 
 not only where acts of violence had been committed, but 
 even where the offence charged was such as obtaining goods 
 by Mse pretences, or selling ale on a Sunday. Modern 
 ' Maine's Ancient Law, ch. x. ; Kemble's Saxons in England, Bk, i, oh. x. 
 
296 LIABILITY. [Chap. XIV. 
 
 writers still attempt to preserve a somewhat similar notion, 
 when they tell ns that civil injuries are an infringement of 
 rights belonging to individuals considered as individuals ; 
 whereas crimes are breaches of public rights and duties 
 belonging to the whole community ^. However, the examples 
 given above sufficiently show that this distinction is not 
 adhered to. 
 
 601. Sometimes the mental consciousness of wrong on 
 the part of the person who does the act appears to be made 
 the test of criminality. We are often told that in order to 
 commit a crime a person must have a g'uilty mind. No 
 doubt too there has been a readiness to bring all acts, 
 which are in the general estimation of mankind wicked, 
 within the criminal law. But a very slight experiment 
 will show that neither is this a test which has been con- 
 sistently applied to distinguish civil injuries from crimes ^. 
 Nature of 602. It must always be remembered that whatever names 
 obrgations "^^ S^^^ *o duties, or to breaches of duties, or to the eonse- 
 not depend- q^gnces arising therefrom, these names only refer to the 
 occasion of occasion on which the duties come into existence, and to 
 t on. the mode in which they are enforced, and have nothing 
 
 whatever to do with the nature of the duty itself, which 
 is the creature of the sovereign power. For instance, the 
 duty I am under to abstain from acts, which would interfere 
 with the enjoyment of your property, may arise upon an 
 express contract between you and me, or may depend, with- 
 out any contract, solely on yom- right of ownership. Certain 
 rights with their corresponding duties do, indeed, for the 
 most part arise upon contract ; certain other rights with their 
 corresponding duties do, as it so happens, for the most 
 part arise independently of contract. Breaches also of duties 
 which are the subject of civil procedure are, as a fact, 
 
 ^ Blackstone's Commentaries, vol. iv. p. 5 ; quoted in Broom's Commenta- 
 ries, p. 869 (fii'st ed.). 
 
 '' See Eussell on Crimes, vol. i., whence it appears that an indictment will 
 lie for neglecting to forward an election writ (ch. xvii.), and for removing a 
 dead body, however iimocently (ch. xxxvii.). 
 
Sec. 6oi, 602. J LIABILITY. 297 
 
 generally followed immediately by consequences of one kind ; 
 whilst breaches of duties which are the subject of criminal 
 procedure are, as a fact, generally followed immediately by 
 consequences of another kind. But there is nothing in this 
 which is either necessary, or even constant. There is hardly 
 any duty usually arising upon contract which might not arise 
 independently of it; and a very large number of rights, with 
 their corresponding duties, arise partly upon contract, and 
 partly not ; indeed, we have seen how the attempt to dis- 
 criminate between duties by the occasion which creates them 
 has completely failed. So we shall see hereafter that the 
 consequences of all breaches of duty are in a great measure 
 ultimately the same, whether their consequences be civilly 
 or criminally pursued. 
 
CHAPTEE XV. 
 
 LIABILITY FOR BREACH OP CONTRACT. 
 Conception 603. In Order to understand liability for breach of contract 
 
 of contract. 
 
 we must try and understand what is meant by a contract. 
 Contracts clearly belong to that class of acts which give rise 
 to legal rights and duties upon occasions when the parties 
 themselves have so declared their intention. The declaration 
 of intention does not create the rights or duties ; that can 
 only be done by the sovereign authority, but it is the occasion 
 of their being created : and it is the very object of the de- 
 claration that these rights and duties should arise. I have 
 already made some general observations upon declarations 
 of intention which are, of course, applicable to contracts. 
 
 604. In endeavouring to discover what is meant by * con- 
 tract,' I shall make use of the inquiry into the meaning of 
 the term contained in Savigny's System of Modern Roman 
 Law\ of which the following is a paraphrase. 
 Savigny'a qq^ < rjij^g j^gg^ ^f contract (says Savigny) is familiar to 
 of contract, all, even to those who are strangers to the science of law. 
 But with lawyers it is so frequently brought into play, and 
 
 ^ Sect. 140. 
 
Sec. 603-607.J LIABILITY FOE BREACH OF CONTEACT. 299 
 
 is so indispensable by reason of the frequency with which 
 they have to apply it, that one might expect from them an 
 unusually clear and precise conception of it. But in this 
 we are not a little disappointed. 
 
 606. 'I will try (he says) to show what a contract is, 
 by the analysis of a case which no one can doubt is one 
 of true contract. If then with this view we consider the 
 contract of sale, the first thing that strikes us is several 
 persons in presence of each other. In this particular case, 
 as in most, there are precisely two persons ; but, frequently, 
 as in a contract of partnership, the number is quite uncer- 
 tain ; so that we must adhere to plurality in this general and 
 indeterminate form, as a characteristic of contract. These 
 several persons must aU have come to some determination, 
 and to the same determination ; for, so long as there is 
 any indetermination, or want of agreement, there can be no 
 contract. This agreement must also be disclosed ; that is, 
 the wishes of each must be stated by, and to each, until 
 all are known ; for a resolution which has been simply taken 
 and not disclosed will not serve as the basis of contract. 
 
 607. 'Moreover, we must not neglect to observe the 
 object which is aimed at. If two men were to agree to 
 assist each other reciprocally, by example or advice, in the 
 pursuit of virtue, science, or art, it would be a very odd use 
 of the term to call this a contract. The difference between 
 such cases and the contract of sale, which we have selected as 
 the type, is this: In the latter, the object which the parties 
 have in view is a legal relation ; whereas in the former, the 
 objects are of quite another kind. But simply to say, that 
 the object which the parties to a contract have in view is a 
 legal relation, does not go to the root of the distinction. 
 When the judges of a court of law after a long discussion 
 agree upon a decree, we have every one of the characteristics 
 hitherto noted, and it is a legal relation that the decision 
 has in view; but yet there is no contract. The bottom of 
 the distinction is, that the judges have before them a legal 
 
300 LIABILITY FOR BEEACH OF CONTRACT. [Chap. XV. 
 
 relation to which they are no parties. In the case of a 
 contract of sale the legal relation which the parties contem- 
 plate is their own. 
 
 608. ' These characteristics may be summed up in the 
 followinff definition : — A contract is the concurrence of several 
 persons in. a declaration of intention whereby their legal 
 relations are determined.' 
 Engiisli 609. It will be observed that this definition of contract 
 
 of contract, includes not only those agreements which are a promise 
 to do, or to forbear from some future act, but those also which 
 are carried out simultaneously with the intention of the 
 parties beiag declared. English writers are not very clear 
 upon this point. While on the one hand they would seem 
 in practice to treat as contracts only those agreements 
 which biud us to do, or to forbear at some future time ; 
 yet we find, on the other hand, that in their definitions of 
 contract they generally take the widest possible ground, 
 rejecting all the limitations suggested by Savigny, and 
 making, in fact, the two words 'contract' and 'agreement' 
 synonymous. 
 Distinction QiQ. From some expressions in passages subsequent to 
 
 between 
 
 contract that which I have quoted, I gather that Savigny intended to 
 formanee treat the performance of a contract as itself a contract. Thus, 
 of a con- jf J rightly understand him, he says that the agreement for 
 
 tract. 
 
 the sale and purchase of a house is one contract, and the 
 consequent delivery of possession by the vendor to the pur- 
 chaser is another. This, with deference to so great an 
 authority, I venture to doubt. I think there is here a 
 confusion which is exceedingly common between contract 
 and transfer or conveyance, such as Austin has several times 
 pointed out in the course of his Lectures ^. 
 
 611. Subject to this modification (and for om- present 
 purpose it is not an important one) I think Savigny's 
 analysis of contract may safely be adopted. The essential 
 distinction between it, and the definition current in those 
 
 ' See Lecture xiv, and the notes to Table II, pp. 387, 1005 (third ed.). 
 
Sec. 608-613.] LIABILITY FOB BREACH OF CONTKACT. 301 
 
 countries which have adopted the Code Napoleon, is this : 
 Savigny defines contract solely with reference to the con- 
 templation of the parties: if the parties intend to declare 
 their legal rights inter se, he calls it a contract; whether 
 or no it has the e£Pect intended is not considered^. The 
 Code Napoleon, on the other hand, makes it of the essence 
 of the definition of contract that an obligation is thereby 
 created. For instance, if I were to promise a voter ten 
 pounds for his vote, that would be a contract according to 
 Savigny ; but, as no legal obligation would result from it, 
 it would not be a contract according to the definition of the 
 French Code. The Italian Code nearly accords with Savigny's 
 definition. 
 
 612. No doubt, if we adopt Savigny's conception of con- Savigny's 
 tract, we shall find cases where all the conditions named by ^oea^not" 
 him are present, and where, nevertheless, contractual liability exactly fit 
 
 r ' ' 1 contractual 
 
 is denied. And we shall also find cases where some of these liability. 
 conditions are not present, where contractual liability is 
 afiirmed. It is a practical question whether we shall on this 
 account endeavour to reform our conception of contract so as 
 to meet these cases, or treat them as exceptional cases in 
 which a contractual liability is created though in reality no 
 contract exists ^- 
 
 613. To show what I mean when I say that, though the 
 conditions of contract are satisfied, there is no contractual 
 liability, I may suppose A to ask B to take charge of his 
 property and to distribute it amongst his creditors, and that 
 B assents, and takes charge of the property accordingly, but 
 afterwards applies it to another purpose. The conditions 
 laid down by Savigny for the presence of a contract between 
 
 1 I gather this from the general tenor of Savigny's observations, and, I 
 think, it is also implied in, though not expressly affirmed by, the definition. 
 
 * If we could find a definition of contract which would save us from the 
 necessity of calling things contracts which were not contracts, it would be 
 oouvenient. But this has not been done. I have more hope of reforming 
 legal language by finding some more appropriate name for the liability which 
 is now called contractual, but which is really not so. 
 
302 LIABILITY FOE BREACH OF CONTEACT. [Chap. XV. 
 
 A and B are here satisfied ; and there is a breach of that 
 contract by B : nevertheless B is not considered to be con- 
 tractually liable. We put such eases into a separate group 
 which we call breaches of trust. 
 
 614. On the other hand, if A were to ask B to take charge 
 of all the goods which he might send to B, and sell them to 
 the best advantage, remitting the proceeds to A, if B were 
 not duly to account for the proceeds he would be liable to A 
 contractually. This shows how closely the two groups 
 approach each other : indeed it shows more ; it shows that 
 they overlap. 
 English g]^5_ English lawyers have not made any very distinct 
 
 definitions ° ■' _ _ j j 
 
 of contract, attempt to define authoritatively either contract or con- 
 tractual liability. Several writers have recently given us 
 a very careful analysis and explanation of agreement, and 
 this is, no doubt^ a very useful step in understanding the 
 nature of a contract : but we have still to inquire, what is 
 a contract ? for it is clear that every agreement is not so. 
 Other QiQ igome persons after having defined an agreement 
 
 definitions go On to tell US that a contract is an agreement ' enforceable ' 
 ' at law. This, however, really means no more than that 
 there is a kind of agreement which it is the legal duty of a 
 party to perform, and that if he does not perform it he may 
 be sued in a court of law, for that is what I understand to be 
 meant by ' enforceable.' Before we know what is and what 
 is not a contract, and what is and what is not contractual 
 liability, this explanation must be supplemented either by 
 a complete enumeration of cases in which an agreement 
 is so enforceable ; or by some general statement of such 
 cases with an enumeration of exceptions. The latter is what 
 is commonly attempted. It is said that all agreements will 
 be ' enforced' (that is, all agreements are contracts) \m.less 
 the contrary is stated. This accurately describes the general 
 attitude of modern law in relation to agreements, which 
 adopts the principle pacta sunt servanda. I have, however, 
 
 ^ What is here stated is the scheme of the Indian Contract Act. 
 
Sec. 614-620.] LIABILITY FOR BEEACH OP COKTRACT. 303 
 
 never seen an enumeration of exceptions which was com- 
 plete, and without this enumeration the difficulty of de- 
 fining contract and of separating off the group of cases in 
 which there is contractual liability is only avoided and not 
 solved. 
 
 617. "Why the liability of a trustee should not be con- LiabilHy 
 sidered a contractual liability is a question to which I do ^hv'not^ 
 not find any very clear answer. The best answer I can contrac- 
 give is, that though the duty comes into existence upon the 
 consent of the parties, the nature of the duty is not under 
 
 their control, and the remedy is not the same as on a breach 
 of contract. 
 
 618. The conception of contract as set forth by Savigny Advan- 
 does not solve all the difficulties about contract : but it ap- Savigny'a 
 pears to me to have this advantage, that it calls attention to ™ '""■ 
 a point which English lawyers have rather lost sight of. 
 
 It reminds us that the agreement in order to become a 
 contract must be one in which the parties contemplate the 
 creation of a legal relation between themselves. 
 
 619. That there are agreements which will be considered Agree- 
 
 1 ■ 1 1 1 • ■ ments do 
 
 not to be contracts because this legal relation is not contem- not always 
 plated is, I think, abundantly clear. Suppose, for example, pi^teT 
 that two friends A and B agree to walk together at a definite l®S*l 
 
 ^_ . . relation. 
 
 time and in a definite direction, no one would say that this is 
 a contract, and yet it is clearly an agreement. The reason, 
 and the only reason, why it is not a contract is, as far as I am 
 aware, that the parties, presumably, do not contemplate a 
 legal relation. But I doubt whether such a reason has ever 
 been given by any English lawyer. 
 
 620. Another advantage of Savigny's definition of contract 
 is that it clearly describes the true relation of the parties, and 
 how it arises. It arises because there has been between the 
 parties a transaction having reference to their legal rights, 
 for which we have no special name, but which the Germans 
 call ' Eechtsgeschaffc,' and the French call ' acte juridique.' 
 And the relation which is created is, I think, better described 
 
304 LIABILITY FOR BREACH OF CONTRACT. [Chap. XV. 
 
 Difficulty 
 of ascer- 
 taining 
 intention. 
 
 generally as a legal relation than as that of an enforceahle 
 agreement, which appears to mean an agreement upon which 
 an action can be brought ^. But I should be disposed to say 
 (which Savigny may very likely have meant) that the legal 
 relation contemplated must be that of two persons having the 
 one a definite claim against the other. 
 
 621. A contract is a manifestation of intention, and the 
 same difficulty arises in contract as in all other manifestations 
 of intention when we have in cases of dispute to ascertain 
 what the intention really was. We can only infer intention 
 from acts, and whether we make this inference by the aid of 
 artificial rules or without them we shall inevitably in some 
 cases attribute intention wrongly. This is a difficulty which 
 is inherent in all inquiries into disputed facts. In acts of 
 which the very object is manifestation of intention, if the 
 parties are careful, the difficulty is not, under ordinary cireum- 
 Intention stances, very great. But from the slovenly mode in which 
 to contract Parties to a contract, in the hurry of business or from careless- 
 ness, frequently express themselves, great difficulties often 
 arise in ascertaining what legal relation the parties intended 
 to create. It is with reference to this inquiry that it is said, 
 ' the intention of the parties governs the contract.' But the 
 difficulty of ascertaining the intention still remains. The 
 person to whom the promise is made, or promisee, as he is 
 called, may say that he expected one thing, and the promiser 
 may say that he intended another. In which sense is the 
 promise to be taken ? Paley discussing this question says ; 
 ' It is not the sense in which the promiser actually intended 
 it, that always governs the interpretation of an equivocal 
 promise ; because, at that rate, you might excite expectations 
 which you never meant, nor would be obliged to satisfy. 
 Much less is it the sense in which the promisee actually 
 received the promise ; for, according to that rule, you might 
 
 ■ It does not seem that those who define contract as an enforceable agree- 
 ment would have any name for an agreement which produced legal results but 
 not the legal result of being enforceable by action. 
 
Sec. 621-622.] LIABILITY FOE BREACH OF CONTRACT. 305 
 
 be drawn into engagements you never designed to undertake. 
 It must, therefore, be the sense (for there is no other remain- 
 ing) in which the promiser believed that the promisee accepted 
 his promise^.' Austin^, remarking on this passage of Paley, 
 says that if this rule be adopted, should the promiser misap- 
 prehend the sense in which the promisee accepted the promise, 
 either the promisee will be disappointed, or he will get more 
 than he expects : and he suggests that the true guide is the 
 understanding of both parties. Paley's two first propositions 
 are undoubtedly correct. Austin's criticism, however, on what 
 Paley considers as the only other possible alternative is, as 
 undoubtedly, sound. But with the greatest respect for so 
 high an authority, it appears to me that Austin, in his own 
 suggestion, merely falls back on the old difficulty ; for the 
 difficulty only arises when the parties aver that they under- 
 stood the promise in different ways, which in every equivocal 
 promise is, of course, possible. 
 
 622. The practical solution of the difficulty is, I think. How ascer- 
 simple enough. Austin rightly points out that there is a practice. 
 distinction between the intention of the parties and the sense 
 of the promise, and it is the sense of the promise rather 
 than the intention of the parties which governs the contract. 
 Of course the sense of the promise may be different to dif- 
 ferent persons ; the promiser may consider that his words 
 bear one sense, the promisee may consider that they bear 
 another ; and a stranger may consider that they bear a third. 
 But the judge, who has to decide what legal obligation has 
 resulted from the transaction, determines what the sense is. 
 And in doing this he may fairly use the assertions of the 
 parties themselves as a guide to his own conclusion. Having 
 first ascertained the terms in which the parties expressed 
 themselves, he may hear what each party says as to their 
 
 ^ Paley, Moral Philosophy, book iii. part i. chap. v. See Archbishop 
 Whately'a note, in which I find he arrives at the same conclusion as I do, 
 namely, that the result of a promise may be different from what either party 
 
 ' Leet. xxi,, note, ad finem. 
 
306 LIABILITY FOE BREACH OP CONTEACT. [Chap. XV. 
 
 true interpretation, and what each respectively says he in- 
 tended by them ; he may also consider what interpretation 
 would be put upon them by an uniaterested man of ordinary 
 understanding. He may even go further, and consider the 
 surrounding circumstances, so far as they throw light upon 
 either the sense of the promise, or the intention of the pro- 
 miser, or the expectation of the promisee. But after all he 
 must put upon the words his own interpretation; and from 
 the sense which he attaches to the words he must jii'^^ume 
 the intention. So that the current phrase 'the intention of 
 the parties governs the contract ' is really only true to this 
 extent ; that it governs the contract, where both parties are 
 agreed what the intention was. Where there is a dispute 
 as to the intention, the contract, or rather the contractual 
 liability, is governed by the intention, as it is presumed from 
 that sense which, under all the circumstances, the judge 
 thinks ought feirly to be attached to the promise. 
 
 623. For instance, suppose you wrote me a letter offer- 
 ing to buy 'my bay horse, if warranted sound, for one 
 hundred pounds,' and that I accepted the offer ; whereupon 
 I sent the horse to you with a written warranty as a 
 fulfilment of the bargain. If we were to dispute, whether 
 the warranty I offered you was such a warranty as was 
 contemplated, the court would hear what you and I had 
 to say as to the meaning of the agreement, and our re- 
 spective intentions and expectations ; but would in all pro- 
 bability decide, that the sort of warranty which I was 
 bound to give was the usual warranty in such cases ; that 
 being the warranty which a man of ordinary sense and 
 understanding would expect under the circumstances. The 
 judge might be able to form an opinion without further 
 inquiry whether the warranty was such, or not ; but he 
 might not ; and if he could not do so, he would inquire 
 from experienced persons what sort of warranty is usually 
 given in such cases. And whatever sense experienced 
 persons usually attach to the word 'warranty' when deal- 
 
Sec. 623-625.] LIABILITY FOE BREACH OP CONTEACT. 307 
 
 ing in horses, the court would attach to it ia. this case, 
 and decide that that was the warranty I was bound to give, 
 whatever protest you might make that that was not what 
 you expected to receive, or I might make that that was 
 not what I intended to give. 
 
 624. If, indeed, after having agreed to purchase my ba^ 
 horse, you wanted to make out that your real intention was 
 to purchase my Irown, the court would scarcely listen to you. 
 Suppose, however, that I have two bay horses, and you 
 insisted you had bought one, whilst I insisted you had 
 bought the other. On the words of the promise itself it 
 might be impossible to discover whether we really in- 
 tended the same or different horses ; and, if the same, 
 which. But a very little further inquiry would probably 
 clear up the whole matter. It might turn out that, of 
 my two bay horses, I had sent one to you to look at ; 
 that you had offered me seventy-five pounds for this bay 
 horse, and that I had insisted on having one hundred: 
 after which, your offer to purchase 'my bay horse' for one 
 hundred pounds was delivered. Now if nothing had ever 
 passed between us about the other horse, and your offer 
 of a hundred pounds ' for my bay horse ' followed close upon 
 this negotiation, there would be no doubt at all that you 
 would be considered to have bought that horse which had 
 been sent to you for inspection. And the judge would come 
 to this conclusion, not because he is certain that this was 
 what I, or you, or both of us intended. If you are a 
 person of high character for veracity, and you deny that this 
 was your intention, the judge would hesitate long before he 
 disbelieved you. But in this ease the doubt would not 
 embarrass him. He concludes that no reasonable man would 
 suppose that any other horse was referred to, and he fixes 
 upon that horse accordingly. 
 
 625. This, I think, is the practical method which tribu- 
 nals adopt for deciding, in cases of dispute, what liability has 
 resulted from a contract. For this purpose they generally 
 
 s a 
 
308 
 
 LIABILITY FOR BREACH OF CONTRACT. [Chap. XV. 
 
 adopt certain maxims of interpretation^, which, however, 
 generally conclude with a protest that these maxims must 
 always yield to the evident intention of the parties. What 
 is here called the ' evident intention of the parties ' is that pre- 
 sumed intention which, as I have said before, the judge takes 
 from the interpretation, which interpretation may possibly con- 
 flict with one or another of the generally accepted maxims ^. 
 
 Consider- 
 ation, 
 
 What is 
 meant by 
 consider- 
 ation. 
 
 Consider- 
 ation pe- 
 culiar to 
 English 
 law. 
 
 626. I shall now discuss a very peculiar rule of English 
 law, which I shall have to examine at some length. The 
 English law says that there is no liability upon a contract, 
 unless the contract fulfills one of two conditions — namely, 
 either that it is made upon a ' consideration,' or that it is 
 contained in a deed under seal. 
 
 627. A contract^ we are told, is made upon ' consideration ' 
 when some thing is done, forborne, suifered, or undertaken 
 by one party at the request of another, which is made the 
 foundation of the promise of that other. 
 
 628. This rule about consideration is not recognised by any 
 other system of law in the modern or ancient world. It is 
 only recognised in England and in those countries which have 
 derived it from England. It is not recognised in Scotland. 
 The opinions of jurists may, therefore, be fairly said to be 
 divided as to the usefulness of the rule, and under these 
 circumstances one may criticise the rule without being guilty 
 of presumption. 
 
 ' See Cliitty on Contracts, oh. i. sect. 3. par. 4, where these maxims are 
 collected. It is common to transfer the maxims for the interpretation of wills, 
 conveyances, and contracts from one to the other withont very careful dis- 
 crimination ; but I doubt whether the interpretation of these three classes of 
 documents proceeds upon precisely the same principles. 
 
 ' I said above (sect. 612) that there were cases in which a contractual 
 liability was asserted where all the conditions laid down by Savigny do not 
 exist. This is so wherever the sense of the promise differs from the intention 
 of the parties, or of one of them ; and it is, I understand, on this ground that 
 it has been proposed to remodel the conception of contract, and leave out 
 ' consensus ' altogether. This would entail a stupendous modification of legal 
 language and I do not venture to undertake it. Indeed I doubt whether it 
 would lead to any satisfactory result. 
 
Sec. 626-631.] LIABILITY FOR BREACH OF CONTRACT. 309 
 
 629. In order to ascertain, if possible, what is the principle Meaning of 
 on which the rule proceeds, let us take a simple case which 
 
 often occurs. A father says to his son that he will give him 
 a certain sum, say <^iooo. If the father refuses to fulfil this 
 promise the son cannot sue his father. If the father writes out 
 the promise in the most formal manner and signs it, still the 
 son cannot sue the father. If the father affixes his seal to the 
 document then the son can sue him, if the money is not paid. 
 
 630. We must be careful not to confound the rules about Gratuitous 
 consideration with the rules relating to gratuitous promises. 
 
 A gratuitous promise is obviously a transaction which the 
 law will regard with some suspicion. There are the same 
 reasons for jealousy in regard to gratuitous promises as 
 there are for jealousy in regard to gifts. But then- many of 
 these reasons are as strong against gratuitous promises made 
 in a deed under seal as they are against gratuitous promises 
 made in writing without seal or by parol. Accordingly we 
 find in English law special rules whereby the legal result 
 of gratuitous promises under seal is regulated. But the rule 
 as to consideration evidently proceeds upon a different prin- 
 ciple from this, for it says nothing whatever about invalidating 
 •the legal result of gratuitous promises provided they are made 
 in a particular form. 
 
 631. The reason which is given by English lawyers, why the How ap- 
 father should not be liable to be sued by the son in the two deeds. 
 first of the above cases, and should be liable to be sued in the 
 
 last, is that the deed ' imports consideration.' This points 
 to an attempt to make it appear that the English law in all 
 cases consistently requires a 'consideration' in order that a 
 promise may be sued on. Yet it is obvious that this is only 
 a pretence. To say that a deed ' imports consideration ' is 
 only another way of saying that a promise under seal may 
 be sued on without consideration. Moreover if it were of 
 importance to ascertain whether the deed was gratuitous, the 
 notion that a deed ' imports consideration ' would be wholly 
 disregarded. 
 
310 LIABILITY FOE BEEACH OF CONTEACT. [Chap. XV. 
 
 Adequacy 632. Again, if we turn to promises not under seal we see 
 enquire/ that though a consideration is necessary, yet it is constantly 
 '°*'*' insisted on that no inquiry can be made as to the adequacy 
 
 of the consideration. All that is necessary is a consideration 
 in form. If A promises B a thousand pounds for nothing 
 in return the promise cannot be sued on. If he promises 
 B a thousand pounds in return for a peppercorn it can be 
 sued on. 
 
 633. It is clear therefore that consideration has nothing 
 whatever to do with the question whether or no the promise 
 is gratuitous. A promise may be purely gratuitous, and yet, 
 being based upon a merely nominal consideration, may give 
 rise to liability. 
 
 634. What then is the real explanation of the rule of law, 
 that contracts under seal, and contracts not under seal where 
 there is a consideration, shall give rise to liability, but con- 
 tracts not under seal where there is no consideration shall 
 not do so ? 
 
 True 635. I think the real explanation is manifestly this : — 
 
 "m ^ jvyi i Ti p* 
 
 of the rule. When a man takes the trouble to throw his promise either 
 into the form of a deed under seal, or into the form of a 
 bargain for something to be received as a quid pro quo, 
 it is only reasonable to conclude that he had some object in 
 doing so ; and it is also reasonable to conclude that the ob- 
 ject was, to show that his promise was not mere talk but 
 a matter of business : and that the promisor contemplated 
 a legal result, namely, that he should be legally liable to fulfil 
 his promise. 
 
 636. When, on the other hand, a man merely makes a 
 promise of future bounty in a casual way it is not at all 
 probable that he intends to subject himself to a legal claim. 
 
 637. Where, therefore, the English law seems to me to 
 have gone wrong is in treating the question of consideration, 
 which is really one of form only, as if it were one of substance, 
 and in not recognising its true significance. Hence in some 
 cases where it was clear that contractual liability ought to be 
 
Sec. 632-638.] LIABILITY FOR BREACH OP CONTRACT. 311 
 
 recognised, they have found great difficulty in recognising it, 
 because they could not find any ' consideration,' although there 
 was ample other indication of intention. They have in most 
 cases managed to get over the difficulty, but by reasoning 
 which is the reverse of satisfactory. 
 
 638. There is, for example, a class of cases not unfrequently Promises 
 occurring in which A and B have made mutual promises. ^a,n is* 
 As is usual in such cases the promise on one side is the con- fli'eady 
 
 •^ _ bound to 
 
 sideration for the promise on the other, but a difficulty is perform. 
 raised by showing that what B has promised is something 
 which he was already bound by law to do. To the argument 
 that there is a promise by B in return for the promise by A, 
 and that the court will not look into the adequacy of the 
 consideration, the judges, viewing the consideration as 
 a condition of liability, and forgetting that the question is 
 one of form only, feel obliged to reply that they still cannot 
 acknowledge a consideration which is obviously worthless. 
 As a specimen of this class of cases I may take the fol- 
 lowing : — A said to his nephew B, who was engaged to 
 marry X, that on his marriage he would allow him ^100 
 a year. There was no difficulty in construing this as a pro- 
 mise by ^ to J that he would marry X in consideration of 
 the annuity, and B accordingly did marry X, and for some 
 time the annuity was paid. At length A died, and B called 
 upon A's executors to pay an instalment of the annuity 
 which had fallen due in ^'s lifetime. The executors re- 
 fused to pay, denying the liability of A. In the suit which 
 followed, the decision turned upon whether there was any con- 
 sideration for the promise of A. The mere promise oi B to A 
 that he would marry X, being a promise by B to do some- 
 thing to which he was already bound was, in accordance 
 with numerous decisions, held to be not a consideration : and 
 the most ingenious suggestions were made to show how it 
 might in this particular case have become so. It would 
 have been much simpler, more ia accordance with the facts, 
 and, I venture to think, more reasonable, to hold that tho 
 
312 LIABILITY FOE BREACH OF CONTEACT. [Chap. XV. 
 
 case was one in which legal liability was clearly contemplated 
 by the parties, and liability ought therefore to be enforced ^. 
 Part con- 639. Another set of cases, of which the following is an ex- 
 ample, has been found equally embarrassing : — B at the request 
 of A handed him over a letter, by means of which A gained 
 an action in which he was then plaintiff. A did not promise 
 anything to B at the time, but afterwards he promised to give 
 B a thousand pounds for letting him have the letter^. Of 
 course there was no ' consideration ' for this promise, and the 
 decision in favour of the plaintiff, which was obviously con- 
 sonant with justice, has been supported and attacked by argu- 
 ments which appear to me to be more ingenious than sound. 
 In nearly all these arguments it seems to be assumed that A 
 ought to pay what he promised. Surely he ought, and the best 
 reason why he ought to pay is because he promised to do so^. 
 There is in such a case ample evidence of contractual liability. 
 640. It has been said in reference to cases of this kind that 
 it is not reasonable that one man should do another a kindness 
 and then charge him a recompense for it. Nothing could be 
 more unreasonable ; but nothing of the sort would be done in 
 any case where the promiser was made liable because he had of 
 his own consent undertaken a liability. If the handing of the 
 letter in the case I have referred to was a kindness, probably 
 the promise of .^''looo might have been a kindness also. But 
 the court thought otherwise : and I think it will be generally 
 agreed that a man ought to pay for a service performed at 
 his request, and also that he ought to pay whatever he has 
 himself deliberately estimated as the value of the service. 
 
 ' The case referred to is that of Shadwell v. Shadwell, reported in Com- 
 mon Bench Reports, New Series, vol. ix. p. 159. See the observations in 
 Anson on Contracts, 2nd. ed. p. 88 ; and in BoUock on Contracts, 3rd. ed. 
 p. 195- 
 
 ^ The case is that of Willcinson v. Oliveira, reported in Bingham's New 
 Cases, vol. i. p. 490. The case eeems generally to have been understood as 
 I have stated it ; and this view of it is borne out by the declaration as stated 
 in the report. The argument, however, and the decision do not proceed en- 
 tirely upon this ground. 
 
 ° See Pollock on Contracts, 3rd. ed. p. 1 8 7 ; Anson on Contracts, 2nd. ed. p. 94. 
 
Sec. 639-643.] LIABILITY FOR BEEACH OF CONTEACT. 313 
 
 641. There are many other cases in which promises have 
 been held to create liability, but in which it has been found 
 very hard to discover a ' consideration ' : — promises, for ex- 
 ample, by a person of full age to pay a debt contracted during 
 infancy ; promises by a bankrupt to pay debts from which he 
 has been discharged ; promises by a widow to pay debts con- 
 tracted during her marriage ; promises to pay debts barred by 
 the statute of limitations. In all these cases a variety of inge- 
 nious suggestions have been made iu order to make decisions 
 square with the doctrine of consideration. A simple sugges- 
 tion which explains them all is that they were all cases in 
 which the promiser himself intended to create a liability ^. 
 
 642. Perhaps the boldest discovery of a ' consideration ' is Contracts 
 in those cases where the court has enforced a gratuitous pro- ment. 
 mise to take charge of property. It is said that there is in 
 
 such cases a consideration because ' the owner's trusting him 
 with the goods is a sufficient consideration to oblige him 
 to a careful management.' I give the words, I do not profess 
 to understand them^. 
 
 643. If we now turn to cases in which the liability has Cases in 
 been denied, we shall find the reasoning on which the de- there is no 
 cisions rest equally unsatisfactory. Thus, suppose that A, "^^^'J®''" 
 as a pure matter of business, ofiers to sell goods to JB, and Promise to 
 
 1 1 . /« ■ -n 1 keep offer 
 
 expressly agrees to let this oner remain open till the next open. 
 day at the same hour, and in the meantime not ■ to sell 
 the goods. It has been held that if A nevertheless sells 
 the goods before the time has expired he is not liable, 
 because there is no consideration for the promise not to 
 sell. Every one, I think, must feel the unsatisfactory nature 
 of this conclusion. The arrangement is perfectly unob- 
 jectionable, and in many cases a very convenient one. It 
 might be made under seal, but a deed is an expensive 
 
 ' See tliese cases collected and discussed in Anson on Contracts, 2nd ed. p. 100. 
 
 " The words are those of no less a judge than Lord Holt, and they have 
 received repeated approbation. See Smith's Leading Cases, 7th. ed. pp. 189, 
 205, 207. 
 
314 LIABILITY FOR BREACH OF CONTRACT. [Chap. XV. 
 
 and troublesome affair, quite unsuited for such a transaction 
 as this. The parties clearly intended that the transaction 
 should have a legal result, and it would be far more satis- 
 factory if it were enforced i. 
 So-called 644. A representative case of another class is the foUow- 
 
 moral con- . . ..„ . iii j.t.j. 
 
 sideration. ^^^S '• — ^ "^^ guardian lor a mmor, who had property, but 
 ready money was required for the management of it, and for 
 the maintenance and education of the minor. Accordingly the 
 guardian borrowed money on his own security. When the 
 minor came of age she promised to repay the money, but 
 soon afterwards she married, and then her husband, who 
 had had the benefit of her property, promised to repay it. 
 Upon this promise the husband was sued. There were 
 similar cases in which the promise had been enforced, but 
 these cases were overruled, and because there was no con- 
 sideration for the promise it was held that no action would 
 lie upon it. I have never been able to understand the satis- 
 faction with which this result has been regarded. It was, 
 no doubt, a triumph of the doctrine of consideration, but 
 a triumph gained at the clear expense of justice. Surely it 
 might have been better held, as in fact the previous cases 
 had held, that an express undertaking of a liability was 
 binding : not, however, upon the stupid ground that a moral 
 consideration supports a promise, but upon the ground that 
 a liability was intended and ought to be enforced^. 
 
 Account 645. A very curious result of the doctrine of consideration is 
 
 stated. 
 
 the following : — Supposing that A and -S having had deal- 
 ings together go over the account between them, and agree 
 to strike a balance at s^^oo as due to A : and thereupon £ 
 
 ' Mr. Pollock, Contracts, 3rd. ed. p. 26, argues, relying on a decision of 
 Lindley, L. J., p. i, not that the promise to hold the goods does create a 
 liability, but that there is a contract to purchase them, if B announces his 
 desire to purchase before he gets notice of revocation, and before the time 
 has expired. I think the reasoning is sound. But I should prefer infinitely 
 that the promise to hold the goods should create a liability. 
 
 ^ See the case of Eastwood v. Kenyon, reported in Adolphus and Ellis' 
 Reports, vol. xi. p. 446, oven-uling the decision of Sir James Mansfield in 
 the case of Lee v. Muggeridge, in Taunton's Reports, vol, v, p. 36. 
 
Sec. 644-647.] LIABILITY FOE BREACH OF CONTEACT. 315 
 
 agrees to pay that sum upon request. B is liable to A if 
 he breaks this promise. But suppose that B says he will 
 pay the money that day week. B is not liable upon this 
 promise because there is no consideration for it. This ridi- 
 culous result (for it is impossible to describe it as otherwise) 
 is, I have no doubt, a logical deduction from the English 
 rules about consideration, and I have no doubt that the 
 exceedingly acute judges, who so laid down the law, were 
 only actuated by the fear of letting the whole 'fabric of 
 consideration ' fall to the ground had they decided otherwise. 
 Now what would have been the result if instead of inquiring 
 whether there was a 'consideration' the judges had inquired 
 whether, in accordance with Savigny's definition, the parties 
 contemplated a transaction which would create liability? 
 The result would be that both promises would be considered 
 as promises which might be sued on. And this is the only 
 result which accords with common sense ^. 
 
 646. The last illustration I shall give of the unsatisfactory Eelease of 
 nature of the doctrine of ' consideration ' is the perpetual and, 
 apparently at this moment, unsuccessful struggle to hold 
 persons bound by a gratuitous promise to forgive a debt. 
 Promises of this kind should, of course, be as jealously 
 watched as all other gratuitous promises. But this object is 
 
 not affected by saying, as the English law says, that a debt 
 whilst it may not be simply forgiven may be discharged by 
 the handing over of a peppercorn^. The true way to deal 
 with such cases would be to accept the inevitable conclusion 
 that the parties to such a transaction had in contemplation 
 their legal relations; and to allow them to regulate these 
 as they think proper, subject to any wholesome restrictions 
 against gratuitous disposal that may be found desirable. 
 
 647. The result which I have derived from a perusal of the Conclusion, 
 decisions of English judges upon the question of considera- 
 
 1 The ease referred to is that of Hopkins v. Logan, reported in the 5th vol. 
 of Meeson and Welaby's Eeports, p. 241. 
 
 ^ See Smith's Leading Cases, vol. i. p. 341, and Pollock on Contracts, 3rd. ed. 
 p. 197. The absurdity is here admitted. 
 
316 LIABILITY FOR BREACH OF CONTRACT, [Chap. XV. 
 
 tion is that it is impossible to apply it as a test of legal 
 liability with consistency and with justice : that it is in 
 truth not a test but an indication: an indication, but an 
 indication only, amongst many others, that the parties enter- 
 ing into a transaction had in contemplation their legal 
 relations to each other. 
 Gratuitous 648. The question, whether or no, notwithstanding the 
 
 promises. . . „ , • i i i c 
 
 intention of the parties, the breach of a gratuitous promise 
 should create any liability is, as I have said, a totally distinct 
 one : and it is obvious that in order to deal satisfactorily with 
 this question the notion that the adequacy of the considera- 
 tion is not to be inquired into must be entirely discarded. It 
 would be absurd when you are considering the validity of 
 gifts to look upon a promise of =^1000 in return for a pepper- 
 corn otherwise than as a gift of j6"'iooo; or to look upon 
 the acceptance from a solvent man of ,^40 in lieu of £100 
 otherwise than as a gift of ^60 ; or as the gift of 2,00s. 
 a quarter for wheat worth only 40s. otherwise than as a 
 gift of 160S. But by the generality of the rule forbidding 
 judges to look into the adequacy of consideration, and by the 
 notion that a deed ' imports ' consideration, the English law 
 has obscured and confused the subject of gifts. In almost 
 all systems, in the later Roman law-"^, in the Preussisches 
 Land-Recht^, in the French Code Civil ^, in the Italian 
 Civil Code*, even in the Mahommedan law^ we find the 
 subject treated fully, and for the most part satisfactorily. 
 Gifts actually made are under certain circumstances revoc- 
 able : gifts not yet made can under certain conditions be 
 enforced. The English law, where it has dealt with gifts 
 apart from the question of consideration, has mixed it up 
 with the question of fraud. Thus if a husband being 
 insolvent gives his money to his wife instead of to his 
 
 ' See Salkowski, Lehrbucli der Inst., § 1 29. 
 
 ° Preuss. L. K. Part 1. Tit. xi. §§ 1037-1077. 
 
 " Co. Civ. Art. 893 sqq. * Codice Civile, Art. 1050 sqq. 
 
 ' Perron, Pr&is de Jurisprudence Musulmane, vol. v. pp. 64 sqq. 
 
Sec. 648-652.] LIABILITY FOK BREACH OF CONTRACT. 317 
 
 creditors, this is obviously a transaction which ought to 
 be set aside : and it may be a fraud ; it would be so, if 
 there was a secret understanding between the husband and 
 wife that the money should still belong to the husband. 
 But it ought to be set aside even although there was a real 
 transfer and no fraud. An insolvent ought not to be allowed 
 to make either real gifts or pretended ones: and nothing 
 is gaiaed by ' presuming ' fraud. 
 
 649. I have already made some observations upon the Void and 
 terms 'void' and 'voidable' as applied to legal transactions, contracts. 
 and the care that is necessary in distinguishing the various 
 modifications of the result of a transaction which are de- 
 scribed by these terms ^. This care is especially required in 
 
 the case of contracts. 
 
 650. The principal circumstances which modify the result 
 of a contract are defects of form, absence of consideration, 
 illegality, infancy, mistake, fraud, misrepresentation, duress, 
 and undue influence. 
 
 651. There has been a long pending discussion, not yet Defects of 
 closed, as to whether contracts defective in form are to be 
 considered as void. The discussion has, I think, been com- 
 plicated by its not being clearly agreed in what sense the 
 
 word 'void' is to be used. Many persons who deny that 
 contracts defective in form are void, apparently only mean 
 to say, that they are not entirely devoid of legal result. 
 Other persons seem to mean when they assert that they 
 are void that they do not produce the legal result contem- 
 plated. Of course, it is possible that the same contract 
 should be void in the last of these two senses and not so in 
 the first. In fact I have little doubt that every contract 
 defective in point of form is void in the last of these two 
 senses ; whereas a contract hardly ever is so in the first. 
 
 652. There is another meaning in which the word 'void' 
 is sometimes used as applied to contracts. It is sometimes 
 
 ' See aupra, sect. 274. 
 
318 LIABILITY FOR BREACH OF CONTRACT. [Chap. XV. 
 
 Non-com- 
 pliance 
 with sta- 
 tute of 
 frauds. 
 
 said that a contract is void, even when as between the 
 parties themselves an action can be brought upon it, if third 
 persons cannot acquire rights under it. This is a peculiar 
 condition of things which sometimes occurs, but I do not 
 see why under such circumstances the contract should be 
 called void. 
 
 653. What I have said as to the uncertainty of the 
 meaning of the term ' void ' as applied to contracts defective 
 in form is well illustrated by certain discussions which have 
 arisen upon the Statute of Frauds. In consequence of a 
 slight difference between the language of sect. 4 and that of 
 sect. 1 7 it has been said that contracts under sect. 4 are not 
 made void for a defect in form, whereas the very same defect 
 makes void contracts under sect. 17. 
 
 654. But is there any sense in which a contract could be 
 called ' void ' under sect. 17 for a defect of form and not under 
 sect. 4 ? I know of none. In the sense that the transaction 
 does not produce the liability which the parties contemplated 
 the contract is void under both sections. In the sense of 
 producing no legal result whatever, the contract is not void 
 either under sect. 17 or under sect. 4. Thus, suppose A verbally 
 oiFers to sell B a horse for .^50, and B verbally accepts the 
 oifer. This is a case which falls within sect. 1 7, and the contract 
 not being in writing does not render A liable to be sued by B 
 if he refuses to deliver the horse. It is, therefore, undoubtedly 
 void in the sense that it does not produce the liability con- 
 templated. But suppose that A afterwards writes to B and 
 says, ' the horse you bought of me is waiting in the stable for 
 you to take him away.' This does not make a new contract, 
 but the contract originally made immediately becomes one 
 upon which A may be sued. The contract, therefore, was clearly 
 not void in the sense that it has produced no legal result 
 whatever. 
 
 655. Now take a case under sect. 4. A promises B by word 
 of mouth to pay the debt of C. It is said that this is not void ; 
 that it is a contract, although it is not clothed in the necessary 
 
Sec. 653-660.] LIABILITY FOE BREACH OF CONTEACT. 319 
 
 form. It may be so. That depends upon how you define a 
 contract. But it certainly does not produce the result which 
 the parties contemplated, namely, that the promise should be 
 enforceable against the promiser. 
 
 656. I do not say that the legal results of a defect of form 
 under the two sections are the same. As to that I say 
 nothing. The decision in the well-known case of ' Leroux v. 
 Brown ■'^,' that a verbal contract made in France may be sued 
 on if it falls within sect. 4 and not if it falls within sect. 1 7, 
 may or may not be correct ; but in either ease the observa- 
 tions which I have just made will hold good. 
 
 657. Absence of consideration renders a contract void in 
 the sense that it prevents the agreement from producing 
 the liability contemplated both as between the promiser and 
 promisee, and as between the promiser and any other persons. 
 
 658. Illegality also renders a contract void in this sense, 
 and, as far as possible, courts of law deprive an illegal contract 
 of all legal results whatsoever. 
 
 659. It is frequently said that a person who is not a party Transfer of 
 to the agreement which is the basis of the contract cannot liability. 
 incur any liability under the contract ; and that likewise a 
 person who is not a party to this agreement cannot enforce 
 
 any liability under it. Of course no one who is not a party 
 to an agreement can incur any liability, or acquire any right 
 to enforce a liability, by reason of his consent to that agree- 
 ment. If any liability is imposed upon him it must be, not 
 because of his consent to that agreement, but for some other 
 reason. 
 
 660. But a promise made by ^ to -S is very often enforce- 
 able by £ against C, and a promise made by i) to ^ is very 
 often enforceable against D by F. And if this is what is 
 meant by ' liability under the contract,' the rule as above laid 
 down is subject to so many exceptions, that I hardly think it 
 ought to appear as a rule at all. There are multitudes of cases 
 
 ' Keported in Common Bench Beports, vol. xii. p. 8oi. 
 
320 LIABILITY FOE BEEACH OF CONTEACT. [Chap. XV. 
 
 ia which the heir, executor, administrator, or assignee of 
 the party to a contract may incur liability, or acquire a right 
 to enforce liability, under a contract to which he was no 
 party. 
 
 661. Much, no doubt, will depend upon what appears to 
 have been the intention of the parties. If the intention was 
 that the liability should exist only as between the two original 
 parties to the contract it will not be extended. 
 
 662. It used to be said in somewhat barbarous language 
 that contracts are choses in action, and that choses in action 
 are not assignable at common law, but that they are assign- 
 able in equity. Now that all courts administer equity I 
 think that this language might be well dropped ; and that 
 the rule should be stated generally that the right and obli- 
 gation under a contract are both assignable, unless it appears 
 that the parties to the contract intended otherwise. This 
 will sometimes appear by the words used and sometimes by 
 the nature of the transaction. A promise, for example, to 
 perform personal services is one in which the liability cannot 
 be transferred. 
 
 Offer and 663. It has also been frequently said that to create liability 
 
 acoep ance. ^^^gj. ^ contract there must be an offer by one of the parties 
 
 and an acceptance by the other. This I think is true. 
 
 At the same time liability may be created by an offer and 
 
 something which ensues upon it which is not an acceptance. 
 
 Keward Thus, if A offers a reward for the recovery of lost property, and 
 
 for toding ^j ^j^jq has never heard of the offer restores the property, he 
 
 perty. may sue A on the promise. I think, however, that though 
 
 £ sues on the promise there is no real contract, but only 
 
 what may be called quasi-contract. The reason for calling it 
 
 a quasi-contract is that A and B are as nearly as possible in 
 
 the same position as if they had made a contract. 
 
 Undis- 664. There is another case in which liability exists which 
 
 cloSGQ. 
 
 principal, is Certainly very like contractual liability, but in which there 
 is no offer and acceptance. A says to ^, ' I contract with you.' 
 In truth A is making the contract on behalf of C. There is 
 
Sec. 661-666.] LIABILITY FOE BREACH OF CONTRACT. 321 
 
 a liability of A to G, and of C to J ; a liability which is defined 
 by the agreement between A and B ; and which is generally 
 called liability ex contractu. But nothing whatever has passed 
 between A and C. Not only (to use the expression of Lord 
 Cairns), the mind of A never rested on C, but it rested on 
 another person ^. 
 
 665. The liability of the promiser to fulfil his promise is a Liability 
 thing ; and from its being capable of being bought and sold, and objef t 
 assigned and transferred like other things, and also from its °^°^'°^^^- 
 having a money value, it is looked upon as the object of 
 ownership. 
 
 666. The view of liability that it is a thing which is the Lumley v. 
 object of ownership, that it is in fact property, leads natur- ^^' 
 ally to the conclusion that, like other property, it is protected 
 
 by the law which prohibits certain acts being done which 
 would damage it. This, I take it, is the true explanation of 
 the case of Lumley versus Gye ^, in which the defendant was 
 held liable for having, with the intention to cause damage to 
 the plaintifi", induced a person who had made a promise to 
 the plaintiiF not to fulfil it. This was an injury to the 
 plaintifi°s property ^. 
 
 ' Possibly this case might be put in this way. The doctrine that an undis- 
 closed principal is liable on and may enforce a contract made by his agent mostly 
 applies to mercantile contracts, and amongst mercantile persons it is understood 
 that a principal should have this power and this liability. If that is so, then 
 when A says to B, 'I contract with yon,' he really says, 'I contract with you 
 or with any person who is your principal, or may become your principal.' 
 Still there would be no contract between A and the principal until the principal 
 accepted the contract. The principal might then, perhaps, be understood 
 to say, ' I accept the offer you made to my agent to contract with me ;' and so 
 we should get an offer and acceptance . Thus there would be a contract between 
 A and the principal and it would be understood that the liability would be 
 the same as if the oifer had been accepted when it was made to the agent. 
 
 ^ Eeported in Ellis and Blackburn's Reports, vol. ii, p. 2if>. 
 
 " It is because the liability or obligation is the object of ownership that 
 contract is said to create a right in rem as well as a right in personam. See 
 Anson on Contracts, 2nd ed. p. 208. 
 
CHAPTEE XVI. 
 
 LIABILITY FOR TOET. 
 
 Tort and 
 delict. 
 
 French 
 
 definition 
 of delict. 
 
 667. In the same way as the examination of liability 
 ex contractu involves an analysis of contract, so the examin- 
 ation of liability ex delicto involves an analysis of delict 
 or tort. I am therefore brought face to face with that most 
 difficult of all questions — What is a tort ? 
 
 668. It is not necessary that tort and delict should be 
 exactly equivalent expressions, but I think that they are 
 understood to be so. Liability for a tort is, I think, con- 
 sidered to be equivalent to liability ex delicto, but the word 
 ' tort ' is more in common use with us than the word ' delict.' 
 
 669. On the continent the word 'tort' is not used, but there 
 is in the French Civil Code a chapter headed ' Delicts,' which 
 would lead us to suppose that we should find deKcts there fully 
 defined. All, however, that I am able to infer from what is 
 there said is that a delict is an act of one man which causes 
 damage to another, provided that the act be done intention- 
 ally, negligently, or imprudently. That some acts so done 
 give rise to liability is, no doubt, true, but one at least of the 
 principal terms used in this description is, as I shall show 
 presently, exceedingly vague, and it is certain that many acts 
 which this description would cover are not delicts ; nay more, 
 that many acts so done do not give rise to any liability at alU. 
 
 '■ The clauses are as follows, Art. 1382: — • Tout fait quelconque de Vhomme 
 qui cause h autrui un dommage, oblige celui par la faute duquel il est arriv^ 
 
Sec. 667-672.] LIABILITY FOE TORT. 
 
 323 
 
 670. The English lawyers have not yet made any attempt 
 to define torts, and I therefore proceed to examine the phrases 
 in common use among lawyers when they wish to give their 
 reasons why liability ex delicto exists in some cases and not 
 in others ; and also the various terms by which they describe 
 events which give rise to this liability, and by which they 
 distinguish events which do not give rise to it. 
 
 671. We generally find that those acts, which, when con- 
 sidered with reference to the obligation to make compensation 
 which results from them, we call torts, are, when considered 
 with reference to the nature of the act itself, called in- 
 juries ; and a good deal is made of this word ' injury,' as if Injury, 
 it, in itself, told us a good deal about the matter. We are 
 
 told over and over again, that in order that a man should 
 be liable for any damage, on the ground that it is a tort, 
 there must be injury. But what is injury ? All we know of 
 it is that it is the infringement of a right. I believe also 
 that injury is here used in the special sense of an infringe- 
 ment of one or other of those rights which relate to property, 
 or personal security, or reputation. But what are those 
 rights? I have never yet found them described. If we 
 knew them, then we should also know the duties and obli- 
 gations to which they correspond, and our difficulty would 
 be solved. 
 
 672. When something more definite than this is at- Qualifying 
 tempted, we generally find that the act or omission, which '"^■^'^'^^^• 
 is said to be an injury, is qualified by some adverb which 
 
 is apparently intended to indicate that which constitutes 
 the required test of liability. Amongst such adverbs I 
 find the following — fraudulently, dishonestly, maliciously 
 
 ^le reparer.' Art 1382, ' Chacun est responsable du dommage qu'il a caus^, non 
 seulement par eon fait, mais encore par sa negligence, ou par son imprudence.' 
 It will be seen from tlie text tliat I construe Art. 1383 as limiting the general 
 language of Art. 1382, and tliat I translate ' par son fait ' by 'intentionally.' 
 Pothier's two definitions of delict do not quite agree with the Code or with each 
 other. See Introduction G^n&ale aux Coutumes, sect. 116; Traits des Obli- 
 gations, sect. 116. See also Lea Codes Annot^s de Sirey, par K. Gilbert, 
 Paris, 1859. 
 
 Y a, 
 
324 LIABILITY FOE TOET. [Chap. XVI. 
 
 (avec premeditation, avec de guet-£l-pens), knowingly, inten- 
 tionally, wantonly, malignantly, rashly, negligently, wilfully, 
 wickedly, imprudently, and clumsily (par maladresse). So 
 also 1 find used such adverbs as forcibly, with a strong 
 hand, violently (avec violence et voies de fait), riotously, 
 tumultuously, or in large numbers (par attroupement). Again, 
 for the same purpose I find such expressions made use of 
 as wrongfully, feloniously, unlawfully, illegally, injuriously, 
 and unjustly ^. 
 
 673. I have purposely selected these adverbs, as well from 
 the descriptions of those acts which are called crimes, as from 
 the descriptions of the similar acts which are called delicts 
 or torts, without any attempt at discrimination. For 
 criminal liability and civil liability do not radically differ. 
 Criminal liability generally comprehends civil liability also, 
 combined with some additional element which, for our 
 present purpose, is not of importance. 
 Whatthese 674. Considering these adverbs, it appears to me that 
 prXT ^ ^^ *^®y ™^y ^® divided into three classes, which are indicated 
 by the order in which I have enumerated them: as 
 follows — 
 
 First, those which are, apparently, intended to express the 
 condition of mind of the person who does the act. 
 
 Secondly, those which are, apparently, not intended to 
 characterise the act simply as the occasion of liability, but 
 which are intended to express what is commonly called an 
 aggravation — that is to say, to mark the act as giving rise 
 to a special secondary or sanctioning obligation of a serious 
 kind. 
 
 Thirdly, those which are, apparently, intended to express 
 something, but really express nothing at all ; being only so 
 many different names for the very thing the nature of which 
 we are trying to discover. 
 
 • Many of these adverbs also make their appearance in Codes, and other 
 legislative productions, but I think they mostly originated with judges. At 
 any rate I have been desirous to gather together every mark of liability that 
 can claim authority, from whatever source it may proceed. 
 
Sec. 673-678.] LIABILITY FOR TOET. 325 
 
 675. The terms of the second class can be of no assistance 
 to us here. We are considering not the nature of the con- 
 sequences to which a party is liable, but whether he is liable 
 at all. The adverbs of the first class, therefore, are those 
 from which we have to derive our conception of liability. 
 Most of the terms of the first class refer to the condition 
 of mind of the person sought to be made liable at the point 
 of time when his conduct is considered ; and two of them 
 — ' knowingly ' and ' intentionally ' — only describe that con- 
 dition. The rest, or most of the rest, combine with this purely 
 mental element an element of another kind : they more or less 
 imply that the state of mind under consideration is, when 
 tried by some standard which the person using the expression 
 has in view, not what it ought to be. What this standard 
 is, it is not easy to discover, but it is something in the nature 
 of a moral standard. 
 
 676. In a former chapter^ I analysed, as well as I was 
 able, the mental attitude of the doer of an act, and the 
 relation of that attitude to the result. As I there showed, 
 a man may advert to the consequences of his acts or he may 
 not advert to them. If he adverts to them, he may desire them 
 01 may not desire them to happen ; if he does not desire them 
 to happen he may still expect them: or still adverting to 
 them he may neither desire them nor expect them. 
 
 677. These several states of mind are expressed by the 
 terms — intention, knowledge, advertence, and inadvertence. 
 
 678. Intention, knowledge, advertence, and inadvertence, 
 do not always give rise to liability, even if they accompany 
 an act which causes damage. If I do an act with the desire 
 to harm another, I shall only be liable if the law forbids 
 that act. So if I do an act which I know to be likely to 
 injure another. And, if I advert to the consequences of my 
 act without desiring or expecting them, or if I do not 
 advert to the consequences of my act, I shall only be liable 
 if the occasion be one upon which the law requires from me 
 
 1 Chap. VI. 
 
326 LIABILITY FOR TORT. [Chap. XVI. 
 
 a certain degree of circumspection, wMcli I have failed to 
 exercise. 
 Negli- 679. Bearing this in mind let us revert to the first class of 
 
 adverbs above enumerated. Of all these, the adverb in most 
 common use is ' negligently.' Books have been written upon 
 negligence, and hundreds of reported cases are wholly taken 
 up with the discussion of it. It is, therefore, of the last 
 importance thoroughly to examine it. 
 How op- 680^. When negligence expresses a state of the mind (for, 
 
 intention. ^^ ■"■ shall show hereafter, it does not always express a state 
 of the mind at all), it is opposed to intention ; and it ex- 
 presses without distinction either of the two conditions of 
 mind which I have called rashness and heedlessness ; but 
 more generally the latter. It is also used with reference 
 to the not doing as well as the doing of an act. Thus it 
 is said that death, ensuing in consequence of the malicious 
 omission of a duty, will be murder, but that death, ensuing 
 in consequence of the omission of a duty which arose from 
 negligence, will be only manslaughter''^. By malicious^ 
 omission of a duty I understand to be here meant, that 
 we omit to do an act which we are commanded to do, that 
 we advert to the consequences of the omission, and that 
 we expect these consequences to ensue, though not neces- 
 sarily desiring those consequences, either as an end, or as 
 means to an end. By negligent omission of a duty I under- 
 stand to be here meant, that we omit to do an act which 
 we are commanded to do, either without adverting to the 
 consequences when we ought to have adverted to them, or, 
 if adverting to them, expecting on insufficient grounds — that 
 is, rashly — that they will not ensue. So again we find it 
 said in discussions about negligence, that negligence alone 
 
 ' Austin, Lect. xx. p. 444 (third ed.). See also supra Chap. VI. 
 
 ^ The distinction between murder and manslaughter is thus drawn in the 
 case of the Queen against Hughes, by Lord Campbell delivering the considered 
 judgment of five judges. See Dearsley and Bell's Crown Cases, p. 249. 
 
 ' See infra, sect. 686, 
 
Sec. 679-681.] LIABILITY FOE TOET. 327 
 
 is not a sufScient cause of action without a breach of duty ', 
 which I understand to mean — that where consequences ensue 
 upon an act or omission which we did not intend, then it 
 is not sufficient that we heedlessly disregarded those eon- 
 sequences, or rashly expected that they would not ensue ; 
 but the case must be one in which the law requires that 
 our conduofe^should reach a certain standard of circumspec- 
 tion, and it is only when it falls short of that standard, that 
 is, when we are rash or heedless although required to be 
 circumspect, that we are liable. Negligence therefore, so 
 far, seems to be only a general expression for rashness and 
 heedlessness. 
 
 681. But in the latest and most authoritative expositions of Later ex- 
 the term negligence, we find quite a different meaning f^g mean- 
 attached to the term. Negligence is declared to describe, "'^" 
 not the state of mind of the party who does or does not 
 do the act ; not the absence from his mind of certain ideas 
 which might have led him into a different course of action 
 or inaction, which state of mind he might have avoided, 
 and which ideas he might have recalled by a proper use 
 of his faculties— not in short that which I understand by 
 the word heedlessness ; not, again, the hasty and ill-grounded 
 expectation that results will not follow, which I understand 
 to be expressed by rashness ; but the absence of diligence, 
 and even of skill ; and moreover, not the absence of that 
 diligence, or skill, which the party under the circumstances 
 was able to exercise, but of that diligence, or skill, which 
 under the circumstances the law requires. So that whatever 
 
 ' This is the language of Sir William Erie delivering the judgment of seven 
 judges in the case of Button against Powles ; see Law Journal Reports, vol. 
 xxxi. Queen's Bench, p. 191.^ Compare the observations of Sirey on the Code 
 Civil : 'Dans I'application de I'article :382 et pour savoir quand il y &fante, 
 il faut se souvenir que la loi entend par Ik Taction de faire une chose qu'on 
 n'avait pas le droit de faire.' It is curious to observe how regularly lawyers 
 in every country, when pushed upon any of these terms, fall back upon the 
 barren generality, that they express what the law forbids; quod non jure 
 factum. (See Digest, Book ix. tit. 2. sect. 5. par. 1.) 
 
328 LIABILITY FOE TORT. [Chap. XVI. 
 
 be the exact nature of the qualities to which we ascribe 
 these names, the conduct of the person is not at all what 
 is considered, but whether he has fulfilled a special obligation 
 which the law has cast upon him. Thus it is said that the 
 ' action for negligence proceeds upon the idea of an obKga- 
 tion towards the plaintiff to use care, and a breach of that 
 obligation to the plaintiff's injury'.' And more explicitly 
 still, ' a person who undertakes to do some work for reward to 
 an article, must exercise the care of a skilled workman ; and ' 
 — not his inadvertence, or even his neglect to use such skill 
 as he possesses, but — ' the absence of such care is negligence.' 
 
 Modem in- 682, It is obvious in these eases, particularly the last, which 
 tiona of i^ ^he language of a judge celebrated for the acuteness and 
 
 accuracy of his legal perceptions, that the term * negligence ' 
 
 the term 
 negligence. 
 
 is used to express something wholly independent of the conduct 
 of the person whose act or omission is under consideration. 
 The workman's negligence consists, not in heedlessness of the 
 act he is doing or omitting, or of its consequences ; not in his 
 omitting to use all the care of which he is capable ; but in his 
 omitting to use the care which a skilled workman would use, 
 whether he is himself capable of it or not. It is simply the 
 omission to perform a positive duty, and in this particular case 
 a positive duty which arises upon a contract. As the phrase is, 
 the workman, when he undertakes the work, spondet peritiam 
 art'is ; he promises to use the ordinary skill of his craft. 
 
 683. The latter use of the term 'negligence' is perfectly in 
 accordance with ordinary language. We constantly speak of 
 a person who breaks a jiositive duty as neglecting that duty, 
 
 ' This is the language of Lord Penzance in his considered judgment delivered 
 in the case of Swan against The North British Australasian Company ; see 
 Law Journal Reports, New Series, vol. xxxi. Exchequer, p. 437. Tlie next 
 quotation is from the judgment of Mr. Justice Willes, in the case of Grill 
 against The General Iron Screw Colliery Company ; see Law Reports, Com- 
 mon Pleas, vol. i. p. 612. Of course with a shifting term like 'negligence' 
 it would be possihle to find it used in a variety of shades of meaning, but 
 I have confined myself to the passages most frequently quoted in the current 
 treatises, as containing the accepted definitions of negligence. 
 
Sec. 6S2-685.] LIABILITY FOE TOET. 329 
 
 intending thereby only to express that he has not performed 
 the act which he was commanded to perform, without any re- 
 gard to the state of mind which accompanied the non-perform- 
 ance. And as a question of terms it is only necessary to be 
 careful to avoid sliding, without perceiving it, from this mean- 
 ing of the word ' negligence ' into that other meaning of it, 
 where it expresses rashness or inadvertence ; as so easily 
 happens when a word has several meanings not wholly dis- 
 connected. 
 
 684. But then we must consider what is the result of these Negligence 
 definitions of negligence. What does it tell us, to say that a sense^of^uo'^ 
 man is liable for negligence, in either of these senses of the "^® ™ . 
 
 ° '^ ascertam- 
 
 word negligence ? As it appears to me, for our present pur- ing 
 pose, just nothing at all. There may exist a standard in the 
 breasts of our judges or jurors by which they can measure 
 whether a man has been rash or heedless ; by which they can 
 ascertain whether he has exercised reasonable care; or the 
 care of a skilled workman ; but when does the law require us 
 to reach this standard and when not ? It is this duty which 
 requires definition. To say that a man is liable for negligence, 
 and to define neghgence as the omission to do that which the 
 law requires, only brings us back by a very circuitous route 
 to that which we have above said ought to be the first step in 
 the inquiry — namely, what is the duty which the law imposes 
 upon us ? 
 
 685. Now, as I have already pointed out, in a very large 
 class of cases the discussion of liability turns exclusively 
 upon the question, whether or no there has been negligence. 
 If then it is true that the word ' negligence ' in these discus- 
 sions means no more than the authorities to which I have 
 referred represent it to mean, then it is obvious that this dis- 
 cussion simply revolves in a circle. What is a tort ? The 
 breach of a duty. What constitutes such a breach ? Negli- 
 gence. What is negligence ? The breach of a duty. In this 
 way we shall never arrive at a result. 
 
 686. Malice is a term which seems to be rather going out Malice. 
 
330 LIABILITY FOR TOUT. [Chap. XVI. 
 
 of use, though it was at one time very frequently used to ex- 
 press something from which liability might be inferred. It 
 points directly to the state of mind of the person, and prob- 
 ably it originally expressed pretty nearly the same thing as 
 malevolence, that is, the motive (in the estimation of the 
 speaker a bad one) which induces a party to act or abstain 
 from acting. It has been thence transferred to intention, and 
 in the best known definitions^ of malice it is scarcely dis- 
 tinguishable from intention ; and it is applied, not only to 
 cases where the consequences of an act are desired as an end, 
 but where they are desired as means, and even to cases where 
 they are merely adverted to and expected, without being 
 desired at all. When used m this extended sense, the bad- 
 ness of the motive which prompts the act is altogether lost 
 sight of, for it is obvious that a man may even desire to kill, 
 as an end, or as means to an end, or he may do an act which 
 he knows to be likely to cause death, without desiring to kill, 
 from motives which are altogether good, and yet be guilty of 
 a crime. Cases of mistaken patriotism, of excess in the use of 
 the right of self-defence, or in the exercise of power by con- 
 stables and other persons similarly situated, afford very fre- 
 quent examples of this kind. 
 Malice in 6^'^- ^he difficulty of obtaining a clear idea of what is 
 law. meant by the term ' malice ' is also greatly increased bj^ the use 
 
 of the phrase ' malice in law.' If for instance, I erroneously 
 suspect you to be a thief, and I communicate my suspicions to 
 another, not in any way intending to injure you, or thinking 
 it likely that I shall injm-e you, but because I, erroneously, 
 think it my duty to do so, there can, of course, be no maUee 
 in any reasonable sense of the word. And this is admitted in 
 such cases by saying there is no ' malice in fact.' Neverthe- 
 less lawyers persist in such cases in saying that there is 
 ' malice in law.' Ob-\aously the state of the law which they 
 
 • See Russell on Crimes, by Greaves, fourtli ed., vol. i. p. 6SS note. The 
 definition of malice there given is ' a wrongful act done intentionally without 
 just or lawful excuse.' 
 
Sec. 687, 688.] LIABILITY FOE TORT. 331 
 
 approve, and which they wish to apply, is that I should be 
 liable for the publication of statements injurious to the char- 
 acter of another, except in certain specified cases, of which 
 that under consideration is not one. They desire that this 
 obligation should be in no way dependent on my belief as to 
 the truth of my statements, or on my desire or expectation 
 that you may be injured by them. Nevertheless, the forms of 
 procedure still assume the contrary ; you are bound to state 
 that I acted maliciously ; and after it has been most carefully 
 inquired into and ascertained that there was no malice in the 
 matter, the judges still hold me liable by telling me that there 
 was ' malice in law.' What, of course, this really means is, 
 that there are circumstances under which I am liable for false 
 statements aifecting your character independently of malice ; 
 but it would be far better, and save endless confusion, if, 
 instead of seeking to do this by interposing the phantom 
 called 'malice in law,' we said plainly that no malice was 
 necessary. To arrive at our point by this circuitous route 
 is just as if the court, desiring to relieve a debtor from the 
 obligation to pay a debt, were to tell him he would be con- 
 sidered as having paid it if he sent his creditor a cheque 
 drawn in full form on his bankers for no pounds, no shillings, 
 and no pence. 
 
 688. We meet with many other similar cases; thus we other simi- 
 have legal or constructive fraud as distinguished from actual 
 fraud — a most embarrassing term ; notice in law, or con- 
 structive notice, as distinguished from actual notice. Any 
 one acquainted with the history of English law knows exactly 
 how this has occurred. To have said that malice, or fraud, or Origin of 
 notice, were not necessary, in cases where they had been terms. 
 generally thought necessary, would have been too much like 
 an avowed innovation. For though it is, as I have shown 
 above, a duty imposed upon English judges, within certain 
 limits, to make new laws, it is against the tradition of their 
 office ever to avow it. By saying, therefore, that there is 
 malice in law, or fraud in law, they pretend that there -is 
 
332 
 
 LIABILITY FOE TORT. 
 
 [Chap. XVI. 
 
 Dis- 
 honesty. 
 
 AVanton- 
 ness. 
 
 Fraud. 
 
 malice, or fraud, or wtatever else they think unnecessary, 
 when there is really none at all. 
 
 689. Dishonesty is a word a good deal used in some modem 
 legislation. As far as I am able to discover, it signifies the 
 state of mind in which a man adverts to the fact that he is 
 committing a breach of the law ^. 
 
 690. Wantonness is used, as far as I can gather, to express 
 those cases in which consequences are desired as an end, but 
 the motive to the act is not one of the ordinary passions of 
 revenge, or lust, or avarice, or the like ; but rather (as the 
 phrase is) the love of mischief for mischief's sake. Its use, as 
 an expression which characterises liability, has no doubt arisen 
 from the confusion between motives and intention, which we 
 have already noticed in the case of malice. 
 
 691. Praud, though it is a term frequently used in such 
 way as to suggest that it is a test of liability, has not, as far 
 as I am aware, been authoritatively defined. Bentham^, 
 however, who generally took very considerable pains to as- 
 certain the precise meaning of terms, thinks it embraces the 
 idea of falsehood or mendacity. And I understand falsehood 
 to be the moral characteristic which, after much debate, has 
 been decided to be necessary in order to constitute liability 
 for fraud. Nevertheless, say the books, to constitute fraud it 
 is not necessary to show that the parties making the assertion 
 knew it to be untrue ; it is enough that the person making it 
 did not believe it to be true^. It is difficult to understand a 
 
 ^ The definition of dishonesty in the Indian Penal Code is as follows. 
 Sect. 24 ; — Whoever does anything with the intention of causing wrongful 
 gain to one person or wrongful loss to another person is said to do that thing 
 dishonestly.' Sect. 23, 'Wrongful gain is gain by unlawful means of property 
 to which the person gaining is not legally entitled.' Sect. 24, ' Wrongful loss 
 is the loss by unlawful means of property to which the person losing it is 
 legally entitled.' Probably there is here some superfluous language. Dishonesty, 
 of course, implies knowledge without which there cannot be advertence. I am 
 not, however, sure that the word 'intention ' is here used precisely in the same 
 sense as in other parts of the Code, or as I have described it, supra sect. 220. 
 
 ^ See Bowring's edition of Collected Works, vol. vi. p. 292 n. 
 
 ' This is not the exact language of Lord Wensleydale, who was the author 
 of this distinction ; but the distinction is (as I understand it) made to turn, 
 
Sec. 689-693.] LIABILITY FOR TORT. 333 
 
 distinction founded on the difference between knowledge and 
 belief. One can easily imderstand a rash assertion, assumed to 
 be true on insufficient grounds, or a heedless assertion, made 
 without considering at all whether it is true or not ; and there 
 are not wanting indications that want of care in making as- 
 sertions may, under some circumstances, render a man liable. 
 But such statements could hardly be called false or mendacious. 
 Moreover the distinction which philosophers draw between 
 believing and knowing is very subtle, and by no means uni- 
 versally recognised. Sir William Hamilton has said that 
 knowledge is a certainty founded upon intuition, belief is a 
 certainty founded upon feeling ; but James Mill applies the 
 term belief to every species of conviction ^. 
 
 692. What I think was intended is this : — When a man 
 makes a direct assertion, he very often impliedly also asserts 
 that he has, to the best of his ability, exercised his judgment, 
 and believes the assertion to be true. Thus, if I say ' Mr. A 
 has a good constitution,' there is here a direct statement of 
 fact concerning ^'s health, and also, in many cases, as for 
 instance if the question were put to me by an office about to 
 insure ^'s life, an implied statement, that I have exercised my 
 judgment in the matter, and have come to that conclusion. 
 This implied statement will be mendacious, (i) if I have not 
 given the matter any consideration at all ; (3) if I have con- 
 sidered it and not come to any conclusion ; or (3) if I have 
 considered it, and not come to that conclusion which my state- 
 ment involves. 
 
 693. Whilst discussing the various terms which have been 
 used to express liability, I will advert to two phrases in 
 
 both in the original and in the quotations of it, upon the difference between 
 knowledge and belief. See the judgment of Lord Wensleydale in the case of 
 Taylor against Ashton, in Meeson and "Welsby's Reports, vol. xi. p. 415; 
 Smith's Leading Cases, sixth ed., vol. ii. p. 94 ; Addison on Torts, third ed. 
 p. 828. 
 
 ' See James Mill's Analysis of the Human Mind, ed. 1869, p. 343, note by 
 J. S. Mill ; and An Examination of Sir William Hamilton's Philosophy, by 
 J. S. Mill, chap. t. 
 
334 LIABILITY FOR TORT. [Chap. XVI. 
 
 common use, which are sometimes placed in apparent oppo- 
 sition to the terms which we have been considering. These 
 two phrases express not quite the same thing, but things 
 nearly similar. Thus it is said of certain acts that the 
 question of liability is not one of negligence, but that a man 
 Doing a does them at Mis peril; so also it is said in certain cases that 
 peril. he is liable, not for fraud, but because there is a warranty. 
 
 What I take to be aimed at in the first of these two phrases 
 is, that there is some act which the law does not forbid, some 
 act from which there is no primary duty or obligation to 
 abstain, but for which, if a man does it and harm ensues, he 
 will be liable to make compensation. For instance, a man is 
 said to accumulate water in a reservoir on his land at his peril ; 
 which apparently means that it is not unlawful for the land- 
 owner to accumulate water in the reservoir, but if the reservoir 
 bursts and the water floods his neighbour's land, he must make 
 him compensation ^. I have some doubt whether this is the true 
 view of the law ; and whether a man is not generally prohibited 
 from doing that which is in fact dangerous ; though of course 
 it is very often impossible to discover the danger till after the 
 event has happened. But, even if he is not, it would only 
 come to this — that as regards certain acts the primary duty or 
 obligation is not to abstain from them, but only to compensate 
 persons who are damaged by them. It is in this view that 
 the duty or obligation in the ease above put has been often 
 compared to that which is expressly undertaken by an insurer. 
 Warranty. 694. A warranty, properly speaking, is in form an under- 
 taking that certain events will happen, or will not happen ; 
 have happened, or have not happened ; but it is in reality a 
 promise to make compensation for the loss occasioned by their 
 happening or not happening. Such a warranty is a contract ; 
 the obligation is one which arises on the agreement of the 
 parties ; and such contracts are very often entered into as an- 
 
 ^ See the case of Rjlands against Fletcher, Law Reports, House of Lords 
 vol. iii. p. 330; and that of Nichols against Marsland, Law Eep., Exch. Div., 
 vol. ii. p. 4. 
 
Sec. 694-699.] LIABILITY FOR TORT. 335 
 
 ciliary, or supplemental to contracts of sale, or other similar 
 transactions. But the word ' warranty ' is not confined ex- 
 clusively to transactions which are properly called contracts. 
 Whenever it is incumbent upon a person, from any reason 
 whatever, to take upon himself the consequences, should a 
 statement which he makes not be true, he is said to warrant 
 the truth of the statement ; whether this duty or obligation 
 be imposed by contract between the parties, or in any other 
 manner. And when it is said that a party is liable for a 
 breach of warranty, as distinguished from saying that he is 
 liable for a fraudulent representation, I understand it to be 
 affirmed that there is some primary obligation upon him, 
 not only to state nothing except that which he believes to be 
 true, but also to take the consequences of stating anything 
 which in fact is not true. 
 
 695. Hitherto we have not got very far. We have 
 got some idea of the meaning of some of the terms used, 
 but we have failed to get any very distinct meaning for 
 others, and we have got no mark or quality by which liability 
 ex delicto can be known, or distinguished. 
 
 696. Now let us look at the acts themselves which are Qualities 
 called torts, and let us see whether in that way it is possible derfgnated 
 to discover any such mark or quality. *°^'^- 
 
 697. There are certain duties corresponding to rights Treapass. 
 in rem which we call rights of ownership. Some of these 
 rights have been enumerated and described. Every violation 
 
 of a right of ownership which causes damage gives rise to a 
 liability to make compensation to the owner for the damage 
 done, and is a tort. 
 
 698. There are certain other duties corresponding to rights Violation 
 in rem which we call rights of personal security. Some personal 
 of these rights have been enumerated and described. Every ^'^'^'^ity- 
 violation of a right of personal security which causes damage 
 
 gives rise to a liability to make compensation for the damage 
 done, and is a tort. 
 
 699. In the case of statements which damage a man's Defama- 
 
 tion. 
 
336 LIABILITY FOR TORT. [Chap. XVI. 
 
 reputation it is difficult to say whether there is a duty to 
 abstain from making them, corresponding to a right that 
 they should not be made, or only a duty to make compensa- 
 tion for damage caused by them corresponding to a right to 
 demand such compensation. It would seem, however, that 
 there is, at any rate, a general duty to abstain from making 
 defamatory statements otherwise than by words, and that the 
 plea which is allowed that the statement was true and that 
 it was for the public good that the statement should be made 
 is matter of special justification only. A man who makes 
 a defamatory statement otherwise than by words is liable to 
 a criminal prosecution, and he must prove his justification. 
 Some of the language we find in the books seems also to 
 assume that there is a duty to abstain from making any 
 defamatory statements whatsoever, and that doing so is primS, 
 facie a wrong which can only be justified under special circum- 
 stances. Yet it would be difficult so assert that such a duty 
 exists. Upon the whole the practice of the civil courts seems 
 to me to support the view that there is no such duty as regards 
 verbal statements. It is true that the plaintiff can put the 
 defendant on his defence in many cases by simply showing 
 that the unwritten defamatory statement has been made. 
 But this is because the plaintiff having done this can then 
 claim the benefit of three presumptions of fact, (i) that the 
 charge made against him is false, (2) that it is malicious, (3) 
 that it has caused him damage. It seems clear that if 
 any one of these three presumptions is excluded, and there is 
 no evidence to supply its place, the plaintiff will fail, because 
 his case is not made out. As regards the damage, it may 
 be only a rule of practice that actions will not be entertained 
 where no loss has been incurred. But the requirement of 
 malice and falsity cannot be explained in this way 1. 
 
 ' See Odgers on Libel and Slander, p. 17, referring to Townshend on 
 Slander and Libel, cbap. iv, s. 57; also pp. 169, 264. It seems clear tbat 
 in an action of contract, if a breach of contract is proved and no damage, tie 
 plaintiff is entitled to a verdict. In an action of trespass to land, if tlie 
 trespass is proved and no damage, the plaintiff is entitled to a verdict, if the 
 
Sec. 700-702.] LIABILITY FOR TORT. 337 
 
 700. Any defamatory statement which was false and 
 malicious, and caused damage, would be called a tort. 
 
 701. There is in law no general duty to speak the truth. Mendacity. 
 That is to say, simply telling a lie is not the violation of 
 
 any legal duty. Mendacity stands on the same level as 
 ingratitude, or cowardice. It brings down punishment on 
 the offender, but not of the legal sort. Nor is there any 
 general duty to make compensation for damage caused by 
 teUing a lie. Therefore, if a man were to tell a lie and 
 thereby damage another, he would not by this alone incur 
 any liability. But there is a duty to speak the truth on 
 particular occasions and under particular circumstances ; or, 
 at any rate, there are occasions and circumstances when a 
 man is liable to make compensation for any damage that 
 may be caused by telliag a He. For example, a man will 
 be liable to make compensation if he tells a lie to a person 
 with whom he is transacting busiaess, and that person, act- 
 ing upon the statement believing it to be true, is damaged 
 thereby. So he will be liable to make compensation if he 
 tells a lie to a person intending that person to act upon it, 
 and that person does act upon it believing it to be true, and 
 incurs loss thereby. To cause damage by telKng a lie under 
 these circumstances is called a tort \ 
 
 702. Whether or no there is in any case a liability to make Misrepre- 
 
 ,.», J, . ... ,., sentation. 
 
 compensation tor harm caused by misrepresentations which 
 
 are false in fact but not mendacious, apart from contract, 
 
 title is also in question. But in an action for defamation, even if the words 
 are spoken falsely and maliciously, yet the plaintiff will not get a verdict if 
 there be no damage. And it is this peculiarity which I understand to be 
 referred to by those writers who maintain that in the action of defamation 
 damage is the gist of the action. The expression ' gist of the action ' is rather 
 vague. It is certainly not true to say that, because the Courts require both 
 damnum et injuria, therefore without damnum there is no injuria, A trespass 
 vnthout damage is certainly an injuria. On the other hand, it may be true 
 that the Courts in declaring that an action for breach of contract is maintain- 
 able without damage, and that an action for defamation is not so maintainable, 
 are acting inconsistently. 
 * All real fraud involves mendacity. 
 
338 
 
 LIABILITY FOE TORT. 
 
 [Chap. XVI. 
 
 Sio utere 
 tuo. 
 
 Carriers 
 and inn- 
 keepers. 
 
 Hetero- 
 geneous 
 cliaracter 
 of torts. 
 
 is a matter upon which lawyers are not agreed^. If there 
 is such a liability the misrepresentation would be called 
 a tort. 
 
 703. There are some uses which a man is forbidden to make 
 of his property, because they cause damag-e to his neighbour. 
 Such a use of a man's property is called a nuisance. What 
 uses of property are and what are not nuisances is not at 
 all clearly stated. Whatever is a nuisance is also a tort. 
 
 704. There are some eases in which it is said that though 
 a man by making use of his property in a particular way 
 commits no breach of the law, yet if he does so make use of 
 it, and causes damage thereby, he is liable to make compen- 
 sation. An act which so causes damage is called a tort^. 
 
 705. Certain special duties are imposed by the law upon 
 particular persons or classes of persons, for example, upon 
 innkeepers, and common carriers. If any person is damaged 
 by a breach of these duties there is a liability to make com- 
 pensation. An act which thus causes damage is called a tort. 
 
 706. There are many other acts or omissions which are 
 called torts, but the above enumeration is sufEcient to show 
 how heterogeneous they are. The only common feature of the 
 torts enumerated that I can discover is that they are acts 
 forbidden by the law which cause damage. This is what I 
 understand to be meant when it is said that in tort there 
 must be damnum et injuria. Injuria means, I suppose, a breach 
 of the law. The jus of which the injuria is a Adolation may 
 be either a jus in rem, like a right of ownership, or a jus in 
 personam, like the right to be compensated for a misrepre- 
 sentation. But the combination must be found in every tort. 
 Still this combination, though it is universally present in 
 torts, will not serve to distinguish them. We find this com- 
 bination also very frequently in breaches of contract and 
 in breaches of trust ^. 
 
 ' See Pollock on Contracts, third ed., p. 494. 
 ^ See supra, sect. 693. 
 
 ' If there are any cases in whioh the courts allow an act to he complained 
 of as a tort without damage, they are cases in whioh the real dispute is as to 
 
Sec. 703-709.] LIABILITY FOE TORT. 339 
 
 707. There has been a disposition to make blameworthiness Blame- 
 the connecting link between acts which are called torts. 
 There are, no doubt, many acts which give rise to a liability 
 
 to make compensation, and which are called torts, in which the 
 conduct of the doer of the act is estimated and is pronounced 
 blameworthy. All cases of rashness and heedlessness are 
 cases of this kind. The conduct of the person upon whom it 
 is sought to fasten liability is tried by a standard which is 
 furnished by the experience of the judge as to what sort of 
 conduct may reasonably be required. The occasions upon 
 which a person will be liable for rashness or negligence are 
 chiefly occasions on which he and other persons are brought 
 into contact in the exercise of their common rights : as, for 
 example, when he and others are using a common road ; or 
 a common conveyance ; or when he has invited other persons 
 to come to his house, or upon his premises ; or when he 
 is employing or is employed by others ; or when he and 
 others are engaged in a common employment. In these and 
 other cases the law says that if damage is caused by a cer- 
 tain want of attention to consequences which amounts to 
 heedlessness, or by a want of caution in avoiding danger which 
 amounts to rashness, it must be compensated. 
 
 708. There might be some convenience in classing together 
 and enumerating the occasions on which a person would be 
 liable for rashness or negligence by reason of some duty cast 
 upon him by the law to be circumspect ; and it might be con- 
 venient to keep separate the occasions when the duty arose 
 upon a contract, and those when it arose without a contract : 
 and then we should want a name for the acts by which the 
 liability was incurred, which name would cover a portion of 
 the acts which are now called torts. 
 
 709. Then there are other cases in which, instead of leaving Specific 
 
 the conduct of the person to be estimated by the tribunal forbear- 
 ances. 
 
 the existence of the right, and the action is allowed because, strange to say, 
 our law does not always afford any direct way of trying the question whether 
 a right exists or no. 
 
 Z 2 
 
340 LIABILITY FOE TOET. [Chap. XVI. 
 
 which decides upon the liability, the sovereign authority has 
 
 ordered certain precautions to be taken : as when a rule of the 
 
 road is laid down ; or a railway company is directed to fence 
 
 in its permanent way, or to use particular appliances for the 
 
 safety of passengers. And these cases, no doubt, rest upon the 
 
 principle that it is reasonable to require such precautions, and 
 
 that the omission of them would be blameworthy. But it 
 
 would be very difficult to make a separate class of such cases ; 
 
 first, because the reasons which lead to such a command 
 
 may not be all of one kind ; and secondly, because it would 
 
 not always be easy to say what these reasons are. 
 
 Estimation 710. The estimation of conduct as an element of liability is 
 
 and°inten- °f comparatively modern .origin'. The general practice in 
 
 tion a early times seems to have been to impose a liability to make 
 
 modem "^ _ _ ^ ■' _ 
 
 practice, compensation for specific acts done. And the mere doing of 
 the act induced the liability, unless the party charged could 
 establish some justification. Later on we get the more 
 general expression ' trespass,' behind which lay, no doubt, the 
 conception of rights of ownership and rights of personal 
 security. Still we have got no further than that an act was 
 done which ought not to be done. Neither advertence to the 
 consequences of an act as distinguished from the act itself, nor 
 inadvertence to those consequences seem ever to have been 
 taken into consideration. If it had been suggested that they 
 ought to be considered, the answer, I think, would be that 
 the attitude of the mind as regards the consequences was 
 undiscoverable. Probably the Courts of Chancery set the ex- 
 ample of considering the attitude of mind of the doer of an 
 act as regards the consequences, that is, of inquiring whether 
 
 ' It has been suggested that the commands to make compensation for par- 
 ticular acts, wHcli are to be found in the Laws of Alfred, were arrived at by 
 a process of specification from general rules. I can understand what is meant 
 when it is said that the modern rule of the road or sailing rules are arrived 
 at by a ' process of specification ' from a general rule forbidding negligence. 
 But that any rule in the Laws of Alfred should have been so arrived at seems 
 to me unlikely. Is it not rather true that in those days the only con- 
 ception was of a specific rule to do this or abstain from doing that ? See The 
 Common Law, by Mr. Justice 0. W, Holmes, p. 113. 
 
Sec. 710,711.] LIABILITY FOR TOUT. 341 
 
 he intended them, and also of estimating his conduct, as, 
 for example, whether he had acted in good faith. The 
 Common Law Com'ts at length felt themselves obliged 
 to consider intention in matters of contract, and by de- 
 grees got also into the habit of submitting to juries 
 questions of conduct, and the closeness with which the 
 intention, or the knowledge, or the conduct of the party 
 is scrutinised ia courts of justice seems to me to be upon 
 the increase. 
 
 711. It must also be remembered, that whatever may be the All blame- 
 effect of blameworthiness in inducing liability in some kinds of ^"g'^re 
 torts, it is certain that there are many things called torts for not torte. 
 which a person is liable to make compensation, in which, not 
 only the element of blameworthiness, but even the element 
 of intention to do harm, is wholly absent. If I do any harm 
 whatever to your land, whether I do so advertently or inad- 
 vertently is of no importance. The only question is whether 
 the trespass is my act. Nor is it possible to trace the liability 
 to make compensation in this case to blameworthiness. What 
 lies at the back of liability in this case is not blameworthiness 
 but ownership ; not security from harm but utility. On the 
 other hand, I do not see how it can be asserted that there is 
 now, or ever was, a rule or principle that mere blameworthiness 
 gives rise to liability. Is there any general duty to abstain 
 from acts which are malicious or negligent ? or to make com- 
 pensation for damage caused by acts which are mahcious or 
 negligent ? I think none. Many times the law has said this 
 thing or that thing shall not be done maliciously, this thing or 
 that thing shall not be done negligently ; compensation shall 
 be made for this or for that malicious or negligent act. 
 But it has never said that nothing shall be done maliciously 
 or negligently ; or, that compensation shall be made for 
 malicious and negligent acts in general. However maKgnanf 
 may be the motives which influence my conduct; however 
 disastrous may be the consequences which I expect to result 
 from it, I shall not be liable unless I have transgressed certain 
 
342 LIABILITY FOR TORT. [Chap. XVL 
 
 limits ; wtieh limits are marked out by the law. I have a 
 fine spring of water on my land. For some years I have 
 allowed it to run off in the direction of a neighbouring village, 
 the inhabitants of which have come to depend on it mainly 
 for their supply of water. From the most malignant motives, 
 and hoping and expecting thereby to bring famine and sick- 
 ness into the village, I dam up the stream in that direction, 
 and turn it into another, where it is entirely useless to them. 
 Am I or am I not liable ? The answer depends simply 
 on whether the inhabitants of the village have gained a 
 right to the water ; in other words, whether I am under 
 a duty to abstain from any act which deprives them of it. 
 If they have not gained that right, and I have not incurred 
 that duty, I am not answerable under the law. If they 
 have gained that right, then, however useless the stream 
 may be to them — though my object was to supply another 
 village which was perishing for want of water ; though I 
 may even have been misled by a scientific opinion that the 
 supply of water was sufiicient for both villages^ I shall still 
 be liable. 
 
 712. So in the questions which so frequently arise between 
 persons related to each other as master and servant. The 
 servant may be exposed by the master to great danger which 
 might be avoided, yet, if the servant knew of the dangerous 
 nature of the employment, the master is not liable for any 
 accident that may happen. Here it would be difiicult, on 
 moral grounds, to defend the conduct of the master in thus 
 exposing his servant to danger, even with his own assent ; 
 and, as the master ex hypothesi knows of the danger, he 
 must at least disregard the consequences, if he does not intend 
 them. What draws the line is the master's duty as defined 
 by the law. It is not the legal duty of the master to preserve 
 his servant from risk in all cases in which it is immoral to 
 expose him to it ; nor is the master made liable either because 
 he expects, or disregards, the consequences of the exposure : 
 the law simply makes it his duty to take certain precautions 
 
Sec. 7:2-714.] LIABILITY FOE TOUT. 343 
 
 to preserve his servant from risk, when the risk is one which 
 he knows of, but which his servant does not '. 
 
 713. It seems to me impossible to escape from the con- Suggestion 
 chision that the word 'torts' is used in English law to cover uge o/the 
 a number of acts, having no quality which is at once common ;^°"^ 
 and distinctive. In other words, I believe the classification to 
 
 be a false one. Upon what intelligible ground do we apply 
 the name of tort to damage done by trespass or by slander, or 
 by fraud, and refuse to apply it to; damage done by contract, 
 or by breaches of trust ? I think upon none. Nor can I see 
 any advantage whatever in assigning the name 'torts' to a 
 number of acts which have nothing in common except what 
 they share with other acts not so called. It would certainly be 
 desirable to cease calling by the name of torts all acts which 
 have acquired other distinctive names — such as trespass, fraud, 
 slander. 
 
 714. I suggested just now that it might be convenient to class 
 together those acts for which a party was liable because his 
 conduct had not reached that standard of circumspection which 
 the law requires : and possibly if this classification were made 
 it might be convenient to call this class of acts by the name 
 of torts. I am disposed to think that these acts do possess a 
 quality which justifies their being classed together and which 
 distinguishes them from other acts giving rise to liability. 
 I am disposed to think that the occasions when they arise are 
 occasions when people are brought into contact with each other, 
 as by living contiguously, or by using the same conveyance or 
 the same highway, or by the employment of, or by visiting, each 
 other. These being the occasions, the conduct is estimated 
 by the judges or the jury, as the case may be, in accordance 
 with their experience^. 
 
 ^ See and compare the cases of Eiley against Baxendale, Exchequer 
 KeportB, vol. vi. p. 445 ; Paterson against Wallace, Macqueen's Scotch Appeals, 
 vol. i. p. 751 ; Seymour against Maddox, Queen's Bench Eeports, vol. xvi. 
 p. 332 ; and Skipp against The Eastern Counties Railway, Exchequer Reports, 
 vol. ix. p. 226. The comparison and analysis of the judgments in these cases 
 is an instructive exercise. 
 
 ^ Eor a further discussion of these questions of conduct, and for a con- 
 
344 LIABILITY FOR TOET. [Chap. XVt. 
 
 715. The standard of conduct is incapable of legal definition. 
 The law can forbid certain acts, as leaving a gate open which 
 leads on to a railway, or loading a vessel above a certain line. 
 It does so, because these acts are likely to be dangerous, and 
 by making them all so, the necessity of defining what is 
 dangerous is avoided. The occasions upon which circum- 
 spection is required might, I should think, also be defined. 
 It seems surprising that they have not been so already. 
 Probably one reason why they have not, may be found in the 
 procedure by which such questions are tried. The whole case 
 is generally submitted to a jury, who do not accurately 
 distinguish the various grounds of their decision. Against 
 this finding there is no appeal directly ; it can only be 
 attacked by alleging error in the judge's disquisition on the 
 law in his address to the jury, or by asserting the verdict to 
 be against the evidence. The discussions which thence arise 
 are not altogether without fruit, but they are not favourable 
 to the evolution of very exact rules. The result is that 
 though a just conclusion is generally arrived at, what the 
 just conclusion is can very often only be determined by a 
 very expensive process. 
 Liability 716. A somewhat novel principle of liability has been lately 
 asVtween Suggested, which, if favoured, may grow to very large propor- 
 innocent ^Jons. The particular cases which have occurred have been 
 
 persons. ^ 
 
 cases of fraud. A commits a fraud which damages £ and C, 
 who are both innocent. A is, of course, liable, but, as is 
 frequently the ease with fraudulent persons, he is insolvent. 
 Thereupon £ and C enter into a litigation in which the object 
 of the plaintiff is to throw the loss on the defendant. The 
 plaintiff fails to show that there has been any dereHetion of 
 duty on the part of the defendant ; whereupon the court, 
 instead of saying that the loss must lie where it has fallen, 
 proceeds to consider which of the two parties before it enabled 
 C to commit the fraud, and to hold that the loss must fall on 
 
 Bideration of whether they are questions of fact or of law, I take leave to refer 
 to an article in the Law Magazine and Eeview, 4th Ser. vol. ii. p. 311. 
 
Sec. 715, 716.] LIABILITY FOE TORT. 345 
 
 that person. The liability is not placed upon the ground of 
 misconduct, but of causation. If this principle were once 
 acknowledged, the door would be open to a very large exten- 
 sion of legal liability ^. 
 
 ' See the judgment of Chief Justice Coekburn in the case of Babroch v. 
 Larvon, Law Eep., Queen's Bench Div., vol. iv. p. 394. It was quite un- 
 necessary in that case to call in aid any such doctrine : see the case in appeal 
 in vol. V. p. 284. The late learned Chief Justice seems to have thought that 
 the right of an innocent purchaser to retain goods which he had bought, and 
 of which he had obtained possession, from a person who had himself obtained 
 them by fraud, also rested upon the principle that the original owner had 
 enabled the seller to commit the fraud. I should doubt the correctness 
 of this view. At any rate it is quite a modern view. Until recently the 
 view was that the innocent purchaser was owner, this being a case in which 
 the ownership followed the possession. See the case of Moyoe v. Newington, 
 Law Kep., Querai's Bench Div., vol. iv. p. 35. See also supra, sect. 512. 
 
CHAPTER XVII. 
 
 GROUNDS OF NON-LIABILITY. 
 Effect of ijji7_ jj^ analysing- the nature of an act and the manner in 
 
 abnormal •' ° 
 
 conditions, which it produces legal results I considered in a very general 
 way how these results were affected by certain abnormal 
 conditions of the party who does the act. I will now con- 
 sider a little more particularly the effect of these conditions 
 upon that legal result which we call liability. 
 Where 718. When the abnormal conditions of the party who does 
 
 does not the act are such that the elements which constitute liability 
 arise. ^j.^ ^^j^ ^ present, then, of course, that liability does not arise. 
 
 For example, when a man by reason of being drunk fails to 
 discover that a shilling in his possession is obviously bad, 
 he cannot be guilty of uttering counterfeit coin, because the 
 knowledge which is one of the elements of this particular 
 kind of liability is wanting. In such a case drunkenness 
 is not an excuse for crime, but the case is exactly the same 
 as if the ignorance had arisen from the stupidity of the party 
 charged. If the party is punished, he is not punished for 
 uttering counterfeit coin, a crime which he has not committed, 
 but for drunkenness, or some other offence. On the other 
 hand, if a lunatic in a frenzy of passion kills his keeper, all 
 the elements of the crime of murder are present ; and if the 
 liability to capital punishment does not arise, but only the 
 
Sec. 717-724.] GROUNDS OF NON-LIABILITY. 347 
 
 modified liability to suffer imprisonment during the Queen's 
 pleasure, the case is one for our special consideration. 
 
 719. In the following observations I shall only deal with Where lia- 
 eases in which the elements of liability are present, and arises. 
 the ordinary liability would arise, were it not that the case is 
 treated as an exceptional one. 
 
 720. There are three ways in which the ordinary liability Ways in 
 may be affected. It may either not arise at all ; or it may liability 
 arise in a modified form ; or, having arisen in its usual form, "^•''/'^ 
 it may be set aside or modified by the order of a court. 
 
 721. Cases in which the ordinary liability arises, but is sub- When 
 sequently set aside or modified by the order of a court, must g^^ asMe or 
 also be kept apart. They are dealt with differently from modified, 
 those in which the ordinary liability is prevented or modified 
 
 in its inception. No doubt all these cases might be governed 
 by the same or analogous rules ; but, as a matter of fact, courts 
 of justice, when they modify or set aside a liability which has 
 already arisen, exercise a large amount of discretion, guided to 
 some extent by the examples of their predecessors as recorded 
 in the reports, but not governed by rules constantly observed 
 and capable of being stated in an abstract form. I shall 
 therefore, for the present, confine myself to cases in which 
 the ordinary Kability is prevented or modified in its inception. 
 
 722. The abnormal conditions which I propose to discuss 
 are insanity, error, intoxication, infancy, and duress. 
 
 723. Insanity — under which term I include all disorders of Insanity. 
 the intellect of a grave character — has been little discussed 
 
 with reference to liability generally. It has been almost 
 always discussed with reference to its effect on criminal 
 liability. But in the main the principles of liability are the 
 same in all courts, and therefore I shall refer here to the 
 manner in which the questions of the liability of insane 
 persons have been discussed in criminal courts. 
 
 724. The ideas current on the subject of insanity have Modern 
 undergone very considerable modification of late years. ' ®*^ ^ ' • 
 Indeed it is only in recent times that the subject has received 
 
348 GROUNDS OP NON-LIABILITY. [Chap, XVH. 
 
 anything like the consideration which it deserves. Attention 
 was first drawn to it by the horrible sufferings endured by 
 insane persons in confinement. It apparently used to be 
 thought that every insane person, who had physical strength 
 and Kberty to use it, was dangerous, and that the only way of 
 rendering him harmless was by forcible restraint. The idea 
 seems to have been that insane persons were under some sort 
 of external impulse, which drove them to commit acts (as the 
 phrase was) against their will. It is now known that, with 
 rare and temporary exceptions, insane persons are susceptible 
 of very much the same kind of influences as other persons. 
 They can be made to feel the effects of discipline, and can 
 appreciate, in a very considerable degree, the painfulness of 
 reproof and the pleasure of approbation. The consequence is 
 that, in the best asylums, the patients are seldom under 
 physical restraint. 
 How they 725. This discovery, though it has greatly mitigated 
 liability. ^^® Sufferings of persons subject to this calamity, has un- 
 doubtedly opened a new and difficult inquiry, whenever it has 
 to be decided, whether or no the insane person is legally 
 responsible for his acts. This mode of treatment clearly shows 
 that the moral and intellectual qualities are hardly ever 
 entirely effaced. The insane have in a great measure 
 recovered their Hberty, but with it also they resume, in part 
 at least, their responsibility. 
 Peculiar "^26. It may be perhaps doubted, whether the recognition 
 
 character ^f ^j^jg responsibility has kept pace with the inereasinar 
 
 of cnmmal ^ •' ^ -^ _ _ ° 
 
 cases. tendency to treat abnormal conduct as indicating some form 
 
 or other of mental disease. It is also unfortunate that the law 
 of insanity should have been to so great a degree fashioned 
 upon the practice in one particular class of criminal cases. 
 For in ordinary criminal cases this defence is rarely set up. 
 The effect of setting up a plea of insanity in answer to a 
 criminal charge, even if successful, is generally almost as 
 disastrous to the accused as if he were to admit his guilt. 
 Insanity itself is a stigma ; and accused persons, if found 
 
Sec. 725-728.] GROUNDS OF NON-LIABILITY, 349 
 
 insane, are liable to be imprisoned for an indefinite time ; 
 whereas ordinary convicts are only imprisoned for a specified 
 period. Hence it follows, that few persons care to set up 
 this defence except in capital cases, in which this defence is 
 frequently insisted upon, strenuously enough ; but even here, 
 for the most part, only in that class of cases, in which 
 murders have been committed under the influence of violent 
 passion, without any attempt at concealment, and where any 
 other defence is therefore hopeless. Now this is just the 
 very class of eases in which the question of insanity presents 
 itself under peculiar difliculties. The violent excitement 
 under which the accused is labouring produces an extrava- 
 gance of conduct very like that produced by insanity : indeed 
 anger itself is so like madness as to be proverbially identified 
 with it. 
 
 727. The question of liability in the case of insane persons Grounds of 
 cannot be determined unless we have first clearly settled in 
 
 our own minds the grounds of liability in ordinary cases. 
 Why do we imprison a man or require him to make compensa- 
 tion for damage which he has caused to another ? Mainly I 
 think in order to deter others from doing the like. Punish- 
 ment of the deterrent kind is I think what is ultimately 
 intended. Punishment in the shape of awarding compensation 
 to the injured party is a very convenient form of proceeding, 
 because it substitutes the action of the party for the action of 
 the state, and satisfies a general sense of propriety which 
 makes people in general willing to co-operate and assist in 
 enforcing the penalty. 
 
 728. Why then not punish an insane man ? Would it not why in- 
 deter as many persons if an insane person, as if a sane person, pr^^ta 
 were punished ? To this I can only answer in the words of liability. 
 Lord Coke, who in the Third Part of his Institutes states his 
 opinion that punishment inflicted upon an insane person 
 would be so generally deemed inhuman and cruel as rather 
 
 to make men desperate than to deter them from crime. In 
 substance I think experience has proved that this opinion of 
 
350 GEOUlirDS OF NON-LIABILITY. [Chap. SVII. 
 
 Lord Coke is correct. I also think that a law which awarded 
 a penalty to the actions of insane persons would be ineffec- 
 tual, as no one either as a prosecutor or witness would assist 
 in enforcing' the penalty if he could help it. 
 Essentials 729. Certain I think it is that in most cases the non-Uability 
 
 of liability i i i i /• 
 
 generally of insane persons cannot be rested on the absence oi any 
 no^ wan - ^j. ^j^^ essential elements of HabiKty. It is indeed possible 
 that a man's intellect may be so disordered, that he may 
 altogether fail to perceive the consequences of his acts, 
 whether to himself or to any other person. But in the 
 majority of cases this is not so. All the essentials of a 
 liability will on esiamination be found to be present in nearly 
 every case. Even the furious madman who kills his keeper 
 because be is refused his liberty, conceives a wish which 
 prompts him to do a certain act in order that he may 
 accomplish the end which he has in view. He intends his 
 keeper's death as means to that end, and every condition of 
 the crime of murder is fulfilled. 
 Mode in 730. But whatever may be the true ground on which 
 
 question the excuse of insanity is based, it cannot by any possibility 
 be that which the form of the inquiry assumes in criminal 
 cases when the accused person is alleged to be insane. The 
 law requires that the question should be put to the jury 
 in this singular form : — had the accused sufficient reason 
 to know that he was doing an act that was wrong ^? What 
 gave rise to this form of putting the question it is not 
 very easy to discover. The capacity of distinguishing right 
 from wrong has hardly at any period been accepted as a 
 general test of insanity. Probably this form of putting the 
 question is due to the notion which (as already mentioned) 
 lurks in our criminal law, but which is never boldly as- 
 serted, and is sometimes emphatically denied, that the moral 
 
 ' See the answer of all the judges, except Mr. Justice Maule, to questions 
 put by the House of Lords, at the end of the answer to the second and third 
 questions. These questions and the opinions of the judges thereon were 
 printed by the House of Lords on 19th June, 1848; they are to be found in 
 most works on Criminal Law. 
 
 submitted 
 to jury. 
 
■Sec. 729-732.] GROUNDS OF NON-LIABILITY. 351 
 
 quality of the act determines the liability to criminal punish- 
 ment. 
 
 731. It must be remembered, however, that this question has How dealt 
 always to be answered in criminal cases by a juiy — a tribunal ti^em. 
 which generally comes to the task without any previous 
 training, and which is wholly incompetent to discuss with 
 nicety the very peculiar and difficult question which the law 
 requires to be placed before them. Probably, therefore, what 
 
 really happens is that, consciously or unconsciously, the jury 
 give their verdict according to their opinion upon a much 
 more general question — namely, whether, under all the 
 circumstances, the prisoner ought to be punished : and, where 
 their decisions are not distorted by a special dislike of the 
 punishment provided for the offence (as sometimes occurs in 
 capital cases), the result is perhaps as good as any to which, 
 in the present state of science, it is possible to attain 1. And 
 at any rate the decision of a jury has this negative advantage ; 
 that, if unsatisfactory, it forms no precedent ; on the con- 
 trary, the public condemnation which follows it, serves as 
 a guide and warning, for some time at least, against similar 
 errors. It would, however, be somewhat better, if the ques- 
 tion were submitted by the judge to the jury in a simpler 
 form, so that his own remarks might be more intelligible, 
 and more direct upon the point upon which their determina- 
 tion actually turns. 
 
 732. The question of liability upon a contract, when the Insanity as 
 party sought to be made liable was insane at the time of the of^on- 
 agreement, arises in a great many different ways. It may li^tahty m 
 happen that the intellectual faculties are so obscured, and 
 
 the judgment so disordered, that the agreement, which is the 
 foundation of the contract, cannot be inferred ; and there 
 being no contract, there will be no obligation, and there- 
 fore no liability. But in many cases the condition of the 
 insane person may be such as to enable him fully to 
 
 1 See the goinewhat similar observations of Lord Hale, Pleas of the Crown, 
 vol. i. p. 32. 
 
352 GEOUNDS OP NON-LIABILITY. [Chap. XVII. 
 
 understand the negotiation, and the ultimate result. When 
 a man orders five hundred coats from his tailor, or ten 
 thousand pairs of boots from his bootmaker, he may have 
 lost all notion of number and quantity ; but he may not ; 
 and he may be induced to g-ive the order under the insane 
 delusion, that he can speculate profitably in some large 
 government contract for such articles. Yet, though there may 
 be in such a case a complete contract, according to our definition, 
 the insane person would not be liable, because the law excepts 
 some of the contracts made by insane persons from the 
 general rule that contracts will be enforced. It is only some 
 of the contracts, and not all the contracts, made by insane 
 persons which are thus excepted. If the contract is for 
 the supply of articles of ordinary use and consumption, or for 
 doing work, or any other service suitable to the rank and 
 position of the insane person, he is generally considered 
 liable. Thus an insane person has been held liable to pay 
 his tailor for clothes, his bookseller for books, an attorney his 
 fees, his servants their wages, and so forth. In one case 
 even the purchase of an annuity by an insane person, not 
 known to be so, it being a fair and reasonable transaction, 
 was held to create liability. But the sale of an estate under 
 similar circumstances has been held not to be so. 
 Insanity 733. How far a person who is insane would be held liable, 
 
 of non-"" ^^ courts of civil procedure, for his acts or omissions indepen- 
 hability m Jently of contract, is a matter in which one is surprised to 
 
 other cases. . ^ 
 
 find our law-books nearly silent. Lord Hale lays down, 
 however, a sweeping rule, which would entirely shut out this 
 defence in such cases — that no man can, in matters of this 
 sort, plead his own mental deficiency i. 
 
 734. Error, in the shape of ignorance of the consequences 
 of an act, or mistake as to the consequences which are likely 
 to arise, of necessity renders it impossible for a man to intend 
 
 ' Pleaa of tie Crown, vol. ii. p. l6. Even if this dictum of Lord Hale ts 
 accepted to the fullest extent, it would still be necessary to consider how far 
 the elements which go to make up liability were present when the act was done. 
 
Sec. 733-736.] GROUNDS OF NON-LIABILITY. 353 
 
 or disregard those consequences ; a man so ignorant cannot 
 therefore, strictly speaking, incur any liability which involves 
 such intention or disregard. But supposing the normal con- 
 ditions of liability to be satisfied, will error prevent the 
 liability from arising, or cause it to arise in a modified form ? 
 
 735. Blaekstone^ says, if a man intending to kill a thief Ignorance 
 in his own house, by mistake kills one of his own family, this of the will. 
 is no criminal action. But Blackstone's explanation of this 
 
 is most extraordinary ; and to me, indeed, altogether unintel- 
 ligible. He says, ' for here the will and the deed acting 
 separately, there is not that conjunction between them which 
 is necessary to form a criminal act.' Nothing can show more 
 strongly than this confusion in the mind of so eminent 
 a writer the importance of the analysis undertaken by Austin, 
 of the relation between the mental consciousness of the actor 
 and the act done. It is not very safe to attempt to assign 
 a ■ meaning to such a phrase as ' the will and the deed acting 
 separately,' but I suppose it is another form of the erroneous 
 expression so often met with, ' doing an act against your 
 will.' The true view of the case I take to be this — Acts are 
 produced by the will, by means of motions of oar bodily 
 muscles. But this exertion of the will, or volition, is the 
 result of an antecedent desire. Thus, I take up a pistol, 
 aim it at you, and pull the trigger, because I desire to 
 kill you. I desire to kill you, because I believe that you are 
 breaking into my house, and I consider it necessary to kill 
 you in order to protect myself and my family. After I have 
 fired, I find that you are a friend, coming to pay me an 
 unexpected visit. My mistake as to your person has caused 
 me to desire your death, which desire has acted upon my will. 
 The same mistake has also led me to suppose that I was 
 justified in killing you in self-defence. 
 
 736. There is, I think, no doubt that the case here put 
 is one of murder, that is, that all the elements of murder are 
 present, and if the liability to capital punishment does not arise, 
 
 ' Commentaries, vol. iv. p. 27. 
 A a 
 
"Wise un- 
 lawful. 
 
 354 GEOUNDS OF NON-LIABILITY. [Chap. XVIT, 
 
 it is because of the abnormal condition of the person who 
 fires the shot. 
 
 737. Whether any other liaMitj'- than that to capital 
 punishment will arise depends upon the circumstances. If 
 I were not justified in assuming you ta be a thief — if I were 
 rash in drawing- that inference, I might be guilty, though of 
 a different crime. For rashness may be a ground of criminal 
 imputation, and then the ignorance which is the result 
 of that rashness cannot absolve me. 
 Will not 738. So again where my mistake is not either rash or 
 act other- heedless, I may yet be liable in some cases. Thus suppose 
 I see in my neighbour's garden something moving in the 
 trees, which I beUeve to be a wild, but harmless animal. 
 I examine it very carefully, and satisfy myself that it is 
 a wild animal. I fire at it,, and it turns out to be my 
 neighbour himself, who is dangerously wounded by the shot. 
 Here I am clearly liable ; and why ? Because, though my 
 mistake may be a reasonable one, yet, if all that I believed 
 to be true, were true, my act would still be a breach of 
 a primary duty, and the facts which I supposed to exist 
 would not justify it. But not so in the case put by Black- 
 stone. In that case, if all I believed to be true, were true, 
 there would be an excuse for what would otherwise be a 
 breach of a primary duty. There is a primary duty to 
 forbear from taking life, but there is an exception where 
 life is taken in self-defence. There is a primary duty not 
 to fire guns into my neighbour's garden, and no exception 
 where the object fired at is a vtdld animal. I am therefore 
 liable to such consequences as are laid down by the positive 
 law. I should be liable for manslaughter in England, because 
 of the extremely sweeping definition of that crime; perhaps 
 under the Indian Penal Code I should not have committed 
 a crime, but I should be liable civilly. 
 Ignorance 739. The efiect of error on the liability which arises 
 in cases of ^po^ Contract is more complicated ; and this complication is 
 contract, increased owing to its having been the custom to consider 
 
Sec. 737-741. J GROUNDS OF KON-LIABILITY. 355 
 
 under this head several matters which do not properly be- 
 long thereto. 
 
 740. I have already adverted ^ to the mode which is inquiry 
 generally adopted for ascertaining- the intention of the par- ghut out 
 ties in case of dispute. It has there heen observed, t^at I'^.^'^J^g^^^ 
 all a tribunal can do — after deciding upon the evidence what *'»"■ 
 were the terms of the contract, after hearing the state- 
 ments of both parties as to what each intended, and after 
 inquiring into the Circumstances which happened about 
 
 that time, so far as they throw any light upon the in- 
 tention — is to put upon the words its own interpretation, and 
 from that interpretation to presume the intention. But 
 in arriving at this presumption judges generally, as I ob- 
 served, follow certain rules ; such, for instance, as that 
 the technical terms of law can never be used in any other 
 than their technical sense, or ordinary words in any other 
 than their ordinary sense, and so forth ^- So that a care- 
 less man may find himself fiixed with an obKgation arising 
 upon a contract, which he did not intend, almost without 
 having had an opportunity of asserting his mistake ; and 
 practically the excuse of error is thus very often shut out, 
 upon grounds which stand apart from the general principles 
 upon which that excuse depends. 
 
 741. But suppose the court to have determined the sense Consensus 
 of the promise and that the promisor ihen seeks to deny not in 
 his liability on the ground of error. How will the court 1"«^i°°- 
 deal with it? Not surely upon the ground so frequently 
 
 put forward that where there is error there is no consensus 
 in idem and no contract. That, as I have just pointed out, 
 is an antecedent question. The well-known case of the 
 ' Peerless ' is an example of this. There A agreed to buy 
 and B agreed to sell a cargo of cotton to arrive ' ex Peerless 
 from Bombay.' There being two ships of that name then 
 on a voyage home from Bombay and both being laden 
 with cotton, this was an accurate description of two different 
 
 1 Supra, sect. 622 sqq. " Supra, sect. 238. 
 
 A a a 
 
356 GROUNDS 01' NON-LIABILITY. [Chap. XVII. 
 
 cargoes ; and there being no circumstances from which 
 the court could determine that in accordance with 'the 
 sense of the promise ■'^' either one or the other was meant, 
 the sense of the promise remained undetermined, and the 
 contract could not be enforced. Probably the plaintiff may 
 have meant one of the ships and the defendant the other; 
 but this alone would not have been conclusive ; if the court 
 could have determined that, according to the reasonable 
 construction of the language used under the circumstances, 
 one or other was meant, the contract would have been 
 enforced in this sense. 
 
 742. Cases of this class are cases in which the parties 
 have failed to use language to which any certain sense 
 can be attributed, and therefore there can be no contractual 
 liability. But if there has been a transaction in which 
 one party has made a promise and the other has accepted it, 
 and the sense of the promise can be determined, then all 
 question of consensus ad idem is at an end. The sense of the 
 promise determined upon may not be what both the parties 
 or either of them expected, but this, as we have seen, does 
 not prevent the contract from arising^. Liability upon the 
 promise in the sense attached to it will be taken to be 
 the result contemplated. This is best seen by an example. 
 A bar of metal which belongs to A is lying before A and B. 
 B, asldng no questions but relying on his own judgment, 
 and thinking it is gold, offers to purchase 'that bar' at the 
 -market price of gold, which offer A accepts. In fact the bar 
 -contains a considerable amount of inferior metal, so much that 
 merchants would not even call it gold. Still B is liable on 
 the promise to purchase. If when sued by A he said that 
 
 ^ See supra, sect. 622. 
 
 ^ Supra sect. 621. No doubt it may be said that wberever one party contem- 
 j)late3 one thing and the other party contemplates another, that is, in all casoB 
 of error, there is no consensus in idem. If so, every kind of error would 
 render true contractual liability impossible. In practice, however, as I have 
 frequently pointed out, the consensus is not arrived at by considerinn- what 
 were the expectations of the parties, but by considering what is the sense 
 of the promise. 
 
Sec. 742-744.] GEOUNDS OF NON-LIABILITY. 357 
 
 he made a mistake and thoug'ht the bar was a bar of pure gold, 
 which he knew that A had in his possession and which 
 he had examined carefully, he would not be listened to. 
 
 743. It tised to- be said that the question of error was Error in 
 differently treated in courts of Chancery and courts of Com- chlnoery. 
 mon Law ; and if that were really so, now that, all courts 
 administer the same law, the law which we should have now 
 
 to consider would be the law of the courts of Chancery. But 
 I think the special doctrines of the courts of Chancery only 
 affected the peculiar kinds of relief granted by that court — 
 doctrines which assumed that the liability existed, but that 
 for some special reason it ought to be manipulated. It must 
 be remembered that courts of Chancery used only to deal 
 with contractual liability when the remedy at law was in- 
 effectual : and in such cases these courts have always reserved 
 to themselves a full discretion to determine whether under 
 all the circumstances they would assist the plaintiff, or leave 
 him to his ordinary remedy. No doubt, in considering this 
 question, the courts have sometimes been influenced by the 
 allegation that the defendant was asked to do something which 
 he did not expect, but I do not think that any rules have been 
 yet laid down which could be stated in an abstract form^. 
 
 744. In the Roman law, no doubt, a more extensive effect Error in 
 seems to be given to error. Thus it is said ' si de alia re law 
 stipulator senserit, de alia promissor, perinde nulla contrahitur 
 obligatio ac si ad interrogatum responsum non esset, veluti 
 
 si hominem Stichum a te stipulatus quis fuerit, tu de Pam- 
 philo senseris, quern Stichum vocari credideris.' If this le 
 taken as a general principle, it certainly goes beyond our law ^. 
 
 ^ See supra, sect. 721. Until recently the courts of Chancery were the 
 only courts which could directly set aside or modify an existing contractual 
 liability : so too they were the only courts which could order specific perform- 
 ance of a contract. Courts of ordinary jurisdiction could increase or reduce 
 the damages, or could let the defendant go practically free by awarding nominal 
 damages. But they did this without any principle. The result is that there is 
 very little law in England as to the eflFect of error, and only examples to show 
 how discretion should be exercised. 
 
 ' Inst. III. 19, 23. 
 
358 GROUNDS OF NON-LIABILITY. [Chap. XVII. 
 
 and in The French law likewise seems to go beyond ours. By the 
 law"" Code Civil, Art. 1109, 'II n'y a point de consentement 
 valable, si le consentement m'a ete donn^ que par erreur. . .' 
 mo, 'L'erreur n'est une cause de nuUite de la convention 
 que lorsqu'elle tonibe sur la substance meme de la chose qui 
 en est Tobjet. EUe n'est pointune cause de nullite, lorsqu'elle 
 ne tombe que sur la personne avec laquelle on a I'intention 
 de contracter, a moins que la consideration de cette personne 
 ne soit la cause principale de la convention^.' 
 
 745. A good many decisions in the English law have been 
 classed under the head of error which, I think, do not strictly 
 belong to that topic. Some of these I will now examine. 
 Cundy v. ^^g Cundy V. Lindsay^ was a case in which J, by fraud- 
 ulently stating that he was X, induced JB 8f Co. to sell him 
 some goods. A contract was accordingly concluded by -B ^ Co. 
 with A in the name of X. In fulfilment of this contract 
 B ^ Co. delivered goods to A, and A sold them to C, an 
 honest purchaser, who .accordingly obtained possession of 
 them. Whether under these circumstances the ownership 
 of the goods had passed to C does not necessarily depend 
 upon whether or no there was a contract between A and 
 B ^ Co. but in this case the House of Lords thought 
 that it did, and decided that there never was any contract 
 at all ; which is, of course, very different from saying that 
 there was a contract, although one affected by fraud. The 
 words of Lord Cairns are: — 'Of him {A) they [B 8f Co.) 
 never thought. With him they never intended to deal. 
 Their minds never for an instant rested on him : and as 
 between him and them there was no consensus of mind 
 which could lead to any agreement or contract whatever.' 
 
 ^ The first of these clauses looks as if it were intended to lay down the 
 general rule that there was no- consensus in idem where there was error. In 
 one sense this is true, but it is just as true where the error is made with 
 regard to the identity of the contracting parties as in other oases. The second 
 clause, therefore, limits the generality of the first. See and compare Cundy 
 V. Lindsay, where the fatal error was precisely one of identity. 
 
 ^ Law Reports, App. Cases, vol. iii. p. 459. 
 
Sec. 745-748.] GEOUNDS OF NON-LIABILITY. 359 
 
 These words are wide enough to cover a very much larger 
 class of cases than that under consideration — eases in which 
 it had always previously been held that not only was there 
 a contract but one which could be sued on. For example, if 
 A had been wholly innocent of fraud, and B Sf Co. had still 
 made a mistake about ^'s identity, all that Lord Cairns 
 says in the passage quoted would be just as true. Yet I do 
 not think it has been generally said in English law that 
 in such a ease there would be no contract. There was a 
 definite person A with whom B & Co. were in correspond- 
 ence. If they erroneously assumed that A was X, I do not 
 think that such an error has been generally considered to 
 have any effect on the existence of the contract^. But in any 
 case the ground of the decision is, not that because of error the 
 liability on the contract must be set aside, but that because of 
 the error there was no consensus such as would make a con- 
 tract. This last is a question of fact rather than of law. 
 
 747. In the case of Boulton v. Jones ^ A had ordered Boulton v. 
 goods of B. This order feU into the hands of C, and C 
 executed it. It was held that there was no contract between 
 A and C. This seems obvious ; and it seems to me to 
 be a very different case from one in which A gives an order 
 to C, addressing him as B, when, if there were no fraud, 
 there would, I imagine, be a good contract between A and C 
 if C accepted the order. 
 
 748. In the case of Smith v. Hughes ^ the defendant Smith r. 
 had bought a specific parcel of oats of the plaintiff. The 
 defendant thought that these were old oats : the plaintiff 
 was aware that they were new. It was agreed that the 
 erroneous opinion of the defendant as to the nature of 
 the oats did not affect his liability. But it was said that 
 if the plaintiff had known that the defendant in dealing with 
 
 ^ See the article of the French Code quoted above, from which it appears 
 that under the French law an error as to the identity of the contracting party 
 is in most cases immaterial. 
 
 ' Beported in Hurlstone and Norman's Beports, vol. ii. p. 564. 
 
 ' Beported in the Law Reports, Queen's Bench, vol. vi. p. 597. 
 
360 GEOUNDS OF NOK-LIABILITY. [Chap. XVII, 
 
 him for oats did so on the assumption that the plaintiff 
 was contracting to sell him old oats, then there was no 
 contract by the defendant to buy old oats. This, however, is 
 clearly not on the ground of error: there being as much or as 
 little error in one ease as the other. Nor is it so put in the 
 judgment^- I take it that both the actual decision and 
 the decision ia the hypothetical case proceed upon the same 
 ground, namely, that under the circumstances the sense of 
 the promise in the first case was to accept and pay for the 
 oats whether old or new, and that in the second case 
 the sense of the promise was to accept and pay for new oats 
 only. 
 Conturier 749. The case of Contmier v. Hastie^ has nothing what- 
 V. Hastie. ^^^^^ ^^ ^^ ^^j^ error. It turned, as the Lord Chancellor 
 
 Cranworth says in his judgment, entirely upon the construc- 
 tion of the contract, that is, upon the sense of the promise. 
 The plaintiff had sold to the defendants a cargo of com, 
 described as being then on a certain ship on her voyage 
 to England. Before the date of the sale the cargo, in con- 
 sequence of its having become heated, had been landed and 
 sold. This was not known to either party. The House of 
 Lords thought that the intention of the parties was that 
 there should be no liability under the circumstances which 
 had occurred ^- 
 
 ' Sir James Hannen says that in the case supposed the plaintiff would have 
 been 'aware that the defendant apprehended the contract in a different sense 
 to that in which he meant it, and he is thereby deprived of the right to insist 
 that the defendant shall be bound by that which was the apparent and not the 
 real bargain.' See p. 6io. of the Report ubi supra. 
 
 ^ Reported in House of Lords Cases, vol. v. p. 673. 
 
 ^ These are not the word's of the judgment, but this is what must have been 
 meant. Of course it was admitted that the defendants intended to buy some- 
 thing, and the plaintiff said that according to the sense of the promise what 
 they sold and what the defendants bought was, ' not the cargo absolutely as a 
 thing assumed to be in existence, but merely the benefit of the expectation of 
 its arrival, and of the securities against the contingency of its loss.' The cargo 
 was insured, and this was quite an intelligible and not an unreasonable con- 
 struction of the contract; though, as the court thought, not the right one. 
 The case of Strickland v. Turner (which is said to be like Conturier v. 
 
Sec. 749-751.] GROUNDS OF NON-LIABILITY. 361 
 
 750. On the whole, I am inclined to think the only ease Eesult. 
 in which error prevents the ordinary liability of a party from 
 arising on a contract is that in which it is combined with 
 fraud, as in Cundy v. Lindsay. In other cases I think it is 
 immaterial to the existence of the contract. But, as I have 
 already said, error may prevent the existence of agreement ; 
 
 and error is also a fact which courts of justice take into their 
 consideration when they are asked to exercise the discretion 
 they possess of modifying a liability which already exists ^- 
 
 751. Intoxication is a disordered state of the intellect, Intoxioa- 
 produeed by eating or drinking something. Blackstone 
 
 says it is rather an aggravation of the offence than an excuse 
 for criminal misbehaviour ; and that the law will not suffer 
 any man thus to privilege one crime by another^; The 
 Indian Penal Code says ^ : ' In cases where an act done is 
 not an offence^ unless done with a particular knowledge or 
 intent, a person who does the act in a state of intoxication 
 shall be liable to be dealt with, as if he had the same 
 knowledge as he would have had, if he had not been intox- 
 icated, unless the thing which intoxicated him was admin- 
 istered without his knowledge and against his will.' The 
 English rule is intelligible, though the reasoning by which Erroneous 
 Blackstone supports it is worthless. Drunkenness ia itself of*B°ack- 
 can hardly be said to be a crime under English Law * ; ^'°"''- 
 
 Hastie, as it is in some respects) also turned entirely upon tlie sense of the 
 promise. It is reported in Exchequer Reports, vol. vii. p. 208. 
 
 1 I have excluded from the present discussion cases in which by reason 
 of error there is no agreement, and also cases in which the ordinary liability 
 arises but is afterwards modified or set aside.. I feel justified in doing this, 
 because I consider that such cases are dealt with upon grounds quite apart 
 from those which are discussed in the text, and they are in the main ques- 
 tions of fact, or of discretion. 
 
 ^ Commentaries, vol. iv. p. 26. I doubt whether the passage of Lord Coke 
 to which Blackstone refers as an authority for this position, has been correctly 
 understood by him. See First Part of the Institutes, p. 247. 
 
 ' Sect. 86. 
 
 * It is an oflFence punishable by a fine of five shillings under 21. James I. chap., 
 vii. sect. 3. But simple drunkenness, independently of any other consideration, 
 is very rarely, if ever, punished. 
 
362 GROUNDS OF NON-LIABILITY. [Chap. XVIL 
 
 and even if it were, it is simply begging the question to 
 say, that when a man pleads drunkenness, he thereby seeks 
 to privilege one crime by another ; the whole question being, 
 whether or no that other act is or is not a crime. The 
 Eule of Indian rule is very difficult of comprehension. I am not 
 
 Indian _ ■' -^ _ 
 
 Penal Code quite sure what is meant by ' a particular knowledge or 
 intent,' but I suppose setting fire to a house is an offence, 
 though not done with any particular knowledge or intent ; 
 yet it is not at all likely that intoxication was intended to be 
 an excuse in such a case. On the other hand, passing 
 counterfeit coin is clearly an offence in which a particular 
 knowledge is necessary ; namely, knowledge that the coin is 
 spurious ; and therefore, a drunken man who takes a counter- 
 feit coin, which he would certainly have discovered to be 
 counterfeit if he had been sober, and pays it away without 
 discovering it, might under this provision be convicted of 
 passing counterfeit coin knowing it to be counterfeit. But 
 this result seems very remarkable. 
 
 True effect 752. The question, how far intoxication affects liability, 
 
 of exclud- 
 ing the de- can never, I think, be satisfactorily settled by presuming 
 
 toxication that things are different from what they really are. If 
 altogether ^^ state of mind which we call knowledsre or intention 
 
 m criminal '^ 
 
 cases. is essential to the breach of the duty or obligation in ques- 
 tion, the first consideration will be, whether or no the 
 drunkenness was such as to have prevented the possibiKty 
 of such a state of mind. It is perfectly consistent with 
 very great drunkenness, that a man should know and intend 
 the consequences of his acts. A soldier who after a day's 
 hard drinking discharges his musket in the face of his 
 Serjeant, may know and intend the consequences of his 
 acts, just as well as the jealous lover who stabs his rival 
 in the arms of his mistress. Indeed it is hardly possible 
 to preserve the physical capacity to execute this sort of 
 crime, without also retaining the low degree of intelli- 
 gence which is necessary to the offence. But, if that is 
 not the case ; if the drunkenness is such that no offence 
 
Sec. 752-753.] GEOUNDS OP NON-LIABILITY. 363 
 
 can have been cemmitted, or not the particular offence 
 with which the person is charged ; then the true effect of 
 presuming knowledge or intention, in spite of the facts, 
 is to make drunkenness itself an offence, which is punish- 
 able with a degree of punishment varying with the con- 
 sequences of the act done ^. 
 
 753. How far intoxication affects the liability of a man, Intoxi- 
 
 in a court of civil procedure, to make compensation for oti^gr oasee 
 damage done, has been little discussed. The same distinc- t^anonmea 
 tion would be here necessary as in considering criminal breaches of 
 liability. If the liability be such that the state of mind 
 is a necessary element of it, then the person pleading 
 intoxication may, or may not, have that state of mind. 
 If he has it, then he is liable like any other person. 
 If he is so intoxicated that he cannot have it, then, if 
 liable at all, he is liable because there is a law, which 
 makes men liable for what they do when drunk, indepen- 
 dently of any consideration of their state of mind when 
 they did it. 
 
 754. In cases of contract, an intoxicated man may, or intoxiea- 
 may not, have the degree of intelHgenee necessary to agree g^'^^gt 
 upon the terms of a contract ; and this would be a matter 
 
 of inquiry. But here a different principle intervenes. A 
 man who is intoxicated generally shows it ; and there is this 
 exception to the law that contracts will be enforced, that 
 a contract made with a man who is apparently drunk will 
 not be enforced. The sovereign authority, for good reasons, 
 has decided that people ought not to attempt to transact 
 business with persons whose incapacity to exercise sound 
 judgment is thus apparent. 
 
 755. The rules which govern the liability of infants and Infancy, 
 minors have varied considerably in different countries. They 
 
 have had their origin mainly, but not exclusively, in con- 
 
 ' It would appear from a passage in Lord Hale that some lawyers have 
 thought that the formal cause of punishment ought to be the drunkenness, and 
 not the crime committed underits influence. Pleas of the Crown, vol. i. p. 32. 
 
364 GROUNDS OP NON-LIABILITY. [Chap. XVII. 
 
 siderations of intellectual deficiency. They have been founded 
 sometimes on the necessity of subjecting- young- persons to 
 parental or other control ; sometimes on their physical in- 
 capacity to g-o throug-h certain forms ; and not unfrequently 
 on their incapacity for sexual intercourse; but the most 
 prominent consideration has, of course, always been the ab- 
 sence of that knowledge and experience which is necessary 
 to enable any one to appreciate the consequences of his 
 acts. Traces of all these principles may be found in the 
 Roman, the English, the Hindoo, and the Mahommedan Law. 
 But it is obvious that an inquiry into either physical or 
 intellectual capacity would be both difficult and inconvenient ; 
 and consequently, the necessity for this inquiry has been 
 to a great extent superseded, by laying down certain fixed 
 rules as to liability, based simply upon the age of the person 
 sought to be made liable. 
 Criminal 756. The rules vary somewhat in different countries, and 
 they also vary with reference to the nature of the duty 
 or obligation which is in question. As regards acts which 
 lead to penalties or forfeitures under criminal procedure, 
 a child cannot, under the Indian Penal Code^, be made liable 
 until he has attained the age of seven years. Above seven 
 years and under twelve the child will not be liable unless he 
 has attained sufficient maturity of understanding to judg-e of 
 the nature and consequences of his conduct. This means 
 that he will generally be considered not to have attained that 
 condition ; but he may be shown to have done so. The 
 Law of England is substantially the same, except that four- 
 teen years is substituted for twelve. The French Code 
 provides that, wherever the accused is under sixteen years 
 of age, there must be an inquiry into what is called his 
 discernment^. 
 
 As regards those acts which are usually called torts or 
 delicts, the consequences of which are liability to make 
 compensation, or some other obligation of a civil kind, they 
 ' Sect. 83. ■' Code Pfeal, Art. 66. 
 
 cases. 
 
Sec. 756-758.] GROUNDS OP NON-LIABILITY, 365 
 
 would probably be dealt with upon tbe same principles as acta 
 which are punished criminally. 
 
 757. As regards contracts, the law is very favourable to Contracts. 
 young persons. Up to a certain age, which in European 
 countries is usually fixed at twenty-one, they are not gen- 
 erally liable to obligations created by way of contract, though 
 
 they can sometimes compel persons who have made promises to 
 them to perform them. But though the minor cannot by his 
 own act incur any obligation, there is generally some person, 
 his father or mother, or a person specially appointed for 
 the purpose, and who in this relation is called his guardian, 
 who can make, under certain circumstances, valid contracts 
 on the minor's behalf. Moreover, a minor, on attaining his 
 full age, may sometimes ratify, either expressly, or by acknow- 
 ledging their existence in any other way, contracts made by 
 him when under age. A minor may also generally make 
 a valid contract to pay for the necessaries of life. In India 
 the same general principles apply to contracts made by minors 
 as in Europe. The age of majority is however there fixed 
 at eighteen for some purposes, and at twenty-one for others ^. 
 
 758. We now come to another matter, upon which there 
 has been no little confusion, owing to the inconsiderate use 
 
 of terms. We constantly hear people speak of a man doing Duress 
 an act against his will, and lawyers discuss the validity ^°atroY*the 
 of an act done against the will. But if we use language will, 
 with the precision which is absolutely necessary ia order 
 to deduce legal consequences, and revert to the analysis 
 above given of the relation between the will and the act 
 (the only one which appears to me to be rational), it will be 
 at once apparent that to say that a man has done an act 
 against his will, is a flat contradiction. If I thrust a gun 
 into your hand and force your finger on to the trigger, 
 it is I who fire the gun and not you. You do not do an act 
 against your will. You do no act at all. On the other hand, 
 if I present you a document for signature, and inform you 
 
 ' See Act ix. of 18J5. 
 
366 GROUNDS OF NON-LIABILITY. [Chap. XVII. 
 
 that unless you sign it I shall blow your brains out, pro- 
 ducing at the same time a pistol to convince you that I am 
 in earnest ; whereupon you take up the pen and sign ; in 
 that case you sign in accordance with your will, and not 
 against it. "What I have operated upon is not your will, but 
 upon the desires which influence your will. I have never 
 deprived you, nor can I ever deprive you, of the power 
 of freely choosing whether to sign the paper or to be shot 
 through the head. Knowing that you have a strong desire 
 to live, I put you in a position in which, in order that that 
 desire may Be accomplished, you must do an act which you 
 otherwise desired not to d&: I might be mistaken. Your 
 repugnance to the act might be so great that death would be 
 preferable. Many a woman has preferred death to yielding 
 up her virtue. 
 
 759. This will be seen- more clearly if we compare this 
 case, which most people would describe as an act done against 
 the will, with a case which would not be so described, but 
 which will be found on examination to stand on precisely the 
 same grounds. I am a prisoner in the hands of a cruel 
 enemy, who I feel certain will take an early opportunity 
 of putting me to death. I have the chance of speaking 
 to you, and promise you a thousand pounds if you will carry 
 a message to one of my friends, who, I feel sure, will come to 
 my aid when he learns my situation. It is exceedingly 
 painful to- me to expend so large a sum of money, which 
 I can ill spare, and I would gladly avoid doing so. But 
 I fear to lose my life, and you will not take less, so I sign 
 a promise to pay that amount. No one would speak of 
 this as an act done against my will ; and yet the condition of 
 my wiU, in this case, is precisely the same as that of yours, 
 in the former ease. In each ease the will is influenced by con- 
 flicting desires — the desire to live, and the desire to avoid an 
 act ; the desire to live preponderates, and we act accordingly, 
 
 760. Having removed this misconception, let us see 
 how the improper influence upon the desires, which is called 
 
Sec. 759-762.] GROUNDS OF NON-LIABILITY. 367 
 
 duress affects the liability whicli arises out of an act. As 
 in all other cases, it is only by an examination of the law 
 which creates the primary obligation, that we can discover 
 this. Under what circumstances does the law create obliga- 
 tions upon contracts, which have been entered into by persons 
 under what is termed duress ? 
 
 761. A great many cases of so-calt'ed duress may be got Beal oases 
 rid of upon a very simple ground. If a promise made a ground of 
 under the influence of duress be for the benefit of the {jabiiHv 
 person' who has used the improper influence, this person will 
 
 not be allowed to enforce the promise, on the ground that 
 no one can be allowed to take advantage of his own' wrongful 
 act. Eut there are undoubtedly cases in which a promise will 
 not be enforced, though the promisee be wholly innocent. 
 Thus if a friend of mine asked you to- lend him a thousand 
 pounds, and I, wishing- his request to be granted, threatened 
 to take your life unless you signed a promise to pay him the 
 money, the promise would not be enforced, although he and 
 I were not acting in concert. 
 
 762. The principles upon which the sovereign authority Rules 
 will refuse to enforce a promise in such cases- have not govern 
 been, as far as I am aware, very exactly stated. If a judge *''«s''''^^^^- 
 has to decide such a case he would generally consider a good 
 
 deal, what under all the circumstances appeared to be just 
 and proper. Three rules appear however tO' have been 
 adopted. First, the danger to be avoided must be of a 
 serious kind, that is, danger to life, or limb, or liberty, either 
 of the person himself, or his wife, or his children. Danger of 
 losing one's good character, or of injury to one's property, is 
 not considered sufficiently serious. Nor is the danger of 
 being sued in civil process, or of being charged with a crime. 
 Of course I mean not sufficiently serious to justify the non- 
 performance of a promise made to an innocent person. 
 Should the person who threatens the danger himself seek to 
 enforce the promise, the case would, as I have pointed out, be 
 treated on different principles. 
 
368 GROUNDS OF NON-LIABILITY. [Chap. XVII. 
 
 Secondly, it is necessary that the danger should be of 
 something which a person of ordinary constancy and firm- 
 ness may fairly expect to happen ; and the act must be 
 one which a prudent man would do, to avoid the danger. 
 
 Thirdly, the escape from the anticipated harm, by making 
 the promise, must be suggested by some one other than 
 the promiser himself, and the act must be the direct con- 
 sequence of the suggestion. 
 
 763. The effect of duress upon criminal liability, and 
 upon civil liability independently of the agreement of the 
 parties, has never, as far as I am aware, been discussed. Cases 
 of this kind are of rare occurrence, and are frequently capable 
 of being solved on other principles. 
 Use of 764. In discussing the effect upon his liability of the 
 
 'void.' abnormal condition of the party who does the act, I have 
 guarded myself against the use of the word ' void,' in order 
 to prevent misconception. There are cases, no doubt, in 
 which the act does not produce the usual liability, or 
 even by itself any liability at all. But it does not follow 
 from this that the act is devoid of all legal results. We 
 have a very strong example of this in the case of infancy. 
 The statute which protects infants in cases of contract 
 uses the strongest language upon this point. It says that 
 the promise of the infant is absolutely void ''-, as if it meant 
 to make it a simple nullity. But is it so ? The infant 
 if sued on the promise is put to his plea. He may defend 
 himself by alleging his infancy : but if he does not specially 
 allege this defence he will be found to be liable. A bare 
 denial of the contract will not help him, as it certainly should 
 if the transaction were a nullity ^. 
 Fraud. 735, Fraud is error produced by mendacity. It is, there- 
 
 fore, a particular case of error. But it requires separate 
 consideration, because the eiFect of error on liability which 
 arises upon a contract is largely affected by the considera- 
 
 '■ 37 and 38 Vict., u. 62, s. i. 
 ' Simpson on Infants, p. 500. 
 
Sec. 763-769.] GROUNDS OF NON-LIABILITY, 369 
 
 tion of -whether or no it was created by a mendacious 
 statement. 
 
 766. In contract, if A sues B upon a contract which 
 originated in an agreement induced by fraud, and B pleads 
 simply that no contract was entered into, it is certain 
 that the court, even though the fraud appear, will hold that 
 there was such a liability. If B pleads that he was induced 
 to agree by fraud, and proves it, the court will under certain 
 conditions give judgment in his favour. But whether upon 
 the ground that there never was any contractual liability, or 
 upon the ground that this contractual liability will be set aside 
 because of the fraud, it is not always easy to determine. 
 
 767. As far as the defendant is concerned, the result is the 
 same whether the court says there never was any liability 
 or unconditionally removes that liability. But to other 
 persons it may be of enormous importance : this is well 
 illustrated by the case of Cundy v. Lindsay which I have 
 above stated^. 
 
 768. In Cundy v. Lindsay however the property had actu- 
 ally been delivered, and (though this seems to have been 
 overlooked) it was quite possible to hold that by the deliveiy 
 the ownership was transferred, although by reason of the 
 fraud no liability arose out of the contract which preceded 
 the delivery. But take a case where A by fraud induces B 
 to agree to sell him a house, and then C, who acts perfectly 
 honestly, agrees to purchase the house from A, and pays him 
 the money. It makes all the difference whether the liability 
 of B to carry out the purchase was never created, or whether 
 it will be set aside. If it was created, then no court would 
 set it aside without considering the position of C, and how 
 he would be affected by the order. But if no liability at all 
 was created by the transaction, then there would be no room 
 for such a consideration as this. B would simply prove the 
 non-existence of his liability. 
 
 769. On the whole, notwithstanding the strong language 
 
 ' Sapra, sect. 746. 
 
 Bb 
 
370 GROUNDS OF NON-LIABILITY. 
 
 sometimes used, I doubt whether Cundy v. Lindsay does not 
 stand alone amongst unimpeachable authorities in aflBrm- 
 ing that error induced by fraud prevents liability arising. If 
 so, it would, I imagine, be confined strictly to the kind 
 of error there produced, that is, an error as to the identity of 
 the contracting party. 
 
CHAPTER XVIII. 
 
 SUCCESSION. 
 
 770. There are few institutions of law which can be Origin of 
 fully understood by considering' them as they exist at any gu^cg^gjo^ 
 one time, or in any one place. This is specially true of 
 
 that head of law which is dealt with in this chapter, and 
 I will therefore attempt to state how our present notions 
 as to succession originated. 
 
 771. I will first explain generally what I mean by the Meaning of 
 term succession. Every member of society has an infinite ^"'='^®^^i™- 
 variety of rights and is subject to an infinite variety of 
 obligations. He has property in his own possession ; he has 
 property in the possession of others ; the law has bound him 
 
 to other persons, and has bound other persons to him ; he 
 owes money to some, others owe money to him ; he has of 
 his own accord entered into engagements of various kinds 
 with various persons, and bound various persons to himself 
 by contracts ; many of these obligations on either side 
 remain unperformed. Thus a man carries about with him 
 (so to speak) a vast mass or bundle of rights and obligations, 
 which are attached to himself, in the sense that they are 
 conceived as binding Mm or belonging to him. This mass 
 or bundle of rights and obligations the Roman lawyers 
 called a man's /;(*. What becomes of these rights and obli- 
 
 B b 2 
 
372 SUCCESSION. [Chap. XVIII. 
 
 gations when the person dies to which they are attached? 
 Do they also perish ? If not, on whom do they devolve ? That 
 is determined by the law which I am about to consider — the 
 law of succession. 
 How far 772. It is frequently said that the law of succession 
 
 fictions. rests entirely upon fictions ; and this portion of the law has 
 accordingly had to sustain many attacks upon that weak side 
 which all institutions based upon fictions present. How 
 far the statement that the law of succession is based upon 
 fictions is true will appear when we examine the conceptions 
 from which it has been derived. 
 Universitas 773. The first main conception which underlies the 
 jmii. raodern law of succession cannot be seized without a little 
 
 preliminary consideration of a term of the Civil Law, which 
 contains the idea whence all our conceptions of succession 
 originally sprang, though it has been to some extent de- 
 parted from. I have already said that the problem to be 
 solved is, what becomes of the rights and obligations which 
 are attached to a person when that person dies ; and I 
 have now to explain that these rights and obligations 
 have been frequently conceived, not separately, but as a 
 whole. And this mass or bundle of rights and obligations 
 attaching to a man being conceived, and dealt with as a 
 whole, it has been natural to give to it a name. The 
 name given to it by the Civil lawyers was j'/iris tmiversitas. 
 Sir Henry Maine has thus explained this term ^ : — ' A 
 universitas juris is a collection of rights and duties united 
 by the single circumstance of their having belonged at 
 one time to some one person. It is as it were the legal 
 clothing of some given individual. It is not formed by 
 grouping together any rights and any duties. It can only 
 be constituted by taking all the rights, and all the duties 
 of a particular person. The tie which so connects a number 
 of rights of property, rights of way, rights to legacies, 
 duties of specific performance, debts, obligations to com- 
 ' Ancient Law, fii'st ed., p. 178. 
 
Sec. 772-775.] SUCCESSION. 373 
 
 pensate wrongs — which so connects all these legal privi- 
 leges and duties together as to constitute them a universitas 
 juris is the fact of their having attached to some individual 
 capable of exercising them. Without this fact there is 
 no university of rights and duties. The expression universitas 
 juris is not classical, but for the notion jurisprudence is 
 exclusively indebted to Roman law ; nor is it at all difficult 
 to seize. We must endeavour to collect under one conception 
 the whole set of legal relations in which each one of us 
 stands to the rest of the world. These, whatever be their 
 character and composition, make up together a universitas 
 juris ; and there is but little danger of mistake in forming 
 the notion, if we are only careful to remember that duties 
 enter into it qiiite as much as rights. Our duties may 
 overbalance our rights. A man may owe more than 
 he is worth, and therefore if a money value is set on 
 his collective legal relations he may be what is called 
 insolvent. But for all that the entire group of rights 
 and duties which centres in him is not the less a juris 
 universitas.' 
 
 1'14i. It has also already been intimated ^ that according Ownership 
 to the first notion of society, certainly according to the first corporate. 
 Aryan notion, ownership was not individual, but corporate. 
 Property belonged not to an individual, or a determinate 
 set of individuals, but to an aggregate of indeterminate 
 persons, such as a family or tribe. But such corporate 
 ownership is just the case in which the difiSculty about 
 succession vanishes. The rights and obligations are in this 
 case attached to the corporate body, and the existence of 
 the corporate body to which the rights and obligations are 
 attached is in no way aflFected by the death of individual 
 members of the corporation. 
 
 775. Nor is this view of succession confined to those Succession 
 
 „ . . to corpo- 
 
 eorporations which are composed of an aggregate or indi- rate 
 viduals, such as a family, or a municipality, or a trading "^"^''^ 'P- 
 ' Supra, sect. 326. 
 
374 SUCCESSION. [Chap. XVIII. 
 
 company. Precisely the same takes place where the cor- 
 poration is represented by a single individual, or, as it is 
 termed in English law, is a corporation sole ; such as the king, 
 the parson of a parish, or the priest [shebait) of a Hindoo idol. 
 It is not the particular incumbent of the office in whom the 
 property is vested, and to whom the obligations attach ; it 
 is the Crown, or the Church, or the Deity ; or some abstrac- 
 tion of that kind, of which the king, the parson ^, or the shebait 
 is only the representative. 
 Transition 776. ^ Now once having seized the idea of a juris universitas 
 sion to sole ^^^ ^f a corporation, especially of a corporation sole, there need 
 ownershijj. ^^^ j-|g ^-^y difficulty about mastering the conception of succes- 
 sion. There is a reasonable probability that the idea of in- 
 dividual succession grew out of the idea of corporate succession 
 and, although the transition is considerable, there is no reason 
 to suppose that it was a violent one, or that it was even per- 
 ceived. The corporate ownership of the family no doubt con- 
 tracted to the individual ownership of the father, not suddenly, 
 but gradually: and so too with succession. The father had 
 been the sole manager and representative of the family 
 whilst ownership was still corporate ; and whether one individual 
 succeeded another as owner or as manager would not become 
 apparent until long after rights of individual ownership 
 had become well established and familiar. A change from 
 corporate to individual succession, therefore, like the corre- 
 spondijig change from corporate to individual ownership, 
 would produce no external change of itself; and one tran- 
 sition would proceed as an unconscious developement of the 
 other. There was, it is true, a new question to be solved, 
 but it is very likely that nobody asked it ; and no one, even 
 if it had been asked, would haA^e doubted about the answer. 
 There was nothing to be done except to let things go on as 
 
 ' So called because he is said vicem sen personam eccksiae genre. Coke upon 
 Littleton, 300 a ; Blackstone, Commentaries, vol. i. p. 384. 
 
 ^ I may here refer generally to Maine's Ancient Law, chap, vi, where the 
 early history of testamentary succession is most ably and learnedly discussed. 
 
Sec. 776, 777.] SUCCESSION. 375 
 
 before. The old head of the family being dead, the new- 
 heads of famiKes would take his place ; whether as managers 
 on behalf of their respective families, or on their own behalf, 
 would make no external difference. It was only after the 
 notions of personal obligation and personal ownership had been 
 fuUy established, that it would occur to any one to ask how, 
 when the person is dead, can the rights and obligations 
 which were attached to his person continue? Then only 
 would the continuation of his existence in the person of his 
 heir come to be questioned ; and the doubt, if necessary, 
 resolved by a fiction that the ancestor's existence was con- 
 tinued in the person of the heir. 
 
 777. It appears to me, however, at least open to ques- Continua- 
 tion, whether the continuation of existence in the person of g^jgj°jjj,g 
 the heir, which we now call a fiction, was not in earlier times p^ ancestor 
 
 in person 
 
 stated as a solemn physical truth. It is diSicult otherwise of heir, 
 to account for the broad and general terms in which this 
 continuation is appealed to as a fact ; not only by Roman 
 lawyers, but by lawyers of other countries. The Hindoo 
 lawyers when discussing the rights of succession seem to 
 assert the physical identity of father and son, and also of 
 father and daughter quite as strongly ; and, whenever 
 they have to deal with a disputed question of succession, 
 treat this identity as a self-evident truth. Thus Menu 
 says : — ' The son of a man is even as himself, and as the 
 son is, such is the daughter. How, then, if he have no 
 son can any inherit but the daughter, who is closely united 
 with his own soul ? ' ^ Nay, even when dealing with the 
 rights of a widow, the great contest as to her right of 
 succession seems to have been settled by the observation 
 that 'Of him whose wife is not deceased, half the body 
 survives. How then should another take his property while 
 half his person is alive ?'^ Similar strong expressions of 
 
 '■ Chap. ix. verse 130. 
 
 '' Dayabhaga, chap. xi. sect. 1, verse 2. But the strongest passage of all, 
 perhaps, is in the Mitacshara, chap. i. sect. 3, verse 10: 'The woman's pro- 
 
376 SUCCESSION. [Chap. XVIII. 
 
 complete physical identity also occur frequently in the Bible. 
 The legend of Eve having been formed out of a rib taken 
 from Adam ; the latter's exclamation on seeing her, ' This 
 is now bone of my bone, and flesh of my flesh ; ' and the 
 frequent assertion by blood relations that they are to each 
 other as bone of the bone and flesh of the flesh, even by 
 those connected through females, are at least very remark- 
 able. ^ 
 
 778. Continuation of the existence of the ancestor in 
 the person of the heir is, it it true, not the only ground of 
 inheritance recognised. Amongst the Hindoo lawyers of the 
 Bengal school the notion that spiritual benefits are conferred 
 by the heir upon the ancestor enters largely into their con- 
 ception of succession. This notion is based upon three as- 
 sumptions : — (i) that the deceased is benefited by his wealth 
 being expended on the performance of certain ceremonies ; 
 (a) that it will be so expended ; (3) that the extent of the 
 benefit depends on the relationship of the deceased to the 
 person who performs the ceremonies. The last determines 
 the order of succession. The second was, of course, only 
 applicable to the scanty wealth men formerly used to leave 
 behind them, and though the ceremonies are still performed 
 somewhat lavishly, they do not absorb nearly all the ac- 
 cumulated proj)erty of the deceased. It is not improbable 
 that the original practice was to apply all the available 
 wealth of the family to the performance of family ceremonies 
 and the perpetuation of family sacra ; and thus what was 
 originally a mere family duty has become a profitable right. 
 Though from a legal point of view it has now dwindled 
 into a fiction, it was once real; and it still supplies a not 
 
 perty goes to her daughters because portions of her abound in her female 
 children; and the father's estate goes to his sons because portions of him 
 abound in his male children.' 
 
 ' Genesis ii. 23, xxix. 14; 2 Samuel v. i, xix. 12, 13; Judges ix. 2; 
 I Chronicles xi. 1. In Genesis v. 4 it is said, ' He that shall come forth out 
 of thine own towels shall be thine heir.' 
 
Sec. 778-780.] SUCCESSION. 377 
 
 unjust rule of inheritance, based mainly upon propinquity 
 and a preference of males to females ^. 
 
 779. But in the Mitacshara, which is supposed to be 
 older than the Dayabhaga, and is of far wider authority ^, 
 the right of succession is nowhere placed upon the ground 
 of spiritual benefits conferred. The author of this treatise 
 rests his propositions for the most part upon the bare rule 
 of propinquity ; and though he recognises the offering of 
 funeral oblations as a distinctive mark of one class of 
 relations {jjotraja) and perhaps of others, he does not treat 
 this as an essential condition. He has apparently heard of 
 the notion but rejects it ; as well as the more general as- 
 sumption that accumulated wealth can only be used for 
 religious purposes^. This is probably the reason why the 
 author of the Dayabhaga discusses and defends the doctrine 
 of spiritual benefits at such great length. I may observe 
 that the authors of both treatises consider the little that 
 Menu says upon the subject favourable to their views*. 
 
 780. The law of succession as developed under the com- Lawofsuo- 
 bined influence of Brahminical law and the decisions of jn^ia"^ ™ 
 English judges in India presents many features of remark- 
 able interest. Starting, apparently, from the same point 
 
 as the law of Europe, namely the corporate ownership of 
 families, and asserting, as I have already shown, quite as 
 strongly the physical unity of kindred, the Hindoo law of 
 succession down to the present day is still in close con- 
 nexion with the law of the family. In the west, even in 
 ancient Rome, on the death of the head of the family each 
 son became the head of a new family, and there were as 
 many new families as the deceased left sons surviving him. 
 
 ^ See Dayabhaga, chap. xi. sects. 5 and 6. 
 
 ' Colebrooke's Law of Inheritance, Preface, pp. it. and xij. 
 
 ' See Mitacshara, chap. ii. sect. 3, verse 4, and sect. 5, verse 1 ; and com- 
 pare sect. I, verse 14, vrith verses 22, 23. 
 
 * See Menu, chap ix. verse 186 sqq., and compare verses 106 and 142. Se 
 also Mitacshara, chap. ii. sect. 3, verses 3 and 4 ; and Dayabhaga, chap. xi. 
 sect. 5, verse 6 sqq. 
 
378 SUCCESSION. [Chap. XVIII. 
 
 But this was not the case in India in earlier times, nor is 
 it so even now. Throughout India, when the father dies, 
 the family remains single and intact. If he were a sole 
 owner, all his heirs become co-owners with each other, 
 and so. remain until a distinct act of separation takes place ; 
 and (which is most important) the feeling is rather against 
 than in favour of such a separation. If the father was 
 himself a member of a joint family, aU his descendants 
 are so too ; the property before and after his death being 
 held in common. Thus numerous changes in the member- 
 ship of the family may take place, and even a new family 
 may be founded without any external change whatever. 
 So long as the family remains united there is a common 
 purse into which, and out of which, everything is paid, 
 without any account being taken of the individual con- 
 tributions or expenses ; the fund itself, and the expenditure 
 from it, being under the control of the family, generally 
 represented by a manager. Individu.al rights exist, but it 
 is only in ease of collision between the members of the 
 family, leading to a disruption, that any question as to 
 individual rights arises ; and then it first becomes reaUy 
 important that the members are co-owners and not cor- 
 porate owners. The change, therefore, from corporate owner- 
 ship to individual ownership has been a very slow one 
 in India, and it is not even yet complete. It is still 
 questioned in some parts of India whether the individual 
 members can without a partition dispose of their shares: 
 and the highest com-t of appeal has not yet expressed itself 
 finally upon the point. This explains the curious place 
 that the law of succession occupies under Hindoo law. 
 We in Europe have long been accustomed always to deal 
 with the law of succession as connected with the rupture 
 of the family by death ; the Hindoo lawyers deal with it 
 as connected with the ruptm-e of the family by partition. 
 It might be said that there is in fact no Hindoo law of 
 succession, but only a law of partition. The two great 
 
Sec. 780, 781.] SUCCESSION. S79 
 
 treatises which Colebrooke has translated, and which are 
 commonly said to contain the Hindoo law of inheritance, 
 reaUy deal with a subject for which the Sanscrit term is 
 dayahhaga; and this, as the authors of both treatises are 
 most careful to explain, means, not inheritance, but the 
 partition of wealth^. 
 
 781. Probably the oldest form of succession, though it is Division of 
 now almost completely effaced, is that which is based upon a ^^p^ ™ ° 
 division of the family into groups of male agnates, each group 
 consisting of a man and his descendants. The whole family, 
 and any portion of the family whose lines of descent meet in 
 a common ancestor, forms a group of that kind. Thus, suppose 
 the following diagram be taken to represent the male agnates 
 of a family : — 
 
 A 
 
 r ^ -r -r n 
 
 S C D E 
 
 , l_ 
 
 -. n 1— ^-n I i 
 
 F Q S I K L M 
 
 .-I . . 1 . I I I L_ 
 
 N P Q, B S T U W 
 
 X T Z 
 
 A and his descendants will form the largest group, which 
 for brevity we may call the group A. Another group 
 will be formed by the descendants of B, which we may call 
 the group IB ; and in like manner we have a group C, B, E, F, 
 G, H, and so on. This division into groups has been, as I 
 shall show presently, extensively used in the rules which regu- 
 late succession. But I am disjjosed to think that it had its 
 
 ^ Dayabhaga, chap. i. vv. 1-5 ; Mitaosliara, chap. i. secte. i, vv. 1-6. Lassalle 
 lias pointed out the difference between the (so-called) intestate succession of the 
 early German law and the intestate succession of Eome. There is a very 
 remarkable similarity between his description of the German law and the 
 Hindoo law as it appears in the Mitacshara. See Syst. d. Erworb. Eeohts, 
 vol. ii. Part ii. especially pp. 583 sqq. Compare also the following remarkable 
 passage : ' In suis heredibus evidentius apparet continuationem dominii eo rem 
 perducere, ut nulla videatur hereditas fuisse, quasi olim hi domini essent, qui 
 etiam vivo patre quodammodo domini existimantur. . . . Itaque non heredi- 
 tatem percipere videntur, sed magis liberam bonorum admiuistrationem con- 
 sequuntur.' Dig. 28, 2, 11. This looks as if there were traces at Eome of 
 a system similar to that of the Hindoos and early Germans. 
 
380 SUCCESSION, [Chap. XVIII. 
 
 original application not to rules of succession of individual 
 property, but to rules of partition of family property held by 
 co-owners. There is one system of law, the Hindoo, in which 
 the rules which govern the partition of such a family are 
 well known to us, and it is worth while to state them shortly. 
 In doing so I shall use the above pedigree. 
 Hindoo 782. When a Hindoo famUy breaks up and a division of the 
 
 law of par- family property takes place, the first step is to divide the pro- 
 perty into as many shares as there are groups of the first 
 order ; i. e. groups formed by the sons of A. Thus, if aU the 
 sons of A were alive, or represented, the division would be into 
 four shares, one for each of the four groups. But if E and all 
 his descendants were dead, then the division would be into three 
 shares. If a further division were desired, as for example if 
 B were dead, then the one-fourth which feU to the group B 
 would be further divided into three, that is, the groups, F, 
 G, and H would each get one-twelfth of the whole. And so 
 again, if G were dead, there might be again a division of this 
 one-twelfth into two, giving one twenty-fourth to each of the 
 groups P and Q. 
 
 783. This is the rule which governs a partition amongst 
 persons forming a joint Hindoo family at the present day. 
 The number of persons forming the group is disregarded. 
 The distance of the individual from the common ancestor is 
 disregarded. Thus, on a partition the indi\idual T, if L and 
 B were dead, would get as much as the whole group B. 
 
 784. It is useless to speculate as to the causes which led to 
 this method of partition, which does not to our eyes appear 
 very equitable. But I do not doubt that it has had a very 
 extensive efiect upon the rules of inheritance. The Hindoo law 
 of inheritance coincides generally with the law which governs 
 the partition of family property. If a Hindoo dies leaving 
 property which is exclusively his own, the heir is sought 
 amongst the male agnates of the family according to a rule 
 very similar to that which regulates partition. The groups 
 succeed each other, the nearest group taking first. Thus, if 
 
Sec. 782-788.] SUCCESSION. 381 
 
 P were to die leaving separate property, his sons, T and X, 
 would succeed. If P had no sons the group G would succeed. 
 If there were no representatives of the group G, the group B 
 would succeed, and, failing this group also, the group A. 
 
 785. In one part of India, Lower Bengal, the rights of the 
 descendants have been, as in ancient Rome, absorbed by the 
 ancestor, so that on the death of P, if G were alive, instead of 
 the group G succeeding, G would take the whole. If G were 
 dead and Q were alive, Q would take the whole. 
 
 786. The same principle appears in a very striking manner Mahom- 
 in the Mahommedan law. When a Mahommedan dies, then, onnheri-^ 
 according to the express directions of the Koran, certain *^'^°®- 
 persons are to receive shares of the property. But these 
 shares do not generally exhaust the property, and the succes- 
 sion to the residue is governed by certain rules which are not 
 
 to be found in the Koran, but which the Koran does not 
 supersede. These rules obviously represent the old Arabian 
 custom of succession. The persons who succeed to the residue, 
 after the sharers are satisfied, are the male agnates, and with 
 one modification the classes of male agnates succeed each other 
 in exactly the same order as in the Hindoo law. Only here, 
 again, where the family system no longer prevails, the de- 
 scendants are excluded by a living ancestor. 
 
 787. This classification of the heirs into groups of persons Parente- 
 descended from a single ancestor, and the use made of it in the nung. 
 determination of the heirs, was well known to the ancient 
 German law, and it still survives in the Austrian Code. 
 Germans call this classification of the heirs parentelen-ordnung 
 
 or Uneal-ordnung ^- The Austrians have, however, extended it 
 to females and cognates, and the modern code of Austria 
 traces the descent not to a single ancestor but to a single pair. 
 
 788. The conclusion to which these observations appear 
 to lead is that the rules of intestate succession of an heir 
 to the individual property of the deceased grew out of the 
 
 ' See Holtzendorff's Encyolopadie, s. v. Parentelen-Ordnung ; XJnger, Syst. 
 d. Allgem. Oester. Priv.-Eechts, vol. vi. p. 134. 
 
382 SUCCESSION. [Chap. XVIII. 
 
 rules wMch g-overned the rights of co-owners upon a partition 
 of the family property. As the family system disappeared, 
 the rights of the descendants have been absorbed by the living 
 ancestor, and there have been many interpolations and 
 alterations to obviate results which to modern eyes appear 
 inequitable. Thus it may be said generally that the modem 
 tendency is to give the inheritance to co-heirs per capita 
 and not per stirpes : though I think there can be little doubt 
 that the division per stirpes is the older rule and is connected 
 with the division of the heirs into groups which I have been 
 endeavouring to describe. 
 Testamen- 789. So far we have only dealt with the origin of the 
 cession. conception of intestate succession. But there exists also 
 testamentary succession; that is to say, succession in which 
 the person to succeed is determined by a declaration of the 
 How far will of the deceased person. This, Savigny^ says, also rests 
 fiction. upon a fiction ; the fiction being that the deceased person 
 continues to act beyond the period of his own death. If 
 the testamentary power was really due to such a strange 
 fiction as this, to which no physical conception ever cor- 
 responded, we could only wonder at it. By a metaphor it 
 may be said that a man ' being dead yet speaketh ' ; but 
 the words of a dead man can hardly originate binding 
 obKgations. Nor do I know of any foundation for the 
 statement that any such fiction was the origin of testa- 
 mentary law^. All the testamentary power in the world 
 
 ^ Syst. des heutigen Eomisclien Eechts, vol. i, p. 131, sect. 57. 
 
 ' Perhaps it is in the following way that the fiction is traced to the Eoman 
 law. It was said by Modestinus (Digest, Book xxxi. sect. 36) that ' a legacy 
 is a gift left by will'; this in the Institutes (Book ii. tit. 20, sect. i)is changed 
 into 'a legacy is a kind of gift left by a person deceased' ; and this has been 
 again transformed into ' a will is a gift by a person deceased.' It has been 
 pointed out by Windsoheid (Lehrbuch des Pandekten-Eechts, sect. 623, note 2) 
 that the word ' gift ' is not used in the passage of the Digest above quoted in 
 its proper sense ; and both the etymology and history of legatum indicate a 
 totally different origin. See Smith's Dictionary of Antiquities, s. v. Moreover 
 the history of the Eoman law shows that the formalities necessary to a 
 transaction of gift were got rid of, not by the fiction that one of the parties 
 
Sec. 789, 790.] SUCCESSION. 383 
 
 can he traced either to the Roman law or to distinct legis- 
 lative enactment. But did the Roman law really know of 
 any such fiction? The authority for a Roman will was 
 itself to be found, either in the express assent of a body 
 having legislative powers, or in the broad and sweeping 
 maxim legislatively declared in the Twelve Tables that every 
 man might dispose of his property as he liked ^- The 
 shifts and contrivances of Roman lawyers were, not to 
 obtain the testamentary power, which they had got, but 
 to get rid of the forms and restrictions which were imposed 
 upon all alienations whatsoever, whether testamentary or 
 inter vivos, and which in the case of testaments were felt 
 to be peculiarly irksome. This was done by a variety of 
 methods, but none of which, as far as I am aware, depend 
 upon the fiction of enforcing obedience to a dead man's 
 commands. It may be that this expression figuratively 
 describes what actually takes place under modem testamen- 
 tary law : and there is also a vulgar notion that it is a 
 sacred duty to yield implicit obedience to the wishes of the 
 dead. It is further extremely probable that this notion, 
 fostered, as no doubt it was, if not created, by the Church, in 
 some measure accounts for the great latitude sometimes 
 allowed to testamentary dispositions. But this is not the 
 authority on which testamentary disposition rests : nor is it 
 the origin from which it is historically derived. 
 
 790. It is not necessary for me to trace here the sue- Origin of 
 sessive steps by which the Roman lawyers tardily arrived at incoireotly 
 the notion that a will in the modem sense of the term could Bia*ckBt<,-^g 
 be made : that is to say, that a man could dispose of his 
 property to whom he pleased, and in any way he pleased, 
 by means of intentions formed in his lifetime, but which 
 
 to tlie transaction was a dead man, but by special exemption of this particular 
 transaction from the ordinary rules. See Savigny, Syst. d. heut Rom. Eechts, 
 vol. iv. pp. 21 and 424 ; toI. iii. p. 206. 
 
 ' Vii legassit super pecunid tuteldve suae rei itajus esto; Ulpiani Fragmenta, 
 tit. II, 14. See Maine's Ancient Law, first ed., pp. 201, 202. 
 
384 
 
 SUCCESSION. 
 
 [Chap. XVIII. 
 
 Effects of 
 this in 
 India. 
 
 Distinc- 
 tion be- 
 tween a 
 will and 
 gift inter 
 vivos. 
 
 remained until his death both secret and revocable \ It is 
 however remarkable that towards the end of the last century 
 the true history of succession, both intestate and testamen- 
 tary, seems to have been almost wholly forgotten and ignored. 
 Blackstone,^ who was thoroughly acquainted with the ideas 
 current in his day, speaks of succession as a contrivance which 
 would naturally suggest itself at all times and in all countries 
 to remedy the inconvenience which would occur, if (as he con- 
 siders would otherwise be the case) the property of a deceased 
 owner became vacant, and could be seized upon by the first 
 comer : and he treats intestate succession as a supplementary 
 contrivance in order to meet particular cases of neglect or 
 disability on the part of the deceased owner. 
 
 791. This is, of course, mere idle speculation ; but it was 
 the current view when Blackstone's treatise was published. 
 Nor has it been without important practical consequences. 
 When we began to administer the law in India, we did in 
 fact come in contact with a people amongst whom true wiUs 
 were as yet unknown ; but who, in spite of their usual strict 
 adherence to their own laws, were by no means unwilling 
 to acquire this important extension of the rights of the pre- 
 sent generation. It is very curious now to read the arguments 
 by which the testamentary right was supported and opposed. 
 All through the discussion testamentary dispositions of pro- 
 perty are treated as if they stood exactly upon the same 
 grounds as gifts of property inier vivos ■ and the whole 
 discussion turns upon the question whether such aliena- 
 tions are allowed. The distinction between a man alienating- 
 property by gift during his life, and disposing of it by a gift 
 which operates after his death, seems to have been wholly 
 ignored. The constant assertion is, that wills must be 
 looked upon as gifts made in contemplation of death : 
 
 ' The reader is referred for this information to Maine's Ancient Law, chaps. 
 
 ' Commentaries, vol. ii. pp. lo, I3, 489. It is, as usual, not easy to reconcile 
 all that Blackstone says upon the subject. 
 
Sec. 791, 792.] SUCCESSION. 385 
 
 quite forgetting to enquire whether gifts made in the way 
 in which wills are generally made were valid by the Hindoo 
 law, even if the greatest latitude of alienation were allowed 
 to living persons. This defective reasoning could have 
 deceived no one who had considered it from this point 
 of view: and the real cause why it gained acceptance 
 must have been the then inherent notion that wills were 
 so natural an expedient that the recognition of them was 
 almost a matter of course, when the right of alienation 
 was established. 
 
 792. Many years later the validity of a Hindoo will was Identity oi 
 again questioned before the Privy Council. Wills had then *om'^timet 
 been in use in India upwards of seventy years, and had been insisted on, 
 expressly recognised by the legislature 1. Notwithstanding 
 this, it appears to have been thought necessary, perhaps 
 in order to disavow innovation, again to protest that a testa- 
 mentary disposition did not differ in principle from an 
 ordinary gift ^. A pretence was even made of testing the 
 validity of the gift in that particular case, by the analogy 
 of the actual law of gifts. To a gift it was said there must 
 be a living donee — erffo, a gift to a person unborn is invalid. 
 Surely with equal force it might have been said, to a gift 
 there must be a living donor — erffo, a gift by a dead man is but 
 void. If, again, as is there said, the law of wills is simply ^"^""S y 
 
 ' Regulation 5, of I799i sections i, 2. 
 
 ' See the case reported in the Bengal Law Reports, vol. ix. p. 377. The 
 passages to which I refer are at pages 397, 398. The Privy Council there 
 describes a will as ' a disposition of property to take'effeet upon the death of 
 the donor ' ; and say that such a disposition ' though revocable in his lifetime 
 is, until revocation, a continuous act of gift up to the moment of death and 
 does then operate.' If I understand the reasoning rightly it is meant, not only 
 that the act should be continuous until death, but that it must be continued 
 until at least one moment after death ; and so Savigny evidently thought ; 
 supra, sect. 784. If this be not so, then a will is still a transaction inter vivos, 
 and the difficulty about getting rid of the rules which regulate such transactions 
 is not avoided. Of course making a will to be a gift by a deceased man was 
 not necessary to the view the Privy Council were seeking to establish as to the 
 limitations upon the testamentary power. In fact those limitations come out 
 all the stronger the more we look at a will as a special transaction standing by 
 itself. 
 
 C C 
 
386 SUCCESSION. [Chap. XVIII. 
 
 a development of the law of gifts, by cariying on the gift 
 up to death, why is it that the donatio mortis causd has been 
 developed as a distinct transaction? and how have the for- 
 malities which are necessary to this form of donation come to 
 be dispensed with in wills ? The whole law as to donationes 
 mortis causd is based upon the supposition that, generally, 
 a mere one-sided declaration of intention by the owner of 
 property, upon which nothing is done, effects nothing, 
 and disad- The donatio mortis causd would be an impossible halting- 
 ously. place if the law of wills had been a development of the 
 law of gifts, in the sense that one may be inferred logically 
 from the other. 
 
 793. Nor do I see, if wiUs are to be conceived as gifts by 
 the deceased not made in his lifetime, how they can be 
 defended against the imputation of absurdity. They can 
 always then be attacked as Mirabeau attacked them. ' There 
 is as much difference,' he said, 'between what a man does 
 during his life and what he does after death as between 
 death and life. What is a testament ? It is the expression 
 of the wiU of a man who has no longer any wiU, respecting 
 property which is no longer his property: it is the action 
 of a man no longer accountable for his actions to mankind ; 
 it is an absurdity, and an absm-dity ought not to have the 
 force of law ^.' From the point of view taken these observa- 
 tions are unanswerable. The testamentary power carefully 
 guarded and restrained may not be an absurditj^; but it 
 would be so if it were, as Mirabeau views it, and as Savigny 
 and some English lawyers have represented it, nothing more 
 than a dead man's expression of desii-e. The real answer to 
 
 ' Bulwer's Historical Characters, vol. i. p. 114. Mirabeau was probably 
 thinking of Leibnit?, who had said, ' Testamenta vero mere jure uullius essent 
 momenti nisi anima asset immortalis, sed quia niortui revera adhuo vivunt, 
 ideo manent domini rerum, quos vero heredes reliquerunt, conoipiendi sunt 
 ut proouratores in rem suam.' Leibnitz, Nova Methodus Jurisprudentise, Pars 
 specialis, sect. 29; vol. iv. Part iii. p. 187, Geneva ed. 1768. It is curious to 
 see how readily philosophers set aside what they are pleased to call ' mernm 
 jus,' and the shifts they are put to to supply its place. 
 
Sec, 793-796.] SUCCESSION. 387 
 
 all such objections is thatj politically, the power of testa- 
 mentary disposition rests, like every other institution of 
 law, on habit and convenience, backed by authority ; histori- 
 cally, it has grown, like other law, partly out of the expressly 
 declared wiU of the supreme power, partly out of judicial 
 decision, and partly out of custom. 
 
 794. Having now given some idea of the methods by Succession 
 which the problem of succession was originally solved, I i^nd"^ 
 proceed to consider the legal conceptions which it at pre- 
 sent involves : and I will first deal with the succession to 
 moveables. 
 
 795. It is not necessary to attempt here a complete history obscurity 
 of the English law of succession to moveables. That history "^ gnt'il^ 
 is involved in considerable obscurity, and is, in fact, the law. 
 history of a very long and very severe contest. In this 
 contest the Church took a very active part, and succeeded 
 
 at one time in obtaining, together with some pecuniary 
 advantage, considerable influence over the law applicable 
 to succession, as well as some share in its admiaistration. 
 Hence the English law of succession in the case of moveables 
 has been in a great measure based upon the Roman law, 
 to which the Church generally adhered. And though the 
 principles of this law have been freely modified by the 
 temporal courts, which have long since reestablished their 
 exclusive jurisdiction in all points of real importance, it still 
 remains the best way of considering the English law of 
 succession to moveables to treat it as an ofishoot of the 
 Roman law. 
 
 796. One of the salient principles of the Roman law Succession 
 of succession (as will be readily understood after the observa- i„an law 
 tions I have made upon its origin) was, that the succession ""''^'ersal. 
 dealt with was a universal one. What passed directly from 
 
 the deceased to his heir or heirs was the whole aggregate of 
 his rights and obligations. Every heir took either the whole 
 or a share of that aggregate — a half, a third, a fourth, as the 
 
 C c a 
 
388 SUCCESSION. [Chap. XVIII. 
 
 case might be : and it was an absolute rule of Roman law 
 that this devolution should be complete, immediate, and un- 
 conditional. No device could get rid of this rule, and every 
 scheme for securing to particular individuals particular 
 portions of the property, or for carrying out particular wishes 
 of the deceased, had to be framed with strict caution not 
 to violate this principle. Thus a legacy could not be given 
 direct to the legatee, but the thing bequeathed went to the 
 heir, from whom the legatee could claim it. So if a man 
 desired that any portion of his property should be held and 
 enjoyed in a special manner, he could not separate that 
 portion from the common stock, but could only lay his heir 
 under the obligation to carry out his wishes. 
 Partly 8o 797. This view is partly adhered to in the Ena-lish law. 
 
 with us in r j ^ & 
 
 the case of On the death of a person the whole of his moveable property 
 ■ passes en Hoc to his executors if he die testate, to his adminis- 
 ti'ators if he die intestate ; and the same persons are liable 
 for the debts of the deceased. Indeed, under the English 
 law, the principle has in one respect been somewhat unreason- 
 ably extended ; I ought perhaps to say, distorted. Even the 
 blood relations of an intestate, or the universal legatee of a 
 testate, do not, under the English law, take his property 
 directly, but only indirectly through the executor or adminis- 
 trator. This can only have been because the Church thrust 
 itself between the deceased person and his successors, and 
 insisted upon treating the administration of the estate 
 as in aU cases dependent upon its own authoritv, exercised 
 through the administrator or executor, as the ease might 
 be. Of course for this there was no authority in Roman 
 law. 
 No parti- 798. Under the English law there cannot even be a parti- 
 allowed. *^°^ of the inheritance : the representatives, if there be several, 
 cannot be made owners of shares, but must be too-ether 
 one single owner of the whole : whereas, tmder the Roman 
 law, if there were several heirs, each was owner of his own 
 share. There is a good reason why in this respect the Roman 
 
Sec. 797-800.] SUCCESSION. 389 
 
 law has not been followed. A separation of the inheritance 
 must lead to difficulties about the administration of the 
 estate, and we find that in countries which have adopted 
 the Roman law, the testamentary heirs are frequently placed 
 under the control of a single person. 
 
 799. It follows, of course, from what has been now said. No priTJty 
 that between the heir, or the legatee, and the deceased there decIaTed 
 is, under the English law, in the case of moveables, no ''"'^ ^^^"^ "^ 
 
 . . legatee of 
 
 privity whatsoever. At the death, neither the heir ^ nor the moTeables. 
 legatee has a right to claim any portion of the moveable 
 estate ; they are not liable for anything ; they do not in any 
 way succeed to the deceased. The whole of their right 
 consists in this, — to call upon those who are administering 
 the estate to proceed according to law. The nearest 
 approach to an exception to this principle is in the case of 
 the legacy of a specific thing ; if the executor appointed by 
 the will have assented to a legacy of this description, the 
 thing belongs at once to the legatee. In all other cases 
 the only remedy is by a bill in Chancery for the adminis- 
 tration of the estate. 
 
 800. It was an immediate deduction from the Roman idea Liability 
 
 or ti^irfi 
 
 of succession that the heirs, whether of a testate or intestate to debts 
 person, were liable to pay all the debts and fulfil aU the R^^an'^* 
 obligations of the deceased whom they represented. The ^^'^■ 
 succession being a universal one, there was no distinction 
 between the assertion of a claim and the submission to a 
 liability. Consequently, under the Roman law an heir might 
 find himself in a very serious position ; that he had more 
 to pay than to receive ; that the claims on the estate were 
 greater than the assets. Upon this ground he was allowed 
 a reasonable time to reflect and decide, whether or no he 
 would accept the inheritance. Having once done so, he was 
 
 ' I use the word ' heir ' to designate the person who is entitled beneficially 
 to the moveable property of an intestate. As pointed out infra (sect. 805), 
 there is in England, properly speaking, no hereditary succession to moveable 
 estate, but I am obliged to find some designation for the person who really gets 
 the benefit of it. 
 
390 SUCCESSION. [Chap. XVIII. 
 
 personally bound by every obligation of the deceased whicli 
 was not by its nature incapable of being transferred from one 
 person to another. This led to great inconvenience ; first, on 
 account of the delay which took place whilst enquiries were 
 being made, and secondly, on account of the frequency with 
 which inheritances of doubtful solvency were refused by the 
 heirs. In order to avoid this inconvenience, what has been 
 Benefit of known as the ' benefit of the inventory ' was introduced by 
 Yentory ^ Constitution of Justinian^- The provision was that, if in 
 compliance with certain forms, and within a certain time, 
 a complete inventory of the property of the deceased was 
 made and filed in the proper office by the heir, and this 
 property was kept entii-ely separate from the property of the 
 heir himself, then the heir could claim exemption from lia- 
 bility for any claims of the deceased which the assets were 
 insufficient to satisfy. The heir, however, had to give notice 
 before he entered upon the property that he intended to claim 
 this exemption ; and he forfeited his protection, if he did not 
 deal with the property honestly for the benefit of all parties 
 concerned. This is, in substance, the general law at the 
 present day throughout the continent of Europe. 
 Liability 801. In England the liability to the debts of the deceased 
 and admin- pcrson has got somewhat displaced from its natural coincidence 
 debt*""^ ^°^ ^^^ ^^® reception of the assets of the estate. The legatees 
 and next of kin having no direct connection with the deceased, 
 and not being his representatives, have nothing to do with his 
 debts, the liability to which falls entirely on the intermediate 
 functionary, the executor or administrator. Nor is the posi- 
 tion of either of these identical with that of the Roman heir, 
 although our law is clearly traceable to a Roman som-ce^. 
 It seems that originally an inventory was required from the 
 executor or administrator in every case before he was put in 
 possession of the property; and it was considered a matter 
 
 ' Cod. Just. Boole vi. tit. 30. sect. 32. 
 
 ' WilliamB on Executors, sixth ed., p. 913 ; compare Erskine's Institutes of 
 the Laws of Scotland, Book iii. tit. 9. sect. 41. 
 
Sec. 8oi, 8o2.] SUCCESSION. 391 
 
 of course that he got the ' benefit of the inventoiy,' without 
 the necessity of his putting in any special claim to it. But 
 gradually the practice of putting in an inventory fell into 
 disuse, or dwindled into a mere form ; whereas the benefit 
 which had originally been conditional upon the faithful per- 
 formance of this duty was nevertheless retained^- So that 
 without furnishing any inventory at all, executors and ad- 
 ministrators are now exempt from aU personal liability except 
 for the due administration of the estate : and they only be- 
 come personally liable if they violate or neglect their duty, 
 and are guilty of what is called a devastavit, or ' wasting the 
 assets,' in which case they must answer out of their own 
 pocket ; not however even then for the whole claim, but for 
 what they had, or might have had, of the property of the 
 deceased^. 
 
 802. Another essential principle of the Roman law, like- Under Eo- 
 wise dependent upon the idea of personal succession, was, that consent of 
 there was no interval or breach at the death of the deceased, ®''' ^^°^^' 
 
 ' sary to suc- 
 
 but the heirs at once stepped into his shoes. It was the cession ; 
 same idea as is expressed in our maxim that ' the king never 
 dies.' On the other hand, however, the consent of the heir 
 was necessary to the vesting of the inheritance : until the 
 inheritance had been accepted it did not belong to the 
 heir. There was, therefore, a conflict between the theory 
 and the fact : there was a space of time, very often a con- 
 siderable one, during which, whatever the theory might be, 
 the inheritance did in fact belong to no one. This difficulty but his 
 was partly got over by the doctrine of ' relation back,' as lated back, 
 it is called : that is to say, the heir, though he was not 
 really heir before he accepted, yet, when he accepted, was 
 
 ' There has however always been a tendency, and it is just now perhaps 
 a growing one, to treat the ' estate * itself as liable to the debts ; making 
 the estate a sort of juristical person ; and it would not be difBcult to bring our 
 law into this view. Beoently where a testator died having an interest in an 
 uncompleted contract, Sir William James spoke of his estate as being ' a co- 
 contractor ' in the business. Law Reports, Chancery Appeals, vol. ix. p. 343. 
 
 ^ Williams on Bxeputors, sixth ed,, p. 658. 
 
392 SUCCESSIOIir. [Chap. XVIII. 
 
 treated exactly as if he had succeeded immediately on the 
 
 death of the owner. Still the difficulty remained, that in 
 
 the interval the inheritance was vacant, which might give 
 
 rise to practical inconveniences which no fiction could remedy. 
 
 The common method of meeting this difficulty was by the 
 
 appointment of a person for the intermediate custody and 
 
 management of the property '. 
 
 Accept- 803. The state of the English law upon this matter is 
 
 executor somewhat peculiar. We frequently find it laid down posi- 
 
 also neces- lively, that an executor derives his title directly from the 
 
 sary. ■" - _ _ •' 
 
 will ; that the property vests in him from the moment 
 of the testator's death ; and that the probate is only evi- 
 dence of title, and not the title itself. That to some extent, 
 however, this statement is not the assertion of an actual 
 fact, but of a legal fiction, is evident, I think, from the 
 following considerations: — It is perfectly true that an exe- 
 cutor derives his title directly from the wiU in this sense, 
 that the inheritance passes immediately to the executor from 
 the testator, and not, as in the case of an administrator or 
 a legatee, through another person. It is also true that 
 the only use of probate is to satisfy a rule of evidence, and 
 that the grant of probate confers no right whatever. But 
 still the property does not, in fact, vest in the executor at 
 the moment of death. As, under the Roman law, it does 
 not vest until some act has been done, which is equivalent 
 to an acceptance of the inheritance, and the commonest 
 mode of acceptance is the application for probate, though 
 any intermeddling with the estate is sufficient for that 
 purpose. 
 Hia title 804. If this were not the correct view of the position 
 back. of an executor, another position taken by English lawyers 
 
 would be wholly uninteUigible. The same authors who tell 
 us that the inheritance vests in the executor at the moment 
 
 ' See an interesting discussion of the maxim ' le mort aaiait le vif,' by which 
 continental nations have bridged over the interval between the deceased and 
 his heir, in Lassalle'e Syst. des Erworbenen Eechts, vol. ii. part 2. 
 
Sec. 803-805.] SUCCESSION. 393 
 
 of death, speak of the relation back of the title of the 
 executor from probate to the death of the testator ^. The 
 only possible explanation, which I can conceive of this lan- 
 guage is, that when the executor, by applying for probate, 
 unequivocally accepts the inheritance, the inheritance is then 
 assumed to have vested in him at the death of the tes- 
 tator. If it had already really vested in him, then there 
 could be no relation back at all. So also the distinction 
 that, if the first executor die after proving the will, the 
 inheritance passes on to his executor, but if he die with- 
 out having proved the will, it passes to the ordinary who 
 must grant adminstration, seems to me only capable of 
 explanation upon the assumption, that the inheritance had 
 never vested in the executor who had not expressed his 
 assent by applying for probate. It may be that this assump- 
 tion was not always quite correct, as Lord Holt pointed out- ; 
 but the only error would be one of fact, in disregarding 
 all other acceptance than that by application for probate. 
 The principle of law upon which the ordinary acted in 
 granting administration, namely, that the inheritance had 
 never vested in the executor who had not accepted, was 
 correct, and has always been acknowledged. It is also upon 
 the same principle that if an executor renounce, and admini- 
 stration be granted, no assent or assignment by the renouncing 
 executor is necessary. 
 
 805. The relationship between the deceased person and his No heir to 
 executor is wholly different from that of the deceased person property of 
 and his administrator. The executor is the heir of the ™*®^*^*^- 
 deceased ; the inheritance jiasses to him directly ; and he 
 represents the deceased. Strange as it may seem, yet it is 
 tme that, in contemplation of our law, a person who dies 
 intestate has (strictly speaking) no heirs of his moveable 
 property. Down to the year 1857 his property passed to an It passes to 
 
 ' Broom's Commentaries, first ed., p. 616. See also the language of Lord 
 Denman, Adolphus and Ellis' Reports, vol. x. p. 212. 
 
 * Salkeld's Keports, vol. i. p. 308 ; Williams on Executors, pp. 245, 282. 
 
394 SUCCESSION. [Chap. XVIII. 
 
 the or- ecclesiastical functionary called the ordinary : now it passes 
 ™''''^' to the Judge of the Court of Probate '. There is no necessity 
 to enter here into the. enquiry how this extraordinary view 
 came to be taken, that the property of all deceased persons 
 vested in the ordinai-yj especially in a country not always 
 prone to submit to ecclesiastical authority. It no doubt 
 had its- advantages. In aU probability, no other person would 
 have shewn any respect whatever for the rights of others, 
 which the ordiaaries always did to some extent; though 
 it was not without considerable resistance that what we 
 should call the obvious rights of the kindred of the de- 
 ceased and of clamaints upon the estate, were fully recog- 
 nised. 
 
 Ordinary, 806. The English law has, however, been brought round 
 
 how con- . • -1 
 
 trolled. to a reasonable condition, not by altogether expunging the 
 idea that an intestate person leaves no heirs, but by con- 
 trolling the ordinary. The 13 Edward I, statute i, c. 19, 
 directed the ordinary to pay the debts of the deceased, which 
 plain duty it appears that the Chui-ch was disposed to neglect. 
 But the most important changes were introduced by the 
 31 Edward III, statute i.e. 11. Prior to that statute it had 
 been customary for the ordinary to appoint officers of his own 
 to administer the property of the deceased. The person so 
 appointed was a mere agent of the ordinary, subject to 
 the usual rules of agency ; and of course possessing only such 
 powers as the ordinary chose to give him. The statute 
 of Edward III, however, contained three very important 
 provisions: (i) it compelled the ordinary to depute, not 
 any person he chose, but the nearest of kin to administer 
 the estate; (a) it gave to the persons so deputed the same 
 right as the executors have to sue in their own names 
 to recover debts due to the deceased, which right, strange 
 to say, the ordinary never had ; (3) it made the persons so 
 deputed Kable to be sued in their own names for the debts 
 of the deceased. 
 
 ' 21 and 22 Viot. chap, zot. sect. 19. 
 
Sec. 806-808.] SUCCESSION. 395 
 
 807. This statute was also interpreted to imply, though it Property 
 is not expressly so said, that the property of the deceased j^ ^le^^ ^ 
 became vested in the administrator in the same way as in the f'i'^™^" 
 
 •' trator. 
 
 executor ; and it would have been also a legitimate inference, 
 
 as well as one which would greatly have simplified the law, 
 
 if, having so far assimilated the position of an executor to 
 
 that of an administrator, it had been further held that the 
 
 administrator, like the executor, directly represented the 
 
 deceased, and that his title commenced from the moment of 
 
 the intestate person's death. This, however, was not done. 
 
 The administrator was stiU looked upon as only an ' officer But he ia 
 
 of the ordinary 1,' though in what sense he could stiU be so the agent 
 
 called it is difficult to say : for the ordinary had no con- °^ ,*® 
 
 •' •> ordinary. 
 
 trol, or next to none, over his appointment ; and he held 
 rights which the ordinary was unable to confer. Never- 
 theless, the doctrine is still adhered to that administrators 
 derive their title solely from the grant of the administration 
 to them by the ordinary : although, to remedy glaring in- 
 justice, administrators are sometimes dealt with in special 
 cases as if their title also related back to the death of the 
 deceased. 
 
 808. The result of the statute of Edward III being to Adminis- 
 give the inheritance entirely to the administrator, and no „inaUy "" 
 liabilities being imposed upon him except to pay the debts took the 
 of the deceased, the right to the grant of administration in a himself, 
 solvent estate was one of very great value: for the person who, 
 
 as next of kin, was entitled to the administration under the 
 statute took for his own benefit the whole of the surplus 
 proceeds of the estate ^. This was certainly an unsatisfactory 
 result. Prior to the statute, when the estate was administered 
 by the Church, the widow and children had always in 
 practice, if not by absolute right, got each their pars ration- 
 
 ' Blackstone's Commentaries, vol. ii. p. 496 ; Williams on Executors, sixth ed., 
 p. 388. The view is absolutely erroneous. If he were only an agent, how 
 could he be the owner of the property ? 
 
 ' Williamson Executors, sixth ed., p. 1372. 
 
396 SUCCESSION. [Chap. XVIII. 
 
 ahilis, a half or a third according to circumstances ^. Now all 
 
 went to a single relative, and others for whom it was a duty 
 
 Origin of ]^q provide would thus frequently be left penniless. The 
 
 adminis- ^ s. . J , p i • i . 
 
 tration of Church, which had always fought strenuously for the rights 
 of the widow and children, and had succeeded in establish- 
 ing their rights to some esrtent, naturally enough made an 
 attempt to prevent this disastrous result of the statute. 
 The ordinaries began to take bonds from administrators as 
 to how they would administer the estate, by which bonds a 
 provision for the widow and the children was secured. This, 
 however, the Courts of Common Law prohibited as a usurp- 
 ation, as it probably was ^. 
 Statute of 809. But at length the Statute of Distributions ^ sanc- 
 tions, tioned the practice, and even made it compulsory on the 
 ordinary, in every case, to take a bond from the administrator 
 to exhibit an account to the ordinary showing the surplus 
 (if any) after the assets were collected and debts paid ; which 
 surplus the ordinary was directed to distribute amongst the 
 next of kin, according to the rules therein laid down. 
 Weakness 810. Considering the pretensions which the Church had 
 J . ^''" successfully put forward, and the language of the various 
 Courts. statutes in which those pretensions, whilst they are modi- 
 fied, are still recognised to a considerable extent, it would 
 seem to have been almost inevitable that all matters con- 
 nected with the administration of the moveable property of 
 deceased persons, both testamentary and intestate, would 
 fall into the hands of the Ecclesiastical Court. But this 
 has not been the case. The Court of Queen's Bench has 
 always prohibited the Ecclesiastical Courts, whenever any 
 attempt was made by the latter openly to exercise functions 
 which were not merely ministerial. These prohibitions would 
 scarcely, however, have been effectual had it not been for the 
 
 * Williams on Executors, sixtli ed., p. 387 ; Maine, Ancient Law, first 
 ed., p. 244. 
 
 ^ Williams on Executors, sixth ed., p. 1372 ; Blackstoue's Commentaries, 
 vol. ii. p, 515. 
 
 ^ 3 2 and 23 Charles II, chap. j.. 
 
Sec. 809-813.] SUCCESSIOIT. 397 
 
 fatal defect in the procedure of the Ecclesiastical Courts, 
 that they had no process by which to enforce their judg- 
 ments'^. They had possessed such a process, and a very 
 formidable one it was at one time, being nothing less than 
 excommunication. They possess in name the power of ex- 
 communication stiU ; but it is a threat, and a threat only ; 
 and as a threat it has lost nearly all its terrors. It is true, as 
 Blackstone says, that to prevent these courts falling completely 
 into contempt the common law lent a supporting hand to 
 their otherwise tottering authority. It would, however, be 
 perhaps more correct to say that they were handed over to 
 the tender mercies of a jealous rival, who only assisted them 
 at the price of their complete submission. 
 
 811. I now pass to the consideration of the law of succession Succession 
 to immoveable property, and we find the change of ideas to be able pro- 
 very great indeed. P®''*^ 
 
 812. The law of England has not only drawn the distinction entirely 
 between moveable and immoveable property differently from f^.^^^ ^^^_ 
 other countries in Europe, but it has made that distinction cession to 
 
 ^ _ _ moveable. 
 
 wider. In no other country do we find two perfectly distinct 
 bodies of law governing the succession to the two difl^erent 
 sorts of property. This is, however, the case in England. In 
 considering the law of succession to immoveable property we 
 must begin entirely de novo ; not a word that is said about 
 the succession to moveable property is applicable to immove- 
 able property, and vice versa. The whole conception is dif- 
 ferent from beginning to end. 
 
 813. Moreover, whilst we are far from being able to trace Testamen- 
 the law of succession in the case of moveables with clearness pogftiong of 
 and continuity, in the case of immoveables its history is buried l^'^'^ 
 
 in the deepest obscurity. A few isolated conclusions is all not 
 that has been arrived at by enquirers. ' The primitive German 
 or aUodial property,' says Sir Henry Maine, 'is strictly 
 reserved to the kindred ; not only is it incapable of being 
 disposed of by testament but it is scarcely capable of being 
 
 ' Blaokstone's Commentaries, vol. iii. pp. loi, 102. 
 
398 SUCCESSION. [Chap. XVIII. 
 
 alienated by conveyance inter vivos ^,' All property, however, 
 even all landed property, was not allodial ; and to property not 
 allodial the same strictness did not extend ; and there are also 
 indications that the rales apphcable to non-allodial land were 
 gradually extended to all lands. These rules were the result 
 of successive importations from the Roman law which, com- 
 bined with certain barbarian ideas, formed the feudal system^. 
 Out of this emerged the law of landed property, the actual 
 state of which in England at any one time cannot be described 
 for any period earlier than the time of Henry II. At about 
 that time it may be said to have become settled law, that all 
 land descended to the eldest son ; and to the son of the eldest 
 son, if the eldest son died in the lifetime of his father ; that 
 in default of direct descendants collaterals came in, and their 
 representatives ; that during his lifetime the owner might 
 dispose in some eases of his purchased lands, and a portion 
 (not the whole) of those which came to him by descent ; but 
 he had no power to dispose of lands by will '. 
 Introduc- 814. Testamentary dispositions of landed property, like 
 so many other considerable alterations in our law, were in- 
 troduced by the invention of uses. I do not propose here 
 to trace the history of that invention further than to point 
 out that its origin is not (as has been supposed) to be 
 found in the Roman law, either in the fideieommissum, or, 
 as the name might seem to indicate, in the usus. I have 
 elsewhere* shown what the Roman usus really was, and 
 that it had nothing to do with equity. The fideieommissum 
 was, it is true, in a certain sense an equitable obligation, 
 
 1 Ancient Law, first ed., p. 198. Blulime (Encyolopadie, sect. 513) quotes 
 this curious old German rhyme : — 
 
 'AVer seelig will sterben, 
 Schall laten vererben 
 Syn Allodi dut 
 Ant' nachst gesippt Blut.' 
 
 ^ Maine's Ancient Law, first ed., p. 296. 
 
 ' Reeves' History of the English Law, chap. ii. 
 
 ' Supra, sect. 305, 393. 
 
 tion of use. 
 
Sec. 814-816.] SUCCESSION. 399 
 
 but it did not produce what English lawyers call a use, or 
 trust estate. The person upon whom the fiduciary rela- 
 tion was imposed was not bound, like an English trustee, 
 to hold the thing for the use or benefit of another ; on the 
 contrary, he was bound to hand over the thing itself ; from 
 which time he lost all control over it, and it belonged abso- 
 lutely to the person for whose benefit it was originally in- 
 tended. In all systems of law fiduciary relations are well 
 known and understood ; other systems of law also exhibit 
 the peculiarity of a special set of rules applicable to such 
 relations. But the relation of trustee and cestuique trust as 
 understood in the English Courts of Chancery is unknown in 
 any other system in the world, except where we have intro- 
 duced it, namely, in America, the English Colonies, and 
 perhaps in India. 
 
 815. However, anomalous as it was, the use as an equit- Devise of 
 able right distinct from the land was successfully established ; *^® '"'®- 
 and moreover it was assumed, though, as far as I can see, 
 
 there is nothing to warrant the assumption, that this was 
 an interest with which only the Court of Chancery, and 
 not the Courts of Common Law, could deal ; and further, 
 that in dealing with it the Courts of Chancery were not 
 bound by the ordinary rules relating to landed property. Of 
 course this easily led to the contrivance by which the right 
 of testamentary disposition over land was substantially exer- 
 cised. The land was conveyed to what was called a feofiee 
 to uses ; who at common law was the absolute owner. The 
 uses were then declared in a will, and the Court of Chancery 
 compelled the feoffee to carry out the intention. The statute 
 of Henry VII, though unsuccessful as an attempt to put an 
 end to uses, was considered to have put a stop to this 
 mode of disposition ; but almost immediately afterwards an 
 express enactment conferred an absolute right of alienation, 
 both testamentaiy and inter vivos, upon all owners of land, 
 with exceptions which have since become insignificant. 
 
 816. This being the origin of wills of immoveable property. Devise of 
 
400 SUCCESSION. [Chap. XVIII. 
 
 land treat- and the statute ■^ which created them so treating them, they 
 apeciea of were very naturally looked upon only as one form of alienation ; 
 an'e^''' ^^*^ ^^ ^^*^* ^"'^'^ wills have generally been considered in the 
 English law merely as a species of conveyance ; differing from 
 an ordinary conveyance only in the solemnities which accom- 
 pany their execution, and in some minor rules of construction 
 which the nature of the transaction suggests. It must not 
 be supposed, however, that there is here any fiction about 
 carrying out the wishes of a dead man. The statute has provi- 
 ded that a gift, secret, revocable, conditional, and unaccompanied 
 by any of the forms necessary to a transfer inter vivos, shall 
 be valid ; and this, though contrary to general principles, 
 of course the legislature was perfectly competent to do^. 
 Intestate 817. In the case of land the degrees of consanguinity 
 to land. ^'^^ calculated according to the rules, not of the Roman, or 
 as it is usually called the Civil Law as in succession to move- 
 ables, but according to the rules of the Canon Law^; of 
 which peculiarity I have never yet seen any explanation. The 
 difference between the two modes of computation is that 
 whilst the Roman or Civil Law counts the number of 
 degrees in both lines from the deceased person through the 
 common ancestor to the heir, the Canon Law counts the 
 degrees in one line only from the common ancestor to the 
 deceased, or to the heir, whichever is fm-thest off. For 
 instance, my first cousin is related to me in the fourth 
 degree under the Roman or Civil Law, but in the second 
 
 '32 Henry VIII, chap. i. 
 
 ' I have no doubt, however, that many pergous still find any fiction acceptable 
 which will disguise the arbitrary origin of rights of succession: I suppose 
 because legislation on this subject appears to trench upon the sacred principle 
 of non-interference with rights over property. I do not imagine that eminent 
 lawyers would be seriously embarrassed by such scruples, but they sometimes 
 feign a respect for them in argument, as in the case mentioned above (supra, 
 sect. 557). And quite recently a very learned Judge delivering judgment in 
 the House of Lords, supported his conclusions by the very curious suggestion 
 that the Statute of Distributions was nothing more than the making of a will 
 by the legislature for the intestate. Law Eeports, Eng. and Ir., App., vol. vii. 
 p. 66. 
 
 ^ Blackstone, Commentaries, vol. ii. p. 206. 
 
Sec. 8i7,8i8.] SUCCESSION. 401 
 
 degree under tlie Canon Law. The other two peculiarities, 
 namely the entii-e exclusion of the ascending line and of 
 the brothers of the half-blood, have both been remored by 
 statute-^. The difference in the mode of calculating the 
 degrees however stiU. remains. 
 
 818. Nothing marks more clearly the wide difference Liability 
 between the ideas of succession as applied to moveables land to 
 and as appKed to immoveables than the differences in the "J^^'^ "^ 
 
 '^'^ ancestor, 
 
 law as to the liability of heirs for the debts of the deceased. 
 The strict notions of personal representation and continuance 
 which are involved in the conception of succession carried 
 this liability to the very utmost, making the heir in some 
 cases even personally liable for the debts of the deceased. 
 This, as we know, our own law has modified when apply- 
 ing the conception of succession to moveable estate, and 
 the modification is just and reasonable. This conception of 
 succession and strict personal representation has never been 
 applied by us at aU to immoveable property. Still it is 
 difficult to account for the views which English lawyers at 
 one time seem to have entertained as to the entire freedom 
 from liability of those who have inherited land. It has 
 indeed been said that in very ancient times the heir of 
 land was liable for the unpaid debts of his ancestor, and 
 that the narrower rule which we find laid down by Britton 
 in the time of Edward I, that the heir of land was liable 
 if the deceased had specially bound him by the deed under 
 which the debt was due, was a restriction due to feudalism ^. 
 This seems, however, to be mere conjecture, and no feudal 
 reason can be assigned for the exception made in favour of 
 debtors, when the heir was specially bound. It must be 
 remembered, moreover, that iu the period which immediately 
 preceded the reign of Edward I, lands were not available 
 even to the creditors of a living man at all; and I should 
 rather be disposed to consider the rule laid down by Britton 
 
 ' 3 and 4 William IV. chap. 106. 
 ^ "Williams on Keal Property, seventh ed., p. 74. 
 D d 
 
402 SUCCESSION, 
 
 as a construction of the statute of Edward I^ in favour of 
 creditors, than a restriction on their rights, 
 and of 819. Consistently with the idea that a devise by will 
 
 devisee. , 
 
 under the statute was an alienation of the land, it was 
 held that the creditors of the testator had no claim against 
 the devisee. 
 
 820. Gradually, though very slowly, the principle has been 
 established by express legislative provision that the heir is 
 liable for the debts of the deceased, whether he takes under 
 a wiU or by intestacy. 
 
 ^13 Edward I, stat. i, chap. xix. 
 
CHAPTEE XIX. 
 
 SANCTIONS AND EEMEDIES. 
 
 821. I have hitherto considered law, and the duties, obliga- delation 
 tions, and liability which arise out of law, only from one point sanctions 
 of view — as the machinery by which a political society is *^ "^ ^' 
 governed. It is true that I have adverted to the division 
 
 of duties into those which are absolute and those which are 
 relative ; and I have spoken of the right which corresponds 
 to the relative duty: but I was desirous not to complicate 
 farther a discussion already sufficiently complex by remarking 
 then upon another distinct order of ideas which these terms 
 connote. 
 
 822. As a general principle the point of view above taken Laws are 
 is the only true one in this sense — namely, that it is the only for the 
 one which justifies the existence of laws at all. No one individuals 
 creates or enforces duties nowadays for the benefit of in- ^^\ "^ 
 
 society at 
 
 dividuals, or classes of individuals, but for the benefit of the large, 
 community at large. If any modern law has the aspect of 
 conferring new advantages on one class of society alone, we 
 may be sure that it has been adopted only on account of the 
 indirect advantages which it is alleged will be derived from it 
 by the remainder. 
 
 823. Of course when I assert this, I do not mean to say This is not 
 that a conviction of their utility was the original moving true!™* ^ 
 
 D d a 
 
404 SANCTIONS AND REMEDIES. [Chap. XIX. 
 
 cause of the mtroduction of all, or even of any veiy large 
 proportion of existing laws ; for many of them came into 
 existence long before any such ideas as those to which I now 
 advert were started in the countries where they now prevail. 
 Nor do I doubt that there are everywhere to be found persons 
 who, in their own minds, are persuaded that they have an 
 hereditary and indefeasible right to certain privileges, an 
 interference with which on considerations of utility would be 
 immoral and absurd. But no one avows this ; and we need only 
 look to the debates of legislative bodies, or to the published 
 declarations of the rulers in every state, to see that the only 
 principle on which they pretend to govern, the only ground 
 on which they expect that their subjects will consent to obey 
 — in other words, the only means by which a political society 
 can in modern times be kept together — is that the object of 
 government should be, or at least should profess to be, the 
 happiness and prosperity of the people at large. 
 It is true 824. In this respect there is no distinction between those 
 laws whe- duties which are relative and those which are absolute. The 
 ther they ]^^ ^f ownership, for example, which comprises a great variety 
 solute or of relative duties, is supposed to exist as completely for the 
 duties. benefit of society at large, as the law of treason, or the 
 bribery laws. The law of ownership is said to encourage 
 industry and commerce, to promote an increase in the pro- 
 duction of the necessaries and luxuries of life and in their 
 distribution, and so forth. If it could be shown not to possess 
 these advantages it would gradually disappear, or be modified. 
 Nobody really doubts this, or denies it ; only whilst some men 
 are prone from time to time to renew the test of utility, and 
 to try this as well as other institutions by this standard with 
 great care, other men are, or profess to be, so convinced of 
 its excellence, that they are impatient of any inquiry about 
 the matter. 
 Apparent 825. It may possibly be suggested that this is hardly in 
 tion to this accordance with what we see around us, or that it is at any 
 of dvU pro- 1'^*® *°° widely stated. For while it is true that some breaches 
 
 otidure. 
 
Sec. 824-S28.] SANCTIONS AND REMEDIES. 405 
 
 of the law of ownership are considered as offences against 
 society at large, others evidently are not so. For instance, if 
 a man steals or mischievously destroys my property, he may 
 be prosecuted and punished in the Queen's name at the public 
 expense ; but if a man injures my property by negligence, no 
 one dreams of treating this as a matter of public concern ; I 
 am left to proceed against him or not as I like ; and if I do 
 proceed against him, it is not to punish him, but to recover 
 compensation for the injury which I have sustained. I must 
 take the whole trouble and risk of this upon myself, and if 
 I am satisfied, there is an end of the matter. 
 
 826. There is, no doubt, this apparent inconsistency between 
 the proceedings of courts of civil and courts of criminal 
 jurisdiction. Whilst in criminal courts we see plainly before 
 us the breach of law followed by its appropriate pufiishment, 
 Avhich deters others from breaking the law by warning them 
 that they too will incur the like consequences — which, in 
 other words, operates as a sanction ; in civil courts we find 
 that the only thing thought of is redress, and there is ap- 
 parently nothing which is intended to operate as a sanction 
 at aU. 
 
 827. I do not think however it will be difiicult, without How this 
 going minutely into an historical inquiry as to the origin of g^^^f^^jg. 
 legal tribunals, to discover whence this apparent divergence ^'''"'"^y^® 
 between the functions of civil and criminal courts arose ; 
 
 and hence to infer that it is only apparent, and that the real 
 functions of all courts are the same — namely, the enforcement 
 of obedience to the commands of the sovereign authority. 
 
 828. Prior to any distinction between criminal and civil Retalia- 
 procedure, prior even to legal procedure of any kind, there 
 seems to have arisen eveiywhere the notion of retaliation ; 
 
 that is, of inflicting an evil upon the wrong-doer exactly in 
 proportion to the wrong he has inflicted upon you. ' Breach 
 for breach ; eye for eye ; tooth for tooth,' says the Mosaic 
 Law ^. ' Si quis memlriim rupit aut os fregit talione proximus 
 
 ' See Leviticus xxiv. 20. 
 
406 SANCTIONS AND EEMEDIES. [Chap. XIX. 
 
 cognatus ulciscatur,' says the Law of the Twelve Tables^. And 
 
 the earliest customs of all Teutonic nations were based on 
 
 similar principles. This is obviously punishment, and not 
 
 redress ; it is the direct application of a sanction ; and 
 
 would operate precisely in the manner which Austin considers 
 
 a sanction to operate in enforcing an obligation in modem 
 
 jurisprudence ^- 
 
 Substitu- 829. Retaliation, however, though it is punishment and not 
 
 of a money redress, was undoubtedly looked upon as some satisfaction to 
 
 payment. ^^ party injured, and this may very likely have suggested, 
 
 when a fixed money payment was substituted for the talio, or 
 
 equivalent injury inflicted on the wrong-doer, that the money 
 
 should be paid to the suflTerer. This obviously answered aU 
 
 the purposes of a sanction, loss of money being an evil which 
 
 persons are generally anxious to avoid; nor any the less so 
 
 because it is paid to a particular person, and not, as money 
 
 payments used directly as sanctions now generally are, into 
 
 the public treasury. 
 
 Modern 830. There is still a considerable step, no doubt, from this 
 
 ideas of -\ ■ -i ^ -m 
 
 compeusa- to OUT modern ideas of compensation. Thus, under the laws of 
 Alfred, for the loss of a forefinger the compensation was fixed 
 at fifteen shillings in all cases. In a suit brought against a 
 railway company for a similar injury, it would vary in every 
 case according to the pecuniary loss which the sufiferer might 
 be supposed to have incui'red in consequence. And there is 
 no doubt the ideas of compensation have made a prodigious 
 advance, even within the last few years ^ ; but still no one, I 
 
 ' See the article Talio in Smith's Diet, of Greek and Roman Antiquities. 
 
 ° See supra, section 192. 
 
 ^ See the general view of the subject of damages in the treatise on that 
 subject by Mr. Sedg-wick, where the authorities are collected with much 
 industry and research. The earliest declaration of the rule, that the damages 
 are to be measured by the injury sustained, is quoted from Lord Holt (see 
 p. 29). But I tliink the notion of calculating the compensation for a personal 
 injury upon an estimate of what money the sufferer, but for the injury, might 
 have earned, is of still later origin. It may possibly be doubted whether 
 these notions about compensation will be very long lived. The cases in which 
 damages are most liberally awarded are those where the defendant is a large 
 public company. But a company has it in its power to exclude its liability 
 
Sec. 829-832.J SANCTIONS AND EEMEDIES. 407 
 
 think, would doubt that they have grown gradually out of 
 the 'were' and 'hot' of the Anglo-Saxon Law, just as the 
 'were ' or 'hot' itself grew out of the ' feud ^.' 
 
 831. But there is another point of view in which it is Specific 
 necessary to consider the action of legal tribunals in enforcing ^^ent of 
 the law, which will be best brought out by an illustration, duties and 
 
 o J obligations. 
 
 If a wound be inflicted, or valuable property be damaged, a 
 great, possibly an irreparable injury has been inflicted, but 
 all that the law can do in such cases is to inflict punish- 
 ment by way of example, and to compel such redress as is 
 possible in the shape of compensation. But if I wrongfully 
 keep my neighbour out of possession of his property, then 
 the law can do much more than merely compel me to make 
 compensation. It can actually restore my neighbour to the 
 enjoyment of his right. Here again, however, redress and 
 punishment go hand in hand. The law is put in motion to 
 take the property by force from the wrong-doer and restore 
 it to the owner, and at the same time he is directed to pay 
 a sum of money for the damage caused by the temporary 
 loss of possession, and for the costs of the proceedings. 
 
 832. From the habit of obedience to the law which 
 generally prevails amongst men, a resort to such extreme 
 measures as have been just described is rarely necessary, 
 nevertheless it is this which is contemplated under our law 
 in all cases as the ultimate result, where the injury in question 
 
 in almost all cases by express stipulation, or, by raising its prices, to cast 
 back the burden, in a great measure, upon the general body of its customers. 
 At present the doctrine seems to affect even international relations. The 
 Americans claimed 2,000,000!. sterling, on account of damages sustained by 
 reason of our alleged breach of neutrality. The Germans have obtained 
 compensation on an equally large scale for what they assume to be a wrong 
 done to themselves by the French nation in declaring war. Claims not less 
 extensive have been made before, by the strong hand ; but I think that it 
 is new to place such claims on a quasi-legal ground. 
 
 '■ See Kemble's Anglo-Saxons, book i. chap, x., and the Laws of Alfred, 
 43, 44. 'Bot' is the name given to the compensation ordered to be paid 
 in case of a wound ; which when life was taken was called ' were.' The 
 right of private warfare to revenge an injury was called 'feud.' 
 
408 SANCTIONS AND REMEDIES. [Chap. XIX. 
 
 is the wrongful detention of land. Forcible transfer of the 
 possession of things other than land has not been generally 
 thought necessary under our law, even where such transfer is 
 possible ; but this is only upon the assumption that the limit 
 of the injury is, except in very rare cases, the present money 
 value of the article detained, and which may therefore be 
 covered by compensation^. But even if this assumption be 
 true, it must be remembered that an order to pay compensation 
 is no redress, if the person ordered to pay be insolvent. 
 Specific 833. Duties, the performance of which is thus secured, are 
 
 ance"^™' ^^^^ ^ ^® specifically enforced ; and there are many others 
 which may be so dealt with besides those of the class above 
 mentioned. Where there is a dispute about the title, whether 
 to land or moveables, which are at the moment not in the 
 possession of either party, but of a third person holding as the 
 representative of, or derivately from, the true owner, the right 
 of the true owner may often be specifically enforced by declar- 
 ing it, and requiring this third person (who generally, not 
 being interested in the dispute, will be ready to obey) to 
 acknowledge the right of ownership as declared^. So also a 
 very large number of duties are either primarily to pay money, 
 or are such that a breach of them results in a duty to pay 
 money ; and all such duties are in their nature capable of being 
 specifically enforced, by seizing the property of the debtor, if 
 he has any, selling it, and handing the proceeds over to the 
 creditor ; which is invariably done should the debtor delay or 
 refuse to pay the money, after he has been ordered by a court 
 of law to do so. So again, through the power which every 
 court has over duties of every kind, rights may be transferred 
 from one person to another ; and where the duty which it is 
 
 ' See supra, sect. 512. 
 
 ^ It IB Bometimes said that, when an officer of a court executes a conveyance 
 in the name of another person who has been ordered to convey, but who 
 refuses to do so, the obligation to convey ia thereby specifically enforced. 
 But this, I think, is hardly coi-rect. The order of the court is amply suffi- 
 cient to pass the ownership without any conveyance ; and the document 
 executed by the officer is only convenient evidence of title. 
 
Sec. 833-836.] SANCTIONS AND REMEDIES. 409 
 
 desired to enforce is to make this transfer, this can be done, 
 whether the party obliged to make it consents or no, and 
 therefore, without resort to the pressure of a sanction. Thus 
 if I owe you money which I am ready to pay, and you owe 
 the same sum to a third person, the court can secure the per- 
 formance of your duty by simply annulling these two duties 
 and creating a new one of the same kind between me and your 
 creditor ; or, as the transaction is generally, though I think not 
 quite so correctly described, by simply transferring the debt. 
 
 834. Probably also the idea of rendering further breaches 
 of the law to a great extent physically impossible, and so se- 
 curing a sort of rude specified performance, is to some extent 
 involved in transportation, and in the modern practice of 
 substituting long terms of imprisonment, with comparatively 
 mild treatment, for shorter and sharper suffering. 
 
 835. The more direct enforcement of duties, so far as matters Why the 
 of civil procedure are concerned, is, like the procuring of com- ™^j ^^1° 
 pensation, left entirely to the control of the party injured, and ''^"f® f^ 
 there are many circumstances which combine to render this 
 
 mode of proceeding effectual. There is no better way of secur- 
 ing obedience to the law than to give to private individuals an 
 interest in enforcing it. That interest is given at once in all 
 cases of relative duty, by giving to the party who has the 
 right corresponding thereto means, either of enforcing the 
 right, or of obtaining redress when the right is infringed. He 
 at once becomes, not only the public prosecutor, but takes upon 
 himself the whole trouble, risk, and expense of prosecution. 
 And this method is found so effectual, that so far as concerns 
 all those violations of right which come within the denomina- 
 tion of civil injuries, the State is able to relieve itself entirely 
 of the trouble of enforcing obedience to the law, beyond 
 appointing proper officers to perform the duties of the civil 
 courts. 
 
 836. The injury to the individual, therefore, though it is 
 never the cause of the action of a court of law, is the occasion 
 of it. And in matters of civil procedure and a few other cases 
 
410 SAN"CTIONS AND EEMEDIES. [Chap. XIX. 
 
 it is not only the occasion of the action, hut the exact measure 
 
 of it. The whole ostensible object of the proceedings from 
 
 beginning to end in those cases is not punishment, but redress, 
 
 and they are fashioned upon the hypothesis that redress alone 
 
 is the object. 
 
 Secondary 837. From this point of view, therefore, to have a right 
 
 right as expresses, not merely the condition of a person towards whom 
 
 foundation g^ ^uiiy has to be performed, as it would if violations of that 
 
 01 claim tor ■* ^ 
 
 redresa. duty were only punished and not redressed ; but it expresses 
 the condition of a person who can put in motion the whole 
 machinery of courts of law to obtain a private object. If, for 
 instance, injuries to property were followed only by a fine 
 payable to the Crown, or imprisonment, the compound right 
 which we call ownership would still exist, but it would have 
 no legal importance independently of the duties and obliga- 
 tions to which it corresponds : but when the owner of the 
 property injured is also enabled to claim compensation for the 
 injury, the right assumes a new and important aspect. It is 
 no longer the mere correlative of the primary duties command- 
 ing us to abstain from acts injurious to the property of others ; 
 it has, as the foundation of a claim for redress, an altogether 
 independent existence correlative to an obligation to make 
 amends on the part of the deUquent^. 
 
 Imperfect 838. It is obvious enough that none of the consequences of 
 a breach of the law will render it certain that the command 
 which contains the law will be obeyed. If we punish the 
 wrong-doer, or compel him to make redress, we only warn him 
 
 ' It is, I apprehend, this combination of "■ public with a private object 
 which determines the apportionment of costs in civil proceedings. They 
 are borne partly by the public, for the same reason that costs in criminal 
 proceedings are so borne entirely. But I do not see exactly on what prin- 
 ciple Eentham (vol. ii. p. 112) would require the government to take upon 
 itself the whole burden of costs in civU proceedings. If so, all notion of 
 giving redress would have to be abandoned, for it is not a duty incumbent 
 upon a government to procure redress for individuals ; no government has 
 ever assumed any such function; and to charge upon the public the duty 
 of performing it could hardly be justified. The action of the law would thus 
 be confined to enforcing penalties. 
 
Sec. 837, 838.J SANCTIONS AND REMEDIES. 411 
 
 and others in a significant manner against a repetition of 
 the wrong. If by a transfer of rights we fulfil an obligation, 
 or by the use of physical force we render a man powerless 
 to repeat an injury, we have only rendered ourselves secure 
 in an individual case ; and we must trust to the example 
 to deter others from doing the like. Nothing, therefore, can 
 be more inappropriate than the expression by which some laws 
 are distinguished as perfect, and others as imperfect. All laws 
 are imperfect in the sense that we cannot be sure that 
 they will be obeyed by those on whom they are imposed. On 
 the other hand a law which has no sanction of any kind, 
 either legal or moral, if that is what is meant, is a thing that 
 I confess myself unable to conceive. Again, a moral law, or 
 a law accompanied by a sanction which is not enforced by 
 a legal tribunal (which is also sometimes said to be what 
 the term is intended to express), is no more imperfect than 
 one which is enforced. If we consider the very rare cases in 
 which the sanctions set by the law, or legal sanctions, come 
 into competition with the sanctions of so-called imperfect obli- 
 gations, which are the sanctions set by society, and which are 
 commonly called moral sanctions — that is, if we look to cases 
 where the conduct required of us by the law conflicts with 
 that which is expected of us by our neighbours, it would be 
 obviously untrue to imply that the moral sanctions were, as 
 compared with the legal ones, imperfect. There are many men 
 who, upon deliberate choice, in order to gain the approbation 
 of those with whom they are accustomed to associate, would 
 rather leave unpaid their debts to a tradesman than their 
 wagers on a horserace. But this is in reality a wholly distorted 
 view of the subject : the sanctions set by law do for the most 
 part not conflict, but concur with moral sanctions ; and every 
 political society depends for its existence in a great measure 
 upon this concurrence. It is this concurrence which has 
 enabled the law to impose sanctions which are sometimes 
 so light as scarcely to be perceptible. Nothing indeed can be 
 more striking than to contrast the habit of obedience to law 
 
412 
 
 SANCTIONS AND EEMEDIES. [Chap. XIX. 
 
 whieli prevails in most countries with the slightness of legal 
 sanctions — that is, with the smaUness both in quantity and 
 intensity of the suffering which the law inflicts in cases of 
 disobedience. 
 
 Interme- 
 diate and 
 ultimate 
 sanctions. 
 
 839. Sanctions are divided into the two following kinds. 
 Frequently, indeed most frequently, disobedience to the law 
 is only followed in the first instance by the imposition of 
 a fresh duty. I have disobeyed the law by not attending as 
 a juror when summoned, by driving carelessly in the street, or 
 by not fulfilling my contract ; the result in each ease is that 
 I am ordered to pay a sum of money. The duty to pay 
 the money is a secondary or sanctioning one, inasmuch as 
 it exists for the sake of enforcing a primary duty. But it 
 is only a duty, and requires therefore a further sanction to 
 enforce it, if it be disobeyed. 
 
 840. Sanctions which consist merely in liability to a duty, 
 that is, which merely command a man to do something, 
 with the prospect of incurring certain further consequences 
 if he do not, I will call intermediate sanctions. Sanctions 
 which consist not of liability to a duty, but of liability to some 
 other evil which it is supposed the party would be desirous to 
 avoid, I will call ultimate sanctions. 
 
 841. The ultimate sanctions of all primary duties, whether 
 the breach of them be what is usually called a civil injury, or 
 what is usually called a crime, are the same. They are 
 
 bodily pain including death, imprisonment, 
 and forfeiture. This division of sanctions is not scientifically 
 correct ; for imprisonment itself is a kind of bodily pain, 
 and also an instrument for inflicting it: though it is 
 generally something more ; loss of liberty being regarded 
 by most men as an evil, independently of any bodily suffering. 
 The division is, however, convenient. Forfeiture is of two 
 kinds ; it may consist in the simple annulment of all or 
 some of those rights which the party has, or it may consist 
 in depriving him of all or some of those rights which are in 
 
 Ultimate 
 
 sanctions 
 
 the same 
 
 for civil 
 
 injuries i ■ i 
 
 and crimes, of three kindS' 
 
Sec. 839-842.] SANCTIONS AND EEMEDIES, 413 
 
 their nature transferable, and transferring them to another. 
 Whether the right be simply annulled, or transferred to 
 another, the sanction consists in the forfeiture only. 
 
 842. The application of sanctions has varied considerably APP^^'^*" 
 at different times, but there is a good deal of similarity in sanotiona 
 the views which prevail at present in regard to them in most oJcivU pro- 
 civilised countries, especially in courts of civil procedure, o^'i'-^s- 
 These courts, shaping their proceedings, as they ostensibly do, 
 for the sole purpose of giving redi-ess to the party injured, 
 always select that form of sanction which will best accomplish 
 that purpose : sometimes they order the party delinquent 
 to make compensation in money ; sometimes, where the 
 wrong done is keeping the rightful claimant out of possession, 
 they restore the possession, using force if necessary for the 
 purpose ; sometimes they proceed by way of restitution — 
 that is to say, creating, destroying, or transferring rights, 
 duties, and obligations, for the purpose of putting the parties 
 as nearly as possible in the same position as if the wrong 
 had not been done. In the first two of these cases, keeping 
 only the sanction in view, and disregarding the remedy, 
 we should find that the order of the com-t results in the 
 imposition of an obligation, that is, the application of an 
 intermediate sanction, or in forfeiture, that is, the applica- 
 tion of an ultimate sanction. The process of restitution 
 consists partly of the imposition of an ultimate sanction in 
 the shape of forfeiture, and partly of the specific enforcement 
 of obligations. 
 
 Courts of civil procedure never, in the first instance, apply 
 the ultimate sanction of imprisonment, and they have no 
 power to inflict bodily pain in any other form than that of 
 simple detention. Even this power has recently been very 
 largely curtailed in England by what is called the abolition of 
 imprisonment for debt ^. 
 
 ' See the statute 32 and 33 Victoria, chap. Ixii, by which the imprisonment 
 for debt in purely civil matters is wholly done away with, except in cases 
 where the court, being satisfied that the debtor has means to pay, makes 
 a special order for payment, which the debtor disobeys. 
 
414 SANCTIONS AND REMEDIES. [Chap. XIX. 
 
 Slightness 843. I have already said that the only sanction of many 
 actually in duties is the liability to make amends for the damag-e caused 
 "^•^ to an individual by their breach ; and in a very large num- 
 
 ber of such cases the only form in which compensation 
 can be given is by an order for the payment of a sum of 
 money by the delinquent to the party injured. But since the 
 passing of the last-mentioned act, no person, except in very 
 special eases, can be arrested or imprisoned for making default 
 in the payment of a sum of money. For aU this class of cases, 
 therefore, the only ultimate sanction is forfeiture. Moreover, 
 forfeitm-e, when resorted to as an ultimate sanction of an order 
 to pay money by way of compensation, has always been con- 
 fined by us to the forfeiture of such rights as may be seized 
 and sold, so as to produce the money and satisfy this secon- 
 dary duty. And it is not an unimportant reflection that 
 we thus arrive at an ultimate sanction of a very limited kind ; 
 and one which entirely depends on the possession by the 
 delinquent of rights of a particular nature. In other words, as 
 against a pauper there is no sanction at all. 
 Applioa- 844. When the breach of the primary duty is the subject 
 
 sanctions "^ criminal procedure, and is called a crime, or an offence, 
 in criminal j^ jg customary to apply the ultimate sanction at once, by 
 ordering the guilty person to sufi^r death, or imprisonment, 
 either alone or accompanied by some kind of physical in- 
 convenience, such as whipping or hard labour. Sometimes, 
 however, an alternative is still left of escaping from the 
 ultimate sanction by the payment of a sum of money, which is 
 then usually called a fine ; and in cases which are of a mixed 
 character, neither decidedly civil nor decidedly criminal, a 
 fine is generally imposed as an alternative intermediate 
 sanction. 
 In India. 845. lu India sanctions are substantially the same as 
 in England, except that imprisonment for debt still exists ; 
 but under conditions which make it so onerous to the creditor, 
 that it is very little resorted to. 
 
 846. The courts of civil procedure in the United States 
 
Sec. 843-847.] SANCTIONS AND EEMEDIBS. 416 
 
 and in France also proceed upon principles almost precisely in other 
 the same. And in both countries, in that very large class of °°"" "*^' 
 cases where the proceedings result in an order for the pay- 
 ment of money by way of compensation, it has been found 
 possible to dispense with the ultimate sanction of im- 
 prisonment, and to rely entirely on the apparently slender 
 sanction of forfeiture ^. 
 
 847. If we consider the general tendency of modern legis- Tendency 
 lation in regard to sanctions, we perceive, on the one hand, legislation, 
 that our ideas on the subject of compensation for injuries 
 have rapidly developed. But, concm-rently, we obsei-ve that 
 in the absence of certain characteristics, which are generally 
 also the characteristics of crime, such as fraud or intentional 
 wrong, the ultimate sanction of imprisonment has in civil 
 matters almost disappeared. Moreover, whilst we are con- 
 tinually enlarging the field of crime, we are at the same time 
 endeavouring to mitigate the sufferings of punishment in 
 all respects except their duration. I am also inclined to think 
 that (possibly as a result of these changes) the disgrace of 
 a criminal conviction, which is an important part of the 
 punishment, has diminished, especially in certain cases — such, 
 for example, as the conviction of directors of a company for 
 fraud. We are perhaps approaching a considerable readjust- 
 ment of the respective domains of civil and criminal law. 
 
 * See Powell's Analysis of American Law, Philadelphia, 1870, Book iii. 
 chap. ix. sect. 3, and the Loi de 22 Juin, 1870, in the Collection des Lois, 
 vol. Ixvii. p. 165, where there is a very interesting account of the discussions 
 which preceded the abolition of imprisonment for debt in France. 
 
CHAPTEK XX. 
 
 PROCEDUEE. 
 
 Procedure 848. Procedure is the term used to express the action 
 
 a tion of °^ courts of law. Courts of law are persons or bodies of 
 
 courts of persons delegated by the sovereign authority to perform 
 
 the function of enforcing the duties and obligations which 
 
 have been created tacitly, or expressly, by this authority 
 
 in the form of law. 
 
 Parts of the 849. I have already pointed out how this function gener- 
 
 proceedmg ^]j„ divides itself into the several parts of ascertaiaing the 
 
 penal or •' _ _ ^ ^ 
 
 remedial, precise nature of the duties which have been imposed by the 
 sovereign authority ; of further ascertaining which of these 
 have been broken ; and of applying the sanction appropriate 
 to the breach. I have further pointed out that though this 
 penal fanction is the only one for which courts of law exist, 
 they do in fact perform it in some cases by ostensibly exercis- 
 ing a function which is merely remedial ; the court taking 
 action ostensibly, not for the purpose of punishing disobedience 
 to the law, but for the purpose of giving redress ^. 
 
 Civil and 850. This cardinal difference between the ostensible func- 
 tions of courts of law corresponds generally, but not exactly, 
 with the distinction of courts into courts of civil and courts of 
 criminal procedure. Though the ultimate object of all courts 
 
 » See Chapter XIX. 
 
 criminal 
 courts. 
 
Sec. 848-852.] PROCEDURE. 417 
 
 is the same, the civil court generally professes only to give 
 redress, and the criminal court only to inflict punishment. 
 
 851. The general scheme of procedure in each court also 
 corresponds with the general object which each professes to 
 pursue. In the civil court the person who makes the com- 
 plaint is the party who has sufiered by the breach of the law. 
 He is dominus litis. He is responsible for the conduct of the 
 proceediags, and in a great measure for the expenses of them, 
 inasmuch as they are treated as though they were carried 
 on entirely far his benefit. He may abandon them at any 
 moment, or he may settle the dispute privately, if he 
 thints fit. On the other hand, in the criminal court, though 
 it has been the custom in England hitherto to trust the 
 conduct of prosecutions to some extent to private individuals, 
 the prosecutor is in no way responsible for, nor has he control 
 over, the proceedings. 
 
 852. It is a general rule that courts of law will not move Suits will 
 unless some duty or obligation is broken. Very often parties rally lie for 
 assert rights which they do not as yet exercise, or repudiate ^yo^'a^*'^*" 
 obligations which they are not at the moment called upon to without 
 
 « T T ■ • 1 • wrong. 
 
 perform. And so disputes arise without any wrong having 
 actually taken place : and very often parties are desirous, from 
 reasons of convenience, to come into court and get their rights 
 declared at once without waiting for the expected breach. 
 No doubt there are very often strong reasons of convenience 
 in favour of such a course. The intention to do an act 
 would, in a vast majority of cases, be abandoned, if it was 
 known to be illegal ; or, what comes to the same thing, if it 
 was known that a court of law would treat it as illegal. 
 The consideration which counterbalances these reasons of 
 convenience is, that thereby too much opportunity would 
 be given to persons of litigious character to bring useless 
 and vexatious suits against their neighbours, and thus the 
 number of suits would be greatly multiplied. And since 
 the burden and expense of litigation always falls to some 
 extent on the public at large, this burden and expense 
 
 E e 
 
418 PEOCBDURE. [Chap. XX. 
 
 cannot be increased solely with reference to considerations 
 of private convenience. The rule, therefore, is generally- 
 adhered to, that there must be some actual wrong done 
 before the court wiU set itself in motion. An exception 
 is, however, generally made where there is a reasonable 
 and well-grounded expectation that a breach of duty or 
 obligation will be committed, and that no proper redress 
 can be had, if it does take place. There is, indeed, one 
 class of cases in England in which parties are allowed to 
 come and ask simply for the opinion of the court upon their 
 rights and duties : but that is confined to trustees, who, by 
 a peculiarity of our law, may always to some extent cast upon 
 the court the duty which has been undertaken by themselves. 
 This being so, it is more economical to allow them to consult 
 the court, as it were, and to require the court to give them 
 its advice ; for a refusal might only result in a far greater 
 burden. 
 Commence- 853. The respective schemes of procedure are fashioned 
 proceed- according to these. views. In aU courts the party who seeks 
 ™ss- to set the court in motion has, except in very special cases 
 
 such as are mentioned above, to make a statement which, 
 whether it be called a complaint, an indictment, a charge, 
 a demand, a bill of complaint, a plaint, or a declaration, is in 
 fact an assertion that a wrong has been committed ; including 
 also generally, in the civil courts, a claim for redress. This 
 is invariable : and there is also invariably a defined mode of 
 bringing before the court the person whose conduct is com- 
 plained of, in order that his answer may be heard. But 
 there is a good deal of variety, and some peculiarity in the 
 modes of doing this. Sometimes the party against whom 
 the complaint is made is summoned; that is, he receives 
 a notice that his attendance is required in court ; sometimes 
 he is arrested and brought there ; sometimes he is required 
 actually to appear in court ; sometimes only to put in his 
 answer or defence. Moreover the practice varies as to the 
 exact time of making the statement of the particular wrong 
 
Sec. 853.] PROCEDURE. 419 
 
 complained of. Sometimes it is made simultaneously with 
 the first summons to come into court and answer it. Some- 
 times the summons into court takes place first, and the 
 complaint is made afterwards. And these varieties are to 
 be found not only in diflerent countries, but in the same. 
 For some crimes, both in England and India, a party may be 
 arrested and brought into court ; in others the proceedings 
 can only commence by a summons, followed by a warrant 
 in case of non-appearance. In England, in what used to be Appear- 
 called the Common Law Courts of civil procedure, the theory 
 was that nothing could be done in the first instance beyond 
 bringing the party complained against into court, and that 
 no further proceedings were possible, until this had been 
 accomplished. And though the rigour of this rule is now 
 relaxed, it is still so much respected, that the appearance 
 (as it is called) of the defendant is always feigned to have 
 taken place, even when the proceedings go on without it. 
 When both parties have appeared, or are supposed to 
 have appeared, then each makes his respective statements 
 answering and replying to each other till both sides have 
 nothing more to say. In the Court of Chancery, on the 
 other hand, the plaintiff has always commenced proceed- 
 ings by stating what he had to complain of, and delivering 
 a copy of the statement to the defendant; at the same time 
 requiring him to appear and answer it. And the rule requir- 
 ing the defendant to appear, before the case can proceed 
 further, then applied, as in the Common Law Courts, but was 
 avoided by the same fiction. The curiously indirect methods 
 which were at one time in use both in Courts of Common 
 Law and Courts of Chancery, to compel a defendant to take 
 the step of appearing in court, and some expressions which 
 are used regarding it, seem to point to something voluntary 
 in the submission of the defendant to the jurisdiction of 
 the court. This is analogous to what has been pointed out 
 by Sir Henry Maine in what he considers the most ancient 
 judicial proceeding known to us — the legis actio sacrimenti 
 
 E e 2 
 
420 PEOCEDURE. [Chap. XX. 
 
 of the Eomans, where the form of the proceeding appears to 
 treat the judge rather as a private arbitrator chosen by the 
 parties, than as a public officer of justice. But in modem 
 times this appearance of voluntary submission has no signi- 
 ficance ^ 
 
 854. It is impossible here to do more than point out 
 the leading characteristics of the procedure, by which the 
 complaint of one side and the defence of the other are sub- 
 mitted to the judgment of the tribunal. The rules upon this 
 subject, called by us the rules of pleading, are generally 
 elaborate^ and very often highly artificial, and even capricious ; 
 but I will notice one or two leading distinctions of principle 
 in the practice which has .prevailed in different courts re- 
 specting it. 
 Pleadings. 855. In every dispute the two principal questions to be 
 
 Issues of . / \ 1 11. 111.. 
 
 law and determined are, (i) what are the duties and obligations which 
 dvii eases ^^^^^ between the parties ? (a) have they, or any of 
 them, been broken ? The first of these questions depends 
 ultimately of course upon the law, but proximately it may 
 depend on whether certain events have happened, on the 
 happening of which duties and obligations wUl arise ; such, 
 for instance, as whether a contract has been made; or a 
 wiU executed ; or a marriage solemnised. The second depends 
 on whether certain events have happened. Hence in every 
 case which comes into court the questions to be determined 
 resolve themselves into questions of law and questions of fact ; 
 and it is the object of the rules of pleading in English courts, 
 and analogous rules in all other courts, to put into a more 
 or less precise form the various questions of law and fact which 
 have to be determined.^ 
 
 856. The difficulty of understanding the procedme in the 
 
 ' See Maine's Ancient Law (first ed.), p. 375. Under the last new rules 
 (those of 1883) a summons may in simple cases contain a statement of the 
 claim, and any further statement of it is then dispensed with. 
 
 ^ I follow here the usual language. I have shown ahove that the so-called 
 questions of fact sometimes involve questions of conduct, but these fall within 
 the province of the jury (see supra, sect. 35). 
 
Sec. 854-856.] PROCEDURE. 421 
 
 English courts, where the trial takes place before a jury, arises 
 from the very wide . difference which prevails between the 
 theory and the practice based upon it. Theoretically the 
 parties to a suit heard before jury are required to work out the 
 questions of law and questions of fact into distinct issues, 
 as they are called ; and though at the present day this is but 
 imperfectly done, yet, as these questions have to be decided by 
 different tribunals — issues of law by the coui-t and issues of 
 fact by the jury — one would suppose that to whatever extent 
 this has not been done before, the deficiency must necessarily 
 be supplied at the hearing. The judge, one would think, 
 would have first to completely separate, and then to deeide the 
 questions of law ; after which he would ask the jury to give 
 their opinion on the facts. To a very considerable extent 
 this is done. But then it is only done in a verbal address 
 to the jury of which there is no regular record ; the observa- 
 tions on the facts are so mingled with the directions on the 
 law, that it is sometimes very difficult to distinguish them ; 
 and what is more important stiU, there is no regular mode 
 of ascertaining whether or no the jury accept the law as the 
 judge lays it down ; because the ordinary form of finding 
 is, not on specific questions exclusive of fact, but for the 
 plaintiff, or for the defendant, in general terms ^. Indeed, 
 were it considered necessary to keep the functions of the 
 court and the jury as completely severed in practice as they 
 are in theory, the proceedings at a trial at Nisi Prius would 
 undergo a very considerable change. I even think it very 
 doubtful whether with such a severance of functions the 
 jury system could be as successfully worked as it is at present. 
 The present success of that system depends almost entirely on 
 the friendly co-operation and mutual good understanding 
 
 ' The jury cannot be compelled to find particular facts, or even to find 
 the affirmative, or negative, on particular issues, though they are generally 
 willing to do so, if requested. But it has been always recognised as their 
 undoubted privilege to decline finding any other than a, general verdict, 
 and they have been known to exercise it. See a case reported in the third 
 volume of Adolphus and Ellis' Eeports, p. 506. 
 
422 PEOCEDUEE, [Chap. X5. 
 
 between the court and the juiy, which have been, in England, 
 so happily established: and these it would be extremely 
 difficult to preserve, if such discussions as to their respective 
 duties were admitted as would be necessary to keep each 
 within the strict limits of its own particular functions. 
 
 857. A very little observation of what passes daily in 
 coui-ts of justice wiU show that there is a similar indistinct- 
 ness in the line drawn between law and fact in the pro- 
 ceedings subsequent to the verdict of the juiy, when the 
 tribunal, whilst professing to keep within the province of 
 pure law, really enters into considerations which it seems 
 impossible to call legal : as, for instance, whether a verdict 
 is against the weight of the evidence. And though a legal 
 form is given to another frequent consideration — namely, 
 whether there is any evidence to support the verdict — yet I 
 think it is impossible to doubt that under this form what 
 is really very often considered is, whether the jury have 
 drawn the right inference from the facts laid before them^. 
 Ill criminal 858. In criminal cases no attempt is made to separate 
 cases. ^-jr^Q questions of law and fact prior to the hearing; and 
 
 though the functions of judge and jury are in criminal cases 
 theoretically separated, there is stiU the same absence of aU 
 security that this separation should be practically observed ; 
 and the result in a criminal trial, even more than in a civU. 
 one, is in reality arrived at rather by a co-operation of judge 
 and jury throughout the trial, than by the simultaneous 
 exercise of two entirely independent functions. 
 In courts of 859. The proceedings where there is no jury are a good 
 ancery. ^^^-^ simpler. There it is not necessary to separate the issues 
 of law and fact. The parties are not required to make this 
 separation at any stage of the pleadings antecedent to the 
 hearing, and there is nothing in the nature of the proceedings 
 at the hearing which renders it then necessary, inasmuch 
 as the presiding judges decide both law and fact simultane- 
 ously. And in practice the separation is only so far made 
 
 ' Supra, sect. 25. 
 
Sec. 857-861.] PEOCEDURE. 423 
 
 as is found to be convenient for understanding the case, and 
 so far as the judges may make it, when in conformity with 
 the tradition of the courts, they disclose to the litigants 
 their reasons in detail for coming to a conclusion. 
 
 860. The provision of the Indian Code of Civil Procedure in India 
 on this subject is a very peculiar and stringent one. It g"^^t^;gg'' 
 requires that the judge should settle the questions of law and 
 fact upon which the parties are at issue in every case before 
 the hearing commences. The French Code requires no settle- 
 ment of issues, but there are very strict rules which require that 
 the judgment should contain a specific statement of the points 
 of law and of fact which have arisen, with the determination 
 of each. The requirements of the Italian Code, and I believe 
 also of the Spanish Law, are similar. Of all these methods, 
 that provided for by the Indian Code is the most laborious 
 and complete. It contemplates that every possible issue 
 which can arise should be raised prospectively ; a much greater 
 burden than is thrown upon a judge by the French Code, who 
 has only to declare what issues have actually come into 
 dispute ; and in fact this duty has been found so onerous 
 that the courts in India have almost universally neglected it. 
 And it appears, from the rules recently made by the judges in 
 England, that English lawyers have come to the conclusion, 
 that it may be safely left to the discretion of the court how 
 far, and when, and with what precision, the issues shall be 
 ascertained ; and that so far as this has to be done, it should 
 be done, if possible, by agreement of the parties^. But the 
 rules are silent upon the question of separating the findings on 
 these several issues, so that it may be inferred that the practice 
 of not doing so, as it at present exists in England, is not 
 disapproved. 
 
 861.' It is not possible yet to form any judgment as to 
 how the modem system of allowing an infinite variety of 
 questions to be tossed in disorder before the court will answer 
 
 ^ What foUowB has appeared in an article in the Law Magazine, N.S. 
 vol. iii. p. 393. 
 
424 PROCEDURE. [Chap. XX. 
 
 the ends of justice. One thing is certain, that this disorder 
 must be reduced to order at some point in the trial. The 
 object of all ' rules of pleading-,' as they are called, was to 
 produce that order. As a learned German Jurist has pointed 
 out in some very practical and sensible observations upon 
 legal procedure generally, no part of that procedure has been 
 spoken of with greater contempt by mankind at large than 
 rules of pleading. The term ' special pleading ' has become a 
 bye-word in the English language, and the whole system has 
 been swept away as worthless. Yet the objects which these 
 rules had in view were not only desirable, but such as it 
 is absolutely necessary to secure. Unless a judge contents 
 himself with simply saying that he decides in favour of 
 one party or the other, and practically no judge can do this, he 
 must break up the complex contentions of the parties into 
 the various simple questions which are involved. To the 
 performance of this task modern procedure for the most part 
 affords no assistance whatever ; it is left entirely to the in- 
 tellectual capacity of the judge, with such assistance as the 
 parties through their counsel choose to render him^. In 
 the early Roman procedure, the judges being laymen, and 
 there being but scanty opportunity of obtaining legal assist- 
 ance for the court, there was a rigorous rule of ' one suit 
 one question,' binding both upon the plaintiff and the defen- 
 dant. Our rules of pleading, though never quite so strict, 
 did remove many difficulties out of the way of the judges 
 by bringing out the issues to be tried. These difficulties 
 are now let loose upon the coui-t. It may be that the rules 
 of pleading were, on the whole, an impediment to the adminis- 
 tration of justice. It may be that they had become distorted, 
 and sometimes defeated the very object they had in view. 
 But the object was a useful one, and the burden laid upon 
 judges is enhanced by their abolition. It is frequently taken 
 for granted that by simplifying (as it is called) the rules 
 of pleading you have relieved the parties of a merely useless 
 
 ' See Ihering, Geist. d. Eiim. Eechts, part iii. p. 15 sqq. 
 
Sec. 862, 863.] PEOCEDITRB. 425 
 
 legal technicality. When you have allowed the plaintiff to 
 lay before the Court in his own language the tale of all his 
 wrongs, and have permitted the defendant to state not only 
 all that he has to say in way of reply, but to bring aU his 
 countercharges, a triumph of simplicity is supposed to have 
 been achieved. It is too soon to count upon this as a certainty. 
 It may turn out that the investigation is only made more 
 costly and more difficult. It may be that the whole ease is 
 never before the court at any one time : that the aspect 
 of a ease constantly changes in the course of the investiga- 
 tion : that appeals are increased : and that, on the whole, 
 with a greater expenditure of money, time, and labour, a satis- 
 factory result is less seldom obtained. 
 
 862. When the case has been heard and the decision Decree 
 given, the result, so far as the judgment is not merely de- declaratory 
 claratory, is to impose either an ultimate or intermediate ™ "' 
 sanction. In civil cases this will generally be an intermediate 
 sanction only, and, for the reasons explained above, generally 
 
 in the form of an order to make compensation or restitution. 
 But though the courts lay down as a general rule that they 
 wiU not move unless there has been some wrong committed, 
 the real object of many suits is not to compel redress, either 
 in the shape of compensation or of restitution. The real 
 dispute is as to the rights of the respective parties, and having 
 once procured a declaration on this point, it is frequently well 
 known to all concerned in the litigation that every one will do 
 what is required, either from motives of honesty, or because 
 the means of compulsion are sufficiently proximate and certain 
 to make it useless further to resist. For this reason we con- 
 stantly find that the result of litigation is a mere declaration. 
 
 863. Again, wherever it is possible, the Court of Chancery, Restitu- 
 which alone has power to do so, gives redress by way of 
 restitution rather than by way of compensation. Now the 
 principle of restitution is, as far as possible, to treat the rights, 
 duties, and obligation of all parties as beiug at that moment, 
 
 and as if they had been all along, such as they would have 
 
426 PEOCEDURE. 
 
 been, had nothing taken place to interfere with them. Thus, 
 when a sale of property is set aside on account of fraud, every 
 effort is made to put the parties precisely in the same position 
 as if the fraud had not taken place. The fraudulent convey- 
 ance is declared void. The property is treated as never having 
 ceased to belong to the party who was induced by the fraud 
 to part with it. All the profits are declared to belong to 
 him, and so forth. The court only resorts to a money pay- 
 ment by way of compensation when it is compelled to do 
 so. But it would not always be easy to say whether, in 
 very strictness, the court in making a decree of this kind, 
 was depriving the defendant of a right, or merely declaring 
 the existing rights of the plantiff; that is to say, whether 
 it was applying an ultimate sanction, or not applying 
 a sanction at all. Nor is there any reason in practice for 
 distinguishing between the performance of these operations. 
 On the contrary, it rather serves as a guide to the measure of 
 relief, to keep up the idea (even though it be fictitious) that 
 the rights of the parties are only being declared. We have, 
 therefore, another reason why in form, at any rate, the final 
 decree in a suit is often only declaratory. 
 
INDEX. 
 
 N. B. — TJie numbers in the Index refer to the Sections. 
 
 Absolutely void, 274 and ». 
 Act, is an event viewed as under 
 human control, 214. 
 
 — analysis of, ib. 
 
 — must be intended, 219. 
 
 — consequences of, need not be in- 
 
 tended, 220. 
 
 — no legal result from mental con- 
 
 dition without, 232. 
 
 — legal result of, dependent on mental 
 
 condition, 233. 
 
 — in the law, 235. 
 Acts juridique, 235. 
 
 Actio in rem and Eeal Action com- 
 pared, 129. 
 
 Action through an intermediary, 
 246. 
 
 Administration of intestate's estate, 
 806, 807. 
 
 Adverse possession, meaning of, 
 585 ». 
 
 Agency, 246. 
 
 — law of, not derived from Roman 
 
 law, 251. 
 
 Agent and Messenger, difference be- 
 tween, 253, 
 Alienation, restrictions on, 330 n., 
 
 334- 
 
 — right of, not universal, 516. 
 
 — what consent necessary to, 517. 
 
 — should be certain and notorious, 519. 
 Allodial property, succession to, 813. 
 Alluvion and Diluvion, 490. 
 America. See United States. 
 Analogies, competition of opposite, 
 
 100. 
 Analogy, extension of law by, 77. 
 Ancestor, continuation of by heir, 
 
 777- 
 Animals ferse naturae, capture of, 
 
 361. 
 
 — acquisition of ownership of, 483. 
 Appearance, 853. 
 
 — how far necessary, ib. 
 Arrangement of Law, 291. 
 Ashiord against Thornton, easeof, 2 7. 
 Austin, his view of declaratory and 
 
 repealing laws, 6. 
 
 — distinguished law from morality, 1 2. 
 
 — criticisms of, 15 sqq. 
 
428 
 
 INDEX. 
 
 Austin, his explanation of laws made 
 by judges, i8. 
 
 — his explanation of custom, ib, 
 
 — his view of case law, 98. 
 
 — his explanation of error of law and 
 
 fact, 269. 
 ■ — on intention in promise, 621. 
 Austrian Law of Suooession, 787- 
 
 B. 
 
 Benefit of Inventory, 800. 
 Bentham refers everything to public 
 
 opinion, 119 «. 
 ■ — his contempt for lawyers, 194. 
 Bills of Sale, 540. 
 Birth, what constitutes, 132, 133. 
 ■ — a condition of personality, 132. 
 Blaokstone, his view of reports, 91. 
 
 — would limit human law by divine, 
 
 110. 
 ■ — gives no account of duties,. 198 j. nor 
 
 of breaches of duty, ib. 
 ■ — his explanation of error of law and 
 
 fact, 269. 
 • — his observations on error, 735. 
 
 — intoxication, how explained by, 75 !• 
 
 — on the origin of wills, 790. 
 Blameworthiness not a criterion of 
 
 tort, 707, 711. 
 
 Bona fides as applied to prescrip- 
 tion, 560. 
 
 Boulton against Jones, 747. 
 
 Bracton, his authority as a lawyer, 89. 
 
 — on prescription, 566. 
 
 Bruns, criticisms of Savigny's Trea- 
 tise on Possession, 399 n. 
 Burn against Carvalho, 479. 
 
 C. 
 
 Canon law, rules of inheritance in, 
 
 817. 
 Case law, English, 92. 
 
 — advantages of, ib. 
 
 — basis of authority of, 93. 
 ■ — characteristics of, 98. 
 
 Case law, Austin's view of, 98. 
 ■ — Paley'a view of, 100. 
 
 — distinction between, and law de- 
 
 rived from commentaries, 103. 
 Chancery, creation of equitable owner- 
 ship in, 335. 
 
 — court of, mortgage of moveables in, 
 
 477- 
 
 — how error treated in, 743. 
 
 — procedure in courts of, 859. 
 Child, en ventre sa mfere, not a person, 
 
 132. 
 
 Church, part taken by, in succession, 
 794, 806, 808. 
 
 Civil and Criminal Procedure have 
 same object, 825. 
 
 Civil Injuries and Crimes, distinc- 
 tion between, 599. 
 
 Civil Procedure, application of sanc- 
 tions by courts of, 842. 
 
 Civil Sanctions ultimately same as 
 criminal, 841. 
 
 Codes, early, 69. 
 
 Coercion, evil of, 52. 
 
 Coke, his views on prescription, 566. 
 
 Colonies, subordinate legislation in, 
 
 63- 
 Combat, judges presided over, 27. 
 Commands, what, are laws, 5. 
 Commentaries, as a source of law, loi . 
 
 — and case law, difference between, 104. 
 Common Law, procedure in courts of, 
 
 856. 
 Competition of opposite Analogies, 
 
 100. 
 Condition, of persons, meaning of, 
 
 168, 176. 
 Confusion of ownership, 495. 
 Conduct, estimation of, 710. 
 
 — standard of, 715- 
 
 Consent, of heir to succession, 802. 
 Consequences of Acts need not be 
 
 intended, 220. 
 Consideration, what is meant by, 627. 
 
 — peculiar to English law, 628. 
 
 — not applied to deeds, 631. 
 
 — need not be adequate, 632. 
 
 — true meaning of requirement, 635. 
 
 — for past service, 639. 
 
INDEX. 
 
 429 
 
 Consideration, for contract of bail- 
 ment, 642. 
 
 — moral, 644. 
 
 Construction, rules of, 240. 
 Contract, English definitions of, 609, 
 
 615. 
 
 — and Conveyance, difference between, 
 
 610. 
 
 — Savigny's analysis of, 604, 612, 
 
 618. 
 
 — is a manifestation of intention, 621. 
 
 — intention how ascertained, 621. 
 
 — consideration necessary for, 626. See 
 
 Consideration. 
 
 — void and voidable, 649. 
 
 - — effect on, of defects of form, 651. 
 
 — non-compliance with statute of 
 
 frauds, 652, 
 
 — transfer of, 660. 
 
 — offer and acceptance how far neces- 
 
 sary to, 663. 
 
 — with agent of undisclosed principal, 
 
 664. 
 
 — liability on, is a thing, 665. 
 
 — may be owned, 665. 
 
 — how affected by insanity, 732. 
 
 — effect of error on, 739. 
 
 — effect of intoxication on, 753. 
 
 — effect of infancy on, 757. 
 
 — whether it is prevented by fraud, 
 
 766. 
 Conturier against Hastie, 749- 
 Convalescence, 278- 
 Copyright, ownership of, 323. 
 Corporation. ;See' Juristical Person. 
 
 — treated as a person, 1 36. 
 
 — notion of, in early family, 137. 
 
 — sole, 145. 
 
 — ownership of, 324. 
 
 Cour de Cassation, authority of, 78 n. 
 
 Crimes and Civil Injuries, distinc- 
 tion between, 599. 
 
 Criminal and Civil Procedure have 
 same object, 825. 
 
 Criminal cases, procedure in, 858. 
 
 — Code, vagueness of expressions used 
 
 in draft of, 211 n. 
 
 — procedure, application of sanctions 
 
 by courts of, 844. 
 
 Criminal sanctions ultimately the 
 
 same as civil, 841. 
 Cundy against Lindsay, 746, 768. 
 Custom, explanation of, 1 8. 
 
 — antecedent to law, 79. 
 
 — given effect to by courts, ib. 
 
 — early reports are evidence of, 90. 
 
 — as a source of law in England, ib. 
 
 D. 
 
 Damnum et injuria, 699 n. 
 Debts, liability of heirs for, 818. 
 Declaration, suits will not lie for, 
 
 without wrong, 852. 
 Declaratory decrees, 863. 
 Decrees, often only declaratory, 862. 
 Deeds, do not require consideration, 
 
 631. 
 Defamation, 699. 
 Delegation of Sovereignty, 62. 
 Delict. See Tort. 
 
 — Erench definition of, 669. 
 Delivery, when necessary to transfer 
 
 of ownership, 519. 
 
 — error of Heineccius as to, 5 2 2 m. 
 
 — error of Serjeant Manning as to, ib. 
 
 — reasons why not now necessary, 523. 
 
 — still important to ownership, 525. 
 
 — on sale of land, 529. 
 Derivative possession does not pro- 
 duce prescription, 583. 
 
 Detinue, nature of action of, 511. 
 
 De Tocqueville's view of American 
 Constitution, 34. 
 
 Dishonesty, meaning of, 689. 
 
 Divine Law, how conceived by dif- 
 ferent nations, 106. 
 
 — not always enforced, 109. 
 
 — but is a source of law, 1 10. 
 
 — human law not limited by, ib. 
 
 — and human, not generally in con- 
 
 flict, 112. 
 
 — use made by lawyers of, 115. 
 Drunkenness. See Intoxication. 
 Duress, 254, 758. 
 
 — does not destroy the will, 758. 
 
 — as a ground of non-liability, 761. 
 
430 
 
 INDEX. 
 
 Duties, what they are, 147. 
 
 — created by sovereign power, 151. 
 
 — must be specific, 153. 
 
 — cannot be imposed by sovereign 
 
 body on itself, 154. 
 
 — positive and negative, 181. 
 
 — relative and absolute, 182. 
 
 — primary and secondary, 183. 
 
 — not generally clearly expressed, 196. 
 
 — not stated by Blackstone, 198. 
 
 E. 
 
 Easements, 400. 
 
 — are a kind of servitudes, 401. 
 
 — are jura in re aliena, 418. 
 
 — the servient res must be land, ih. 
 
 ■ — difference between, and profits a, 
 prendre, 419. 
 
 — appurtenant and gross, 421. 
 
 — to take potwater, 422. 
 
 — without profit, 424. 
 
 — perpetual, cause of, 425. 
 
 — of support, 426. 
 
 ■ — restrictions on, 427. 
 
 — correspond to duties to forbear, 430. 
 
 — of light, 581. 
 
 Enjoyment as of right of easement, 
 
 578- 
 
 — must be peaceable and open, 582. 
 Equal Freedom, principle of, 51. 
 Equality, cannot be promoted by law, 
 
 £9- 
 ■ — is a good thing in itself, ii. 
 Equitable ownership, 335. 
 
 — anomalous, 336. 
 
 — nothing like it in Koman law, ih. 
 Equity, original conception of English, 
 
 120. 
 
 — why it has become rigid, 121. 
 
 — explanation of Sir H. Maine, 121. 
 
 — due to difference in conception of 
 
 law, ib. 
 
 — why it precedes legislation, 122. 
 
 — is ex post facto and concrete, ih. 
 
 — in India, 124. 
 
 Error, Blaokstone's explanation of, 
 261, 269. 
 
 Error, in criminal cases, 263. 
 
 — of law and fact, 265. 
 
 ■ — how treated in chancery 268, 739. 
 — ■ Austin's explanation, of 269. 
 
 — how regarded in Eoman law, 269,744. 
 's views as to, 270. 
 
 ■ — as to private rights, 271. 
 
 — as to application of law, 272. 
 
 — effect of on liability, 734 sqq. 
 
 — how treated in French Code, 744. 
 Estate, conception of, in English law, 
 
 33°- 
 Events, 207. 
 
 — how described, 208. 
 Executive and judicial powers, 48. 
 Executor, consent of, 803. 
 
 — relation back of title of, 804. 
 
 P. 
 
 Pact, error of, 265. See Error of law 
 and fact. 
 
 — and law, separation of issues of, 856. 
 
 — in jury cases, interference of judges 
 
 in questions of, 857. 
 Family, anciently a sort of corporation, 
 137- 
 
 — ownership, 326. 
 
 Father and Sou, physical identity of, 
 
 777- 
 Feudal relation, unsuited to modern 
 times, 343. 
 
 — tenure, nature of, 338. 
 
 — chief characteristic of, ih. 
 
 — not a relation of contract, ih. 
 
 — political importance of it, 340. 
 
 — not a juristic relation, 341. 
 
 — services not peculiar, ii. 
 
 — analogous services in India, 341. 
 Feudalism not cause of modern evils 
 
 of ownership, 343. 
 Fidel commissum, not like equitable 
 
 ownership, 336. 
 Fiducia, 439, 448. 
 Forbearance, 231. 
 Force involved in the conception of 
 
 law, 15. 
 Forfeiture of ownership, 499. 
 
INDEX. 
 
 431 
 
 Franee, imprisonment for debt in, 
 
 846. 
 Fraud, 273. 
 
 — meaning of, 691. 
 
 — as ground of non-liability, 765, 
 
 — whether it prevents a contract, 'j66. 
 Frauds, Statute of, effect of non-com- 
 compliance with, 652. 
 
 Free government, characteristics of, 
 
 31. 
 
 — exists in England, 36. 
 Freedom, principle of equal, 51. 
 Frenoli Code, punishment of judge by, 
 
 for refusing to decide, 26. 
 
 — prohibits judge from making law, 
 
 ib. 
 ■ — declares sovereignty of people, 38 n. 
 
 — rule of, as to delivery, 528. 
 
 — definition of contract in, 611. 
 
 — definition of delict in, 669. 
 
 — how error treated in, 744. 
 Frenoli Constitution, 38 n. 
 French, lawyers, opinions of, as to 
 
 restrictions on ownership, 328 B. 
 
 Grift, transfer by, 515. 
 
 Government, bad better than none, 
 
 58. 
 Grant, fiction of, in prescription, 565, 
 
 569, 588. 
 Gratuitous promises, 630, 648. 
 
 H. 
 
 Heedlessness, 228. 
 
 Heir, continuation of ancestor by, 777. 
 
 — consent of, to succession, 802. 
 
 — liability of, to debts of ancestor, 
 
 800, 818. 
 Hindoo law, development of, 83. 
 
 — Brahminical influence upon, ih. 
 
 — of succession, 780. 
 
 — widow, estate of, 332. 
 
 — will, explanation of, by Privy Coun- 
 
 cil, 792. 
 
 Hirer, possession by, 384. 
 Hopkins against Logan, 645. 
 Hypoth.eoa,'444. 
 
 I. 
 
 Ignorance, 260, 734. See Error. 
 
 — not a defect of will, 735. 
 
 — Blackstone's observations on, ib. 
 
 — effect of, on contract, 739. 
 Ihering, criticisms of Savigny's Trea- 
 tise on Possession, 399 n. 
 
 Immoveables, owner can follow, 505 . 
 
 — succession to, 811. See Succession. 
 Imperfect laws, 838. 
 Imprisonment for debt, in England, 
 
 842. 
 
 — in other countries, 845, 846, 
 Imputation of intention or know- 
 ledge, 264. 
 
 — in the Indian Penal Code, 265 «. 
 In personam, rights, 164. 
 
 In rem, rights, 164. 
 Inadvertence, 227. 
 Incorporeal things, quasi possession 
 
 of, 391. 
 India, subordinate legislation in, 63. 
 
 — equity in, 124. 
 
 — tenant's possession of land in, 389. 
 
 — procedure in, 860. 
 
 — imprisonment for debt in, 845. 
 Indian Contract Act, does not define 
 
 contract, 616. 
 
 — wills, history of, 791, 
 Infancy, 273, 755. 
 
 — in criminal cases, 756. 
 
 — in contracts, 757- 
 Inheritance. See Succession. 
 Injury, meaning of, 671. 
 Insanity, 273, 723. 
 
 — modem ideas concerning, 724. 
 
 — how it affects liability, 725. 
 Insinuatio, 529. 
 Intention, 217. 
 
 — manifestations of, 241. 
 
 — formal and informal, 242. 
 
 — express and tacit, 243. 
 
 to break the law, immaterial in 
 
 crime, 263. 
 
432 
 
 INDEX. 
 
 Intention, necessary to possession, 366. 
 
 — in contract how ascertained, 621. 
 
 — imputation of, 624. 
 Interpretation, different kinds of, 72. 
 
 — extension of law by, 75. 
 
 — usual one, accepted, 81. 
 
 — rules of, 625. 
 Intoxication, 751. 
 
 — how explained by Blaokstone, 751. 
 
 — Indian Penal Code on, 751. 
 
 — effect of, on contract, 753. 
 Inventions, ownership of, 323. 
 Inventory, benefit of, 800. 
 
 J, 
 
 Judge-made law, forbidden altogether 
 by Justinian, 78 n., 92. 
 
 — and to some extent by French Code, 
 
 78 m. 
 
 — forbidden in Prussia, 93. 
 
 — not a usurpation, 97, 
 
 — older than law, 95. 
 
 Judges, frequently act without law, 
 25, 27, 29, 201. 
 
 — presided over combats, 27. 
 Judicial function, exercise of, by 
 
 sovereign, 95-. 
 Jura in re, prescription as applied to, 
 562. 
 
 — possession of, 576. 
 Jurisdiction of courts, how far vol- 
 untary, 853. 
 
 Juristic act, 235, 
 Juristical persons, 138. 
 
 — need not consist of persons, ib. 
 
 — how created, 1 39. 
 
 ■ — opinions of continental lawyers, 140 
 
 — opinions of English lawyers, ib. 
 
 — act through representatives, 141. 
 Jury, how it deals with insanity, 730. 
 
 — interference of judges witli verdicts 
 
 of, 857. 
 
 — proceedings before, 856. 
 
 Jus in re alienft, as opposed in owner- 
 ship, 316. 
 
 Justa causa, as applied to prescription, 
 560- 
 
 K. 
 
 King's peace, 600. 
 Knowledge, 222. 
 — imputation of, 264. 
 
 L. 
 
 Iiand, ownership of, alleged to be in- 
 defensible, 52. 
 
 — possession of, how acquired, 355 ; 
 
 how retained, 357 ; how lost, 364. 
 
 — delivery on sale of, 529. 
 
 — in early times not alienable, 516. 
 
 — prescription as applied to, 554. 
 Landowner, latitude allowed to in 
 
 England, 333. 
 Lassalle, his principle of realisation 
 
 of the will, 55. 
 Latifimdia, 443. 
 Law, general conception of, i, 9. 
 
 — part of conception of political so- 
 
 ciety, 2. 
 
 — what commands are, 5. 
 
 — declaratory, 6. 
 
 — conception of, not dependent on any 
 
 moral theory, 13. 
 
 — which do not proceed from sovereign 
 
 authority, 17. 
 
 — made by judges, Austin's explana- 
 
 tion of, 18. 
 
 — and fact, division into, 25. 
 
 — not necessary to action of judges, 
 
 25, 27, 201. 
 
 — sources of, 60. See Sources of law. 
 
 — development of, in early times, 69 ; 
 
 by interpretation, 71. 
 
 — extension of, by interpretation, 75 ; 
 
 by analogy, 77. 
 
 — Hindoo, how developed, 83. 
 
 — Mahommedan, development of, 84. 
 
 — early, of Europe, generally personal 
 
 87. 
 
 — became territorial under influence 
 
 of feudalism, 87. 
 
 — books, printing of early, 89 n. 
 
 — idea of, posterior to that of judicial 
 
 decision, 95. 
 
INDEX. 
 
 433 
 
 Iia\r, derived from commentaries, loi. 
 
 — inadequate expression of, 193. 
 
 — cannot be expressed by laymen, 194. 
 •^ expression of, not necessary to ad- 
 ministration of justice, 201 
 
 — very little in Statute Book, 202. 
 
 — and fact, error of, 265. See Error of 
 
 law and fact. 
 
 — arrangement of, 291. 
 
 — public and private, 292, 
 
 — of persons, things, and procedure, 
 
 296. 
 
 — not primarily made for redress, 822. 
 
 — perfect and imperfect, 838. 
 Lawyers, influence of, 81 ; mainly a 
 
 popular one, ib. 
 
 — reforms in the law due to, ib. 
 
 — how far responsible for expression of 
 
 law, 194. 
 
 — Bentham's contempt for, erroneous, 
 
 194. 
 
 — are necessary, ib. 
 
 Xieases, for long terms of years, 333. 
 
 Iiegal expressions, importance of ob- 
 taining accurate, 210. 
 
 Iiegal fraud, objection to use of term, 
 212. 
 
 Iiegal proceedings, commencement of, 
 
 863- 
 Iiegal relations, creation, extinction, 
 
 and transfer of, 203. 
 Legal remedies, ancient forms of, 27. 
 Legislation, is based on utility, 49. 
 
 — what can be done by, 57. 
 ■ — objects of, ib. 
 
 — subordinate, 62. 
 
 — why preceded by Equity, 122. 
 Legislators, dislike judge-made law, 
 
 78. 
 
 — tendency of modem, as to sanctions, 
 
 847. 
 Leibnitz, bases wills on immortality 
 
 of soul, 793 n. 
 Lex Talionis, 828. 
 Liability, what it means, 592. 
 
 — includes primary and secondary 
 
 duties, 596. 
 
 — how far it arises out of contract and 
 
 delict, 598. 
 
 Liability for breach of conti'aet, 603. 
 
 — for tort, 667. See Tort. 
 
 — as between innocent persons, 716- 
 
 — set aside or modified, 721. 
 
 Lien, difference between, and Pledge. 
 
 467. 
 Life, estate for, peculiarity of, 330. 
 Light, easement of, 581. 
 Limitation, 550. 
 Littleton, identifies time immemorial 
 
 with prescription, 568. 
 Lost grant, presumption of, 573. 
 Lost property, finding of, 485. 
 Lumley against G-ye, 666. 
 
 Mahommedan law, developement of, 
 84. 
 
 — difficulties in way of, ib. 
 
 — influence of Koman law on, ib. 
 
 — of succession, 786. 
 
 Maine, Sir Henry, his account of 
 
 equity, 120. 
 Malice, meaning of, 686. 
 
 — in law, meaning of, 687. 
 Manifestations of intention, 241. See 
 
 Intention. 
 
 Mansfield, Lord, his attempt to im- 
 prove common law of mortgage, 476. 
 
 Measurements of time, 280. 
 
 Mendacity alone not a tort, 70^ ■ 
 
 Mental condition, produces no legal 
 result without a«5t, 232. 
 
 — how ascertained 237. 
 
 — rules for ascertaining, 238. 
 Mental reservation, effect of, 257. 
 Menu, code of, 83 ; antiquity of, 83. 
 
 — on succession, 777- 
 
 Messenger and agent, difference 
 between, 253. 
 
 Mirabeau, attack upon wills, 793. 
 
 Misrepresentation, apart from con- 
 tract, how &r actionable, 702. 
 
 Mistake, 260. See Error. 
 
 Month, lunar and calendar, 287, 290. 
 
 Moral consideration, 644. 
 
 Moral law, 116. 
 
 — derived from experience, 116. 
 f 
 
434 
 
 INDEX, 
 
 Morality, rules of, enforced by courts, 
 
 30, 21. 
 
 — not always thereby made rules of 
 
 law, 33. 
 
 Moral theory, none involved in con- 
 ception of law, 13. 
 
 Mortgage, 472. 
 
 — how viewed at common law, 473. 
 
 — attempt of Lord Mansfield to im- 
 
 prove the comm.on law of, 47^- 
 
 — English law of, might be simplified, 
 
 476 M, 481. 
 Mortgagee, can always sell, 472. 
 Mosaic law of retaliation, 828. 
 Motive, 216. 
 Moveable and immoveable tilings, 
 
 129. 
 Moveables, possession ofhow acquired, 
 
 358 ; how retained 360 ; how lost 
 
 362. 
 • — how far ownership follows, 504. 
 
 — servitudes not attached to, 407. 
 
 — pledge of, in court of chancery, 477. 
 
 — owner of, cannot recover in specie, 
 
 £05- 
 
 — ownershipof, transferred by recovery 
 
 of value, ib, 
 
 — difficulty of recovering, 512. 
 
 — bills of sale of, 540. 
 
 — prescription as applied to, 561 . 
 
 — no heir to, in English law, 805. 
 
 — pass to ordinary, ib. 
 
 — successionto, 797, 805. See Suoees- 
 
 N. 
 
 ITatxire, law of, 116. 
 Negligence, meaning of, 679, 
 
 — how opposed to intention, 680. 
 
 — latest meaning of, 681. 
 Uon-liability, grounds of, 717' 
 
 — insanity as ground of, 723. 
 
 — error as ground of, 734' 
 
 — intoxication as ground of, 751. 
 • — infancy as ground of, 755. 
 
 — duress as ground of, 758. 
 Notary, 531. 
 
 ITotioe, doctrine of, 538. 
 
 0. 
 
 Occupancy, acquisition of ownership 
 
 ty, 483- 
 
 Official reporters, appointment of, 91. 
 Owner, who is, 317. 
 
 — of a right, 321. 
 Ownership, what is meant by, 307. 
 
 — absolute, 310. 
 
 — not an aggregate of rights, 314. 
 
 — rights of, are distributed, 315. 
 
 — of a corporation, 324. 
 
 — of family, 326. 
 
 — conditional, 327. 
 
 — attempts to tie np, 328. 
 
 — sepai-ation of into estates, 328. 
 
 — separation of legal and equitable, 
 
 335- 
 
 — of inventions and copyright, 323. 
 
 — of land, alleged to be indefensible, 
 
 52 ; in England, how far feudal 
 
 338- 
 — ■ Troplong's observations as to tying 
 up, 338 n. 
 
 — power to sell detached from, 334. 
 
 — evils of modern, not due to feudalism, 
 
 343- 
 
 — what constitutes, 344. 
 
 — importance of knowing, ib. 
 ■ — right to accessions, ib. 
 
 — of zemindars in Bengal, 346, 
 
 — not altered by pledge, 453. 
 
 — how acquired, 48 2. 
 
 — by occupancy of res nullius, 483. 
 
 — acquisition of, of lost property, 485. 
 
 — of whales and sturgeons by crown, 
 
 486. 
 
 — of treasure trove, 487. 
 
 — of produce of trees and animals, 
 
 489. 
 
 — of land by alluvion and diluvion, 
 
 490. 
 
 — of sea-shore, 491. 
 
 — confusion of, 495. 
 
 — of things affixed to the soil, 496. 
 
 — loss of, by forfeiture, 499. 
 
 — of moveables, how far it follows pos- 
 
 session 504 ; transferred by re- 
 covery of value, 505 ; or by change 
 
INDEX. 
 
 435 
 
 of possession, 507 ; history of the 
 law relating to, 508 ; following up, 
 512. 
 Ownership, transfer of, by gift or sale, 
 515 ; delivery when necessary to, 
 519- 
 
 — solemnities required for transfer of, 
 
 542. 
 
 — corporate, 774. 
 
 — succession grew out of, ib. 
 
 P. 
 
 Paley, his view of case law, 100. 
 
 — on intention in promise, 621. 
 Parentelen-ordung, 787. 
 Peril, doing a thing at one's, 693. 
 Perpetua causa, 410, 425. 
 Personal law, in Europe, 87. 
 Personal security, violation of, 698; 
 Persons and things, 125. 
 Persons, what are, 132. 
 
 Persons, things, and procedure, law 
 
 of, 296. 
 Pignus, 441. 
 Plaint, 853. 
 Pleadings, 855. 
 Pledge. See Security. 
 .— ownership not altered by, 453. 
 — ■ involuntary 458. 
 
 — extinguishment of, 46 1 . 
 
 — difference between, and lien, 467. 
 
 — of moveables, whether possession 
 
 necessary to, 467 . 
 
 — unauthorised sale of, 468. 
 Pledgee, possession by, 384. 
 
 — can pledge over, 450. 
 
 — has a real right or jus in re, 469. 
 
 — nature of it, 470. 
 
 — ownership when gained by, 584. 
 Pledgees, priority among, 463. 
 
 — subsequent, rights of, 465. 
 Pledgor, use and profits belong to, 
 
 454- 
 Political society, characteristics of, 
 
 3- 
 
 — foundation of, 45. 
 Possession, Savigny's Treatise on, 347. 
 
 P f 
 
 Possession, physical idea of, 348, 353. 
 
 — legal idea of, 349. 
 
 — legal consequences of, 351. 
 
 — contact not necessary to, 353. 
 
 — of land, how acquired, 355 ; 
 
 how retained, 357 ; how lost, 364. 
 
 — of moveables, how acquired, 358; 
 
 how retained 360 ; how lost, 364. 
 
 — of wild animals, 361. 
 
 — how lost by intrusion, 365. 
 
 — mental element in, 366. 
 
 — transfer of detention without, 367 ; 
 
 by change of mind, 368. 
 
 — how change of mind ascertained, 
 
 370. 
 
 — through a representative, 371 ; is 
 
 real not fictitious, 372 ; conditions 
 necessary for, 378. 
 
 — of infants and lunatics, 375. 
 
 — derivative, 382. 
 
 — in what cases this is constituted, 
 
 384- 
 
 — of hirer, pledgee, and tenant, ii. 
 
 — of land by tenants in India, 389. 
 
 — of incorporeal things, 391. 
 
 — of servitudes, 394. 
 
 — modern extension of idea of, 394. 
 
 — only one person in, at a time, 397. 
 
 — of co-owners, 399. 
 
 — whether necessary to a pledge of 
 
 moveables, 467. 
 
 — of moveables, how far ownership 
 
 follows, 504. 
 
 — precariousness of title without, 526. 
 
 — as evidence of title, 556. 
 
 — of jus in re, 576. 
 
 — derivative, prescription not based on, 
 
 583. 
 
 Potwater, right to take, 422. 
 
 Power to sell detached from owner- 
 ship, 334. 
 
 — importance of in pledge, 447. 
 Praerogative Kegis, statute of, 
 
 486. 
 Prescription, 545. 
 
 — Eoman law of, 547. 
 
 — change in meaning of term, 552, 
 
 — in English law, ih. 
 
 — as applied to land, 554. 
 2, 
 
436 
 
 INDEX. 
 
 Prescription, early legislation as to, 
 
 666- 
 
 — modern legislation as to, 556. 
 
 — bona fides and justa causa, 560. 
 
 — as applied to moreables, 561. 
 
 — as applied to jura in re, 562. 
 
 — time immemorial, 563. 
 
 — presumption of legal origin, 565. 
 
 — comparison of Englisli and Roman 
 
 law, 566. 
 
 — Braoton's views on, 566. 
 
 — Littleton's views on, 568 ; identifies 
 
 time immemorial with, 568. 
 
 — based on modem lost grant, 573. 
 
 — Act, 574, 580. 
 
 — not based on derivative possession, 
 
 583- 
 
 — Indian Law of, 586. 
 
 — steps necessary to improve law of, 
 
 688. 
 Presumption of legal origin, 565. 
 Priority among pledgees, 463. 
 Private and public law, 292. 
 Privy Council, explanation of Hindoo 
 
 will by, 792. 
 Procedure, 848 sqq. 
 
 — in civil and criminal courts, difi'er- 
 
 ence between, 850. 
 
 — remarks on modem, 861. 
 Profits-a-prendre, 400. See base- 
 ments. 
 
 — restrictions on, 429. 
 
 — correspond to duty to forbear, 430. 
 Property. See Ownership. 
 
 — rigbts of, require to be tested, 56. 
 
 — grounds on which it may be de- 
 
 feuded, 56. 
 Public and private law, 292. 
 Public opinion Tribunal, Bentham's, 
 
 119 n. 
 
 Q. 
 
 Quasi possession of incorporeal things, 
 
 391- 
 — of jus in re, 576. 
 Quidquid plantatur solo solo cedit, 
 
 496. 
 
 E. 
 
 Eashness, 226. 
 
 Hatification, 276. 
 
 Batio legis, how it affects interpreta- 
 tion, 73. 
 
 Heal action and actio in rem com- 
 pared, 129. 
 
 Real and personal things, 129. 
 
 — origin of this division, ib. 
 
 Keal right, and right in rem, differ- 
 ence between, 167 «. 
 
 — of pledgee, 468. 
 
 Real security, search after, 447. 
 
 — nature of, ib., 471. 
 Eeohtsgeschaft, 235. 
 
 Redress, not primary object of law, 
 
 822. 
 Registration, 529. 
 • — on the continent of Europe, 529 sqq. 
 
 — in England, 534. 
 
 Relation back of title of heir, 802. 
 
 Remedies, 821 sqq. 
 
 Reports, character of early, 90. 
 
 — Blackstone's view of, 91. 
 
 — patent of James I as to, ib. 
 
 — when they became authoritative, ib. 
 Representative, possession through, 
 
 371- 
 Res nullius, occupancy of, 483. 
 Restitution, 275, 863. 
 Retaliation, 828. 
 
 — substitution of money payment for, 
 
 829. 
 
 — substitution of redress for, 830. 
 Reward for recovery of lost property, 
 
 663. 
 Right, what it is, 149. 
 
 — corresponds to duty, ijo. 
 
 — cannot exist without duty, ib. 
 
 — duty may exist without, ib. 
 
 — must be specific, 153. 
 
 — cannot belong to sovereign body, 155. 
 
 — need have no object, 160. 
 
 — must belong to a determinate person, 
 
 161. 
 
 — as foundation of claim for redress, 
 
 837. 
 Right in rem, difference between, and 
 real right, 167 n. 
 
INDEX. 
 
 437 
 
 Eights, are incorporeal things, 128. 
 
 — of persons and things an erroneous 
 
 classification, 163. 
 
 — in rem and in personam, 164. 
 Hivers, ownership of bed of, 494. 
 Homan la'w, how developed, 82. 
 
 — general adoption of, in Europe, 85. 
 
 — not disturbed by barbarian invaders, 
 
 86. 
 
 — displaced barbarian laws, 88. 
 
 — influence of, resisted in England, 89. 
 
 — attempts to introduce it, ib. 
 
 — England replaced by custom, go. 
 
 — how error treated it, 744. 
 Eyot, legal position of, 390. 
 
 S. 
 Sale, power of, importance of, in pledge, 
 447 ; how exercised, 456. 
 
 — unauthorised, of pledge, 468. 
 
 — transfer by, 515. 
 Sanctions, 11, 821 sqq. 
 
 — relation of, to rights, 821. 
 
 — weakness of, 835. 
 
 — ultimate and intermediate, 839. 
 
 — all are ultimately the same, 841 . 
 
 — tendency of modem legislation as to, 
 
 842. 
 
 Savlgny, his explanation of interpreta- 
 tion, 72. 
 
 ■ — his explanation of error of law and 
 fact, 269. 
 
 — his Treatise on Possession, 347. 
 
 — use of it by the author, ib. 
 
 — Ihering's criticisms of, 399 n. 
 
 — Brun's criticism of, ib. 
 
 — his analysis of contract, 604,612,618. 
 Sea-shore, ownership of, 491. 
 Security, the main object of law, 57. 
 
 — preservation of, involves sacrifice, ib. 
 
 — meaning of term, 431. 
 
 — English law of, derived from Koman, 
 
 434- 
 
 — not from best sources, 435, 
 
 — statement of Eoman law of, 437 . 
 
 — real, search after, 447, 449. 
 
 — given by power of saJe, 447. 
 
 — English law of, 466. 
 
 — in courts of common law, 467. 
 
 Service, nature of, 430. 
 Servitudes, possession of, 394. 
 
 — positive and negative, 404. 
 
 — correspond to a duty to forbear, 405. 
 
 — prtedial and personal, 405. 
 
 — not attached to moveables, 407. 
 
 — origin of, 408. 
 
 — prsedial, perpetua causa of, 410; 
 
 vicinity a condition of, 411 ; utility 
 a condition of, ib. ; must be 
 carefully exercised, 413; could not 
 be transfeiTed, 414; urban and 
 rural, 415 ; restricted number of, 
 416. 
 
 — personal, not restricted, ib. 
 Shifting use, a device to prevent 
 
 alienation, 330 n. 
 Sio utere tuo, 704. 
 Smith against Hughes, 748. 
 Social compact, theory of, 46. 
 Source of law, what is meant by, 60. 
 
 — legislation, primary, 61. 
 Sovereign, acquiescence of, equivalent 
 
 to command, 19. 
 
 — not independent, 87. 
 
 — originally also judge, 95. 
 
 — delegation of judicial office by, 96. 
 
 — body cannot impose duties on itself, 
 
 154- 
 
 — cannot have rights, 155. 
 Sovereignty, conception of, 10. 
 
 — of the people, in the French Code, 14. 
 
 — not capable of limitation bylaw, 31. 
 
 — not even by express convention, 32. 
 
 — in United States, 32. 
 
 — practical limitations of, 36. 
 
 — delegation of, 40, 62. 
 
 Speoifl.0 performance, enforcement of, 
 
 831. 
 Spencer, Mr. Herbert, his principle 
 
 of equal freedom, 51. 
 Status, meaning of, 168, 176. 
 
 — as opposed to contract, 178, 180. 
 — ■ law of, 300, 
 
 Statute of Distributions, 809. 
 Subordinate legislatures, 62. 
 
 — limited powers of delegation of, 66. 
 Substitution, meaning of, in French 
 
 law, 330. 
 
438 
 
 INDEX, 
 
 Succession, origin of law of, 77°- 
 
 — meaning of term, 771. 
 
 — how far based on fictions, 772. 
 
 — based on physical identity of ancestor 
 
 and heir, 777- 
 
 — or on spiritual benefits, 778- 
 
 — in India, 'jSo. 
 
 — by groups, 786, 787. 
 
 — in English law universal as to 
 
 moveables, 797. 
 
 — to immoveables, 81 L. 
 
 — early law, 813. 
 
 — degrees of consanguinity, 817. 
 
 — Mahommedan law of, 786. 
 
 — Austrian law of, ii. 
 
 — testamentary, 789. 
 
 — how far founded on fiction, ii. 
 
 — origin of, as founded by Blaokstone, 
 
 790. 
 
 — on death, in England, 794- 
 
 — obscurity of English law, ii. 
 
 ■ — part taken by Church, ii., 806, 808. 
 
 — in Eoman law, universal, 796, 
 
 — consent of executor necessary to, 803. 
 
 — consent of heir necessary to, 802. 
 Suits, none without wrong actually 
 
 done, 853. 
 
 Support, easement of, 436. 
 
 Supreme Court, powers of, in United 
 States, 34. 
 
 Surrounding oiroumstances, as evi- 
 dence of intention, 244. 
 
 T. 
 
 Tacking, 455. 
 
 Tenant, feudal, owned a jus in re alienS, 
 
 339- 
 
 — possession by, 384, 388. 
 
 — at will, ownership when gained by, 
 
 686- 
 Tenure, meaning of, 338. 
 Things, corporeal and incorporeal, 126. 
 
 — moveable and immoveable, 129.- 
 
 — real and personal, ii. 
 
 — origin of this division, ii. 
 Things, law of, persons and procedure, 
 
 296. 
 Time, measurements of, 280. 
 
 Time, difierence of, 284. 
 Time immemorial, Littleton identifies 
 with prescription, 568. 
 
 — basis of English law of prescription, 
 
 ii. 
 
 — peculiar way of measuring, 571. 
 Title, investigation of, 538. 
 Title-deeds, their use as a protection 
 
 to purchasers, 535. 
 Tort, liability for, 667. 
 
 — and delict are equivalent, 668. 
 
 — not defined in English law, 670. 
 
 — meaning of negligence in, 679. 
 
 — negligence how opposed to intention, 
 
 680. 
 
 — latest meaning of negligence, 681. 
 
 — heterogeneous nature of, 707. 
 
 — blameworthiness not a criterion of, 
 
 707, 711. 
 
 — may depend on estimation of con- 
 
 duct, 710. 
 Transfer of contract, 660. 
 Treasure-trove, 487. 
 Trespass, 697. 
 Trustee, why not liable on contract, 
 
 61:7. 
 Twelve Tables, law of retaliation in, 
 
 828. 
 
 U. 
 
 Undisclosed principal, contract with 
 
 agent of, 664. 
 United States, peculiar constitution of, 
 
 32 sqq. 
 
 — imprisonment for debt in, 846. 
 Unlversitas juris, meaning of, 773. 
 Uses, applied to wills, 814. 
 
 • — not identical with fidei commissa, 814. 
 
 — devise of, 815. 
 
 Usus, not like equitable ownership, 336. 
 Utility, basis of authority to make laws, 
 48. 
 
 — the only guide to legislation, 49. 
 
 — attempts to substitute other prin- 
 
 ciples for, ii. 
 
 — may serve as a pretext for arbitrary 
 
 power, iig. 
 
 — principle of, rests on public opinion, 
 
 119. 
 
INDEX. 
 
 439 
 
 Vi clam et preoario, 582. 
 Viability, how far neoeaaaiy to con- 
 stitute person, 133. 
 Void, meaning of, 764. 
 Void and Voidable, 274. 
 — contracts, 649. 
 
 W. 
 
 ■Wager of battle, how related to law, 
 
 27. 
 ■Wantonness, meaning of, 690. 
 "Warranty, 694. 
 "Will, realisation of, 55. 
 
 ■Will, distinction between, and gift 
 
 inter vivos, 791. 
 ■Wills, not known to Hindoos, 791. 
 ■Wrong, no suit lies without, 852. 
 
 Year, commencement of, 289. 
 
 — altered by act of George II, 289, 
 
 ■year Books, nature of reports in, 90. 
 
 Z. 
 
 Zemindars, ownership of, in Bengal, 
 546- 
 
 THE END. 
 
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