CJomf U ffiaai ^rl(0nl Eibrarg Digitized by Microsoft® Cornell University Library K 230.S17J9 1902 Jurisprudence or the theory of the law / 3 1924 021 182 112 Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation with Corneii University Library, 2008. You may use and print this copy in iimited quantity for your personai purposes, but may not distribute or provide access to it (or modified or partiai versions of it) for revenue-generating or other commerciai purposes. Digitized by Microsoft® The original of tliis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021182112 ■^ DigitizeS'by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® JURISPRUDENCE SALMOND Digitized by Microsoft® Digitized by Microsoft® JURISPRUDENCE OB THE THEORY OF THE LAW BY JOHN W. SALMOND M.A., LL.B.; FELLOW OF TJNIVBRSITY COLLEGE, LONDON ;. PROFESSOR OF LAW IN THE UNIVERSITY OF ADELAIDE. LONDON STEVENS k HAYNES BELL YARD, TEMPLE BAR 1902 Digitized by Microsoft® ADKIiAIDB : PBIHTBD BY W. K. THOMAS & CO. Digitized by Microsoft® PREFACE. I have endeavoured to make this book useful to- more than one class of readers. It is written pri- marily for the use of those students of the law who are desirous of laying a scientific foundation for their legal education ; yet I hope that it will not he found desti- tute of interest by those lawyers whose academic studies lie behind them, but who have not wholly ceased to concern themselves with the theoretical and scientific aspects of the law. Further, a great part of what I have written is suflSciently free from the techni- calities and details of the concrete legal system to serve the purposes of those laymen who, with no desire to adventure themselves among the repellent mysteries of the law, are yet interested in those more general por- tions of legal theory which touch the problems of ethical and political science. It will be noticed that occasional passages of the text are printed in smaller type. These are of lesser importance, of greater difficulty, or of a controversial or historical character, and are not essential to the con- tinuity of the exposition. At the end of most of the chapters will be found a list of references to certain portions of the literature of the subject, which may be found useful as a guide to the student desirous of going further in the matter. Additional references are contained in the last of the Digitized by Microsoft® VI PREFACE. Appendices, together with an explanation of the modes of citation adopted in the notes. Certain parts of this book have been already pub- lished in the Law Quarterly Eeview, and I have also incorporated in it the substance of a much smaller work published by me some years ago under the title of ' The First Principles of Jurisprudence.' I have not thought it necessary to allude in the text to cer- tain discrepancies in matters of detail between my earlier and later views, and it will be understood that the present work wholly supersedes the earlier, as containing a re-statement of the substance of it in a more comprehensive form. J.W.S. Adelaide, March, 1902. Digitized by Microsoft® CONTENTS. CHAPTER I. THE SCIENCE OF JURISPEUDENCB. PAGE § 1. Jurisprudence as the Science of Law 1 § 2. Jurisprudence as the Science of Civil Law 3 § 3. Theoretical Jurisprudence - 4 § 4. English and Foreign Jurisprudence 8 CHAPTER II. THE LAW. § 5. The Definition of Law 1 1 § 6. The Administration of Justice 1 3 § 7. Law is logically subsequent to the Administration of Justice 15 § 8. Law and Fact 18 § 9. The Justification of the Law 23 § 10. The Defects of the Law 28 CHAPTER III. THE LAW (CONTINUED). § 11. Common Law and Special Law 36 § 12. The Kinds of Special Law - 37 § 13. An Objection Considered 42 § 14. Other Uses of the Term Common Law - 43 § 15. Law and Equity 46 § 16. The Imperative Theory of Law - 52 § 17. Defects of the Imperative Theory 55 Digitized by Microsoft® PAGE. Till CONTENTS. CHAPTER IV. THE ADMINISTEATION OF JUSTICE. § 18. Necessity of the Administration of Justice- 62 § 19. Origin of the Administration of Justice 65 § 20. Civil and Criminal Justice 68 § 21. The Purposes of Criminal Justice : Deterrent Punishment 71 § 22. Preventive Punishment 71 § 23. Eeformative Punishment 72 § 24. Retributive Punishment 77 § 25. The Relation between Criminal and Public Wrongs 82 § 26. Civil Justice : Primary and Sanctioning Rights 86 § 27. The Kinds of Sanctioning Rights 87 § 28. A Table of Legal Remedies 91 § 29. Penal and Remedial Proceedings 91 § 30. Secondary Functions of Courts of Law 93 CHAPTER V. THE SOURCES OF THE LAW. § 31. Formal and Material Sources 99 § 32. Legal and Historical Sources 100 § 33. A List of Legal Sources 103 § 34. The Sources of Law as Constitutive and Abroga- tive 106 § 35. Sources of Law and Sources of Rights 109 § 36. Ultimate Legal Principles 109 CHAPTER VL LEGISLATION. § 37. The Nature of Legislation 113 §38. Supreme and Subordinate Legislation - 116 § 39. Relation of Legislation to other Sources 119 § 40. Codification 124 § 41. The Interpretation of Enacted Law 126 Digitized by Microsoft® CONTENTS. IX CHAPTER VII. CUSTOM. PAGE. § 42. The Early Importance of Customary Law - 135 § 43. Reasons for the Reception of Customary Law 137 § 44. Kinds of Customs 139 § 45. The Requisites of a Valid Custom 140 § 46. The Disappearance of Customary Law 149 § 47. Conventional Custom 150 § 48. Theories of Customary Law 151 § 49. Custom and Prescription 155 CHAPTER VIIL PEECBDENT. § 50. The Authority of Precedents 158 § 51. Declaratory and Original Precedents 159 § 52. Authoritative and Persuasive Precedents 163 § 53. The Absolute and Conditional Authority of Prece- dents - 164 § 54. The Disregard of a Precedent 166 § 55. Precedents Constitutive, not Abrogative 170 § 56. Grounds of the Authority of Precedents 172 § 57. The Sources of Judicial Principles 178 § 58. Respective Functions of Judges and Juries - 180 CHAPTER IX. THE STATE. § 59. The Nature and Essential Functions of the State 184 § 60. Secondary Functions of the State 190 § 61. The Territory of the State 191 § 62. The Membership of the State 192 § 63. The Constitution of the State 200 § 64. Constitutional Law and Constitutional Fact 202 § 65. The Government of the State 206 Digitized by Microsoft® CONTENTS. PAGE § 66. Independent and Dependent States 207 § 67. Fully Sovereign and Semi-sovereign States 209 § 68. Unitary and Composite States 212 § 69. Imperial and Federal States 212 CHAPTER X. LEGAL EIGHTS. § 70. Wrongs 217 § 71. Duties 218 § 72. Eights 219 § 73. The Elements of a Legal Right 224 § 74. Legal Rights in a wider sense of the term 231 § 75. Liberties 231 § 76. Powers 233 § 77. Immunities 235 § 78. Duties, Disabilities, and Liabilities 236 CHAPTER XL THE KINDS OF LEGAL EIGHIS. § 79. Perfect and Imperfect Rights 239 § 80. The Legal Nature of Rights against the State 243 I 81. Positive and Negative Rights 245 § 82. Real and Personal Rights 246 § 83. Proprietary and Personal Rights 253 § 84. Rights of Ownership and Encumbrances 257 § 85. Principal and Accessory Rights - 263 § 86. Legal and Equitable Rights 264 CHAPTER XIL OVTNEESHIP. § 87. The Definition of Ownership 268 § 88. Corporeal and Incorporeal Ownership 270 § 89. Corporeal and Incorporeal Things 274 § 90. Sole Ownership and Co-ownership 276 Digitized by Microsoft® § 94. § 95. § 96. § 97. § 98. § 99. § 100. § 101. CONTENTS. XI PAGE § 91. Trust and Beneficial Ownership 278 § 92. Legal and Equitable Ownership 282 § 93. Vested and Contingent Ownership 284 CHAPTER XIII. POSSESSION. Introduction 288 Possession in Fact and in Law 289 Corporeal and Incorporeal Possession 291 Corporeal Possession 293 The Animus Possidendi 295 The Corpus of Possession - 298 The Relation of the Possessor to other Persons 299 Relation of the Possessor to the Thing Possessed 306 CHAPTER XIV. POSSESSION (CONTINUED). § 102. Immediate and Mediate Possession 308 § 103. Concurrent Possession 313 § 104. The Acquisition of Possession 314 § 105. Possession not essentially the Physical Power of Exclusion 316 ^ 106. Incorporeal Possession 320 ^ 107. Relation between Possession and Ownership 324 § 108. Possessory Remedies 327 CHAPTER XV. PERSONS. § 109. The Nature of Personality 334 § 110. The Legal Status of the Lower Animals 335 § 111. The Legal Status of Dead Men - 337 § 112. The Legal Status of Unborn Persons 340 § 113. Double Personality - 342 Digitized by Microsoft® CONTENTS. PAGE.. § 114. Legal Persons 343 § 115. Corporations 2^" § 116. The Agents, Beneficiaries, and Members of a Corporation 351 § 117. The Acts and Liabilities of a Corporation- 353 § 118. The Uses and Purposes of Incorporation 356 § 119. The Creation and Extinction of Corporations 361 § 120. The State as a Corporation 362 CHAPTER XVI. TITLES. § 121. Vestitive Facts " 368 § 122. Acts in the Law 371 § 123. Agreements 375 § 124. The Classes of Agreements 379 § 125. Void and Voidable Agreements 381 CHAPTER XVII. LIABILITY. § 126. The Nature and Kinds of Liability 394 § 127. The Theory of Remedial Liability 395 I 128. The Theory of Penal Liability 397 § 129. Acts 399' § 130. Two Classes of Wrongful Acts 404 § 131. Damnum sine Injuria 406 § 132. The Place and Time of an Act- 407 8 133. Mens Rea 410' CHAPTER XVIII. INTENTION AND NEGLIGENCE. § 134. The Nature of Intention 413- § 135. Intention and Motive 417 § 136. Malice 419' Digitized by Microsoft® CONTENTS. XIII ' PAGE. § 137. Eelevanoe and Irrelevance of Motives 421 § 138. Criminal Attempts • 423 § 139. Other Exceptions to the Irrelevance of Motives 427 § 140. Jus necessitatis 428 § 141. Negligence 43O § 142. Objections Considered 435 § 143. The Standard of Care 438 § 144. Degrees of Negligence 444 § 145. Other Theories of Negligence 448 CHAPTER XIX. LIABILITY (CONTINUED). § 146. Wrongs of Absolute Liability 454 § 147. Mistake of Law 458 § 148. Mistake of Fact 460 § 149. Accident - 462 § 150. Vicarious Responsibility 465 ^ 151. The Measure of Criminal Liability 470 § 152. The Measure of Civil Liability 477 CHAPTER XX. THE DIVISIONS OF THE LAW. § 153. The Principles of Legal Classification 482 § 154. The Introductory Portion of the Law 483 § 155. Private and Public Law - 484 § 156. Civil and Criminal Law 485 § 157. Substantive Law and the Law of Procedure - 486 § 158. Divisions of the Substantive Civil Law 487 § 159. The Law of Property 488 § 160. The Law of Obligations 489 § 161. The Law of Status or of Persons 490 CHAPTER XXI. THE LAW OP PKOPEETY. § 162. Meanings of the Term Property - 493 Digitized by Microsoft® XIV CONTENTS. PAGE. § 163. Material and Immaterial Property 495 § 164. Movable and Immovable Property 497 § 105. Real and Personal Property 501 § 166. The Ownership of Material Things 503 § 167. The Ownership of Immaterial Things 506 § 168. Classes of Encumbrances - 509 § 169. Leases 509 § 170. Servitudes, 513 § 171. Trusts 515 § 172. Powers 515- § 173. Contractual Obligations 616 § 174. Securities 517 CHAPTER XXII. THE LAW OF PEOPEETY (CONTINUED). § 175. Modes of Acquisition : Possession 528 § 176. Prescription 53O. § 177. Agreement 53^ § 178. Inheritance 5^q § 179. Facts Divestitive of Property 544. CHAPTER XXIII. THE LAW OF OBLIGATIONS. § 180. The Nature of Obligations 549 § 181. Solidary Obligations 55^ § 182. The Sources of Obligations 557 § 183. Concurrent Obligations ggg. §184. The Transmission of Obligations 568 §185. The Extinction of Obligations 57I CHAPTER XXIV. THE LAW OF PROCEDURE. § 186. Substantive Law and the Law of Procedure - 576 Digitized by Microsoft® CONTENTS. XV PAGE. § 187. Evidence 581 § 188. The Valuation of Evidence 586 § 189. The Production of Evidence 692 § 190. Criticism of the Law of Evidence 596 CHAPTER XXV. PRIVATE INTERNATIONAL LAW. § 191. Territorial and Personal Law 599 § 192. Private International Law 602 §193. The Choice of Law 606 § 194. Criticism 610 APPENDICES. L The Names of the Law 615 II. The Theory of Sovereignty 628 III. The Maxims of the Law 638 IV. The Literature of Jurisprudence 647 Digitized by Microsoft® Digitized by Microsoft® JURISPRUDENCE OR THE THEOEY OF THE LAW CHAPTEE I. THE SCIENCE OF JUEISPRUDENCE. § I. Jurisprudence as the Science of LaM^. In the widest of its applications the term jurispru- dence means the science of law, using the word law in that vague and general sense, in which it includes nil species of obligatory rules of human action. Of jurisprudence in this sense, "there are as many divisions as there are kinds of law which have been deemed sufflciently important and well developed to serve as the subject-matter of distinct branches of learning. They are at least three in number: 1. Givil Jurisprudence. This is the science of civil law, that is to say, the law of the land. Its purpose is to give a complete and systematic account of that complex body of principles which is received and ad- ministered in the tribunals of the state. 2. International Jurisprudence. This is the science of international law or the law of nations. It is con- cerned not with the rules which are in force within states, but with those which prevail between states. Just as the conduct of the subjects of a single state is governed by the civil law, so international law regu- A Digitized by Microsoft® 2 THE SCIENCE OF lates the conduct of states themselves in their relations towards each other. 3. Natural Jurisprudence. This is the science of that which our forefathers termed natural law or the law of nature (jus naturale). By this they meant the principles of natural justice — justice as it is in itself, in deed and in truth, as contrasted with those more or less imi)erfect and distorted images of it which may be seen in civil and international law. Whether these principles of natural justice are rightly entitled to the name of law — whether natural law, so called, can be rightly classed along with civil and international law as a species of the same genus — is a question which it is not needful for us here to discuss. It is suflScient for our present purpose to note the historical fact, that there is a very extensive literature in which the law of nature is given a place side by side with civil law and the law of nations (jus naturale, jus civile, and jus gentium), and in which the resulting threefold di- vision of jurisprudence into natural, civil, and inter- national, is recognised as valid. Books of natural jurisprudence are in their es- sence books of ethics or moral philosophy, limited, however, to that department which is concerned with justice, as opposed to the other forms of right, while the method and the point of view are those of the lawyer rather than of the moral philosopher. Ex- perience has shown, however, that this abstract theory of justice in itself, this attempt to work out in abstracto the principles of natural right, is a suffi- ciently unprofitable form of literature. In England both name and thing have become in recent year.s all but obsolete. Yet there are not wanting even at Digitized by Microsoft® JURISPRUDENCE. 3 this day examples of the earlier way of thought. The most notable of these is the late Professor Lorimei's Institutes of La/w, a Treatise on the Principles of Jv/ris- prudence as determined by Nature. On the Continent, on the other hand, the literature of natural law, though no longer as flourishing as it was, is still of importance. One of the best known works of this class is Ahrens' Gours de Droit Naturel. A typical example from an earlier epoch is Pufendorf's once celebrated but now neglected work, De Jure Naturae et Gentium (1672).i §2. Jurisprudence as the Science of Civil Law. In a second and narrower sense, jurisprudence, instead of including all three of the foregoing divisions, is limited to one only, namely that which we have distinguished as civil. It is the science of civil law. A similar specific application belongs to the term law also. When we speak of the law without any quali- fying epithet, we commonly mean that particular form which is administered in the tribunals of the state. So when we speak of jurisprudence without more, we usually intend the science of this special kind of law and this alone.^ 1. See on this subject Reid's PMloaophical Works, Essay on the Active Powers^ V, 3. (Of systems of natural jurisprudence). Also Dugald Stewart's Works,. VII. 256. 2. The term civil law, though once in common use to indicate the law of the land, has been partly superseded in recent times by the inaproper eubstitute,, 1 positive law. Jus poaitivum was a title invented by Medieval jurists to denote } law made or established (posituTn) by human authority, as opposed to that jus naturtUe which was uncreated and immutable. It is from this contrast that the term derives all its point and significance. It is not permissible, therefore, to ) confine positive law to the law of the land. All is positiva which is not na- ; tural. International and canon law, for example, are kinds of jus positivum no less than the civil law itself. See Aquinas, Summa, 2 2. q. 67 een guilty of unreasonabie delay In buiW'mg a house, ds a question of fact ; ^tihe law contains no rules for its determiuatjon. But whether the holder of a bill of excloange has been guiWy of unreajsonable delay in giving notice of diishonour, is a quesition of law 'to be deteirminied in aoeordanee with eentain fixed principles laid down in the Bills of Exchange Act. Whether verbal or written evidence of a icontract is the better, is a question of laiw, the superaoraty of the lattetr being J the subject of a pre-existing and authoritative generalisation. But wihether the oral testimony of A, or that of B, is the better evidence, is a quesition of fact, left entirelly to the unitnammelled judgment of *he c-ourt. What is the ppoi>er and reasoniaible punisihment for murder is a question of laiw, indiividnal judicial opi'nion being aibso- lutely exdjuded by a fixed rule. What is the proper and reasoniaJble punishment tor theft, is (save so far as judicial discretion is limited by the s'batutory appoinitanenit of a maxi- mum limit) a question of fact, on which the law bas nothing to say. The quesition whether a child ajocused of eriime hais sufficient mental capacity to be criminally responsible for his acts, is one of f ajct, if the accused is over the lajge of seven yeajrs, but one of law (to be answered in the negative) if he lis under that age. The point in issue is the meaning of a particular clause in an act of parliament. W'hether ithis is a question of fact or of law, depends on .whether suci ^cliaiU'Se (has already been the subject of authoritative judicial inlteirpreitatlon. If not, it is one of faot for the opinion of the court. If, however, there has already been a decision on the point, ithe question is one of law, to be decided in accordance wi'th ithe previous determina- tion. The conclusion may seem paradoxical that a question of statutory interpretation may be one of faiet, but a little con- .sideraiti'on will Show that the isltatement is correct. It is true, indeed, that the question is one as to vs^hat tlie law is, but a 1 question of law does not mean one as to what the law Is, but one to be determined in accordance with a rule of law. Digitized by Microsoft® THE LAW. 21 A question is very often both one of fact and one of law, and is then said to be a mixed question of law and of fact. It is to be answered partly in accordance with fixed legal principles, and as to the residue in accordance with free judicial opinion. That is to say, it is not a simple, but a composite question, resolvable into a greater or less number of simple factors, some of which pertain to the sphere of the law and the others to that of fact. Let us take, for example, the question as to the proper term of imprisonment for a certain con- victed criminal. This may, according to circumstances, be a pure question of fact, a pure question of law, or a mixed question of law and of fact. It belongs to the first of these classes, if the law contains no provision whatever on the matter, the court having in conse- quence a perfectly free hand. It belongs to the second class, if the matter is definitely predetermined by a fixed rule appointing the exact length of imprisonment to be awarded. It belongs to the third class, if the law has fixed a minimum or maximum term, but has left the court with full liberty within the appointed limits. The distinction between matters of fact and matters of law is thrown into great prominence by the compo- site character of the typical English tribunal and the resulting division of functions between judge and jury. The general rule is that questions of law are for the judge and questions of fact for the jury. This rule is subject, however, to numerous and important excep- tions. Though there are no cases in which the law is left to the jury, there are many questions of fact which are withdrawn from the cognisance of the jury and answered by the judge. The interpretation of a written document, for example, may be, and very often Digitized by Microsoft® 22 THE LAW. is, a pure matter of fact, and nevertheless falls within the province of the judge. So the question of reason- able and probable cause for prosecution — v^hich arises in actions for malicious prosecution — is one of fact and yet one for the judge himself. So it is the duty of the judge to decide whether there is any sufficient evidence to justify a verdict for the plaintiff, and if he decides that there is not, the case is withdrawn from the jury altogether ; yet in the majority of cases this is a mere matter of fact, undetermined by any authoritative prin- ciples. ^ ^ The validity of a legal principle is entirely indepen- dent of its truth. It is a valid principle of law, not because it is true, but because it is accepted and acted on by the tribunals of the state. The law is the theory \ of things, as received and acted on within the courts of justice, and this theory may or may not conform to the reality of things outside. The eye of the law does not infallibly see things as they are. Nor is this diver- gence of law from truth and fact necessarily, and in its full extent, inexpedient. The law, if it would be an r efficient and workable system, must needs be blind to 1 many things. The legal theory of things must be sim- 1. It is to be noted, therefore, that the distinction between law and fact depends not on the person by whom, but on the manner in which, the matter is determined. Yet, although this is so, an illogical and careless usage of speech sometimes classes as questions of law all those which are for the decision of judges, irrespective of the existence or non-existenc* of legal principles for their determination. It is worth notice that questions of fact, left to the determination of judges, tend to be transformed into questions of law, b}^ the operation of judicial pre- / cedent. In the hands of judges decisions of fact beget principles of law, while the decisions of juries have no such law creating efficacy. This is a matter which we shall consider at length in connection with the theory of precedent. The distinction between law and fact, with special reference to trial by jury, is very fully considered by Professor Thayer in his Preliminary Treatise on tlie Law of Evidence, pp. 183-262. Digitized by Microsoft® THE LAW. 23 pier and less elaborate than the reality. Partly by deliberate design, therefore, and partly by the errors and accidents of historical development, law and fact, legal theory and the truth of things, are far from com- plete coincidence. We have ever to distinguish that which exists in deed and in truth, from that which exists in law. Fraud in law, for example, may not be fraud in fact, and vice versa. That is to say, when the law lays down a principle determining, in any class of cases, what shall be deemed fraud, and what shall not, such principle may or may not be true. So far as it is untrue, the truth of things is excluded by the legal theory of things. In like manner, that which is con- sidered right or reasonable by the law may be far from possessing these qualities in truth and fact. Legal i^ justice may conflict with natural justice. A legal wrong may not be also a moral wrong, nor a legal duty a moral duty. § 9. The Justification of the Law. We have seen that the existence of law is not essen- tial to the administration of justice. Howsoever expe- dient, it is not necessary, that this function of the state should be exercised in accordance with those rigid prin- ciples which constitute a legal system. The primary purpose of the judicature is not to enforce law, but to maintain justice, and this latter purpose is in its nature separable from the former and independent of it. Even when justice is administered according to law, the proportion between the sphere of legal principle and that of judicial discretion is different in different systems, and varies from time to time. This being so, it is well to make inquiry into the uses Digitized by Microsoft® 24 THE LAW. and justification of the law— to consider the advan- tages and disadvantages of this substitution of fixed principles for the arUtrium judicis in the administra- tion of justice — in order that we may be enabled to . judge whether such substitution be good or evil, and if good within what limits it should be confined. That it is on the whole expedient that courts of justice should become courts of law, no one can seriously doubt. Yet the elements of evil involved in the transformation are too obvious and serious ever to have escaped recognition. Laws are in theory, as Hooker says, " the voices of right reason ;" they are in theory the utterances of Justice speaking to men by the mouth of the state. Too often in reality they fall far short of this ideal. Too often they " turn judg- ment to wormwood," and make the administration of justice a reproach. Nor is this true merely of the earlier and ruder stages of legal development. At the present day our law hag learnt, in a measure never before attained, to speak the language of sound reason and good sense ; but it still retains in no slight degree the vices of its youth, nor is it to be expected that at any time we shall altogether escape from the perennial con- flict between law and justice. Wherefore it is needful that the law should plead and prove the ground and justification of its existence. The chief uses of the law are three in number. The first of these is that it imparts uniformity and certainty to the administration of justice. It is vitally impor- tant not only that judicial decisions should be correct, distinguishing accurately between right and wrong, and appointing fitting remedies for injustice, but also Digitized by Microsoft® THE LAW. 2& that the subjects of the state should be able to kuow beforehand the decision to which on any matter the courts of justice will come. Such precision is impos- sible unless the course of justice is uniform, and the only effectual method of procuring unijgrniity is the observance of those fixed principles which constitute the law. It would be well, were it possible, for the tribunals of the state to recognise and enforce the rules of absolute justice ; but it is better to have defective rules than to have none at all. For we expect from the coercive action of the state not merely the main- tenance of abstract justice, but the establishment within the body politic of some measure of system, order, and harmony, in the actions and relations of its members. It is often more important that a rule should : be definite, certain, known, and permanent, than that it should be ideally just. Sometimes, indeed, the element of order and certainty is the only one which re- quires consideration, it being entirely indifferent what the rule is, so long as it exists and is adhered to. The rule of the road is the best and most familiar example of this, but there are many other instances in which justice seems dumb, and yet it is needful that a definite rule of some sort should be adopted and maintained. For this reason we require in great part to exclude judicial discretion by a body of inflexible law. For this reason it is, that in no civilised community do the judges and magistrates to whom is entrusted the duty of maintaining justice, exercise with a free hand the viri honi arhitrium. The more complex our civilisation becomes, the more needful is its regulation by law, and the less practicable the alternative method of judicial procedure. In simple and primitive communities it Digitized by Microsoft® 26 THE LAW. is doubtless possible, and may even be expedient, that rulers and magistrates should execute judgment in such manner as best commends itself to them. But in such civilisation as we have now attained to, any such attempt to substitute the deliverances of natural reason for predetermined principles of law would lead to chaos. " Reason," says Jeremy Taylor, ^ " is such a box of quicksilver that it abides nowhere ; it dwells in no settled mansion ; it is like a dove's neck . . . and if we inquire after the law of nature" (that is to say, the principles of justice) " by the rules of our reason, we shall be as uncertain as the discourses of the people or the dreams of disturbed fancies." It is to be observed in the second place, that the necessity of conforming to publicly declared principles protects the administration of justice from the disturb- ing influence of improper motives on the part of those entrusted with judicial functions. The law is neces- 2\ sarily impartial. It is made for no particular person, / and for no individual case, and so admits of no respect of persons, and is deflected from the straight course by no irrelevant considerations peculiar to the special instance. Given a definite rule of law, a departure from it by a hai_rsbrfiadth is visible to all men ; but within the sphere of individual judgment the differences of ho- nest opinion are so manifold and serious that dishonest opinion can pass in great part unchallenged and un- detected. Where the duty of the judicature is to execute justice in accordance with fixed and known principles, the whole force of the public conscience can be brought to the enforcement of that duty and the 1. Dnctor Dubitantium (Works, XII. 209). Digitized by Microsoft® THE LAW. 27 maintenance of those principles. But when courts of justice are left to do that which is right in their own eyes, such control becomes to a great extent impossible, public opinion being left without that definite guidance which is essential to its force and influence. / So much is this so, that the administration of justice according to law is rightly to be regarded as one of the first principles of political liberty. \ " The legislative or supreme authority," says Loclie,^ " cannot assume to itself a power to rule by extemporary decrees, but is bound to dispense justice and decide the rights of the subject by promulgated standing laws and known authorized judges." So in the words of Cicero,^ " We are the slaves of the law, that we may be free." It is to its impartiality far more than to its wisdom {for this latter virtue it too often lacks) that are due the infiuence and reputation which the law has possessed at all times. Wise or foolish, it is the same for all, and to it, therefore, men have ever been willing to submit their quarrels, knowing, as Hooker^ says, that " the law doth speak with all indifferency ; that the law hath no side-respect to their persons." Hence the authority of a judgment according to law. The reference of inter- national disputes to arbitration, and the loyal submis- sion of nations to awards so made, are possible only in proportion to the development and recognition of a definite and determinate body of international law. The authority of the arbitrators is naught ; that of the law is already sufficient to maintain in great part the peace of the world. So in the case of the civil law, only so far as justice is transformed into law, and the love 1. Treatise of Government, II. U. 136. 2. Pro Cluentio, 53. 146. 3. Ecclesiastical Polity, I. 10. 7. Digitized by Microsoft® 28 THE LAW. of justice into the spirit of law-abidingness, will the in- fluence of the judicature rise to an eflficient level, and the purposes of civil government be adequately ful- filled. Finallj', the lavs^ serves to protect the administra- A tion of justice from the errors of individual judgment. The establishment of the law is the substitution of the opinion and conscience of the community at large for those of the individuals to whom judicial functions are entrusted. The principles of justice are not always clearly legible by the light of nature. The problems offered for judicial solution are often dark and difficult, and/there is great need of guidance from that expe- rience and wisdom of the world at large, of which the law is the record.] The law is not always wise, but on the whole and in the long run it is wiser than those who administer it. It expresses the will and reason of the body politic, and claims by that title to overrule the will and reason of judges and magistrates, no less than those of private men. " To seek to be wiser than the laws," says Aristotle,^ " is the very thing which is by good laws forbidden." § 10. The Defects of the Law. Such then are the chief advantages to be de rived from Ahe exclusion of individual judgment by 3 fixed principles of law. / Nevertheless these benefits are not obtained save at a heavy cost. The law is with- out doubt a remedy for greater evils, yet it brings with it evils of its own. Some of these are inherent in its very nature, others are the outcome of tendencies 1. Rhetoric, I. 15. 12. See also Bacon, De Augmentis, Lib. S. Aph. 58 : ■Neminem oportere legibue esse sapientiorem. Digitized by Microsoft® THE LAW. 29 ■which, however natural, are not beyond the reach of effective control. The first defect of a legal system is its rigidity. A general principle of law is the product of a process ©f abstraction. It results from the elimination ami disregard of the less material circumstances in the particular cases falling within its scope, and the con- centration of attention upon the more essential elements which these cases have in common. We can- not be sure that in applying a rule so obtained, the elements so disregarded may not be material in the particular instance ; and if they are so, and we make no allowance for them, the result is error and injustice. This possibility is fully recognised in departments of practice other than the law. The principles of political economy are obtained by the elimination of every motive save the desire for wealth ; but we do not apply them blindfold to individual cases, with- out first taking account of the possibly disturbing influences of the eliminated elements. In law it ' is otherwise. Here a principle is not a mere guide to the due exercise of a rational discretion, but a s^ubstitute for it. It is to be applied without any allowance for special circumstances, and without turning to the right hand or to the left. The result of this inflexibility is that however carefully and cun- ningly a legal rule may be framed, there will in all pro- Ijability be some special instances in which it will work hardship and injustice, and prove a source of error in- stead of a guide to truth. So infinitely various are the afEairs of men, that it is impossible to lay down general principles which will be true and just in every case. Digitized by Microsoft® 30 THE LAW. If we are to have general rules at all, we must be cod tent to pay this price. The time-honoured maxim, Summum jus est summa injuria, is an expression of the fact that few legal prin- ciples are so founded in truth that they can be pushed to their extremest logical conclusions without leading to injustice. The more general the principle, the greater is that elimination of immaterial elements of which it is the result. The greater therefore is the chance that in its rigid application it may be found false. On the other hand, the more carefully the rule is qualified and limited and the greater the number of exceptions and distinctions to which it is subject, the. the greater is the difficulty and the uncertainty of its application. In attempting to escape from the evils which flow from the rigidity of the law, we incur those due to its complexity, and we do wisely if we discover the golden mean between the two extremes. Analogous to the vice of rigidity is that of conser- vatism. The former is the failure of the law to con- form itself to the requirements of special instances and unforeseen classes of cases. The latter is its failure to conform itself to those changes in circumstances and in j men's views of truth and justice, which are inevitably brought about by the lapse of time. In the absence of law, the administration of justice would automatically adapt itself to the circumstances and opinions of the time. Fettered by rules of law, courts of justice do the ' bidding, not of the present, but of the times past in which those rules were fashioned. That which is true to-day may become false to-morrow by change of cir- cumstances, and that which is taken to-day for wisdom Digitized by Microsoft® THE LAW. 31 may to-morrow be recognised as folly by the advance of knowledge. This being so, some method is requisite whereby the law, which is by nature stationary, may be kept in harmony with the circumstances and opinions of the time, which for better or worse are in process of constant change.! If the law is to be a living organism, and not a mere petrification, it is necessary to adopt and to use with vigilance some effective instrument of legal development. The quality of any legal system will depend on the efficiency of the means so taken to secure it against a fatal conservatism. Legislation — the' substitution of new principles for old by the express declaration of the state — is the instrument approved by all civilised and progressive races, none other having been found comparable to this in point of efficiency. Even this, however, is incapable of completely counter- acting the evil_ofJes^ conservatism. However perfect we may make our legislative machinery, the law will lag behind public opinion, and public opinion behind the truth. Another vice of the law is formalism. , By this is meant the tendency to attribute undue importance to form as opposed to substance, and to exalt the im- material to the level of the material. It is incumbent on a perfect legal system to exercise a sound judgment as to the relative importance of the matters which come within its cognisance ; and a system is infected with formalism in so far as it fails to meet this requirement, and raises to the rank of the material and essential that which is in truth unessential and accidental. When- ever the importance of a thing in law is greater than its importance in fact, we have a legal formality. The Digitized by Microsoft® 32 THE LAW. ' formalism of ancient law is too notorious to require illustration, but we are scarcely yet in a position to boast ourselves as above reproach in this matter. Much legal reform is requisite if the maxim De mini- mis non curat lex is to be accounted anything but irony. The last defect that we shall consider is undue and |\ ^ needless_comglexity. It is not possible, indeed, for any fully developed body of law to be such that he who runs may read it. Being, as it is, the reflection within courts of justice of the complex facts of civilized existence, a very considerable degree of elaboration is inevitable. Nevertheless the gigantic bulk and bewildering diffi- culties of our own labyrinthine system are far beyond anything that is called for by the necessities of the cas^ Partly through the methods of its historical develop- ment, and partly through the influence of that loyfi^of subtilty which has always been the besetting sin of the legal mind, our law is filled with needless distinctions, which add enormously to its bulk and nothing to its value, while they render great part of it unintelligible to any but the expert. This tendency to excessive. sub- -^ tilty and ^aboration is one which specially affects a system which, like our own, has been largely developed by way of judicial decisions. It is not, however, an , essential defect of the law ; and the codes which have in modern times been enacted in European countries prove the possibility of reducing the law to a system of moderate size and intelligible simplicity. From the foregoing considerations as to the advantages and disadvantages which are inherent in the administration of justice according to law, it be- Digitized by Microsoft® THE LAW. 3^ comes clear that we must guard against the excessive develoijment of the legal system. If the benefits of law are great, the eyils of too much law are not small. The growth of a legal system consists in the progressive encroachment of the sphere of law upon that of fact, i the gradual exclusion of judicial discretion by predetermined legal principles. ~] All legal systems do to some extent, and those which recognise precedent as a chief source of law, do more especially, show a tendency to carry this process of development too far. Under the influence of the spirit of authority the ' growth of law goes on unchecked by any effective con- trol, and in course of time the domain of legal principle comes to include much that would be better left to the arMtrium of the courts of justice. At a certain stage of legal development, varying according to the particu- lar subject-matter, the benefits of the law begin to be outweighed by those elements of evil which are in- herent in it. Bacon has said, after Aristotle : ^ Optima est lex quae minimum relinquit arbitrio judicis. However true this may be in general, there are many depart- ments of judicial practice to which no such principle is applicable. Much has been done in recent times to. prune the law of morbid growths. In many depart- ments judicial discretion has been freed from the bonds- of legal principles. Forms of action have been aboli- shed ; rules of pleading have been relaxed ; the credi- bility of witnesses has become a matter of fact, instead of as formerly one of law ; a discretionary power of punishment has been substituted for the terrible legal 1. Bacon, De Augmentia, Lib. 8, Aphoriam 46 ; Aristotle's Bhetorio, I. 1. 8. C Digitized by Microsoft® 34 THE LAW. uniformity which once disgraced our criminal law ; and the future will see further reforms in the same direc- tion. We have hitherto taken it for granted that legal principles are necessarily inflexible^ — that they are essentially peremptory rules excluding judicial discre- tion so far as they extend — that they must of necessity be followed blindly by courts of justice even against their better judgment. There seems no reason, how- ever in the nature of things why the law should not, to a considerable extent, be flexible instead of rigid — should not aid, guide, and inform judicial discretion, instead of excluding it — should not be subject to such exceptions and qualifications as in special circumstan- ces the courts of justice should deem reasonable or re- quisite. There is no apparent reason why the law ishould say to the judicature : " Do this in all cases, whether you consider it reasonable or not," instead of : ■" Do this except in those cases in which you consider that there are special reasons for doing other- wise." Such flexible principles are not unknown -even at the present day, and it seems probable that in the more perfect system of the future much law that is now rigid and peremptory will lapse into the category of the conditional. It will always, indeed, be found needful to maintain great part of it on the higher level, but we have not yet realised to what an extent flexible principles are suffi- cient to attain all the good purposes of the law, while avoiding much of its attendant evil. It is probable, for instance, that the great bulk of the law of evidence ^should be of this nature. These rules should for the Digitized by Microsoft® THE LAW. 35 most part guide judicial discretion, instead of exclud- ing it. In the former capacity, being in general founded on experience and good sense, they would be valuable aids to the discovery of truth ; in the latter, they are too often the instruments of error. 1 Digitized by Microsoft® CHAPTER III. THE LAW (Continued). § II. Common Law and Special Law. The whole body of legal rules is divisible into two parts, which may be conveniently distinguished as Common law and Special law. The former of these terms is, indeed, used in a number of other senses, which we shall consider later. But as here used, it means all those legal rules of which the courts will take judicial notice, and which will therefore be applied as a matter of course in any case in which the appropriate subject-matter is present. Special law, on the other hand, consists of all those rules which, although they are true rules of law, the courts will not recognise and apply as a matter of course, but which must be specially proved and brought to the notice of the courts by the parties interested in their recognition. In other words, the common law is that which is generally/ , applicable ; it is that which will be applied in all cases in which it is not specially excluded by proof that some other set of principles has a better claim to recognition in the particular instance. Special law, on the con- trary, is that which has only a special or particular ap- plication, excluding and superseding the common law in those exceptional cases in which the courts are informed of its existence by evidence produced for that purpose. The test of the distinction is judicial notice. By this is meant the knowledge which any court, ex Digitized by Microsoft® THE LAW. 37 oflicio and as such, possesses and acts on. It is opposed to the knowledge which a court is bound to acquire through the appointed channels of evidence formally produced by the parties. A judge may know much in fact of which in law he is deemed ignor- ant, and of which, therefore, he must be informed by evidence legally produced. Conversely he may be ignorant in fact of much that by law he is entitled judicially to notice. In such a case it is his right and duty to inform himself by such means as seem good to him. The general rule on the matter is that courts of justice know the law, but are ignorant of the facts. The former may and must be judicially noticed, while the latter must be proved. To each branch of this rule there are, however, important exceptions. There are certain exceptional classes of facts, of which, because of their notoriety, the law imputes a knowledge to the courts. Similarly there are certain classes of legal rules of which the courts may, and indeed must, hold themselves ignorant, until due proof of their existence has been produced before them. These, as we have said, constitute special, as opposed to the common law. § 12. The Kinds of Special Law. By far the larger and more important part of the legal system is common law. Judicial notice — recogni- tion and application as a matter of course — is the general rule. As to this branch of the law we need say nothing further in this place. The rules of special law, however, call for further consideration. They fall for the most part into five distinct classes. A full account of these must wait until we come to deal with the sources of law in a subsequent chapter, but, in the Digitized by Microsoft® 38 THE LAW. meantime it is necessary to mention them as illustrat- ing the distinction with which we are here concerned. 1. Local customs. — Immemorial custom in a par- ticular locality has in that locality the force of law. Within its own territorial limits it prevails over, and derogates from, the general law of the land. But the courts are judicially ignorant of its existence. If any litigant will take advantage of it, he must specially plead and prove it ; otherwise the common law will be applied. Such local custom is true law, because it will be recognised and applied in the administration of justice ; but it is special, not common law, because such recognition and application are not absolute, but merely conditional. 2. Mercantile customs. — The second species of special law consists of that body of mercantile usage which is known as the law merchant. The general custom of merchants in the realm of England has in mercantile affairs the force of law, supplementing the common law. It may make, for example, an instru- ment negotiable, which by the general law of the land is not so. This customary law merchant is, like local customary law, special and not common. The courts take no judicial notice of mercantile usage as such. It must be proved to them by witnesses, and in the absence of such proof, the common law will be recognised as applicable to the case. But unlike local customary law, the customary law merchant has the capacity of being absorbed by, or taken up into, the common law itself. When a mercantile usage has been once established by evidence, and acknowledged as law by judicial decision, it is thereafter on all sub- sequent occasions entitled to judicial notice. The Digitized by Microsoft® THE LAW. 39 process of proof need not be repeated from time to time. Custom that has been proved and allowed once, has / been proved and allowed for all future cases. The result of this doctrine is a progressive transformation of the rules of the special law merchant into rules of ,i the common law. This process is at the present day all but complete. In earlier times the great bulk of the law merchant was special law, standing outside or over against the common law. At the present day by far the greater part of it is included within the limits "^ of the common law. The law of bills of exchange, for example, was formerly part of the special law merchant, requiring to be pleaded and proved as a condition precedent to its recognition and application. But successive judicial decisions, based upon evidence of such special law, have progressively transmuted it into common law, entitled to judicial notice and to application as a matter of course. 3. Private Legislation. — Statutes are of two kinds, distinguishable as public and private. The dis- tinguishing characteristic of a public act is that ) judicial notice is taken of its existence, and it is there- | fore one of the sources of the common law, in the sense ' in which we here use that term.^ The rules establi- shed by a public act form part of the ordinary and general law of the land. A private act, on the other hand, is one which, owing to its limited scope, does not fall within the ordinary cognisance of the courts of justice, and will not be applied by them unless speci- ally called to their notice by the parties interested. Examples of private legislation are acts incorporating 1. As we shaU see, there is another sense in which common law is opposed to all forms of statutory or enacted law. Digitized by Microsoft® 40 THE LAW. individual companies and laying down the principles on which they are to be administered, acts regulating the navigation of some river, or the construction and management of some harbour, or any other enactments concerned, not with the interests of the realm or the public at large, but with those of private individuals or pai'ticular localities.^ Private legislation is not limited to acts of parlia- ment. In most cases, though not in all, the delegated legislation of bodies subordinate to Parliament is private, and is therefore a source, not of common, but of special law. The by-laws of a railway company, for example, or of a borough council, are not entitled to judicial notice, and therefore form no part of the general law of the land. Rules of court, on the other hand, established by the judges under statutory authority for the regulation of the procedure of the courts, are constituent parts of the ordinary or common law. 4. Foreign law. — The fourth kind of special law consists of those rules of foreign law, which upon occasion are applied even in English courts to the exclusion of the common law. Experience has shown that justice cannot be efficiently administered by tri- bunals which refuse on all occasions to recognise any law but their own. It is essential in many cases to take account of some system of foreign law, and to measure the rights and liabilities of litigants by it, rather than by the indigenous or territorial law of the tribunal itself. If, for example, two men make a contract in Prance, which they intend to be governed 2. By the Interpretation Act 1889, s, 9, it is provided tliat " Every act passed after tlie year 1860 . shall be a public act, and shall be judioially noticed as such, unless the contrary is expressly provided by the act." Digitized by Microsoft® THE- LAW. 41 by the law of France, and one of them sues on it in an English court, justice demands that the validity and effect of the contract shall be determined by French, rather than by English law. French, rather than English, law will therefore be enforced in such a case even by English judges. The principles which deter- mine and regulate this exclusion of local by foreign law constitutes the body of legal doctrine known as private international law. Foreign law, so far as it is thus recognised in English courts in obedience to the rules of private international law, becomes, by virtue of such recogni- tion, in a certain sense English law. French law is ^French as being enforced in France, but English as being enforced in England. Yet though it is then part of English law, as being administered in English courts, it is not part of the common law. It is special law, just as local or mercantile customs are. For English courts have no oflQcial knowledge of any law save that which is local and territorial. This they will apply to all cases, in the absence of proof of the existence of some different rule of foreign law which is entitled in the particular instance to prevail over and supersede the common law. 5. Conventional law. — The fifth and last form of special law is that which has its source in the agree- ment of those who are subject to it. Agreement is a juridical fact having two aspects, and capable of being looked at from two points of view. It is both a source of legal rights and a source of law. The former of these two aspects is the more familiar, and in ordinary cases the more convenient. But in numerous instances the latter is profitable and instructive. The rules laid Digitized by Microsoft® 42 THE LAW. down in a contract, for the determination of the rights,, duties, and liabilities of the parties, may rightly be regarded as rules of law which the parties have agreed to substitute for, or add to, the rules of the common law. Agreement is a law for the parties to it, which, supersedes, supplements, or derogates from, the ordi- nary law of the land. Modus et conventio vincunt legem. To a very large extent, though not completely, the common law is not peremptory and absolute, but consists of rules whose force is conditional on the absence of any other rules agreed upon by the parties interested. The articles of association of a company, for example, are just as much true rules of law, as are the provisions of the Companies Acts, or those statutory regulations which apply in the absence of any articles specially agreed upon. So articles of partner- ship fall within the definition of law, no less than the provisions of the Partnership Act which they are intended to supplement or modify. Both sets of rulea are authoritative principles which the courts will apply in all litigation affecting the affairs of the partnership. The essential difference between them is that the law which has its origin in agreement — conventional law^ as it may be termed — is not common but special. The parties interested must prove its existence, and if they fail to do so, the ordinary law of the land will be applied instead. § 13. An Objection Considered. We have made the distinction between common and special law jbuTn wlioUy upon tire fact that judiciai matice is taben of the former ibuit niot of the latter. It may be oibaeeted Hbait this is a meieiy exteirnal lanid superflciall vdew of the maitter. Oomimon law, it ma.v be argued, is •so caHed becfuuse St is common to the whole realm and to all persons in it, while Digitized by Microsoft® THE LAW. 43 special law is that which has a special and limited application to particular places or classes of persons. In this contention ithere is an element of truth, but it falls far short of a logical analysis of the distinction In question. It is true that the common law is for the most part more genierai in its application thiam is special law. It is ctoiefly for tills ireason, indeed, tliait tihe former ds, while t!he laAter is not, deemed woi'thy of, and entitled ito, judicdal notice. But we have hei'e co logical basiis for a divisiion «f the legal system into 'rwo parts. Much of th'e ootmnon law itself applies to particular classes of persons only. The law of soliciitors, of auctioneers, or of pawmbrokers, is of very restricted aipplica- tion ; yet it lis just as truly part of the common law, as is the law of theft, homicide, oir libel, which applies ito all mankind. The law of Dhe royal prerogative is not special law, by reason of the fact that it applies only to a isan/gle in'divlidual ; it is a constituent part of ithe common lam. On 'the other hiau'd, mercantile usage is dependent for its legal validity ooi its generality ; it must be the oustom of -the realm, not thait of any particular part of it ; yet untO, by judicial proof and recognition, dt becomes entitled for the future 'to judicial nortice, it is the special law merOhant, standing outside the ordinary law of the land. The law of 'bills of exchatnge is no more general in its appHcatdoo now, than it ever was ; yet it has now ceased to be special, and has beicome incorpoiiated in*o the common law. The element; of truth involved in the argument now under consideration, is no more than 'this, tilia't the com- parative generality of itheir appMcatioe is one of the most impoptaat matters to be taken into consaderaition, in detenmin- ing whetiher judicial niotice sIhaM or shall not be igiianited to rules of law. § 14. Other uses of the term Common Law. So far we have dealt with one only of the several meanings of the term common law. It will be sufficient merely to mention the others, as they involve no distinctions which require examination at this stage of our enquiry. 1. The common law sometimes means the law of Digitized by Microsoft® 44 THE LAW. England, as opposed to certain kinds of foreign law. We contrast, for example, the common law with the Civil law, that is to say, the law of Eome ; or with the canon law, the law of the Roman Catholic Church. 2. More usually the common law means, not the whole of the law of England, but the residue of it after deducting any particular part which has a special title of its own. As so used, it is one of the terms in several distinct pairs of contrasted expressions, the chief of which are the following : — (a) Common law as opposed to statute law. After classing separately under the title of statute, enacted, or written law all rules which have their source in legislation, the residue of the legal system appropriates the generic title for itself. It is the common law. (b) Common law as opposed to equity. The common law in this sense is the residue of the law of England, after deducting the body of legal principles administered in the Court of Chancery. (c) Common law as opposed to special law, in the sense already explained ; that is to say, the residue of the law of England, after deducting all those portions whereof the courts have no official knowledge, and which are therefore not applicable as of course in the administration of justice. The expression common law (jus commune) was adopted by English lawyers from the canonists, who used it to denote the general law of the Church as opposed to those divergent usages {Gonsuetudines) which prevailed In different local jurisdictions, and superseded or modified within their own territorial limits the common law of Christendom.^ This canonical usage must have been familiar to the ecclesiastical judges of the English 1. The term jus commune is lound in the civil law also, but in senses un- ^nnected with that which here coaeems us. It sometimes eiffnifles jus naturole Digitized by Microsoft® THE LAW. 45 law courts of the twelfth and thirteenth centuries, and waa adopted by them. We find the distinction between common law and special law {commune ley and especial ley) well established in the earliest Year Books.'' The common law is the ordinary system administered by the ordinary royal courts, and Is con- trasted with two other forms of law. It is opposed in the litst place to that which is not administered in the ordinary royal courts ait aJl, but by special tribunate governed by different systems. Thus we have the common law in the C!ourt of King's Bench, but the canon law in the Ecclesiastical Courts, the civil law in the Court of Admiralty, and, at a later date, the law which was called equity in the Court of Chancery. Jja. the second place the common law was contrasted with those various forms of special law which were recognised even in the King's ordilnary courts in dePogation of the general law , of the land. Thus it is opposed to local custom {la commune ley and le usage del pays)" ; to the Jaw mercihant {la comrmme ley and la ley merchaunde)* ; to statute law" ; and to conventional law {specialis eonventio contra jus commune) . ' The opposition of common and statute law is noteworthy. Statute law is con- ceived originally as special law, derogating from the ordinary law of the King's courts. It was contra jus commune, juist as contracts and local customs and the law merchant weve contra Jus commune. Such a point of view, Indeed, is not logically de- fensible. A public and general statute does not bear the same relation to the rest of the law, as a local or mercantile custom bears to it. Logically or not, however, statutes were classed side by side with the various forms of special law which dero- gated from the jus commune. Hence the modern usage by which the common law in one of its senses means unwritten or umenacted law, as opposed to all law which has its origin in legislation. ae oppoaed to jua eivih (D. 1. 1. 6. pr.), while at other times it is contraBted with jus singulare, that is to say, anomalous rules of law inconsistent with general legal principles, but leatablished utilitatu causa, to serve some special reed or occasion. D. 28. 6. 15. D. 1. 3. 16. 2. Y.B. 20 & 21 Ed. I. 329. See Pollock and Maitland's History of English Law, I. 165. 3. Y.B. 21 & 22 Ed. I. 213. 4. Y.B. 31 & 22 Ed. I. 468. 5. Y.B. 21 & 22 Ed. J. 65. G. Bracton, 48 b. Digitized by Microsoft® 4,6 THE LA.W. § 15. Law and Equity. Until the year 1873 England presented the extremely curious spectacle of two distinct and rival systems of law, administered at the same time by different tribunals. These systems were distinguished as common law and equity, or merely as law and equity (using the term law in a narrow sense as including one only of the two systems). The common law was the older, being coeval with the rise of royal justice in England, and it was administered in the older courts, namely the courts of common law. Equity was the more modern body of legal doctrine, developed and administered by 'the Chancellor in the Court of Chancery as supplementary to, and corrective of, the older law. To a large extent the two systems were identical and harmonious, for it was a maxim of the Chancery that equity follows the law {Aequitas sequitur legem) ; that is to say, the rules already established in the older courts were adopted by the Chancellors and incorporated into the system of equity, unless there was some sufficient reason for their rejec- tion or modification. In no small measure, however, law and equity were discordant, applying different rules to the same subject-matter. The same case would be decided in one way, if brought before the Court of King's Bench, and in another, if adjudged in Chancery. The Judicature Act, 1873, put an end to this anomalous state of things, by the abolition of all portions of the common law which conflicted with equity, and by the consequent fusion of the two systems into a single and self-consistent body of law. The distinction between law and eqmtj has thus become historical merely, but it has not for that reason Digitized by Microsoft® THE LAW. 47 ■ceased to demand attention. It is not only a matter of considerable theoretical interest, but it has so left its mark upon our legal system, that its comprehension is still essential even in the practical study of the law. The term equity possesses at least three distinct though related senses. In the first of these, it is nothing more than a synonym for natural justice. Aequitas is aequalitas — the fair, impartial, or equal allotment of good and evil — the virtue which gives to ■iivery man his own. This is the popular application of the term, and possesses no special juridical signifl- ■cance. In a second and legal sense equity means natural ■ justice, not simply, but in a special aspect, that is to say, as opposed to the rigour of inflexible rules of law. Aequitas is contrasted with summum jus, or strictum jus, or the rigor juris. For the law lays down general principles, taking of necessity no account of the special •circumstances of individual cases in which such gener- ality may work injustice. So also, the law may with defective foresight have omitted to provide at all for the case in hand, and therefore supplies no remedy for the aggrieved suitor. In all such cases in order to avoid injustice, it is needful to go beyond the law, or even contrary to the law, and to administer justice in accordance with the dictates of natural reason. This it is, that is meant by administering equity as opposed to law ; and so far as any tribunal possesses the power of thus supplementing or rejecting the rules of law in special cases, it is, in this sense of the term, a court of equity, as opposed to a court of law. The distiftction thus indicated was received in the juridical theory both of the Greeks and the Romans. Digitized by Microsoft® 48 THE LAW. Aristotle defines equit;r as the correction of the law where it is defective on account of its generality/ and the definition is constantly repeated by later writers. Elsewhere he says : - " An. arbitrator decides in ac- cordance with equity, a judge in accordance with law : and it was for this purpose that arbitration was introduced, namely, that equity might prevail." In the writings of Cicero we find frequent reference to the distinction between aequitas and jus. He quotes as already proverbial the saying, Summum jus summa injuria,^ meaning by summum jus the rigour of the_law untempered by equity. Numerous indications of the same conception are to be met with in the writings of the Eoman jurists.* The doctrine passed from Greek and Latin literature into the traditional jurisprudence of the Middle Ages. We may see, for example, a discussion of the matter in the Tractatus de Legibus of Aquinas.^ It was well known, therefore, to the lawyers who laid the founda- tions of our own legal system, and like other portions of scholastic doctrine, it passed into the English law 1. Nic. Ethica V. 10. 3. The Greeks knew equity under the name epieikeia. 2. Rhet. I. 13. 19. 3. De Offlciis I. 10. 33. See also Pro Oaecina 23. 66 : Ex aequo et bono, non ex callido versutoque jure rem judicari oportere. De Oratore I. 56, 240 : Multa pro aequitate contra jus dicere. De Officiis in. 16, 67. 4. In omnibus quidem, raaxime tamen in jure, aequitas spectanda est. D. 50,. 17, 90. Placuit in omnibus rebus praecipuam esse justitiae aequitatisque, quam strictl juris rationem. C. 3, 1, 8. Haec aequitas suggerit, etsi jure deficiamur. D. 39, 3, 2, 5. A constitution rinciples of consuetudo rationaMUs et praesoripia and of tempus immemoriale were in the thirteenth century at the latest in- corporated in our legal system by those ecclesiastical lawyers who laid the foundations of it. This, indeed, was the only form of prescription wlhich obtained recognition from the com- mon law. We find tihe rule settled with perfect deflniteness in the earliest Year Books of Edward I.' 5. Conformity tcith the common law. The fifth ami last requirement of a valid custom is that, unless im memorial, it must be consistent with the common law. That it must be consistent with statute law is, as we have already seen, a rule applicable to all cus- toms whatever, whether immemorial or not. That it must be consistent with the common law is a rule applicable only to recent customs, and not to those which have the prestige and authority of immemorial antiquity. Modern custom possesses constitutive, but 5. D. 43. 20. 3. 4. PoSESm jure factam aut cuius memoria non exstat. D. 39. 3. 2. 7. 6. Pothier, De la Prescription, sees. 278-288 ; Baudiy-Lacantinerie, De la Prescription, see. 12. 21; Windscheid, I. sec, 113. 7. Suarez, De Leglbus. VII. 15. 2. Aliqui enim antiqui immemoriale tempus postulabant, tamen sine fundamento. «t ita relicta. et antiquata est iUa sententia. 8. y.B. 20 and 21 Ed. I. 136. Digitized by Microsoft® CUSTOM. 149 no abrogative power; it must operate in the spaces left vacant by the law already established; it may sup- plement the law, but cannot derogate from it. Im- memorial custom, on the other hand, can destroy as well as create, so far as the common law is concerned; though as against the statute law it is as powerless as the most ephemeral usage." § 46. The Disappearance of Customary Law. The combined effect of the various rules which we have considered is to render custom less and less im- portant as a source of new law. As the legal system develops, the sphere within which custom is operative grows gradually smaller. For, in the first place, cus- tom cannot derogate from statute-law, and, as we have already seen, this latter tends progressively to absorb into itself the whole of the common law. In the second place, the requirement of immemorial antiquity precludes local custom from operating as an instrument of fresh legal growth. Such customs may now be proved and applied for the first time, but they- cannot now for the first time come into existence. In the third place, all recent custom must be consistent with the law as already established, whether common 9. Littleton (sec. 169) tells us that; Gonsuetudo ez carta causa rationabili usitata privat communem legem. And to this Coke (113. a.) adds by way of commentary the canonical maxim: Consuetudo praescripta et legritima vincit legem. In Goodwin v. Robarts, L.B. 10 Ex. at p. 357, it is said: "We must by no means be understood as saying that mercantile usage, however extensive, should be allowed to prevail ii contrary to positive law, including in the latter such usages as having been made the subject of legal decision, and having been sanctioned and adopted by the courts, have become, by such adoption, part of the common law. To give effect to a usage which involves a deflanoe or disregard of the law would be obviously contrary to a fundamental principle. And we quite agree that this would apply quite as strongly to an attempt to set up a new usage against one which has become settled and adopted by the common law as to one in conflict with the more ancient rules of the common law itself." See also to the same effect Sdie v. Hast India Company, 2 Burr. 1216. Digitized by Microsoft® 150 CUSTOM. or statutory. As the law develops and completes itself, therefore, there is less and less room left for the constitutive operation of custom. There are fewer vacancies within which customary law may grow. It is for this reason that the growth of general cus- tomary law has already all but ceased. Until a com- paratively recent date, a great part of mercantile law was so imperfectly developed as to leave very con- siderable scope for the operation of mercantile cus- tom. The law as to negotiable instruments, for ex- ample, was chiefly customary law. But at the present day our mercantile law is so complete that it is only in comparatively rare cases that the custom of mer- chants has any opportunity of serving as the ground of new principles. Finally, as we have already noticed the operation of judicial practice as a source of law is now merged in that of judicial precedent. § 47. Conventional Custom. Custom which does not fulfil all the requirements hitherto considered by us does not necessarily fail of all legal effect. It cannot, indeed, operate as a source of law by virtue of its own inherent authority. Yet it may nevertheless become legally operative by being incorporated into agreements, through the tacit con- sent of those who make them. Customs so operative may be distinguished as conventional. It is a rule of English law, as well as of other systems, that where a contract is made in any manner in respect of which an established custom exists, it must be interpreted by reference to that custom, and the parties must be deemed to have intended (in the absence of any expression of contrary intent) to adopt it as one Digitized by Microsoft® CUSTOM. 151 of the terms of their agreement. In contractibus tacite venitmt ea quae sunt moris et consuetudinis.^ For example, if a lease of agricultural land is made in any district in which there are established usages as to the mode of agriculture and as to the relative rights and liabilities of landlord and tenant, the parties must be taken to have agreed to these usages as terms- of the bargain, unless they have expressly or implicitly shown an intention to the contrary. In the same way, a mercantile contract must be taken to incorporate any usages of trade which are relevant to its subject- matter. In this manner customs which are not in themselves authoritative as sources of law or rights may become indirectly operative through the added authority of agreement. But the law and rights so produced are in reality conventional and not custo- mary. It Is sometimes not easy to determine whether a custom is operative directly and as such, or only in- directly as accessory to a contract, and the distinction has not always been sufficiently adverted to. § 48. Theories of Customary Law. So far we ha^•e been concerned rather with those positive rules of English law which determine the validity and effect of custom, than with the abstract theory of the matter. This portion of juridical theory, however, has been the subject of considerable dis- cussion and difference of opinion, and it is not free from apparent difficulties. We have to consider two opinions which differ materially from that which is here accepted as correct. The first of these may be termed the Continental theory, as being a characteris- 1. Pothier on Obligations, eec. 95. Digitized by Microsoft® 152 CUSTOM. tic feature of foreign jurisprudence. Its reception is chiefly due to the influence of Puchta and Savigny. The second we may term the Austinian, as having been promulgated by Austin and generally received by his followers. The essential feature of the Continental theory may be expressed by saying that custom is therein con- sidered as a formal, and not merely as a material source of law. According to this doctrine, custom does itself confer the force and validity of law upon the principles embodied in it. It does not merely provide the ma- terial contents which derive their validity as law from the will of the state. It operates directly through its own inherent force and authority; not indirectly by reason of its recognition and allowance by the supreme authority and force of the state. The will of the state is not admitted to be the exclusive source of legal validity. It has no pre-eminence in this respect above the will of the people, as manifested in national usage. Custom is regarded as the expression of the national will and conscience, and as such it confers immediately the authority of law upon all principles approved by it. The will of the state is simply a special form of the popular will, and these two are of equal authority. Customary law, therefore, has an existence indepen- dent of the state. It will be enforced by the state through its courts of justice because it is already law: it is not because it will be so enforced, that it is law. Thus it is said by Arndts,' a G-eaMnac jurist of repute : "Customary law contains the gi-ound of Its validity in itself. It is law by virtue of its own nature, as an expression of the general consciowsness of right, not by virtue of the sanction, 1. Encyklopadie, sec. 20. Digitized by Microsoft® CUSTOM. 153 •express or tacit, of any legislature." So Windscheid:' "In custom is manifested the conviction of those who use it that such custom is law (Uecht), and this conviction Is the source of the authority and validity of customary law. For the ultimate source of all positive law is national reason. . . . And this national reason can establish law In two different ways, namely mediately and immediately. Mediately, through representation, it creaites law by means of legislation. Im- mediately, it creates law by means of custom." Notwithstanding the credit of the great names by Twhich this theory is sanctioned, it is rightly and all but unanimously condemned by English jurists, as op- posed to all sound thinking as to the true nature of •civil law. Custom is a material, not a formal source •of law. Its only function is to supply the principles to which the will of the state gives legal force. Law i*; law only because it is applied and enforced by the state, and where there is no state there can be no law. The popular conscience is in itself as powerless to es- tablish or alter the law of the land, as it is to deal in like fashion with the laws of nature. From custom, as from any other source, the state may draw the ma- terial contents of the rules to which it gives the form and nature of law, but from no other source than the will of the state itself can this form or nature be itself derived. Austin rightly repudiates the Continental theory 01; the ground, already indicated, that custom is not a formal but merely a material source of law. The rejection of this and other allied confusions of thought is, indeed, one of the great services which he and his school have rendered to legal science. Nevertheless his own theory cannot be regarded as wholly satis- 2. Pandektenrechi:, I. sec. 15. Digitized by Microsoft® 154 CUSTOM factory. For he in his turn confounds the legal and the historical sources of the law, and erroneously re- gards custom as one of the latter, rather than as one of the former. He considers that the true legal source of customary law is to be found in the precedents in which customs receive for the first time judicial re- cognition and enforcement. Customary law is for him simply a variety of case-law. It is case-law in which pre-existing customs have served as the historical sources from which the courts have drawn the mat- ter of their decisions. The judges are conceived as basing their judgments upon custom, just as, on other occasions, they may base them on Justinian's Digest or on the law of nature. It follows from this that a custom does not acquire the force of law until it has actually come to the notice of the courts, and received judicial approval and application. If it is never dis- puted, and therefore never requires enforcement, it never acquires the force of law at all. " Law styled customary,'' says Austin,^ "is not to be considered a distinct kind of law. It is nothing but judiciary law, founded on an anterior custom." But this is not so. Custom is law not because it Ms been recognised by the courts, but because it will be so recognised, in accordance with fixed rules of law,, if the occasion arises. Its legal validity is not de- pendent on the accidents of litigation. A custom does not wait to put on the nature of law, until it has been actually enforced by the courts, any more than an act of parliament or an agreement is destitute of legal efficacy, until it has required and received judicial recognition. This judicial recognition may make a 3. Austin, p. 638. Digitized by Microsoft® CUSTOM. 155 custom part of the common law, as being thereafter entitled to judicial notice, but it was part of the law already. The Austinian theory forgets that the operation of custom is determined by fixed legal principles, just as much as the operation of precedent itself. These two are co-ordinate legal sources, and each operates independently of the other. Custom does not enter the law through precedent, any more than precedent through custom. A custom is taken as the ground of a judicial decision, just as an act of parlia- ment is so taken. In each case the law has been already made, and the judicial decision merely applies it. § 49. Custom and Prescription. The relation between custom and prescription is such as to demand attention tiere, although the theory of the latter will receive further consideration in another place. Custom is long usage operating as a source of law; prescription is long usage operating as a source of rights.- That all the lands in a certain borough have from time immemorial, on the dea.b of an owner intestate, descended to his youngest son, is a custom, and is the source of a rule of si)ecial and customary law excluding in that borough the common law of prlmogenl ture. But that John Styles, the owner of a certain farm, and all his predecessors in title, from time immemorial have used a way over the adjoining farm, is a prescription, and is the source of a prescriptive right of way vested in John Styles. Regarded historically, the law of prescription is merely a branclh of the law of custom. A prescription was originally conceived as a personal custom, that is to isay a custom limited to a particular person and his ancestors or predecessors in title. It was disitinguislied from a local custom, which was limited to an individual place, not to an individual person. Local and personal customs were classed as the two species of particular customs, and as together opposed to the general customs of the realm. Coke distinguishes as follows between custom (i.e. local custom) and prescription.^ "In the common 1. Co. Litt. 113 b. Digitized by Microsoft® 156 CUSTOM. law, a prescription, whieti is personal, is for the most part applied to persons, being made in the name of a certain per- son and of his ancestors, or those whose estate he hath; or in bodies politique or corporate and their predecessors. . . . . And a custome, which is local, is alleged In no person, but layd within some mannor or other place." Since prescription and custom were thus regarded as two species of the same thing, we find, as might be expected, that they are originally governed by essentially similar rules of law. The requisites of a valid prescription were in essence the same as those of a valid -cuistom. Both must be reason- able, both must be immemorial, both must be consistent with statute-law, and so on. It was only by a process of gradual differentia/tion, and by the later recognition of other forms of prescription not known to the early law, that ithe difference between the creation of customary law and the creation of prescriptive rights has been brought clearly into view. In the case of the custom, for example, the old rule as to time immemorial still subsists, but in the case of prescription it has been superseded by the statutory rules contained in that most unfortunate specimen of legislative sliill, the Prescription Act. A prescriptive right to light, for instance, is now finally acquired by enjoyment for twenty years. Usage during this period is now an absolute title, instead of, as at common law, merely evidence of usage during time of memory. SUMMARY. Historical importance of customary law. Reasons for the recognition of customary law. i.Tudicial (Forensic Practice) now merged in pre- cedent. ( General— Customs of the realm Popular ' ( Particular— Customs of special localities. Requisites of a valid custom : 1. Reasonableness. 2. Opinio necessitatis. 3. 'Consistency with statute law. 4. Immemorial antiquity (unless general). History of this nile. 5. Consistency with the common law (unless im- memorial). Digitized by Microsoft® CUSTOM. 157 Conventional customs. Theories of the operation of custom as a source of law : 1. Continental — custom a formal source. 2. Austinian — custom an historical source. Relations between custom and prescription. REFERENCES. Suarez, De Legibus, Liber VII. (De lege non scripta quae consuetude appellatur). Blackstone, I. 62—78. Savigny, System, sees 12, 18, 28, 29, 30. Windscheld, I. sees. 15—18. Bernburg, Pandekten, I. sees. 26—29. Austin, pp. 534—543. Pollock, Jurisprudence, pp. 263—273 (Custom in English Law). L.Q.K. IX. 153 (Custom in the Common Law, by F. A. Greer). Renton's Encyclopaedia, sub. voc. Custom. Smith's Jlercan- tile Law, 10th ed., 1890. (Introduction, on the history of mer- cantile law and custom). Goodwin v. RoMrts, L.R. 10. Ex. 337. (The judgment of the Court of Exchequer Chamber deli- vered by Oockbum, C. J.). L.Q.R. XVn. 232. (Early History of the Law Merchant in England, by A. T. Carter). Digitized by Microsoft® OHA.PTER VIII. PRECEDENT. § 50. The Authority of Precedents. The importance of judicial precedents has always been a distinguishing characteristic of English law. The great body of the common or unwritten law is al- most entirely the product of decided cases, accumu- lated in an immense series of reports extending back- wards with scarcely a break to the reign of Edward the First at the close of the thirteenth century. Ortho- dox legal theory, indeed, long professed to regard the common law as customary law, and judicial decisions as merely evidence of custom and of the law derived therefrom. This, however, was never much better than an admitted Action. In practice, if not in theory, the common law of England has been created by the decisions of English judges. Neither Roman law, how- ever, nor any of those modern systems which are founded upon it, allows any such place or authority to precedent. They allow to it no further or other influence than that which is possessed by any other expression of expert legal opinion. A book of reports and a text-book are on the same level. They are both evidences of the law ; they are both instruments for the persuasion of judges ; but neither of them is anything more.^ English law, on the other hand, draws a sharp distinction between them. A judicial prece- 1. The importance of reported decisions lias, however, been increasing in both France and Germany for some time, and Continental law shows a distinct tendency to follow the example of English in this matter. Digitized by Microsoft® PRECEDENT. 159 dent speaks in England with a voice of authority ; it is not merely evidence of the law but a source of it ; and the courts are bound to follow the law that is so established. It seems clear that we must attribute this feature of English law to the peculiarly powerful and autho- ritative position which has been at all times occupied by English judges. From the earliest times the judges ■of the king's courts have been a small and compact body of legal experts. They have worked together in harmony, imposing their own views of law and justice upon the whole realm, and establishing there- by a single homogeneous system of common law. Of this system they were the creators and authoritative interpreters, and they did their work with little inter ference either from local custom or from legislation. The centralization and concentration of the adminis- tration of justice in the royal courts gave to the royal judges a power and prestige which would have been unattainable on any other system. The authority of precedents was great in England because of the power, the skill, and the professional reputation of the judges who made them. In England the bench has always given law to the bar; in Rome it was the other way about, for in Rome there was no per- manent body of professional judges capable of doing the work that has been done for centuries in England by the royal courts. § 51. Declaratory and Original Precedents. In proceeding to consider the various kinds of pre- cedents and the methods of their operation, we have in the first place to distinguish between those de- Digitized by Microsoft® 160 PEECEDENT. cisions which are creative of the law and those which are merely declaratory of it. A declaratory pre- cedent is one which is merely the application of an already existing rule of law. An original precedent is one which creates and applies a new rule. In the former case the rule is applied because it is already law; in the latter case it is law for the future be- cause it is now applied. In any well developed system such as that of modern England, declaratory prece- dents are far more numerous than those of the other class; for on most points the law is already settled, and judicial decisions are therefore commonly mere declarations of pre-existing principles. Original pre- cedents, however, though fewer in number, are greater in importance. For they alone develop the law; the others leave it as it was, and their only use is to serve as good evidence of it for the future. Unless required for this purpose, a merely declaratory decision is not perpetuated as an authority in the law re- ports. When the law is already suflSciently well evi- denced, as when it is embodied in a statute or set forth with fullness and clearness in some comparatively modern case, the reporting of declaratory decisions is merely a needless addition to the great bulk of our case law. It must be understood, however, that a declaratory precedent is just as truly a source of law as is one belonging to the other class. The legal authority of each is exactly the same. Speaking generally, the authority and legal validity of a precedent do not de- pend on whether it is, or is not, an accurate state- ment of previously existing law. Whether it is or is not, it may establish as law for the future that which Digitized by Microsoft® PEECEDENT. 161 it now declares and applies as law. The distinction between the two kinds turns solely on their relation to the law of the past, and not at all on their relation to that of the future. A declaratory precedent, like a declaratory statute, is a source of law, though it is not a source of new law. Here, as elsewhere, the mere fact that two sources overlap, and that the same legal principle is established by both of them, does not deprive either of them of its true nature as a legal source. Each remains an independent and self- sufficient basis of the cule. We have already referred to the old theory that the common law is customary, not case law. This doctrine may be expressed by saying that according to it all precedents are declaratory merely, and that their origi- ral operation is not recognised by the law of England. Thus Hale says in his History of the Common Law : — "It is true the decisions of courts of justice, tliougli by virtue of the laws of this realm they do bind as a law between the parties thereto, as to the particular case in question, till reversed by error or attaint, yet they do not make a law properly so called: cEior that only the king and parliament can do; yet they have a great weight and authority in expounding, declaring and publishing what the law of ithls kingdom Is; especially when such decisions hold a consonancy and con- gruity with resolutions and decisions of former times.'" Hale, however, is evidently troubled in mind as to the true position of precedent, and as to the sufficiency of the declaratory theory thus set forth by him, for elsewhere he tells us inconsistently that there are three sources of English law, namely (1) custom, (2) the autho- rity of parliament, and (3) "the judicial decisions of 1. Hale'a History of the Common Law, p. 89 (ed, of 1820). L Digitized by Microsoft® 162 PRECEDENT. courts of justice consonant to one another in the series and succession of time."^ In the Court of Chancery this declaratory theory never prevailed, nor indeed could it, having regard to the knovifn history of the system of equity administered by that court. There could be no pretence that the principles of equity were founded either in custom or legislation. It was a perfectly obvious fact that they had their origin in judicial decisions. The judgments of each Chancellor made the law for himself and his successors. " It must not be forgotten," says Sir George Jessel, " that the rules of courts of equity are not, like the rules of the common law, supposed to have been established from time im- memorial. It is i)erfectly well known that they have been established from time to time — altered. Improved, and refined from time to time. In many cases we know the names of the Chancellors who invented them. No doubt they were invented for the purpoise of securing the better administration of justice, but still they were invented.''^ Both at law and in equity, however, this declaratory theory must be totally rejected if we are to attain to any sound analysis and explanation of the true opera- tion of judicial decisions. We must admit openly that precedents make law as well as declare it. We must admit further that this effect is not merely accidental and indirect, the result of judicial error in the inter- pretation and authoritative declaration of the law. Doubtless judges have many times altered the law while endeavouring in good faith to declare it. But we must recognise a distinct law-creating power vested in them and openly and lawfully exercised. While it is quite true that the duty of the courts is in general 2. Ibid, p. 88. 3. In re Hallett, 13 Oh. D. at p. 710. Digitized by Microsoft® PRECEDENT. 163 jus dicere and not jus dare, nevertheless they do in fact and in law possess both these functions. Original precedents are the outcome of the intentional exercise by the courts of their privilege of developing the law at the same time that they administer it. § 52. Authoritative a.nd Persuasive Precedents. Decisions are further divisible into two classes, which may be distinguished as authoritative and per- suasive. These two differ in respect of the kind of influence which they exercise upon the future course of the administration of justice. An authoritative precedent is one which judges must follow whether they approve of it or not. It is binding upon them and excludes their judicial discretion for the future. A persuasive precedent is one which the judges are under no obligation to follow, but which they will take into consideration, and to which they will attach such weight as it seems to them to deserve. It depends for its influence upon its own merits, not upon any legal claim which it has to recognition. In other words, authoritative precedents are legal sources of law, while persuasive precedents are merely historical. The for- mer establish law in pursuance of a definite rule of law which confers upon them that effect, while the latter, if they succeed in establishing law at all, do so indirectly, through serving as the historical ground of some later authoritative precedent. In themselves they have no legal force or effect. The authoritative precedents recognised by Eng- lish law are the decisions of the superior courts of justice in England. The chief classes of persuasive precedents are the following: L 1 Digitized by Microsoft® 164 PRECEDENT. (1) Foreign judgments, and more especially those of American courts.^ (2) The decisions of superior courts in other por- tions of the British Empire, for example, the Irish courts.^ (3) The judgments of the Privy Council when sit- ting as the final court of appeal from the colonies.^ (4) Judicial dicta, that is to say, decisions which go beyond the occasion, ^nd lay down a rule wider than is necessary for the purpose in hand. We shall see later on that the authoritative influence of precedents does not extend to such oMter dicta, but they are not equally destitute of persuasive efficacy.* § 53. The Absolute and Conditional Authority of Precedents. Authoritative precedents are of two kinds, for their authority is either absolute or conditional. In the former case the decision is absolutely binding and must be followed without question, however unreasonable or erroneous it may be considered to be. It has a legal claim to implicit and unquestioning obedience. Where, on the other hand, a precedent possesses merely conditional authority, the courts possess a cer- tain limited power of disregarding it. In all ordi- nary cases it is binding, but there is one special case in which its authority may be lawfully denied. It may 1. Castro V. iJ., 6 App. Oas. 249. ■I. In re Parsons, 45 Ch. D. 62 : " Decisions of tile Iristi Couvts, thougti entitled .-to the highest respect, are not binding on English judges." 3. In Leask v. Scott, 2 Q.B.D. 376. at p. 380, it is said by the Court of Appeal, ■ speaking of such a decision : " We are not bound by its authoritj-, but we need hardly say that we should treat any decision of that tribunal with the greatest respect, and rejoice if we could agree with it. " 4. Persuasive efficacy, similar in kind though much less in degree is attributed by our courts to the civil law and to the opinions of the com- mentators upon it; also to Knglish and American text-books of the better sort. Digitized by Microsoft® PKECEDENT. 165 be overruled or dissented from, wlien it is not merely wrong, but so cleanly and seriously wrong that its re- versal is demanded in the interests of the sound ad- ministration of justice. Otherwise it must be fol- lowed, even though the court which follows it is per- suaded that it is erroneous or unreasonable. The full significance of this rule will require further considera- tion shortly. In the meantime it is necessary to state what classes of decisions are recognised by English law as absolutely, and what as merely conditionally authoritative. Absolute authority is attributed to the following : (1) Every court is absolutely bound by the de- cisions of all courts superior to itself. A court of first instance cannot question a decision of the Court of Appeal, nor can the Court of Appeal refuse to follow the judgments of the House of Lords. (2) The House of Lords is absolutely bound by its own decisions. "A decision of this House once given upon a point of law is conclusive upon this House afterwards, and it is impossible to raise that question again as if it was res Integra and could be re-argued, and so the House be asked to reverse its own de- cision."^ (3) The Court of Appeal is, it would seem, abso- lutely bound by its own decisions and by those of older courts of co-ordinate authority, for example, the Court of Exchequer Chamber.^ ' In all other cases save these three, it would seem that the authority of precedents is merely conditional. 1. London Street Tramways Company v. London County Council^ [1898] A.C. 375, at p. 379. 2. Pledge v. Carr, [1896] 1 Ch. 51; Lavy v. London County Council, [1896] ? Q. B. at p. 581, per Lindley li.J. Digitized by Microsoft® 166 PEECEDENT. It is to be noticed, however, that the force of a decision depends not merely on the court by which it is given, but also on the court in which it is cited. Its authority may be absolute in one court, and merely conditional in another. A decision of the Court of Appeal is abso- lutely binding on a court of first instance, but is only conditionally binding upon the House of Lords. §54. The Disregard o-f a Precedent. In order that a court may be justified in disregard- ing a conditionally authoritative precedent, two con- ditions must be fulfilled. In the first place, the de- <'ision must in the opinion of the court in which it is cited be a wrong decision ; and it is wrong in two distinct cases : first when it is contrary to law, and secondly when it is contrary to reason. It is wrong as contrary to law, when there is already in existence ati established rule of law on the point in question, and the decision fails to conform to it. When the law is already settled, the sole right and duty of the judges is to declare and apply it. A precedent must be declaratory whenever it can be, that is to say, when- ce er there is any law to declare. But in the second place, a decision may be wrong as being contrary to reason. Where there is no settled law to declare and follow, the courts may make law for the occasion. In so doing it is their duty to follow reason, and so far as they fail to do so, their decisions are wrong, and the principles involved in them are of defective authority. Unreasonableness is one of the vices of a precedent, no less than of a custom and of certain forms of subordinate legislation. Digitized by Microsoft® PRECEDENT. 167 It is not enough, however, that a decision should be contrary to law or reason. There is a second con- dition to be fulfilled before the courts are entitled to reject it. If the first condition were the only one, a conditionally authoritative precedent would differ in nothing from one which was merely persuasive. In each case the precedent would be effective only so far as its own intrinsic merits commended it to the minds of successive judges. But where a decision is authori- tative, it is not enough that the court to which it is cited should be of opinion that it is wrong. It is necessary in innumerable cases to give effect to pre- cedents notwithstanding that opinion. It does not follow that a principle once established should be reversed simply because it is not as perfect and rational as it ought to be. It is often more important that the law should be certain than that it should be ideally perfect. These two requirements are to a great extent inconsistent with each other, and we must often choose between them. Whenever a decision is de parted from, the certainty of the law is sacrificed to its rational development, and the evils of the un- certainty thus produced may far outweigh the very trifling benefit to be derived from the correction of the erroneous doctrine. The precedent, while it stood unreversed, may have been counted on in nume- rous cases as definitely establishing the law. Valuable property may have been dealt with in reliance on it. Important contracts may have been made on the strength of il. It may have become to any extent a basis of expectation and the ground of mutual dealings. Justice may therefore imperatively require that the decision, though founded in error, shall stand inviolate Digitized by Microsoft® 168 PRECEDENT. none the less. Communis error facit jus? " It is bet- ter," said Lord Eldon, " that the law should be certain than that every judge should speculate upon improve- ments in it."- It follows from this that, other things being equal, a precedent acquires added authority from the lapse of time. The longer it has stood unquestioned and unreversed, the more harm in the way of uncertainty and the disappointment of reasonable expectations will result from its reversal. A decision which might be lawfully overruled without hesitMion while yet new, may after the lapse of a number of years acquire such increased strength as to be practically of abso- lute and no longer of merely conditional authority. This effect of lapse of time has repeatedly received judicial recognition. "Viewed simply as the decision of a court «f first instance, the autJiorlty of this case, notwithstanding the respect due to the judges who decided it, is not binding upon us; but viewed in its character and practical results, it is one of a class iif decisions which acquire a weight and effect beyond that which attaches to ithe relative position of the court from which they proceed. It constitutes an authority which, after it has stood for so long a periocl unchallenged, should not, in the interests of public convenience, and having regard to the protection of private rights, be oveiTuled by this court except upon very special considerations. For twelve years and upwards the case has continued unshaken by any judicial decision or criticism."* "When an old decided case has made the law on a particular subject, the Court of Appeal ought not to interfere with It, be- 1. It ia to be remembered that the overruling of a precedent has a re- trospective operation. In this respect it ig very different from the repeal or alteration of a statute. 2. Sheddon v. Goodrich, 8 Ves. 497. 3 Pugh V. Golden Valley Railway Company, 15 Ch. D. at p. 884. Digitized by Microsoft® PEECEDENT. 169 cause people have considered it as establisliing tlie law and have acted upon it."* The statement that a precedent gains in authority with age must be read subject to an important quali- fication. Up to a certain point a human being grows in strength as he grows in age; but this is true only within narrow limits. So with the authority of ju- dicial decisions. A moderate lapse of time will give added vigour to a precedent, but after a still longer time the opposite effect may be produced, not indeed directly, but indirectly through the accidental con- flict of the ancient and perhaps partially forgotten principle with later decisions. Without having been expressly .overruled or intentionally departed from, it may become in course of time no longer really consis- tent with the course of judicial decision. In this way the tooth of time will eat away an ancient precedent, and gradually deprive it of all its authority. The law becomes animated by a different spirit and assumes a different course, and the older decisions become obso lete and inoperative. To sum the matter up, we may say that to justify the disregard of a conditionally authoritative prece- dent, it must be erroneous, either in law or in reason, '/ and the circumstances of the case must not be such as to make applicable the maxim, Gommunis error facit jus. The defective decision must not, by the lapse of time or otherwise, have acquired such added authority as to give it a title to permanent recognition notwithstanding the vices of its origin. The disregard of a precedent assumes two distinct 4 Smith V. Keal, 9 Q. B. D. at p. 352. See also In re Watlis, 26 Q. B, D. 180; Queen v. £dwards„ 13 Q. B. D. 690; Ridsda'.e v, Clifton, 2 P. D. 306. Digitized by Microsoft® 170 PKECEDENT. forms. The court to which it is cited may either over- rule it, or merely refuse to follow it. Overruling is an act of superior jurisdiction. A precedent overruled is definitely and formally deprived of all authority. It becomes null and void, like a repealed statute, and a new principle is authoritatively substituted for the old. A refusal to follow a precedent, on the other hand, is an act of co-ordinate, not of superior juris- diction. Two courts of equal authority have no power to overrule each other's decisions. Where a prece- dent is merely not followed, the result is not that the later authority is substituted for the earlier, but that the two stand side by side conflicting with each other. The legal antinomy thus produced must be solved by the act of a higher authority, which will in due time decide between the competing precedents, formally overruling one of them, and sanctioning the other as good law. In the meantime the matter remains at large, and the law uncertain. § 55 Precedents Constitutive, not Abrogative. We have already seen the falsity of the theory that all precedents are declaratory. We have seen that they possess a distinct and legally recognised law- creating power. This power, however, is purely con- stitutive and in no degree abrogative. Judicial de- cisions may make law, but they cannot alter it. Where there is settled law already on any point, the duty of the judges is to apply it without question. They have no authority to substitute for it law of their own making. Their legislative power is strictly limited to supplying the vacancies of the legal system, Digitized by Microsoft® PRECEDENT. 171 to filling up with new law the gaps which exist in the old, to supplementing the imperfectly developed body of legal docti'ine. This statement, however, requires two qualifica- tions. In the first place, it must be read subject to the undoubted power of the courts to overrule or disrt- ^ard precedents in the manner already described. In its practical effect this is equivalent to the exercise 'Of abrogative power. But in legal theory it is not so. The overruling of a precedent is not the abolition of an established rule of law. It is an authoritative denial that the supposed rule of law has ever existed. The precedent is so treated not because it has made bad law, but because it has never in reality made any law at all. It has not conformed to the requirements of legal efficacy. Hence it is that the overruling of a precedent, unlike the repeal of a statute, has retro- .spective operation. The decision is pronounced to have been bad ab initio. A repealed statute, on the contrary, remains valid and applicable as to matters arising before the date of its repeal. The overruling of a precedent is analogous not to the repeal of a statute, but to the judicial rejection of a custom as unreasonable or otherwise failing to conform to the requirements of customary law. In the second place, the rule that a precedent has no abrogative power must be read subject to the maxim, Quod fieri non debet, factum valet. It is quite true that judges ought to follow the existing law whenever there is any such law to follow. They are appointed to fulfil the }aw, not to subvert it. But if by inadvert- ence or otherwise this rule is broken through, and a Digitized by Microsoft® 172 PEECEDENT. precedent is established which conflicts with pro- existing law, it does not follow from this alone that this decision is destitute of legal efficacy. For it is a well-known maxim of the law that a thing which ought not to have been done may nevertheless be valid when it is done. If, therefore, a precedent belongs to the- class which is absolutely authoritative, it does not lose this authority simply because it is contrary to law and ought not to have been made. No court, for- example, will be allowed to disregard a decision of the House of Lords on such a ground; it must be foUowed. without question, whether it is in harmony with prior law or not. So also with those which are merely con^^ ditionally authoritative. We have already seen that error is only one of two conditions, both of which are requisite to render allowable the disregard of such a precedent, and in this respect it makes no difference whether the error consists in a conflict with law or in a conflict with reason. It vaaj well be better to ad- here to the new law which should not have been made than to recur to the old law which shoulcj not have been, displaced. §56. Grounds of the Authority of Precedents. The operation of precedents is based on the legal- presumption of the correctness of judicial decisions. It is an application of the maxim. Res judicata pro veritate aceipitur. A matter once formally decided is- decided once for all. The courts will listen to no> allegation that they have been mistaken, nor will they reopen a matter once litigated and determined. That which has been delivered in judgment must be taken Digitized by Microsoft® PRECEDENT. 173 for established truth. For in all probability it is true iin fact, and even if not, it is expedient that it should •be held as true none the less. Expedit reipuhlicae ut sit finis litium. When, therefore, a question has once been judicially considered and answered, it must be answered in the same way in all subsequent cases in which the same question again arises. Only through this rule can that consistency of judicial decision be x)btained, which is essential to the proper adminis- tration of justice. Hence the effect of judicial de- cisions in excluding the arMtrium judicis for the future, in providing predetermined answers for the questions calling for consideration in future cases, and there- fore in establishing new principles of law. The questions to which judicial answers are re- quired are either questions of law or of fact. To both kinds the maxim, Bes judicata pro veritate accipitur, is applicable. In the case of questions of law, this maxim means that the court- is presumed to have cor- rectly ascertained and applied the appropriate legal principle. The decision operates therefore as proof of the law. It is, or at all events is taken to be, a declaratory precedent. If the law so declared is at all doubtful, the precedent will be worth preserving as useful evidence of it. But if the law is already clear and certain, the precedent will be useless; to preserve it would needlessly cumber the books of re- ports, and it will be allowed to lapse into oblivion. In the case of questions of fact, on the other hand, the presumption of the correctness of judicial de- cisions results in the creation of new law, not in the declaration and proof of old. The decision becomes, Digitized by Microsoft® 174 PRECEDENT. in a large class of cases, an original precedent. That is to say, the question thus answered ceases to be one of fact, and becomes for the future one of law. For the courts are now provided with a predetermined answer to it, and it is no longer a matter of free judicial discretion. The arUtrium judicis is now ex- cluded by one of those fixed and authoritative prin- ciples which constitute the law. For example, the meaning of an ambiguous statute is at first a pure question of fact. When for the first time the question arises whether the word "cattle" as used by the statute includes horses, the court is bound by no authority to determine the matter in one way or the other. The occasion is one for the exercise of common sense and interpretative skill. But when it has once been judicially decided that "cattle" does include horses, the question is for the future one of law and no longer one of fact. For it is incumbent on the courts in subsequent cases to act on the maximy Res judicata pro veritate accipitur, and to answer the question in the same way as before. The operation of original precedents is, therefore, the progressive transformation of questions of fact into questions of law. Ex facto oritur jus. The growth of case law involves the gradual elimination of that judicial liberty to which it owes its origin. In any system in which precedents are authoritative the courts are engaged in forging fetters for their own feet. There is of course a limit to this process, for it is absurd to suppose that the final result of legal development will be the complete transformation of all questions of fact into questions of law. The Digitized by Microsoft® PRECEDENT. 175 distinction between law and fact is permanent and essential. What then is the limit ? To what extent is precedent capable of effecting this absorption of fact into law ? In respect of this law-creating operation of pre- cedents, questions of fact are divisible into two classes. For some of them do, and some do not, admit of being answered on principle. The former are those the answer to which is capable of assuming the form of a general principle. The latter are those the answer to which is necessarily specific. The former are an- swered by way of abstraction, that is to say by the elimination of the immaterial elements in the particu- lar case, the result being a general rule applicable not merely to that single case, but to all others which resemble it in its essential features. The other class of questions consists of those in which no such process of abstraction, no such elimination of immaterial ele- ments, as will give rise to a general principle, is possible. The answer to them is based on the cir- cumstances of the concrete and individual case, aud therefore produces no rule of general application. The operation of precedent is limited to one only of these classes of questions. Judicial decisions are a source of law only in the case of those questions of fact which admit of being answered on principle. These only are transformed by decision into questions of law. For in this case only does the judicial decision give rise to a rule which can be adopted for the future as a rule of law. Those questions which belong to the other class are permanently questions of fact, and their judicial solution leaves behind it no permanent re- sults in the form of legal principles. Digitized by Microsoft® 176 PEECEDENT. For example, the question whether the defendant did or did not make a certain statement is a question of fact, which does not admit of any answer save one which is concrete and individual. It cannot be answered on principle. It necessarily remains, there- fore, a pure question of fact; the decision of it is no precedent, and establishes no rule of law. On the other hand, the question whether the defendant in making such a statement was or was not guilty of fraud or negligence, though it may be equally a question of fact, nevertheless belongs to the other class of such ques- tions. It may well be possible to lay down a general principle on a matter such as this. For it is a matter which may be dealt with in abstracto, not necessarily in concreto. If, therefore, the decision is arrived at on principle, it will amount to an original precedent, and the question, together with every other essentially resembling it, will become for the future a question of law, predetermined by the rule thus es- tablished. A precedent, therefore, is a judicial decision which \contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi. The concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large. "The only use of authori- ties or decided cases," says Sir George Jessel, "is the establishment of some principle, which the judge can follow out in deciding the case before him."^ "The only thing," says the same distinguished judge in an- other case, "in a judge's decision binding as an 1 In re HaUett, 13 Ch. D. at p. 712. Digitized by Microsoft® PRECEDENT. 177 authority upon a subsequent judge is the principle upon which the case was decided."^ This is the true significance of the familiar contrast between authority and principle. It is often said by judges that inasmuch as the matter before them is not covered by authority, they must decide it upon prin- ciple. The statement is a sure indication of the im- pending establishment of an original precedent. It implies two things : first that where there is any authority on the point, that is to say, where the question is already one of law, the duty of the judge is simply to follow the path so marked out for him ; and secondly, that if there is no authority, and if, therefore, the question is one of pure fact, it is his duty, if possible, to decide it upon prin- ciple, that is to say, to formulate some general rule and io act upon it, thereby creating law for the future. It may be, howe\rer, that the question is one which does not admit of being answered either on authority or on principle, and in such a case a specific or individual answer is alone possible, no rule of law being either ap- plied or created.^ Although it is the duty of courts of justice to decide questions of fact on principle if they can, they must take care in this formulation of principles to limit them- selvrs to the requirements of the case in hand. That 2. Osborne v. Rowlett, 13 Oh. D. at p. 785. 3. It is clearly somewhat awkward to contrast in this way the terms authority and principle. It is odd to speak ol deciding a case on principle because there is no legal principle on which it can be decided. To avoid misapprehension, it may be ad-nsable to point out that decisions as to the meaning of statutes are always general, and therefore establish precedents and make law. For such interpretative decisions are necessarily as general as the statutory provisions interpreted. A question of statutory interpretation Is one of fact to begin with, and is decided on principle; therefore it becomes one of law, and is for the future decided on authority. M Digitized by Microsoft® 178 PRECEDENT. is to say, they must not lay down principles which are not required for the due decision of the particular case, or wliich are wider than is necessary for this purpose. The only judicial principles which are authoritative \ are those which are thus relevant in their subject-mat- ter and limited in their scope. All others, at the best, are of merely persuasive efficacy. They are not true rationes decidendi, and are distinguished from them un- der the name of dicta or oUter dicta, things said by the way. The prerogative of judges is not to make law by formulating and declaring it — this pertains to the legis- lature—but to make law by applying it. Judicial declaration, unaccompanied by judicial application, is of no authority. § 57. The Sources of Judicial Principles. Whence then do the courts derive those new princi- ples, or rationes decidendi, by which they supplement the existing law ? They are in truth nothing else than the principles of natural justice, practical expediency, and common sense. Judges are appointed to admin- ister justice — justice according to law, so far as the law extends, but so far as there is no law, then justice according to nature. Where the civil law is deficient, Nj the law of nature takes its place, and in so doing puts on its character also. But the rules of natural justice are not always such that any man may know them, and the light of nature is often but an uncertain guide. Instead of trusting to their own unguided instincts in -formwlating the rules of right and reason, the courts are therefore wisely in the habit of seeking guidance and assistance elsewhere. In establishing new* princi- ples, they willingly submit themselves to various Digitized by Microsoft® PRECEDENT, 179 persuasive influences which, though destitute of legal autb()rity, have a good claim to respect and considera- tion. They accept a principle, for example, because they find it already embodied in some system of foreign law. For siiice it is so sanctioned and authenticated, it is presumably a just and reasonable one. In like manner the oourts give credence to persuasive prece- dents, to judicial dicta, to the opinions of text-writers, and to any other forms of ethical or juridical doctrine which seem good to them. There is, however, one source of judicial principles which is of special import- ance, and calls for special notice. This is the analogy of p^e=exi&ting law. New rules are very often merely analogical extensions of the old. The courts seek as far as possible to make the new law the embodiment and expression of the spirit of the old — of the ratio juris, as the Romans called it. The whole thereby becomes a single and self-consistent body of legal doc- trine, containing within itself an element of unity and of harmonious development. At the same time it must be remembered that analogy is lawfully followed only as a guide to the rules of natural justice. It has no independent claim to recognition. Wherever justice so requires, it is the duty of the courts, in making new law, to depart from the ratio juris antiqui. rather than servilely to follow it. It is surprising how seldom we find in judicial utterances any explicit recognition of the fact that in deciding questions on principle, the courts are in reality searching out the rules and requirements of natural justice and public policy. The measure of the prevalence of such ethical over purely technical con- siderations is the measure in which case law develops M 1 Digitized by Microsoft® 180 PEECEDENT. into a rational and tolerable system as opposed to an unreasoned product of authority and routine. Yet the official utterances of the law contain no adequate ac- knowledgment of this dependence on ethical influences. "The very considerations," it has been well said, "which judges most rarely mention, and always with an apo- logy, are the secret root from which the law draws all the juices of life."^ The chief reason of this peculiarity is doubtless to be found in the fictitious declaratory theory of precedent, and in the forms of judicial ex- pression and reasoning which this theory has made traditional. So long as judges affect to be looking for and declaring old law, they cannot adequately express the principles on which they are in reality making new. §58. Respective Functions of Judges and Juries. The division of judicial functions between judge and jury creates a diificulty in the theory of precedent which requires some consideration. It is commonly said that all questions of fact are for the jury, and all questions of law for the judge. But we have already seen that original precedents are answers to questions of fact, transforming them for the future into questions of law. Are such precedents, then, made by juries in- stead of by judges ? It is clear that they neither are noi can be. No jury ever answers a question on prin- ciple; it gives decisions, but no reasons; it decides in covcreto, not in abstracto. In these respects the judicial action of juries differs fundamentally from that of judges. The latter decide on principle, whenever this ig possible ; they formulate the ratio decidendi which 1. Holmes, The Common Law, p. 35. Digitized by Microsoft® PRECEDENT. 181 underlies their decision ; they strive after the general and the abstract, instead of adhering to the concrete and the individual. Hence it is that the decision of a judge may constitute a precedent, vi^hile that of a jury cannot. But in composite tribunals, where the jury decides the facts and the judge the lavs', how does the judge obtain any opportunity of establishing prece- dents and creating new law ? If the matter is already governed by law, it will of course fall within his pro- vince; but if it is not already so governed, is it not a pure question of fact which must be submitted to the jury, to the total destruction of all opportunity of es- tablishing any precedent in respect of it ? The truth of the matter is that, although all questions of law are for the judge, it is very far from being true that all questions of fact are for the jury. There are very ex- tensive and important portions of the sphere of fact which fall within the jurisdicton of the judge, and it is within these portions that the law-creating operation of judicial decisions takes place. No jury, for example, is ever asked to interpret a statute or, speaking gene- rally, any other written document. Yet unless there is already some authoritative construction in existence, this is pure matter of fact. Hence that great depart- ment of case law which has its origin in the judicial interpretation of statute law. The general rule — consistently acted on, though seldom expressly acknow- ledged—is that a judge will not submit to a jury any question which he is himself capable of answering on principle. Such a question he answers for himself. For since it can be answered on principle, it provides a fit occasion for the establishment of a precedent and a new rule of law. It ought to be a matter of law, and Digitized by Microsoft® I.- 182 PKECEDENT. can only become what it ought to be, by being kept from the jury and answered in ahstracto by the judge. The only questions which go to a jury are those questions of fact which admit of no principle, and are therefore the appropriate subject-matter of those concrete and unreasoned decisions which juries giye.^ We have said that this rule, though acted on, is not expressly acknowledged. The reason is that judges are enabled to avoid the acknowledgment through recourse to the declaratory theory of precedent. As between judge and jury this theory is still in full force and effect, although when the rights and privileges of juries are not concerned, the courts are ready enough at the present day to acknowledge the essential truth of the matter. As between judge and jury, questions of fact are withdrawn from the exclusive cognizance of the latter by means of the legal fiction that they are already questions of law. They are treated prolepti- cally as being already that which they are about to become. In a completely developed legal system they would be already true questions of law; the principle for their decision would have been already authori- tatively determined. Therefore the judges make bold to deal with them as being already that which they ought to be, and thus the making of the law by way of precedent is prevented from openly infringing upon the rights of juries to decide all questions which have not already been decided by the law. ^1. On the decision by judges of questions of Jact under the guise of question* of law, see Professor Thayer's Preliminary Treatise on the Law of Evidence, pp. 202. 280. 249. Digitized by Microsoft® PRECEDENT. 183 SUMMARY. 1 Declaratory— evidence of old law. Precedents < ( Original — sources of new law. The declaratory theory of precedent. ( Authoritative Precedents < I Foreie;n decisions. ( Persuasive < J^^'^isio'is ™ other parts of the Empire. ^ I Privy Council decisions. ( Judicial dicta. {Decisions of superior Court. Decisions of House of Lords. Decisions of Court of Appeal. Conditionally authoritative — All others. Conditions of the disregard of a precedent. 1. Decision erroneous .j S^frSfb/e"" 2. Rejection of it not mischievous as unsettling the law. Effect of lapse of time on precedents. Distinction between overruling and refusing to follow. Precedents constitutive and not abrogative. Qualifications of the rule. Ground of the authority of precedent. The progressive transformation of fact into law. Rationes decidendi. The determination of questions on principle and on authority. Judicial dicta contrasted with judicial decisions. Sources of judicial principles. Respective functions of judge and jury. REFERENCES. Pollock, Jurisprudence, Pt. II. Ch. 6. Pollock, Essays in Jurispru- dence and Ethics, IX. (The Science of Case Law). Clark, Practical Jurisprudence, pp. 214-265. Renton, Encyclopaedia, sub. voc. Precedents. Markby, ss. 90-100. Holland, Jurisprudence, pp. 57- 6L Austin, Lectures 37 and 38. Blackstone I. 69-73. Dil- lon, Laws and Jurisprudence of England and America, passim. Digitized by Microsoft® CHAPTER IX. THE STATE. §59. The Nature and Essential Functions of the State. A comijlete analysis of the nature of the law in- volves an inquiry into the nature of the state. For it is in and through the state alone that the law exists. Jurisprudence is concerned, however, only with the elements and tirst principles of this matter. An ex- haustive theory of political government pertains not to jurisprudence, but to the allied science of politics. Prom the lawyer nothing more is required, than such an understanding of the essential nature of the state, as is sufficient and necessary for the establishment of sound juridical theory. A state or political society is an association of human beings established for the attainment of certain ends by certain means. It is the most important of all the various kinds of society in which men unite, being indeed the necessary basis and condition of peace, order, and civilisation. What then is the essential difference between this and other forms of association ? In what does the state essentially differ from such other societies as a church, a university, a joint-stock company, or a trades-union ? The difference is clearly one of function. The state must be defined by reference to such of its activities and purposes as are essential and characteristic. But the modern state does many things, and differ- Digitized by Microsoft® THE STATE. 185 "ent things at different times and places. It is a com- mon carrier of letters and parcels, it builds ships, it •OTvns and manages railways, it conducts savings-banks, it teaches children, and feeds the poor. All these can- not be of its essence. It is possible, however, to dis- tinguish, among the multitudinous operations of goTernment, two which are set apart as primary and ■essential. These two are war and the administration ■of justice. The fundamental purpose and end of politi- cal society is defence against external enemies, and the maintenance of peaceable and orderly relations within the community itself. It would be easy to show, by a long succession of authorities, that these two have always been recognised as the essential duties of gov- ernments. The Israelites demanded a king, that he "' may judge us, and go out before us and fight our bat- tles ;"^ and this conception of the primary end and aim 'of sovereignty obtains recognition still as true and adequate. Leviathan, as Hobbes^ tells us, carries two swords, the sword of war and that of justice. This is the irreduciMe minimum of governmental action. Every society which performs these two functions is a political society or state, and none is such which per- forms them not. How much activity in other directions may be profitably combined with them, is a question with which we are not here concerned. We are deal- ing with the definition, and therefore with the essence, not with the accidents of political society. ■ 1. I. Samuel, S. 20. 2. English Works. 11, 76: ''Both swords, therefore, as well thia of war as that of justice, . . . essentially do belong to the chief command." 2. "The primary function of the state," says Mr. Herbert Spencer, (Princi- pliea of Ethics II. 204. 208. 214.) " or of that agency in which the powers of the state are centralised, is the function of directing the combined actions of the incorporated individuals in war. The first duty of the ruling agency is jiational defence. What we may consider as measures to maintain inter-tribal Digitized by Microsoft® 186 THE STATE. It is not difficult to show that war and the admin- istration of justice, however diverse in appearance, are merely two different species of a single genus. The essential purpose of each is the same, though the methods are different. Each consists in the exercise of the organised physical force of the community, and in each case this force is made use of to the same end, namely the maintenance of the just rights of the com- munity and its members. We have already seen that in administering justice the state uses its physical power to enforce rights and to suppress and punish wrongs. Its purpose in waging war — ^that is to say,. just war, which is the only kind which can be regarded as an essential form of state activity — ^is the same. These two primary functions are simply the two diffe- rent ways in which a political society uses its power in the defence of itself and its members against ex- ternal and internal enemies. They are the two methods in which a state fulfils its appointed purpose of es- tablishing right and justice by physical force. What, then, is the essential difference between these two functions ? It lies apparently in this, that the administration of justice is the judicial, while war i» the extrajudicial use of the force of the state in the maintenance of right. Force is judicial, when it is applied by or through a tribunal, whose business it is to judge or arbitrate between the parties who are at issue. It is extrajudicial, when it is applied by the justice, are more imperative, and come earlier, than measm-es to maintaitt justice among individuals Once established, this secondary func- tion of the state goes on developing; and becomes a function next in import- ance to the function of protecting against external enemies .... With the progress of civilisation the administration of justice continues to extezkd and to become more efficient .... Between these essential functions and all other functions there is a division, which, though it cannot in all cases be drawn, with precision, is yet broadly marked.'* Digitized by Microsoft® THE STATE. 187 state directly, without the aid or intervention of any such judge or arbitrator. Judicial force involves trial and adjudication, as a condition precedent to its ap- plication; extrajudicial force does not. Judicial force does not move to the maintenance of rights or the sup- pression of wrongs, until these rights and wrongs have been authoritatively declared and ascertained by the formal judgment of a court. The primary purpose of judicial force is to execute judgment against those who will not voluntarily yield obedience to it. Only in- directly, and through such judgment, does it enforce rights and punish wrongs. But extrajudicial force strikes directly at the offender. It recognises no trial or adjudication as a condition of its exercise. It re- quires no authoritative judicial declaration of the rights protected or of the wrongs punished by it. "When a rebellion or a riot is suppressed by troops, this is the extrajudicial use of force; but when, after its repression, the rebels or rioters are tried, sentenced, and punished by the criminal courts, the force so used is judicial. To shoot a man on the field of battle or at a barricade is war; to shoot him after capture and con- demnation by a court martial is the administration of justice.* In addition to the essential difference which we have just noticed, there are several minor and unessential 4. It Is to be noted that the term war is oommonly applied only to the more extreme forms of extrajudicial force. Rioting would not be termed civil war, although the difference between them is merely one of degree. Nor would the punitive expedition of an armed cruiser against a village in the South Sea Is- lands be dignified with the name of wax, though it differs only in degree from the blockade or bombardment of the ports of a civilised state. To be perfectly accurate, therefore, we should oppose the administration of justice not to war, but to the extrajudicial use of force, counting war as the most important species of the latter. War, however, so greatly overshadowa in importance all other forms of such force, that it is more convenient to take it as representing- the genuE, and to disregard the others. Digitized by Microsoft® 188 THE STATE. differences, which are commonly, though not invariably present. The chief of these are the following. 1. Judicial force is regulated by law, while the force of arms is usually exempt from such control. Justice is according to law; war is according to the good pleasure of those by whom it is carried on. Inter arma leges silent, is a maxim which is substantially, though not wholly true. The civil law has little to say as to the exercise by the state of its military func- tions. As between the state and its external enemies, it is absolutely silent; and even as to the use of extra- judicial force within the body politic itself, as in the suppression of riots, insurrections, or forcible crimes, the law lays down no principle save this, that such force is allowable when, and only when, it is necessary. Necessitas non habet legem. Within the community the law insists that all force shall be judicial if possible. This protection against extrajudicial force — ^this free- dom from all constraint save that which operates through the courts of law and justice — is one of the chief privileges of the members of the body politic. We accept it now as a matter of course, but in older and more turbulent days it was recognised as a benefit to be striven for and maintained with anxious vigilance.^ 2. In the second place, judicial force is commonly exercised against private persons, extrajudicial force against states. It is clear, however, that this is not ne- cessarily or invariably the case. There is no reason Avhy one state should not administer justice between two others, or between another state and itself. And 5. The prohibition of the use of extrajudicial force by the King against his subjects is one of the main provieiona of Magna Carta (sec. 39) : " No free man shall be taken or imprisoned or disseized or outlawed or exiled or anyways tional cases in which this is not so. These exceptional rights which are both negative and personal are usually the product of some agreement by which some particular individual has deprived himself of a liberty which is common to all other persons. Thus all tradesmen may lawfully compete with each other in the ordinary way of business, even though the result of this competition is the ruin of the weaker competitors. But in selling to another the goodwill of my business, I may lawfully deprive myself of this liberty by an express agreement with the purchaser to that effect. He thereby acquires against me a right of exemption from competition, and this right is both personal and negative. It is a monopoly, protected not against the world at large, but against a deter- Digitized by Microsoft® 250 THE KINDS OF LEGAL EIGHTS. minate individual. Such rights belong to an inter- mediate class of small extent, standing between rights- which are both real and negative on the one side, and those which are both personal and positive on the other. In definiiibg a real night as one availing agadnst the worW at large, it (is not meant tfliat the incidence cf the correla-tive duty is laibsoiliutely universal, tout mea-ely that the duty toinds^ persons in genemal, anid that if any one is not bound his case- is exceiytSoeaJ. Sajmllarly a personal right is not one availaMe agiaiiiist a single person only, but one availaibflje against one or mare determinate Saidividuals. The i-igtit of tihe creditor of a firm is persomail, though tihe debt may be due from any number of partners. Even ais so explained, howevei', it can scaix^ly be denied that dif intended as an exhiaustive classification of all poiSBible cases, the dSstanction between reai and personal I'igihts— ibeitTween duties of genei'al and of determin,aite ijncidenice— is loglicially defective. It itakes mo account of the possibility of a third aaild intermediaite class. Why sliould there not be rights available against particular classes of persons, ajs opposed both to the Whole communiity and to pei-sons individually detei'- mined ? An examination, however, of the contents of ;any adtual legal system will reveal the fact that duties of this- suggested desicription eiither do not exisit at all, or ore so except tional that we are justified in classing them as amomaloais. As a classification, therefore, of the rights whicli actually obtain legal recognition, the dis'tinction between real and pei'sonal rights may be accepted as valid. The distinction between a real and a personal right 1 is otherwise expressed by the terms right in rem (or in ' re) and right in personam. These expressions are derived from the commentators on the civil and canon law. Literally interpreted, jus in rem means a right against or in respect of a thing, jus in personam a right against or in respect of a person. In truth, however,. every right is at the same time one in respect of some Digitized by Microsoft® THE KINDS OF LEGAL RIGHTS. 251 thing, namely its object, and against some person, namely the person bound. In other words, eveijy right involves not only a real, but also a personal relation. Yet although these two relations are necessarily co- existent, their relative prominence and importance are not always the same. In real rights it is the real rela- tion that stands in the forefront of the juridical concep- tion ; such rights are emphatically and conspicuously in rem. In personal rights, on the other hand, it is the personal relation that forms the predominant factor in the conception ; such rights are before all things in personam. For this difference there is more than one reason. In the first place, the real right is a relation between the owner and a vague multitude of persons, no one of whom is distinguished from any other ; while a personal right is a definite relation between deter- minate individuals, and the deflniteness pf this personal relation raises it into prominence. Secondly, the source or title of a real right is commonly to be found in the character of the real relation, while a personal right generally derives its origin from the personal relation. In other words, if the law confers upon me a real right, it is commonly because I stand in some special relation to the thing which is the object of the right. If on the contrary it confers on me a personal right, it is commonly because I stand in some special relation to the person who is the subject of the correlative duty. If I have a real right in a material object, it is because I made it, or found it, or first acquired possession of it, or because by transfer or otherwise I have taken the place of someone who did originally stand in some such relation to it. But if I have a personal right to receive money from another, it is commonly because I have Digitized by Microsoft® 252 THE KINDS OF LEGAL RIGHTS. made a contract with him, or have come in some other manner to stand in a special relation to him. Each of these reasons tends to advance the importance of the real relation in real rights, and that of the personal relation in personal rights. The former are primarily and pre-eminently in rem ; the latter primarily and pre-eminently in personam. The commonest and most important kind of jus in personmn is that which has been termed by the civilians and canonists jus ad rem. I have a jus ad rem, when I have a right that some other right shall be transferred to me or otherwise vested in me. Jus ad rem is a right to a right. We have already seen, in the previous chapter, that it is possible for one right to be in this way the subject-matter of another. A debt, a contract to assign property, and a promise of marriage are examples of this. It is clear that such a right to a right must be in all cases in personam. The right which is to be transferred, however^ — the subject-matter of the jus ad rem — may be either real or personal, though it is more commonly real. I may agree to assign or mortgage a debt, or the benefit of a contract, no less than lands or chattels. An agreement to assign a chattel creates a jus ad jus in rem ; an agreement to assign a debt or a contract creates a jus ad jus in personam.^ The tea-ms jus in rem and jus in personam were invejited by the commemtators on tfhe civil law, 'and are not found in the original sources. The dlstiaiotion tlhereby expressed, however, received axiequa-te reoagmition from tfhe Roman lawyers. They drew ,a broad line of demaircation between dominium on tihe one side and oUigatio on the other, 'the former including real, and the 1. Some writers treat j»v in personam and Jus ad rem as synonymous terms. It seems better, however, to use the latter in a narrower sense, as including merely one species, although the most important species, of jura in personam, Savigny, System, sec. 56. n. b. Digitized by Microsoft® THE KINDS OF LEGAL RIGHTS. 253 latter personal rigbfcs. Dominium is the relation beltween tbe owner of a real right {dominus ) and the right so vested in him. OUigatio is the reilaitiou between the owmer of a personial right (creditor) and the person on whom the correlaitlive duty liies. OUigatio, in other words, is tflie legal twnd by wMeh two or more determdn|arte individuals are bounid togethiear. Our modem English oWigation has lost thiis specific meaning, and is appMed to any duty, whether it corresponds to a reial or to a personaJi right. It is to be noticed, however, that both dominium and obligatio are limited by tihe Romans to the spiiere of what, in the succeeding part of this cshapter, we term propriatairy rights. A mean's right to iis personal liberty or reputation, for example, falls neither within the sphere of dominium nor w^itMn tihiait ^ oUigatio. The diisitLnetion between real and peirsonial rigOits, on the other hand, is subject to no such limitation. The terms jus in rem and jus in personam are derived from the Roman tonms actio in rem and actio in personam. An actio in rem was an action for the recorvei'y of dominium ; one in which the plaintiif claimed thiait a certaiin IMng belonged to liim and ought to be restored or given up to Mm. An actio in personam was one for the enf orceimentt of an oUigatio ; one in which the plaintifE claimed the payment of money, tihe perfor- mance of a contract, or the protection of some other personal right vested in him as against the defendant.^ Naturally enough, the ifighit protected by an actio in rem came to ibe called jus in rem, and a right protected by an actio in personam, jus in personam. § 83. Proprietary and Personal Rights. A further very important distinction is that between proprietary and personal rights. The aggregate of a man's proprietary rights constitutes his estate, his assets, or his property in one of the many senses of that most equivocal of legal terms. German jurisprudence is superior to our own in possessing a distinct technical term for this aggregate of proprietary rights, namely Yermoegen, the rights themselves being Vermoegens- 2. Gaius, IV. 2. Digitized by Microsoft® 254 THE KINDS OF LEGAL RIGHTS. rechte. The French speak in the same fashion of avoir or patrimoine. The sum total of a man's personal rights, on the other hand, constitutes his status or per- sonal condition, as opposed to his estate. If he owns land, or chattels, or patent rights, or the good will of a business, or shares in a company, or if debts are owing to him, all these rights pertain to his estate. But if he is a free man and a citizen, a husband and a father, the rights which he has as such pertain to his status or standing in the law.^ What, then, is the essential nature of this distinc- tion ? It lies in the fact that proprietary rights are valuable, and personal rights are not. The former are those which are worth money ; the latter are those that are worth none. The former are the elements of a man's wealth ; the latter are merely elements in his well-heing. The former possess not merely juridical, but also economic significance ; while the latter pos- sess juridical significance only.- It makes no difference in this respect, whether a right is jus in rem or jus in personam. Rights of either sort are proprietary, and make up the estate of the 1. A personal as opposed to a proprietary riffht is not to be confounded with a personal as opposed to a real riglit. It is a misfortune of our legal nomenclature that it is necessary to use the word personal in several different senses. The context, however, should in all cases be sufficient to indicate the particular signifi- cation intended. The more flexible language of the Germans enables them to distinguish between personliehe Rechte (as opposed to dingliche Rechte or real rights) and Fersonenrechte (as opposed to Vennogeiwechte or proprietary rights). See Dernburg, Pandefcten. I. sec, 22. note 7. 2. Ahrens, sec. 55 : Toub les biens, soit matt^riela en eux-meraes, soit susceptibles d'etre estim^s en argent comme equivalent (par aestimatio et condemnatio pecuniaria) appartenant a une personne, forment son avoir ou son patrimoine. Baudry-Lacantinerie, Des Biens, sec. 2. Le patrimoine est un ensemble de droits et de charges appreciables en argent. Dernburg Pandekten, I, sec. 22. Vermogen ist die Gesammtheit der geldwer- then Rechte einer Person. Windscheid, I. sec. 42. note : Vermogensrechte sind die Rechte von wirthschaft- lichem Werth. See also to the same effect Savigny, System, sec. 56. and Puchts, Institutionen, II. sec. 193. Digitized by Microsoft® THE KINDS OF LEGAL RIGHTS. 255 possessor, if they are of economic value. Thus my right to the money in my pocket is proprietary ; but not less so is my right to the money which I have in the bank. Stock in the funds is part of a man's estate, just as much as land and houses ; and a valuable contract, just as much as a valuable chattel. On the other hand, a man's rights of personal liberty, -and of reputation, and of freedom from bodily harm are personal, not proprietary. They concern his wel- fare, not his wealth ; they are juridical merely, not also economic. So also with the rights of a husband and father with respect to his wife and children. Eights such as these constitute his legal status, not his legal estate. If we go outside the sphere of private. Into that of public law, we find the list of personal rights greatly increased. Citizenship, honours, digni- ties, and oflflcial position in all its innumerable forms pertain to the law of status, not to that Qi property.^ WiCh respect to the distiinirtion between proprietary and per- gonal rigbts — estajte and statu-s — there are the foUowmg supple- .inenrtiairy absei'vajtions to be made. 1. The diistiin'Otaon JB not contined to rights in the strict sense, "but is equally apajlioaible to other olajsses oil" rights adso. A person's estaite is made up mot merely of his yaluable claims .agaiinsit oitlier peirsoos, but of such of (his po'wers, liberties, and im'mundties, as ai-e etitJher valuable lin theimiseiliTes, or are acces- sory to oitlhiea' Tiilghts whii'Ch are valuable. A ianidloffd's right of re-entry is preKpi'iietairy, no less than his ownei'Shiip of the lanid ; and a mortgiagoe's rigiht of sale, no less than the debt isecured. A power of lappoinitiment is propriettary, but tlhe power of maliing a, wiB. or a contract dis persoinial. 2. TIhe diistinction ■ between personal and proprietary rights has its counterpart in that between persomai and proprietary 3. The words status and estate are in their origin the same. As to the procets of their differentiation in legal meaning, see Pollock and Maitland, History of English Law, II. pp. 10 and 78. The other uses of the term property will be con- sidered by us later, in Chapter XXI. Digitized by Microsoft® 256 THE KINDS OP LEGAL EIGHTS. durtiies, liabiliities, and disalblldities. Tlie latter .are those wMcb' relate to a person's estate, and diiminlisih the value of It. Ttiey represeiut a Itoss of money, just as a proprietary night represemts the acquisition of it. AH others are personal. A liability to be- su^d for a delbt Is puiopirdetairy, but a liability to be prosecuted for a cnlme is personial. The duty of fulflllinig a conitnaot for the purdhase of goods lis propnietary, but the duty of fuifilliinig a comtraot to mam-y is personal . 3. AJlifihoiuglh the terim esitate inicludes only rights (iu the- geneiric sense), ithe teiran status ducludes not only nigtets, but also 'duties, liabSllities, and disiaJbiliti'e'S. A mlinior's eonitractuial digabiliities aire part of ihls srtatus, though a man's deWts ore not' part of Ms estate. Status is the sum of one's personal duties, liatailli'ties, and disaibiliities, as -well as of one's persooial rfghts. 4. A person's staitus ds ma'de up of smaler groups of per- sonial! riglits, diuties, liabiliities, and ddsaibSiliiitaes, lanid each of these eonstituenit groups is itself called a status. Thus the same person miaiy tore at the same time 'the ista'tus off a free man, off a citizen, of a Ihiusibamd, of a father, and iso on. So we speak of ■the status of a wMe, meaoinig aH the personial benefits .and burdiems off ■whii'cih miarriia'ge is tlhe legal source and title in a woonam. In the same way we speak of the sitatus of an al'ien,- a luniati'C, oir an linifant. 5. Tiie law off personal mgihts, ot of status, was termed by the- Romans the law of persons (jus quod ad personas pertinet), while the law of proprietary rights was the so called law of things (jus quod ad res pertinet). Res, as a collective term, meant a man's estate ; while it was alsto used distrlbutively to denote tbe constituent elements of such estate, that is to say, his proprietary rights. The true meaning of this distinction between the law of persons and the law of things, and the exact nature of the legal conception of status, have been the subject of much discussion and of several more or less di- vergent theories. 6. It may be thouglit that proprietary rights should be defined' as 'those which aii-e tPansferaible, rather than as those which are valuaible. As to this, it seems clear that all transferable rights are also propnietary ; for If they oan be transferred, they can be sold, and are therefore worth money. But it is not equally true that all proprietary riights are transferable. Popular Digitized by Microsoft® THE KINDS OF LEGAL RIGHTS, 257 speedh does not, and legal theory need not, deny the njame of property to a valuable niglht, (meneiy becanse It fe not tramisEer- able. A penisioin may be inalienalble ; but it musit be counted, for all that, as wealth or property. Defbts were oniginallly incap- able oif aasigniment ; but even then they were edtemente of tihe creditor's estate. A married woman may be unable to alienate her estate ; but it is an estate none the less. The true test of a proprietary night dis not whether It can. 'be aJlienated, burt wbether it is equivalent to money ; and it may be equlvalenit to momey, though it cannot be sold for a price. A right (to receive money or something wMch can itseJf be tuirtted iiato money, is a pro- prietary right, amid lis to be reckoned In the possessor's estaite, even thougih inalieniajble. ^ 84. Ri£^hts of Ownership and Encumbrances. Eights may be divided into two kinds, distinguished by the civilians as jura in re propria and jura in re aliena. The former are otherwise known as rights of ownership, while the latter may be conveniently termed encum- brances, if we use that term in its widest permissible sense. The Eomans termed them servitutes as opposed to dominium. The nature of the distinction thus indicated is as follows. A right in re aUena, or encumbrance, is one which limits or derogates frorn some more general right belonging to some other person. It frequently happens that a right vested in one person becomes subject or subordinate to an adverse right vested in another. It no longer possesses its full scope or normal compass, part of it being cut off to make room for the limiting and superior right which thus derogates from it. Thus the right of a landowner may be subject to, and limited by, that of a tenant to the temporary use of the pro- perty ; or to the right of a mortgagee to sell or take possession; or to the right of a neighbouring landowner E Digitized by Microsoft® 258 THE KINDS OF LEGAL RIGHTS. to the use of a way or other easement ; or to the right of the Tender of the land in respect of restrictive covenants entered into by the purchaser as to the use of it ; for example, a covenant not to build upon it. Special rights which thus derogate from more general rights vested in other persons, are, as we have said, jura in re aliena or encumbrances. All other rights are jura in re propria, or rights of ownership in one of the senses of that equivocal term. Ownership, in this sense, means any right which is not merely an encum- brance of some other. He who has the general right over a piece of land (subject, it may be, to special and adverse rights vested in others) is the owner of the land ; all those who have vested in them any such special or adverse rights are encumbrancers of the land ; for ex- ample, a mortgagee or lessee. A right subject to an encumbrance may be con- veniently designated as servient, while the encumbrance which derogates from it may be contrasted as dominant. These expressions are derived from, and conform to, Roman usage in the matter of servitudes. The general and subordinate right was spoken of figuratively by the Eoman lawyers as being in bondage to the special right which prevailed over and derogated from it. The term servitus, thus derived, came to denote the superior right itself rather than the relation between it and the other ; just as oUigatio came to denote the right of the creditor, rather than the bond of legal subjection under which the debtor lay. The terms jus in re propria and jus in re aliena were devised by the commentators on the civil law, and are not to be found in the original sources. Their significance is clear. The owner of a chattel has jv^ Digitized by Microsoft® THE KINDS OF LEGAL RIGHTS. 259 in re propria — a right over his own property ; the pledgee or other encumbrancer of it has jus in re aliena — a right over the property of some one else. There is nothing to prevent one encumbrance from being itself subject to another. Thus a tenant may sublet; that is to say, he may grant a lease of his lease, and so confer upon the sub-lessee a jus in re aliena of which the immediate subject-matter is itself merely another right of the same quality. The right of the tenant in such a case is dominant with regard to that of the landowner, but servient with regard to that of the sub-lessee. So the mortgagee of land may grant a mortgage of his mortgage ; that is to say, he may create what is called a sub-mortgage. The mort- gage will then be a dominant right in respect of the ownership of the land, but a servient right with respect to the sub-mortgage. So the easements appur- tenant to land are leased or mortgaged along with it ; and therefore, though themselves encumbrances, they are themselves encumbered. Such a series of rights, each limiting and derogating from the one be- fore it, may in theory extend to any length. A right is not to be classed as encumbered or ser- vient, merely on account of its natural limits and restrictions. Otherwise all rights would fall within this category, since none of them are unlimited in their scope, all being restrained within definite boundaries by the conflicting interests and rights of other persons. All ownership of material things, for example, is limited by the maxim. Sic utere tuo ut alienum non laedas. Every man must so restrain himself in the use of his property, as not to infringe upon the property and rights of others. The law confers no property in B 1 Digitized by Microsoft® 260 THE KINDS OF LEGAL RIGHTS. stones, sufficiently absolute and unlimited to justify their owner in throwing them through his neighbour's windows. No landowner may by reason of his owner- ship inflict a nuisance upon the public or upon adjoin- ing proprietors. But in these and all similar cases we are dealing merely with the normal and natural boundaries of the right, not with those exceptional and artificial restrictions which are due to the existence of jura in re aliena vested in other persons. A servient right is not merely a limited right, for all are limited ; it is a right so limited that its ordinary boundaries are infringed. It is a right which, owing to the influence of some other and superior right, is prevented from attaining its normal scope and dimensions. Until we have first settled the natural contents and limits of a right, there can be no talk of other rights which qualify and derogate from it. It is essential to an encumbrance, that it should, in the technical language of our law, run with the right encumbered by it. In other words the dominant and the servient rights are necessarily concurrent. By this it is meant that an encumbrance must follow the en- cumbered right into the hands of new owners, so that a change of ownership will not free the right from the burden imposed upon it. If this is not so — if the right is transferable free from the burden — ^there is no true encumbrance. For the burden is then merely personal to him who is subject to it, and does not in truth limit or derogate from the right itself. This right still . exists in its full compass, since it can be transferred in ; its entirety to a new owner. For this reason an agree- ; ment to sell land vests an encumbrance or jus in re L aliena in the purchaser ; but an agreement to sell a Digitized by Microsoft® THE KINDS OF LEGAL EIGHTS. 261 chattel does not. The former agreement runs with the property, while the latter is non-concurrent. So the fee simple of land miay be encumbered by negative agreements, such as a covenant not to build ; for speaking generally, such obligations will run with the land into the hands of successive owners. But positive covenants are merely personal to the covenantor, and derogate in no way from the fee simple vested in him,, which he can convey to another free from any such, burdens. Concurrence, however, may exist in different de- grees ; it may be more or less perfect or absolute The encumbrance may run with the servient right into the hands of some of the successive owners and not into the hands of others. In particular, encumbrances may be concurrent either in law or merely in equity. In the latter case the concurrence is imperfect or partial, since it does not prevail against the kind of owner known in the language of the law as a purchaser for value without notice of the dominant right. Ex- amples of encumbrances running with their servient rights at law are easements, leases, and legal mort- gages. On the other hand an agreement for a lease, an equitable mortgage, a restrictive covenant as to the use of land, and a trust will run with their respective servient rights in equity but not at law. It must be carefully noted that the distinction between ownership or jura in re propria, and encum- brance or jura in re aliena, is not confined to the sphere of real rights or jura in rem. Personal, no less than real rights may be encumbrances of other rights. Per- sonal, no less than real rights may be themselves en- cumbered. A debtor, for example, may grant a Digitized by Microsoft® 362 THE KINDS OF LEGAL RIGHTS. security over the book debts owing to him in his busi- ness or over his shares in a company, as well as over his stock in trade. A life tenancy of money in the public funds is just as possible as a life tenancy of land. There can be a lien over a man's share in a trust fund, as well as over a chattel belonging to him. The true test of an encumbrance is not whether the encum- brancer has a jus in rem available against all the world, but whether he has a right which will avail against subsequent owners of the encumbered property. The chief classes of encumbrances aire six in number, namely, Leases, Servitudes, Securiities, Powers, Tmstis, anid Oonittiactual Obliigaitiwnis. In a later dhiapter we abiaill oonisiiideir these more at lenigtih, and in the .meantime Jt is isuflacSent briefly to inxJicartje theitr nature. 1. A Itjase is the enxnimbramce of proipemty vested in one man by a ligiht to 'iSte possesision and use of it vested in lanoHher. 2. A servitude is a riglht to Hhe limited use of a pdace of iliand unaoeomi)antied editlieir by the ownerslhip or by #16 possession of it ; ,t