« 4 (Sorn^U Sam i'rlionl Slibrary Cornell University Library K 235.K26 Selections on the elements of jurisprude 3 1924 017 849 906 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017849906 SELECTIONS ON THE ELEMENTS OF JURISPRUDENCE COMPILED BY WILLIAM A. KEENER Kent Professor of Law and Dean of the Faculty of Law in Columbia University in the City of New York St. Paul, Minn. WEST PUBLISHING CO. 1896 Copyright, 1896, BY WILLIAM A. KEENER. NOTE. This compilation has been prepared primarily with reference to the needs of students beginning the study of law in the School of Law of Columbia University. Its purpose is to enable the student to participate in and to follow intelligently the discussions of the class room. Columbia University, New Yorli, September 1, 1896. (iii)* TABLE OF CONTENTS. CHAPTER I. Page The Nature of Law l-ti7-77 CHAPTER III. Divisions of Law 78-107 § 1. Public and Private liaw 78 2. Written and Unwritten Law 8r> 3. The Law of Persons and the Law of Things 84 4. Civil and Criminal Law 87 5. Law and Equity ua 6. Substantive and Adjective Law lUO CHAPTER IV. The Relation of English Law to American Law 108-111 CHAPTER V, The Sources of English and American Law 112-1^4 KBEN.JUI!, (V) VI TABLE OF CONTENTS. CHAPTER VI. .Tufiicial Decisions as Precedents 125-141! §1. Decisions, Opinions, and Dicta 125 2. .Tudicial Decisions as Precedents— Between Federal and State Courts 133 3. Between Courts of Different States 141 CHAPTER VII. Persons and Tilings 143-151 CHAPTER VIII. Riglits 152-163 § 1. Nature of Riglits 152 2. Classification of Eights 155 CHAPTER IX. Acts 164-183 CHAPTER X. Ownership lS4-iy<) CHAPTER XI. Possession lai-l'JS CHAPTER XII. Contract— Quasi Contract— Tort 199-220 + SELECTIONS ON THE ELEMENTS OF JURISPRUDENCE. CHAPTER 1. THE NATURE OF LAW. 5 1. Law and Fact. 2. Laws of Nature, and Laws of Man. 3. Law and Morality. 4. Command and Custom. 5. General and Particular Commands. § 1. La-wr and Fact. From Thayer's '"''Law amd Fact in Jury Trials^'''' If. JTarrard Law Re- view, 150-163* Let us now try to find some definition of "fact," and a just dis- crimination between fact and law. To define fact is, indeed, a "perylous chose," as they say in the Year Books; and some persons think it unnecessary.^ It is certainly true that the term is widely * It is proper to say that the matter here quoted will appear in a volume entitled "A Preliminary Treatise on Evidence," now in course of publication by Messrs. Little, Brown & Co., of Boston. It is here inserted by permission of the writer and the publishers. 1 For instance, a very able writer in the Solicitors' Journal (volume 20, p.8(J!J)- "A definition," he remarks, "is the most difficult of all things. There is far greater probability of a correct use of terms than of a correct definition of them. The best definition, therefore, is that by use. A correct use renders definition unnecessary, because the law will speak plainly without it; and, whereas it is unnecessai-y to define, it is also dangerous, because an Incorrect definition will confound the correct use," etc. That is a true utterance of the KEEN.JUH. — 1 THE NATURE OF LAW. (Ch. 1 used in the courts much as it is used in popular speech, — ^that is to say, in a tentative, literary, inexact way; and there are those who would let all such words aloue, and not bother about precision. But, as our law develops, it becomes more and more important to give definiteness to its phraseology. Discriminations multiply, new situations and complications of fact arise, and the old outfit of ideas and phrases has to be carefully revised. Law is not so unlike all other subjects of human contemplation and research that clearness of thought will not help us powerfully in grasping it. If terms in common legal use are used exactly, it is well to know it. If they are used inexactly, it is well to know just how they are used. (1) "Fact," and its other forms, "factum" and "fait," stand in our law books for various things, e. g.: (a) for an act, just as the word "fact" does in our older general literature; * * * (b) for that completed and operative transaction which is brought about by sealing and executing a certain sort of writing, and so for the instru- ment itself, the deed (factum); (c) as designating what exists, in contrast with what should rightfully exist, — de facto, as contrasted with de jure; (d) and so generally as indicating things, events, actions, conditions, as happening, existing, really taking place. This last is the notion that concerns us now. It is what Locke expresses when he speaks of "some particular existence, or, as it is usually termed, matter of fact." The fundamental conception is that of a thing as existing or being true. It is not limited to what is tangible or visible, or in any way the object of sense; things in- visible, mere thoughts, intentions, fancies of the mind, propositions when conceived of as existing or being true are conceived of as facts. The question of whether a thing be a fact or not is the ques- tion of whether it is, whether it exists, whether it be true. All in- quiries into the truth, the reality, the actuality of things, are in- quiries into the fact about them. Nothing is a question of fact which is not a question of the existence, reality, truth of something, of the rei Veritas. But this, it may be said, is a portentous sort of definition ; it is turning every question into a question of fact. That inherited instinct of English-spealiing lawyers and judges. But it is quite certain that, as our laws grow, it must be subjected more and more to the scrutiny of the legal scholar, and that it will profit by any serious and com- petent effort to classify and restate it. § 1) LAW AND FACT. 3 is true, so far as any question asks about the existence, the reality, the truth of sometliing. But, of course, in actual use the term has other limitations. In the sense now under discussion, as we have noticed, "fact" is confined to that sort of fact, ultimate fact, which is the subject of the issue. Moreover, that kind of fact which we call "law" is discriminated, and is set apart under its own name. (2) What, then, do we mean by "law"? We mean, at all events, a rule or standard which it is the duty of a judicial tribunal to apply and enforce. It is not my present purpose to say anything as to the exact nature or origin of law. How the rule or standard comes into existence, where it is found, just what the nature of it is, how far it is the command of a supreme political power, and how far the silentlj-^-followed habit of the community, and other like questions, there is no occasion to consider now. It is enough to mark one characteristic of it, and to say that, in the sense now under con- sideration, nothing is law that is not a rule or standard which it is the duty of judicial tribunals to apply and enforce. I do not even care to say that all general standards that courts apply are to be called law. That matter I pass by. But this is true, and it is enough for our present purpose: That, unless there be a question as to a rule or standard which it is the duty of a judicial tribunal to apply, there is no question of law. The inquiry whether there is any such rule or standard, the determination of the exact meaning and scope of it, the definition of its terms, and the settlement of incidental questions, such as the conformity of it, in the mode of its enactment, with the requirements of a written constitution, are all naturally and justly to be classed together; and these are questions of law. From Keener'' s Quasi Contracts, pp. 96-98. Undoubtedly, what was once a question of fact may in time, in consequence of repeated adjudications, become a rule of law; as, for example, the rule that twenty-four hours is a reasonable length of time in which to give notice of the dishonor of a bUl of exchange or promissory note, or the rule that twenty years' adverse possession establishes a prescriptive right, or the rule that a person is pre- sumed to be dead who has been absent seven years without being heard of by those who naturally would have heard of him if he had 4 THE NATURE OF LAW. (Ch. 1 been alive. Therefore what is to-day a question of fact may in the future become a rule of law; but until a court is prepared to say that, on a given state of facts, a certain result shall follow in all cases presenting those facts, the question must be one of fact, and not of law. Even in the case where the rule is first laid down, the question should be treated as one of fact, if the conclusion reached by the court is reached by them, not because of their learning as lawyers, but for the reason that the court is of the opinion that no jury of reasonable intelligence could differ from the result which the court thinks should be leached. It is frequently said that questions of law are for the court, while questions of fact are to be decided by the jury. If this statement were correct, it would be of assistance only in those cases where, because of previous adjudications, one could say that the question at issue was for the court, and not for the jury; but the statement is, in fact, not correct, if it is to be regarded as indicating anything more than the peculiar province of the jury. The special province of the jury is to pass upon the issuable allegations of fact in an action where the court would not be justified in setting aside the verdict as unreasonable. It cannot be said, however, that the court has no right to pass upon questions of fact. It is not only the recognized right of the lourt to pass upon certain questions of fact, but it is the duty of the court so to do. For example, if the question of the admissibility of evidence depends upon facts about which there is a dispute, it is the duty of the court to decide that question of fact, and to admit or exclude the evidence oilered, according to its finding of the fact upon which the admissibility of the evidence depends. Thus, if evidence is offered as the dying declaration of a person, and it is conceded that the case is a proper one for the admission of a dying declaration, if the person against whom it is offered denies that the party making the declaration believed himself to be in extremis it becomes necessary for the court to settle as a fact whether the person making the declaration regarded himself as in imminent danger of death. Again, it is the duty of the court to require a jury to act as reason- able men in their findings as to the facts; and this the court does by directing a nonsuit or a verdict in the first instance, or by settino- § 2) LAWS OF NATURE AND LAWS OF MAN. 5 aside a verdict wliich it tliinks the facts did not authorize the jury, as reasonable men, to render. If, for example, the question is whether A. walked across the street, and the court is of opinion that no reasonable man could say that he did, the court should di- rect a nonsuit or a verdict. No one would seriously contend that because the court thinks that A. did not walk across the street, and so declares, the question of whether A. walked across the street has become one of law. This instance will suffice to show that all questions considered by the court are not questions of law, and the fact that this has not been clearly kept in mind has led to much con- fusion of expression, if not of thought. § 2. La'ws of Nature and Lia'ws of Man. From, Holland'' s Elements of Jurisprudence^ 17-18. In the theoretical, or as we should rather say in modern phrase, in the physical sciences. Law is used to denote the method of the phenomena of the universe; a use which would imply, iu accord- ance with the primitive meaning of the term, that this method is imposed upon the phenomena either by the will of God, or by an abstraction called Nature. This use of the term may certainly lead to misconceptions. It has long ago been agreed that all we can know of natural phenom- ena is that they co-exist with, or succeed, one another in a certain order, but whether this order be imposed immediately by a divine will, or mediately through an abstraction called Nature, or through minor abstractions called Gravitation, Electricity, and the like, the phenomena themselves are unable to inform us. It is therefore necessary to realise that when we talk of the laws of Gravity or of Refraction, we mean merely that objects do gravitate and that rays are refracted. We are using the term law merely to convey to our minds the idea of order and method, and we must beware of im- porting into this idea any of the associations called up by the term when it is employed in the practical sciences ' 2 The reader need hardly be reminded that by a "practical science" is not meant a body of rules for the government of practice (which would be an art), but the study of principles upon which, as a matter of fact, human ac- tion is governed. Holland, Jur. 23, note 1.— Ed. 6 . THE NATURE OF LAW. (Ch. 1 Its use in these sciences is, speaking very generally, to express a rule of human action; and the sciences of human action being those in which the term is most used, and indeed is most needed, it is reasonable to say that this is its proper meaning, and that its use in the theoretical sciences is improper, or metaphorical merely. But just as its metaphorical use, as meaning 'order,' is sometimes obscured by associations derived from its proper use as signifying 'a rule,' so is its proper use as 'a rule' occasionally confused by an imagined parity between a rule and the invariable order of nature. The first step therefore towards clearing the term Law of am- biguity for the purposes of Jurisprudence is to discard the meaning in which it is employed in the physical sciences, where it is used, by a mere metaphor, to express the method or order of phenomena, and to adopt as its proper meaning that which it bears in the prac- tical sciences, where it is employed as the abstract of rules of hu- man action. From Pollocks Essays in Jurisprudence and Etliics, IfZ-lf.!).. The nature and extent of the analogy between laws, in the strict or political sense, and the uniformities in the course of physical events which we call "laws of nature," have often been discussed. Blackstone and earlier writers pressed the comparison with rhetor- ical inexactness, which has been rebuked by the later analytical school with some excess of severity, as if the likeness were merely verbal and misleading. Early in this century the correction was more modestly, but not less effectually, made by Blackstone's editor. Christian. "Tn all cases," he s:iys, "^^■here if (the now law) "is not applied to human conduct, it may be considered as a metaphor, and in every instance a more appropriate term may be found. * * • When we apply the word 'Law' to motion, matter, or the works of nature or of art, we shall find in every case that, with equal or greater propriety, we might have used llie words, 'quality,' 'property,' or 'peculiarity.'"' Still the resemblance, notwithstanding all crit- icism, is a real one. The laws made by princes and rulers aim, with more or less success, though never with perfect success, at produ- cing uniformity of conduct within the field of action to which they apply. We observe in the court of nature uniformities which are constant. This constancy, compared with the partial and un- § 2) LAWS OF NATURE AND LAWS OF MAN. 7 certain obedience given to human ordinances, lias in all times pre- sented itself to men as the perfect fulfillment in another region of that which the lawgiver can only strive to attain. By laws we can, more or less, make men behave in particular ways. The con- straints of express enactment or customary rules are sufficient, to some extent, but not altogether, to determine their acts and for- bearances. But the powers of nature always behave in the same ways, and this readily suggests to our mind a constraint which is always present, and always efQcient. Seedtime and harvest, the changes of the moon, the courses of the stars, come around without fail. Thus it would be with men's actions, if the law were always obeyed; and therefore we seem to see in nature a law more perfect than man's, because never broken. In some such way as this the phrase, "laws of nature," has come into common use; and, in the practice of modern writers, almost any general proposition in any branch of science may be called a law. That this manner of speak- ing should come to be regarded as containing an explanation of the facts is but one of innumerable instances of the tyranny constantly usurped over man by his own creatures, — words. But in following this trade of resemblance we have introduced an important differ- ence. At first sight the laws of nature seem to differ from those of man only in being inviolate; and their excellence in this respect is, indeed, a not uncommon topic of natural theolog;^'. But when we consider it more curiously the distinction is one of kind. The laws of nature are not more excellent than acts of parliament, but belong to another category. Christian has ex])n ssed the point as well as anybody: "When law is applied to any other object than man, it ceases to contain two of its essential ingredient ideas — namely, disobedience and punishment." A law of nature is obeyed, as we say, because there is no room for disobedience. In tlie case of laws in the proper sense, the law is one thing, and the obedience — or, as it may be disobedience — of any man subject to it is another thing. In the case of the law of nature there is no such difference. Hu- man statutes, and even Divine ones, according to the majority of theologians, are commands addressed to agents who may or may not follow them. Their object is a certain uniformity, but the uniformity does not necessarily ensue. Nay, the law would still be a law if no single person obeyed it on any one occasion. But a law THE NATURE OF LAW. CCh. 1 of nature is inseparable from uniformity; or, rather, it is tlie uni- formity itself. § 3. Law and Morality. From Anfassage is this: That a customary rule, which the people actually observes, is equivalent to a law which the people establishes formally, since the people, which is the sovereign, is the immediate author of each. Now, admitting that the position will hold where the people is the sovereign, how can the position possibly apply where the peo- ple is ruled by an oligarchy, or where it is subject to a monarch? During the virtual existence of the Boman commonwealth, the posi- tion maintained in the passage might have been plausible. But it is strange that the author of the passage, who lived under Hadrian and the Antonines, after the Eoman world had become virtually a monarchy, did not perceive its absurdity. He must have known that the laws formally established by the virtual monarch, and customs observed spontaneously by the subject Roman community, could not be referred, in any sense whatever, to one and the same source. * » * Now, customary law, as positive law, is established by the sov- ereign. And consequently whether it be inti-oduced, or not, by the consent of the people, depends upon the form of the government. If the people are the sovereign, or if they share the sovereignty with one or a few; customary law, like other law, is, of course, introduced by their consent, in the strict acceptation of the term. But, if the people have no share in the sovereignty, they have no part what- 18 Digest, i. 3. 32. § 4) COMMAND AND CUSTOM. 25 ever iu the introduction of positive law, customary or otherwise, and can onlj' be said to consent to its introduction in the remote sense that they acquiesce, whether by reason of fear, or some other motive, in the existence of the government which establishes the law. And under monarchies or oligarchies, as well as under govern- ments purely or partially popular, much or most of the law which obtains in the community is commonly customary law. So that customary la^\■ cannot be a mark of freedom, — a term which means, if it mean anything, that the government of the community is pure- ly or partially popular. Sir William Blackstone's meaning may have been this: That the antecedent customs, which are the groundwork of customary law, are necessarily introduced by the consent of the people, or, in other words, are necessarily consonant to their interests or wishes. But even this is false. If the people be enlightened and strong, custom, like law, will commonly be consonant to their interests and wishes. If they -be ignorant and weak, custom, as well as law, will com- monly be against them. During the Middle Ages, the body of the people throughout Eu- rope, were in the serf or slavish condition, and this slavish condi- tion of the body of the people originated in custom, although the imperfect rights which custom gave to their masters, together with the imperfect obligations which custom imjwsed on themselves, were afterwards enforced by law of which that custom was the basis. In various parts of Europe the people have gradually es- caped from the servile condition, through successive acts of the legislature. So that the body of the people in many of the Eu- ropean nations have been released, by direct legislation, from the servile and abject thraldom in which they had been held by custom, and by law framed upon custom. A notable recent instance is the emancipation of the serfs in Russia. In Rome the absolute dominion of the paterfamilias over his wife and de'ScendaUts arose from the custom, and consequent customary law, and was gradually abridged by direct legislation, namely, by the edicts of the praetors, the laws of the people, and the edictal constitutions of the emperors. 26 THE NATURE OF LAW. (Ch. 1 Let us turn our eyes in what direction we may, we shall find that there is no connection between customary law and the well-being of the many. From lIoUand''s Elements of Jurisprudence, 76-78. Law has been for centuries described as a 'command,' but this description, though essentially true, is inadequate to the extent of being misleading. Austin, who very properly analyses a command into (1) a desire conceived by one rational being that another ra- tional being should do or forbear, (2) an evil to proceed from the for- mer and to be incurred by the latter in case of non-compliance with the wish, and (3) an expression of the wish by words or other signs, is unable to discover these characteristics in laws which are merely declaratory, or which repeal pre-existing law, or which, because they can be disobeyed with impunity, are said to be 'of imperfect ob- ligation".' Similar difficulties have been raised by Austin's critics with reference to other classes of laws: by Mr. Frederic Harrison, for instance, with reference to enabling statutes, laws conferring franchises, and rules of interpretation or of procedure^". Such cases will however cease to be anomalous if we recognise that every law is a proposition announcing the will of the State, and implying, if not expressing, that the State will give effect only to acts which are in accordance with its will, so announced, while it will punish, or at least visit with nullity, any acts of a contrary character. The State thus makes known what advantages it will protect as being legal rights, what disadvantages it will enforce as being legal duties, and what methods it will pursue in so doing. The announcement may be made in many different v.ays. A law may be imperative, as 'Honour thy father and thy mother'; but it may also be in the indicative mood, as 'No contract for the sale of any goods, wares and merchandises, for the price of £10 sterling or up- wards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorised'; or 'From and i» Jurisprudence, I^ect. j. 20 Fortnightly Review, 1878, p. 084. § 4) COMMAND AND CUSTOM. 27 after the commencement of this Act the several jurisdictions which by this Act are transferred to and vested in the said High Court of Justice and the said Court of Appeal respectively shall cease to be exercised, except by the said High Court of Justice and the said Court of Appeal respectively, as provided by this Act.' The real meaning of all Law is that, unless acts conform to the course prescribed by it, the State will not only ignore and render no aid to them, but will also, either of its own accord or if called upon, intervene to cancel their effects. This inter- vention of the State is what is called the 'sanction' of law-\ It is true that the State intervenes not only with a view to punish- ment, and occasionally to prevent anticipated illegality, but also to effect restitution, and this is perhaps its principal function; but before the commission of the wrong the announcement of State in- tervention in case of its commission operates upon the genpral mind by way of threat of punishment. It is a punishment to a wrong- doer, or to one who neglects to comply with prescribed courses of procedure, if his wrong be merely undone, or his faulty procedure fails of its effect, so that he has, as the saying goes, 'his trouble for his pains.' Law is, in fact, formulated and armed public opin- ion, or the opinion of the ruling body. It announces not only that certain states of things and courses of action are viewed by it with favour, but also that, in case of the invasion of these states of things, or in case of contrary courses of action being pursued, it will not only look on with disfavour, but will also, in certain events, actively intervene to restore the disturbed balance. From, Maine's Early History of Institutions^ 357-368. The duty of Inquiring, if not how sovereignty arose, at all events- through what stages it has passed, is in my judgment indispensable. It is only thus that we can assure ourselves in what degree the re- sults of the Austinian analysis tally with facts. There is, in truth, nothing more important to the student of juris- prudence than that he should carefully consider liow far the ob- served facts of human nature and society bear out the assertions which are made, or seem to be made, about sovereignty by the ana- 21 'Legum eas partes quibus poenas constituimus adversus eos qui contra leges fecerint, sanctiones vocamus." lust. Inst. ii. 1. 10. 28 THE NATURE OF LAW. (Ch- 1 lytical jurists. To begin with, these assertions must be disentangled from one another. The first of them is that, in every independent commiinitv of men, there resides the power of acting with irresistible force on the several members of that community. This may be ac- cepted as actual fact. If all the members of the community had equal phjsical strength, and were unarmed, the power would be a mere result from the superiority of numbers; but, as a matter of fact, various causes, of which much the most important have been the superior physical strength, and the superior armament, of por- tions of the community, have conferred on numerical minorities the power of applying irresistible pressure to the individuals who make up the community as a whole. The next assertion is that in every independent political community — that is, in every independent com- munity, neither in a state of nature, on the one hand, nor in a state of anarchy, on the other — the power of using or directing the irresisti- ble force stored up in the societj' resides in some person, or combi- nation of persons, who belong to the society themselves. The truth of this assertion is strongly suggested by a certain class of facts, par- ticularly by the political facts of the Western and Modern world, but fill the relevant facts, it must be recollected, have not been fully ob- served. The whole world, of which theorists on human nature are extremely apt to forget considerably more than half, and the entire history of the whole world, would have to be examined before we (ould be quite sure of the facts; and, if this were done, it may be that a great number of the facts would not so strongly suggest the conclusion, or, as I myself think, the assertion which we are consid- ering w;ould not so much be shown to be false as to be only verbally true, and therefore without the value which it possesses in societies of the type to which our own belongs. An assertion, however, which the great analytical jorists cannot be charged with making, but v^ hich some of their disciples go very near to hazarding, that the sov- ereign person or group actually wields the stored-up force of society by an uncontrolled exercise of will, is certainly never in accordance with fact. A despot with a disturbed brain is the sole conceivable (xample of such sovereignty. The vast mass of influences, which we may call, for shortness, moral, perpetually shapes, limits, or forbids the actual direction of the forces of society by its sovereign. This h the point which, of all others, it is practically most necessary that § 4) COMMAND AND CUSTOM. 29 the student should bear in mind, because it does most to show what the Austinian view of sovereignty really is, — that it is the result of abstraction. It is arrived at by throwing aside all the characteristics and attributes of government and society except one, and by connect- ing all forms of political superiority together through their common possession of force. The elements neglected in the process are al- ways important, sometimes of extreme importance, for they consist of all the influences controlling human action, except force directly applied or directly apprehended; but the operation of throwing them aside for purposes of classification is, I need hardly say, perfectly legitimate philosophically, and is only the application of a method in ordinary- scientific use. To put the same thing in another way, that which we reject in the process of abstraction by which the conception of sovereignty is reached is the entire history of each community. First of all, it is the history — the whole historical antecedents — of each society by which it has been determined M'here, in what person or group, the pov\'er of using the social force is to reside. The theory of sovereignty neglects the mode in which the result has been arrived at, and thus is enabled to class together the coercive authority of the great king of Persia, of the Athenian demos, of the later Eoman emperors, of the Russian czar, and of the crown and parliament of Great Britain. Xext, it is its history, the entii'e mass of its historical antecedents, which in each community determines how the sovereign shall exer- cise, or forbear from exercising, his irresistible coercive power. All that constitutes this — the whole enormous aggregate of opinions, sen- timents, beliefs, superstitions, and prejudices, of ideas of all kinds, hereditary and acquired, some produced by institutions, and some by the constitution of human nature — is rejected by the analytical ju- rists. And thus it is that, so far as the restrictions contained iit their definition of sovereignty are concerned, the queen and parlia- ment of our own country might direct all weakly children to be put to death, or establish a system of lettres de cachet. The procedure of the analytical jurists is closely analogous to that followed in mathematics and political economy. It is strictly philo- sophical, but the practical value of all sciences founded on abstrac- tions depends on the relative importance of the elements rejected and the elements retained in the process of abstraction. Tried by this yO THE NATURE OF LAW. (Ch. 1 lest, mathematical science is of greatly more value than political ■economy, and both of them than jurisprudence, as conceived by the ^vIite^s I am criticising. Similarly, the misconceptions to which the Austinian analysis gives rise are very similar to those which might be conceived as embarrassing the student of mixed mathe- matics, and which do actually embarrass the student of political economy. Just as it is possible to forget the existence of friction in r.ature, and the reality of other motives in society except the desire to grow rich, so the pupil of Austin may be tempted to forget that there is more in actual sovereignty than force, and more in laws which are the commands of sovereigns than can be got out of them ~bj merely considering them as regulated force. I am not prepared to deny that Austin occasionally, and Hobbes frequently, express themselves as if their system were not limited throughout by the lim- itation which is at its base. All the great masters of abstraction are, in fact, now and then betrayed into speaking or writing as if the materials thrown aside in the purely mental process were actually dross. When, however, it has once been seen that in Austin's system the determination of sovereignty ought to precede the determination of law, when it is once understood that the Austinian conception of sovereignty has been reached through mentally uniting all forms of government in a group, by conceiving them as stripped of every attribute except coercive force, and when it is steadily borne in mind that the deductions from an abstract principle are never, from the nature of the case, completely exemplified in facts, not on- ly, as it seems to me, do the chief difficulties felt by the student of Austin disappear, but some of the assertions made by him, at which the beginner is most apt to stumble, have rather the air of self-evident propositions. I dare say you are sufficiently acquaint- ed with his treatise to make it enough for me to mention some of these propositions, without the amplifications which are neces- sary for their perfectly accurate statement. Jurisprudence is the science of positive law. Positive laws are commands addressed by sovereigns to their subjects, imposing a duty, or condition of ob- ligedness, or obligation, on those subjects, and threatening a sanc- tion, or penalty, in the event of disobedience to the command. A right is the facul+y or power conferred by the sovereign on certain § 4) COMMAND AND CUSTOM. 31 members of the community to draw down the sanction on a fel- low subject violating a duty. Now, all these conceptions of law, right, duty, and punishment depend upon the primary conception of sovereignty, just as the lower links of a chain hanging down de- pend upon the highest link. But sovereignty, for the purposes of Austin's system, has no attribute but force, and consequently the view here taken of "law," "obligation," and "right" is a view of them regarded exclusively as products of coercive force. The "sanc- tion" thus becomes the primary and most important member of the series of notions, and gives its color to all the others. Probably nobody ever found a difficulty in allowing that laws have the char- acter given to them by Austin, so far as such laws have proceeded from formal legislatures. But many persons, and among them some men of powerful mind, have struggled against the position that the great mass of legal rules which have never been prescribed by the organ of state, conventionally known as the legislature, are com- mands of the sovereign. The customary law of all countries, which bave not included their law in codes, and specially the English com- mon law, have often had an origin claimed for them independently of the sovereign, and theories have been propounded on the subject which Austin scouts as mysterious and unintelligible. The way in which Hobbes and he bring such bodies of rules as the common law under their system is by insisting on a maxim which is of vital im- portance to it,^ — ^" What ever the sovereign permits, he commands." Until customs are enforced by courts of justice, they are merely "positive morality," rules enforced by opinion; but, as soon as courts of justice enforce them, they become commands of the sovereign, conveyed through the judges who are his delegates or deputies. It is a better answer to this theory than Austin would perhaps have admitted, that it is founded on a mere artifice of speech, and that it assumes courts of justice to act in a way and from motives of which they are quite unconscious. But, when it is clearly compre- hended that in this system there are no associations with the sov- ereign but force or power, the position that what sovereigns per- mit they command becomes more easily intelligible. They com- mand because, being by the assumption possessed of uncontrollable force, they could innovate without limit at any moment. The com- mon law consists of their commands, because they can repeal or 32 THE NATURE OF LAW. (Gil. 1 alter or restate it at pleasure. The theory is perfectly defensible as a theory, but its practical value, and the degree in which it ap- proxinaates to truth, differ greatly in different ages and countries. There have been independent political communities, — and, indeed, there would still prove to be some of them, if the world were thoroughly searched, — in which the sovereign, though possessed of irresistible power, never dreams of innovation, and believes the per- sons or groups by whom laws are declared and applied to be as much part of the necessary constitution of society as he is himself. There have, again, been independent political societies in which the sovereign has enjoyed irresistible coercive i>ower, and has car- ried innovation to the furthest point, but in which every single as- sociation connected with law would have violence done to it if laws were regarded as his commands. The tyrant of a Greek city often satisfied every one of Austin's, tests of sovereignty, yet it was part of the accepted definition of a tyrant that "he subverted the laws." Let it be understood that it is quite possible to make the theory fit in with such cases, but the process is a mere straining of lan- guage. It is carried on by taking words and propositions altogether out of the sphere of the ideas habitually associated with them. Before proceeding to speak at some length in my next lecture of these historical limitations on the practical value of Austin's the- ories, let me repeat my opinion that if the method of discussion which seems to me correct had been followed in his treatise, and if the examination of sovereignty had preceded the examination of the conceptions dependent on it, a considerable number of the state- ments which he has made respecting these latter conceptions ■would have appeared, not merely innocent, but self-evident. Law is here regarded as regulated force, simply because force is the one element which has been allowed to enter into the primary notion upon Avhich all the others depend. The one doctrine of this school of jurists which is repugnant to lawyers would lose its air of paradox if an assumption were made which, in itself theoretically unobjectionable, manifestly approximates to practical truth as the course of history proceeds, — the assumption that what the sovereign might alter, but does not alter, he commands. The same arrangement would have a further advantage, as it seems to me, through the modifications it would necessitate in Austin's man- § 4) COMMAND AND CUSTOM. 3'J ner of discussing Morality, though the subject is not one which can be here treated with completeness. The position at which many read- ers have stumbled — I do not affect to do more than state it in popular language — is that the sanction of moral rules, as such, is the dis- approbation which one's fellow men manifest at their violation. It is sometimes construed to mean that the only motive for obey- ing moral rules is the fear of such disapprobation. Such a construc- tion of Austin's language is an entire misconception of his mean- ing, but, if the order of discussion which I advocate had been fol- lowed, I do not think it could ever possibly occur to any mind. Let us suppose Austin to have completed his analysis of sovereignty, and of the conceptions immediately dependent on it, — law, legal right, and legal obligation. He would then have to examine that great mass of rules, which men in fact obey, which have some of the characteristics of laws, but which are not, as such, imposed by sov- ereigns on subjects, and which arc not, as such, enforced by the sanc- tion supplied by sovereign power. It would be, of course, incum- bent on the philosophical jurist to examine these rules, because sovereigns, being by his hypothesis human superiors, are, as human beings, subject to them. Austin has, in fact, examined them from this point of view in some of his most interesting passages. While insisting that sovereignty is, from the nature of the case, incapable of legal limitation, he fully admits that sovereigns are restrained from issuing some commands, and determined to issue others, by rules which, though they are not laws, are of extreme cogendy. The crown and parliament of Great Britain are, in his view, sov- ereign, — a sovereign aristocracy, as he would call it; but, though this aristocracy could, for purposes of argument, do anything it pleased, it would be outraging all experience to assert that it does; this. That great body of rules which is embodied in constitutional maxims keeps it from doing some things. That great body of rules: which in ordinary usage are called "moral" keeps it from doing others. What common characteristics has this aggregate of rules which operate on men, and on sovereigns like other men? Austin, as you know, names it "positive morality," and says that its sanc- tion is opinion, or the disapproval of the bulk of the community following on its violation. Properly understood, this last is an obviously true proposition, for what is meant is that public dia- KEEN.JUH. — 3 34 THE NATURE OF LAW. *-'l- ^ approbation is the one sanction which all these rules have in f^om- mon. The rule which keeps the crown and parliament from de- claring murder legal, and the rule which keeps them from allowing the queen to govern without ministers, are connected together through the penalty attendant on a breach of them, which is the strong disapprobation of a majority of Englishmen; and it is their having a sanction of some kind which principally connects both rules with laws proper. But. though fear of opinion be a motive for obedience to both rules, it does not at all follow that the sole mo- tive for obedience to both rules is fear of opinion. This fear would be allowed by most people to be the chief, if not the exclusive, motive for obedience to constitutional rules; but such an admission in- volves no necessary assertion whatever as to the complete sanction of moral rules. The truth is that Austin's system is consistent with any ethical theory; and, if Austin seems to assert the con- trary, I think the cause is to be sought in his firm conviction of the truth of his own ethical creed, which, I need not say, was utilitarian- ism in its earlier shape. From Maine's Early Hktorxj of Institutions, 371-375, 379-391^ The word "law" has come down to us in close association with two notions, — the notion of order and the notion of force. The associa- tion is of considerable antiquity, and is disclosed by a considerable variety of languages; and the problem has repeatedly suggested itself, which of the two notions thus linked together is entitled to l)recedence over the other, which of them is first in point of mental concex^tion? The answer, before the analytical jurists wrote, would, on the whole, have been that "law,"' before all tilings, implied order. "Law, in its most general and comprehensive sense, signifies a rule of action, and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus, we say the laws of motion, of gravitation, of optics or mechanics, as well as the laws of nature and of nations." With these words Blackstone begins that chapter on "The Nature of Laws in General," A\hich may almost be said to have made Bentham and Austin into jurists by virtue of sheer repulsion. The analytical jurists, on the other hand, lay down unhesitatingly that the notion of force has priority over the notion of order. They say that a true law, the command of an irresistible § 4) COMMAND AND CUSTOM. 35 sovereign, enjoins a class of acts or a class of omissions either on a subject, or on a number of subjects, placed by the command alike and indifferently under a legal obligation. The characteristic which thus, as a matter of fact, attaches to most true laws of binding a number of persons, taken inditferently, to a number of acts or omis- sions, determined generally, has caused the term "law" to be extend- ed by metaphor to all uniformities or invariable successions in the physical world, in the operations of the mind, or in the actions of mankind. "Law," when used in such expressions as the "law of gravity," the "law of mental association," or the "law of rent," is treated by the analytical jurists as a word wrested from its true meaning by an inaccurate figurative extension, and the sort of disre- spect with which they speak of it is extremely remarkable. But I suppose that, if dignity and importance can properly be attributed to a word, there are in our day few words more dignified and more important than "law,"' in the sense of the invariable succession of phenomena, physical, mental, or even politico-economical. With this meaning, "law"' enters into a great deal of modern thought, and bas almost become the condition of its being earned on. * * * The statement that, in all languages, law primarily means the <;ommand of a sovereign, and has been applied derivatively to the orderly sequences of nature, is extremely difficult of verification; and it may be doubted whether its value, if it be true, would repay the labor of establishing its truth. The difficulty would be the greater because the known history of philosophical and juridical speculation shows us the two notions which, as a matter of fact, are associated with law, acting and reacting on one another. The order of nature has unquestionably been regarded as determined by a sov- ereign ( ommand. ^Nfany persons to whom the pedigree of much of modern thought is traceable conceived the particles of matter which make up the universe as obeying the commands of a personal God just as literally as subjects obey the commands of a sovereign through fear of a penal sanction. On the other hand, the contem- plation of order in the external world has strongly influenced the view taken of laws proper by much of the civilised part of mankind. The Roman theory of a law natural has affected the whole history of law, and this famous theory is in fact compounded of two ele- ments, one furnished by an early perception, Greek in origin, of a cer- 36 THE NATURE OF I.AW. (Ch. 1 tain order and regularity in physical nature, and the other attributa- ble to an early perception, Roman in origin, of a certain order and uniformity among the observances of the human race. I need not here repeat the proof of this which I attempted to give in a volume published some years ago. Xobody is at liberty to censure men, or communities of men, for using words in any sense they please, or with as many meanings as they please, but the duty of the scientific enquirer is to distinguish the meanings of an imoortant word from one another, to select the meaning appropriate to his own purposes, and consistently to employ the word during his investigations in this sense and no other. The laws with which the student of jurispru- dence is concerned in our own day are undoubtedly either the actual commands of sovereigns, understood as the portion of the community endowed with irresistible coercive force, or else they are practices of mankind brought under the formula, "a law is a command," by help of the formula, "whatever the sovereign permits, is his command.'' ^^ From the point of view of the jurist, law is only associated with or- der through the necessary condition of every true law that it must prescribe a class of acts or omissions, or a number of acts and omis- sions determined generally; the law which prescribes a single act not being a true law, but being distinguished as an "occasional" or "particular" command. Law, thus defined and limited, is the sub- ject-matter of jurisprudence, as conceived by the analytical jurists. At present we are only concerned with the foundations of their sys- tem, and the questions which 1 wish to raise in the present lecture are these: Has the force which compels obedience to a law always been of such a nature that it can reasonably be identified with the coercive force of the sovereign? And have laws always been charac- 2 2 "* * * If Austin intended to state, broadly and generally, that 'every- thing which the sovereign permits he tacitly commands,' the assertion is, no doubt, untenable. But, as it appears to me, Austin does not say this, nor was it necessary for him to say this. He does not say 'whatever the sov- ereign permits to anybody,' but 'whatever the sovereign permits to a judge'; nor does he even say 'whatever is permitted to a judge,' but 'whatever is permitted to a 3uassage I'rom one of these political systems to another, laws have distinctly -altered their character. The force, for example, which is at the back of law, can only be called the same by a mere straining of language. Customary law — a subject on which all of Austin's remarks seem to me comparatively unfruitful — is not obeyed, as enacted law is obeyed. When it obtains over small areas, and in small natural groups, the penal sanctions on which it depends are partly opinion, partly superstition, but to a far greater extent an instinct almost as blind and unconscious as that which produces some of the move- ments of our bodies. The actual constraint which is required to secure conformity with usage is inconceivably small. When, how- ever, the rules which have to be obeyed once emanate from an au- thority external to the small natural group and forming no part of it, they wear a character wholly unlike that of a customary rule. They lose the assistance of superstition, probably that of opinion, certainly that of spontaneous impulse. The force at the back of law comes therefore to be purely coercive force to a degree quite unknown in societies of the more primitive type. Moreover, in many communities, this force has to act at a very great distance from the bulk of the persons exposed to it ; and thus the sovereign who wields it has to deal with great classes of acts, and with great classes of persons, rather than with isolated acts and with indi- viduals. Among the cousequenecH of this necessity are manv of the § 4) COMMAND AND CUSTOM. 45 characteristics sometimes supposed to be inseparable from laws, their indifferency, their inexorableness, and their generality. And as the conception of force associated with laws has altered, so also, I think, has the conception of order. In the elementary social groups formed by men of the Aryan race, nothing can be more monotonous than the routine of village custom. Neverthe- less, in the interior of the households which together make up the village community, the despotism of usage is replaced by the des- potism of paternal authority. Outside each threshold is immem- orial custom blindly obeyed. Inside is the patria potestas exercised by a half civilized man over wife, child, and slave. So, far, then, as laws are commands, they would be associated in this stage of society less with invariable order than with inscrutable caprice; and it is easier to suppose the men of those times looking to the succession of natural phenomena, day and night, summer and win- ter, for types of regularity, than to the words and actions of those above them who possessed coercive power over them. The force then which is at the back of laws was not always the same. The order which goes with them was not always the same. They have only gradually attracted to themselves the attributes which seem essential to them not only in the popular view but to the penetrating eye of the analytical jurist. Their generality, and their dependence on the coercive force of a sovereign, are the result of the great territorial area of modern states, of the comminution of the subgroups which compose them, and above all of the ex- ample and influence of the Eoman commonwealth under assembly, senate, and prince, which from very early times was distinguished from all other dominations and powers, in that it broke up more thoroughly that which it devoured. From IfoUand's Elements of Jurifipnideruie, 60-56. Usage, or rather the spontaneous evolution by the popular mind of rules the existence and general acceptance of which is proved by their customary observance, is no doubt the oldest form of law-making. It marks the transition between morality and law. Morality plus a State-organization enforcing the observance of cer- tain parts of it is customary law. Two questions are much debated with reference to usage. First, 46 THE NATORB OF LAW. (Ch. 1 as to the mode of its growth as usage. Secondly, as to its trans- formation into law. Its characteristic is that it is a long and generally observed course of conduct. No one was ever consciously present at the commencement of such a course of conduct, but we can hardly doubt that it originated generally in the conscious choice of the more con- venient of two acts, though sometimes doubtless in the accidental adoption of one of two indifferent alternatives; the choice in either case having been either deliberately or accidentally repeated till it ripened into habit. The best illustration of the formation of such habitual courses of action is the mode in which a path is formed across a common. One man crosses the common, in the direction which is suggested either by the purpose he has in view, or by mere accident. If others follow in the same track, which they are likely to do after it has once been trodden, a path is made. Before a custom is formed there is no juristic reason for its tak- ing one direction rather than another, though doubtless there was some ground of expediency, of religious scruple, or of accidental suggestion. A habitual course of action once formed gathers strength and sanctity every year. It is a course of action which every one is accustomed to see followed: it is generally believed to be salutary, and any deviation from it is felt to be abnormal, immoral. It has never been enjoined by the organised authority of the State, but it has been unquestioningly obeyed by the indi- viduals of which the State is composed. There can in fact be no doubt that customary rules existed among peoples long before na- tions or states had come into being. At first no distinction was made between such of these rules as relate to individual character and such as concern society. Morality and customary rules were the same thing, but the distinction between the two was more and more sharply drawn as time went on. After the organisation of States, many of the customary rules of society still continued to be recognised, and acquired a further sanction. They had previously been enforced only by popular opinion, or by the licensed revenge of injured parties. They were now enforced by the political authority. They became law; and were doubtless for the time the only laws known. They were the § 4) COMMAND AND CUSTOM. 47 unwritten, but well known, opinions of the community as to social Tight and wrong. * * * Custom exists as law in every country, though it everywhere tends to lose its importance relatively to other kinds of law. It was known at Rome as the 'ius moribus constitntum.' It is known in England as 'the common law,' or 'the custom of the realm,' the existence of which is now usually proved by showing that it has been aflii-med by the courts, or at least has been appealed to in the writings of great judicial sages. At an earlier epoch it was doubt- less known to all whom it concerned, much as are now the ordinary rules of morality.^* Thus the law was declared in the English as in the Frankish hundredmoots, not by any judicial officer, but by the whole body of freemen present, who were represented in later times by the Rachimburgi, the Schoffen, and the Grand Jury. The increas- ing complexity of affairs, and the numerous other subjects opened up to human thought, have rendered the general consciousness of law-rules impossible, and have rendered necessary the more circuit- ous proof of their existence by means of Treatises and Reports. It is certain that customs are not laws when they arise, but that they are largely adopted into the law by State recognition. How far does this recognition extend? Is it the case that all customary rules on proof of their existence as customs obtain State recogni- tion as laws? In other words, does the determinate and organised will of the nation invariably adopt and confirm, for all matters within its cognisance, the rules which have been adopted for such matters by the indeterminate and unorganised will of the nation, or of portions of it? This cannot be maintained. English Courts require not only that a custom shall be proved to exist, but also that it is 'reason- ble.' ^* And the legislature often abrogates customs, partially or wholesale. The State, through its delegates the judges, undoubtedly grants recognition as law to such customs as come up to a certain stand- ard of general reception and usefulness. To these the Courts give operation, not merely prospectively from the date of such recogni- 23 Cf. Savigny, System, i. p. 181. 2* 'Malus usus est abolendus.' Co. Litt. s. 212; cf. Cutlibei't v. Gumming, 10 Ex. 809, 11 I5x. 405. 48 THE NATURE OF LAW. (fih. 1 tion, but also retrospectively; so far implying that the custom was law before it received the stamp of judicial authentication. The contrary view supported by Austin is at variance with fact. The element of truth in his view, which he has done good service by bring- ing into prominence, is that usage, though it may make rules, cannot, without obtaining for them the recognition of the state, make laws. The element of mistake in his view is to date the state recognition from the moment that the usage has been called in question and allowed to be good in a court of justice. If this is not the moment at which the State imprimatur is given to custom, what is that moment? We can only say that the rule that a Court shall give binding force to certain kinds of custom is as well established as hundreds of other rules of law, and has been established in the same manner. The judges acting as dele- gates of the State, have long ago legislated upon this point as upon many others. Not having a code ready to their hand with rules for every emergency, they have invoked, as the ratio of their de- cisions, not only Equity, or the generally acknowledged view of what is fair, and previous decisions of the Courts, upon the faith of which it is to be presumed that people have been acting, but also customs, established among, and by, the people at large, as presumably embodying the rules which the people have found suit- able to the circumstances of their lives. The Courts have there- fore long ago established as a fundamental principle of law, sub- ject of course in each case to many restrictions and qualiiications, that, in the absence of a specific rule of written law, regard is to be had in looking for the rule which governs a given set of cir- cumstances, not only to Equity and to previous decision, but also to custom.-^ Binding authority has thus been conceded to custom, provided it fulfils certain requirements, the nature of which has also long since been settled, and provided it is not superseded by law of a higher authority. When, therefore, a given set of circumstances is brought into Court, and the Court decides upon- them by bringing them with- in the operation of a custom, the Court appeals to that custom as it might to any other pre-existent law. It does not proprio 2 5 See a critique upon my view by Prof. Dewey, 9 Pol. Sci. Quarterly, p. 47. § 4) COMMAND AND CUSTOM. 49 motu then for the first time make that custom a law; it merely decides as a fact, that there exists a legal custom, about which there might up to that moment have been some question, as there might about the interpretation of an Act of Parliament. It then applies the custom to the circumstances just as it might have ap- plied an Act of Parliament to them. A good custom or an in- telligible Act of Parliament either exists or does not exist ob- jectively, before the case comes into Court; although it is from the decision of the Court in the particular case that a subjective knowledge is first possible for the people of the existence or non- existence of the alleged custom, or that this or that is the mean- ing of the Act of Parliament. The legal character of reasonable ancient customs is to be ascribed, not to the mere fact of their being reasonable ancient customs, but to the existence of an express or tacit law of the State giving to such customs the effect of laws. We have described the mode in which the State usually acts in giving to custom the force of law. It also may occasionally do so in express terms. It sometimes in express terms denies them any such force, and sometimes limits the force which has hitherto been ascribed to them. In some States greater force has been allowed than in others to custom as compared with express legislation. The theory of English law is that no statute can become obsolete by desuetude. The contrary view is maintained in Germany, and even in Scotland. Such an account of the growth of custom and its transformation into law will not content a certain school of theorists, of whom Savigny and Puchta are the most illustrious. They tell us that the growth of Law (Kecht) has no dependence upon individual ar- bitrary will or accident.^" It is begotten in the People (Volk) by the Popular intelligence (Volksgeist).-' The People, however, has no actual existence apart from its bodily form, the State.-* Law has its existence (Daseyn) in the general-will (Gesammtwille); cus- tomary observance is not the cause of Law, but the evidence of its existence.^" It does not make its first appearance in the form of 2s Savigny, System, i. p. 15. " lb. i. pp. 17o, 177. 2 8 Savigny, System, J. p. 22. 2» lb. i. pp. 35, 168. Of. Windscheid, Pand. i. p. 40. KEEN.JDR.— 4 50 THE NATURE OF LAW. (Ch. 1 logical rules.^" Or, going still further afield, we are told hj Hegel to see in the rise of Law the evolution of the Deity. We are in fact told that the principle is anterior to its applica- tions. The true reply to which we conceive to be, that the princi- ple is nothing else than a generalisation from the applications. The only unity antecedent to the circumstances is the common constitution of mankind. The element of truth in the view of the so-called 'historical school' of Germany is that the adoption of cus- tomary rules of conduct is unconscious. It takes place in accord- ance with no deliberate plan, but comes into being piece-meal, as it is called for by the natural wants of mankind. We may remark as results of its mode of formation, first, that it is hence better adapted to national feeling than law which is otherwise manufac- tured. Secondly, that its importance declines with the growth in a nation of conscious critical power. * * * From Ratigan's Science of Jurisprudence, IS-W. It is this element of enforcement by a sovereign political authority which, in the opinion of Austin and his followers, distinguishes the rule of law from all those other rules which like the principles of mo- lalitj', and the so-called laws of honor and of fashion, are enforced by isn indeterminate authority, as well as from all those rules which are enforced by a determinate authority, which is either, on the one hand, superhuman, or, on the other hand, politically subordinate.^^ Rules of the former kind, established in an independent political community by the authority of its sovereign or supreme government, are called "positive laws." But if we accept the limitation of laws, properly so called, to com- mands proceeding from a determinate source, we are not only led, as I'rofessor Robertson remarks,^'' to the apparent paralogism of admit- ting the by-laws of a private club, if made in pursuance of a legal right, to be laws, properly so called, while the whole mass of inter- national jurisprudence is mere opinion, improperly called law, — a con- clusion which is calculated to shock our sense of the proprieties of ex- pression, — but we have a further diflQculty to contend against. As ap- plied to a political community answering to the modern notion of a 3 Savigny, i. p. 16. si Jurisprudence, p. 38. 3 2 See article "Law" in Enc. Brit. § 4) COMMAND AND CUSTOM. 51 civilized state, in which legislation tends to become the only true source of new law, Austin's theory of resting the obligation of law upon the existence of political sovereignty is strictly accurate. But, before laws were thus made, there were, as Montesquieu remarks," "relations of possible justice." And it was probably not within the range of Austin's knowledge that societies existed, notably in India, prior to the advent of British rule, in which human actions were im- doubtedly governed by rules as absolute as any set by a political superior, but which, nevertheless, were not laws, within his concep- tion of the term. To describe, however, such rules as mere rules of morality, would be to misunderstand their nature, and to misuse lan- guage. By those who are acquainted with the force of customary laws relating to inheritance, the alienation of property, the right to levy customary fees, or the use and partition of common waste lands as they exist, for instance, in village communities in the Punjab, the Austinian conception of law must be received with a distinct qualifica- tion, — a qualification which would limit its application to new laws in a civilized state of the modern type. Even the older written Hindu law would not strictly correspond with Austin's conception of a law, even if the system of penances for the breach of their precepts could be accepted as equivalent to the sanction of the political author- ity required by Austin. It is net, indeed, until we come to the com- paratively late period of Manu's Institutes that we find any trace of even an ideal tribunal for the punishment of those who have trans- gressed the precepts of the written law; and the provisions which are contained in that book for the construction of a tribunal composed of the king, with learned Brahmins as assessors, were in all probabil- ity purely idealistic, and not taken from the actual administration of law in any Hindu kingdom which then existed. The character of Hindu jurisprudence is, in fact, altogether different from that of any of the European systems. The Hindu rishis, who composed the san- hitas, had no temporal power ; and the rules they prescribed did not, at their origin, owe their authority to the sanction of any temporal sovereign or administrator, but to the veneration in which the sages themselves were held. And one cannot but admire the practical good sense which these lawgivers showed in their manner of prescrib- 83 Spirit of Laws, bk. 1, § 1. 62 THE NATURE OP LAW. (Ch. 1 ing rules. They did not profess to lay down arbitrary laws of their own invention. On the contrary, they assumed to compile their rules from the ordinances of the Vedas, which were represented as too vast to be mastered by ordinary mortals. The rishis only claimed to be the exponents of this divine law, eternal in its source and immutable in its character, or interpreters of tlie approved customs and usages of the past. And to this position they clung even when introducing the most radical reforms. They did not, by a stroke of the pen, seek to eradicate the barbarous institutions of a more primitive age. When they wished to abolish some prevailing practice or custom, they did not do so by an express injunction; but, by pretending to regu- late the practice, they subjected it to so many conditions and ceremo- nial requirements as in reality to render its observance impossible. Thus it has happened that although these rishis were neither elected by the people, nor appointed by a political sovereign, to make laws, their precepts have continued to the present time to be generallj^ obeyed as commands, and to retain the same vitality as they had in the old days of Brahminical ascendancy. It is also noteworthy, as further illustrating the worldly wisdom of these ancient Hindu law- givers, that they recognized as a fundamental maxim that custom or usage was "transcendent law," and denounced a practice which, though legal, was abhorred by the world, as one that secured no celestial bliss, and was not fit to be followed. By such wise maxims the authors gave to their codes an elasticity which has not rendered them obsolete despite the lapse of centuries. So, again, the cus- tomary rules I have referred to were enforced, prior to the establish- ment of British power, not in consequence of any sanction, expressed or implied, of the dominant political authority for the time being, but in deference to that "plainest counsel of common sense," not to neglect the results of our predecessors' experience in a like matter.'* In other words, from an inveterate regard for precedent, which ex- ercises as great an influence in England and on the Continent at the present time as it ever did in India or in ancient Rome, and which was as much recognized and respected (or at least ostensibly so) by the Homeric gods on Olympus as it is now by the humble peasants of an agricultural village in the Punjab, who see in the practice and Si Pol. Jur. & EtMcs, p. 52. § 4) COMMAND AND CUSTOM. 53 usages of their forefathers the guiding rule for their own conduct, — a rule which, by long familiarity, has come to be looked upon as the most natural one to observe, and therefore the right rule, to trans- gress which would shock the public sense of propriety. For usages and customs, no less than religions, undoubtedly descend by inher- itance; and Lord Melbourne, although he may have incurred the ridi- cule of philosophers for saying that he should adhere to the English Church because it was the religion of his fathers, really only uttered, as Walter Bagehot aptly says,^° one of the most firm and accepted maxims of old times, based upon that principle of ancestor worship which in early stages of society formulates as law the rule of the dead over the living. This rule is primarily concerned in regulating per- sonal conditions only, and hence it is that the movement of progress- ive societies has been characterized by Sir Henry Maine as a move- ment from status to contract.^" Succeeding generations follow the same rule, true to the imitative faculty which is the leading trait in the character of archaic peoples as it is of children, who live by what they see and hear, and cannot help Imitating what comes before them. In course of time these inherited usages eventuate, as Herbert Spen- cer ^'' observes, in a rigid set of customs, restraining men's action in a greater degree than could any rules having a more formal and artificial origin. But inasmuch as the construction of rules which will adequately sum up the general current opinion upon any given class of rights requires two distinct faculties, — the faculty of observa- tion and the faculty of expression,^ ^ — and these faculties are in a inore or less undeveloped condition in communities still existing un- der primitive organizations, it naturally follows also that these in- herited usages, crystallized into later customary laws, are, for the most part, restricted to matters of frequent occurrence i'a the com- munity, and are handed down by tradition in the simplest possible forms. Law, in fact, has its history, like every other science; and the most external characteristic in the process of its historical develop- 3 6 Physics & Politics (5th Ed.) p. 99. S6 Ancient Law, c. 5, p. 170. 3 7 Political Inst. § 535, p. 535. s8 Ihering, Der Geist des Romischen Rechts, 1, 28. 54 THE NATURE OF LAW. (•-"h. i ment is that its proyisions advance from orio-inal simplicity to greater complexity, — a process which goes hand in hand with the expansion of the relations and necessities of life, and therefore with the more manifold development of the material which reacts upon the law, and which law has to master and control.^" Thus, law, as a branch of the national life, is never stable. It has no moment of absolute cessation, but it develops with the people, and attaches itself to the national character at its different stages of culture, adapting itself to the changing wants and requirements of the peo- ple.*" As new legal principles manifest themselves, the law nat- urally undergoes change, and the most essential influence determin- ing this process of change lies in the position which a people assumes as a member of the whole of mankind. In the absence of any legis- lative machinery, the immediate conviction of the people is necessa- rily the primary source of all law, and in the conviction that the pre- vailing usage is right lies the binding force of customary law.*^ Now, this period of youth of nations, in which law exists, as we have seen, in the consciousness of the people, may be characterized as poor in ideas; but, as Savigny observes, it nevertheless enjoys a clear perception of its relations and circumstances, and feels and brings the whole of them into play. Customs may indeed appear from their gradual growth to arise spontaneously, and may be rarely traceable to premeditation; but Lorimer is unquestionably right in saying that "they must ahxays have rested on a previous conception of an object to be attained and of the means of attaining it." *^ Nor is a custom ever a pure mistake. On the contrary, there is a close or- ganic connection of law with the being and character of the people, which manifests itself also in the progress of the times, and is sub- ject to the same movement and development as any other popular tendency. The progress in the formation of law accordingly keeps pace with the progress in the knowledge of the people of the facts which they observe," and hence it is that law has its provincialisms 3 9 Puclita, Cursus der Inst. (1st Ed.) § 19, p, 41: Leipzig, ISC.o. 40 Id., p. 40; Hastie, Jur. (1887) p. 57. *i 1 Windscheid's Lehrbuch des Paudektenrechts (5tb Ed.) § 15, p. 42. 42 1 Inst. Law Nat. p. 28. *3 Trattato delle Leggi, per I'Avv. Professore G. Saredo, p. 20: Fireny, 1886. § 4) COMMAND AND CUSTOM. 55 no less marked than language.^* Thus it is that law grows with the growth and strengthens with the strength of a people.*^ The customary law thus gradually formed, the jus non scrip- turn (or unwritten law), becomes now the immanent rule of conduct which flourishes at its fullest in the youthful life of peoples and in the still undeveloped state. In its earliest beginnings its rules de- pend, doubtless, largely upon natural intuitions, increasing with the experience of what is useful and what injurious. Thus we may sur- mise that a long course of sufiferings and deaths must have generated a body of direct usages to alleviate evil, and to promote good. But it nas only by a very gradual process that such usages were molded into existence, and their extension in other directions was probably again marked by as slow a development as the transition from bar- barism to civilization. So, for example, even what now seems to us the very simple knowledge of how to kindle a fire, or to cultivate the field, or to make bread, was probably only as slowly discovered as the respect due to the right of property, or the necessity of punishing evil doers. Gradually, however, the sphere of knowledge in the childhood of peoples widens and expands, the usages and practices of the past become sanctified by constant observance, and at length they are deemed to constitute a body of customary laws, the viola- tion of which is at once an offense against the community and also against its tutelary deities. *° And as in the case of language, so in that of customary law. tlie father gives the law to the family, the family to the tribe or clan, and the tribe or clan to the community. But in the process of fonnation those rules which directly, and irre- spective of authority, conduce to social welfare, initiated by the con- sensus, as it has been termed,*' of individual interests, precede the kind of law initiated by political authority. Equality is the essen- tial principle of the former, as inequality of the latter. It is the co- ercive sense of ingrained usage in the former which, in early stages of social organisms, keeps men from thinking what they have not before thought, and from doing what they have not before done.*' 44 Puchta, Cureus der Inst. § 10, p. 22. 4 6 Sav. "The Vocation of Our Age," translated by Abraham Hay wan, pp. 25, 27. 46 Filosofia del Diritto Private, per P. Cogliolo, pp. 25, 30. 4 7 Political Institutions, by H. Spencer, p. 528. 4 8 Bageh. Eng. Pol. Econ. p. 44. 56 THE NATQEE OP LAW. (Ch. 1 We have thus seen where the weak point of the Austinian concep- tion of law lies. But, viewed in its modern and matured develop- ment, we may very well accept Austin's definition of jurisprudence as the science of the positive law. From Salmoncrs First Principles of Jurisprudence^ 95-106. The opinion that has been advanced in the preceding pages touch- ing the nature of law differs considerably from that which has com- monly found acceptance with English writers. The theory almost universallj' maintained in England is that a law is a command is- sued by the state to its subjects, and enforced by the power of the state, or, more concisely, that a law is a rule of action enforced or sanctioned by the state. The following are some of the more or lesg varying forms in which this conception has been expressed. According to Hobbes: ■*' "A law is the command of him or them that have the sovereign power, given to those that be his or their subjects, declaring publicly and plainly what every of them may do, and what they must forbear to do." Locke defines the civil law as "the rule set by the commonwealth to the actions of those who belong to it." ^^ According to Blackstone: " "Municipal law is a rule of civil con- duct prescribed by the supreme power in a state commanding what is right and prohibiting what is wrong." According to Bentham: '•'' "Every law, when complete, is either of a coercive or uncoercive nature. A coercive law is a command. An uncoercive, or rather a discoercive, law is the revocation, in whole or in part, of a coercive law. * * » Every coercive law creates an offense; that is, converts an act of some sort or other into an offense." Austin says:=^ "Every law or rule (taken with the largest sig- nification which can be given to the term properly) is a command." And again: '•'■ "Every positive law, or every law simply and strictly so called, is set by a sovereign person or sovereign body of persons 49 Works 6, p. 26. 60 On the Human Understanding, bk. 2, c. 28, § 9. 51 Commentaries I., 53. B2 Principles of Morals and Legislation, p. 330, Clarendon Press. 63 Aust. Jur. (3d Ed.) p. 90. oi id. p. 225. § 4) COMMAND AND CUSTOM. 57 to a member or members of the independent political society where- in that person or body is supreme." Finally, Professor Holland ^'^ defines a law as "a general rule of external human action enforced by a sovereign political authority." We have on two previous occasions incidentally considered this theory of law, and in two respects have made objection to it. We have seen, in the first place, that the conception of sanction or en- forcement is not, as it is commonly considered to be, identical with that of punishment. We have seen that the latter is only one species of the former, and that a rule is sanctioned or enforced by the state whenever the force of the state is in any manner exer- cised in the maintenance of it. A second objection already made is that this theory leaves alto- gether out of sight the ethical significance of law; that it empties the conception of its ethical content. We have seen that there is an intimate relation between natural rights, wrongs, and duties, and legal rights, wrongs, and duties, and that, if we deduce the the- ory of the latter from the bare conception of a law as a command of the state, this relationship is reduced to the level of a mere verbal coincidence. The truth is that the rules of action enforced by the state are, in theory at least, the rules of right and wrong. The administration of law is, in theory at least, the administration of justice. Law is justice speaking to men by the mouth of the state, though it must be admitted that the message is often sadly gar- bled in the process of transmission. Now, this relation between natural law and civil law must be recognized by any satisfactory theory of the latter; and for this reason we must prefer the defini- tion of Blaclvstone, which recognizes the ethical element, to those of Bentham and Austin, which reject it. "Municipal law," says Blackstone in the passage already quoted, "is a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong." Let us say, then, in view of these objections, that law consists of the rules of right and wrong enforced by the state. What is to be said for or against such a theory? Now, the fundamental objection is that, for the purposes of the science of jurisprudence, 6 6 Elements of Jurisprudence (2d Ed.) p. 34. 58 THE NATUBE OF LAW. CCh. 1 the definition is too narrow. As the term is used by lawyers, al- thougli every rule of right recognized and enforced by the state is a rule of law, the converse is not true. The principles of right constitute merely one class of the principles of law. It is doubtless the most important class, since the whole aim and purpose of law is the maintenance of right. Yet there are many rules of law which cannot, from any reasonable point of view, be regarded as' rules of right. This limitation of the term "law" is both unnecessary and inconvenient. It is not rendered necessary by any inconsistency or obscurity in the ordinary and wide use of the term; and, if we wish a distinct term to express a particular class of rules of law, Ave should use the generic name with the necessary qualification,, rather than narrow such generic name into a specific one. We shall hereafter have occasion to deal more at length with the classification of rules of law, but in the meantime we may ob- serve that in addition to rules distinguishing between right and wrong, or defining rights and wrongs, the law contains (1) rules de- fining the remedies to be applied to wrongs; (2) rules defining the conditions on which, and the manner in which, remedies are to be applied to wrongs; and (3) rules relating to the existence, applica- tion, and interpretation of legal rules themselves. Now, every rule in each of these three classes falls within the definition of a rule of law here maintained, while not one of them is a rule of law in the sense of a principle of right, or rule of action,^ enforced by the state. For example, that murder is a crime is, of course, a rule of law, in this latter sense. But what of the related rule that hanging is the punishment for murder? This is unques- tionably a rule of law in the ordinary acceptation of the term, but in what sense is it a rule of action enforced by the state? The dif- ficulty cannot be escaped by combining into one the rule declaring the wrong and that declaring the remedy, for the two are perfectly separable, and only one of them falls within the definition. Hobbe and Bentham attempt to avoid the difficulty by regarding the rule establishing the remedy as a command addressed, not to the or- dinary subjects of the state, but to the judges whose duty it is ta enforce the rule establishing the wrong. "A law," says Bentham ^* 6e Principles of Morals and Legislation, p. 331, Clarendon Press. § 4) COMMAND AND CUSTOM. 5d "confining itself to the creation of an offense, and a law commanding a punishment to be administered in case of the commission of such an offense, are two distinct laws, not parts (as they seem to have been generally accounted hitherto) of one and the same law. The acts they command are altogether different. The persons they are addressed to are altogether different. Instance, 'Let no man steal,' and 'Let the judge cause whoever is convicted of stealing to be hanged.' " " But this position is untenable. No delegation of its judicial func- tions by the state to subordinate judicial officers is essential. Ho far as the mere theory of the administration of justice is concerned, there is nothing to prevent the sovereign (whether a single person or a body of persons) from administering justice in person, instead of through the judges. And, even where there is a delegation of judi- cial functions, it is by no means necessary that the judges should themselves be answerable to the law for their due performance of their duties. Can it be contended, then, that where there is no dele- gation of judicial functions to subordinate officers of state, or where- such officers are not amenable to the law, rules defining the remedies to be applied to wrongs cease to be rules of law? Can it be con- tended that the proposition, "Death is the punishment for murder,"' amounts to a principle of law only when it can be construed as a command addressed to the judges to inflict that punishment? The idea of coercion, authority, or sanction forms indeed an essential ele- ment in the idea of legal duty, but is totally irrelevant to that of a rule of law. When, as is generally the case, the state delegates its judicial functions, it may render its servants, the judges, legally re- sponsible for the due performance of those functions in accordance with the prescribed rules. But these rules are rules of law because they are, as a matter of fact, acted on, not because the judges are bound by legal sanctions to act upon them. The second class of rules of law that do not fall within the defini- tion now under consideration consists of rules of procedure, — rules,. BT So, also, Hobbes, distinguishing between distributive and penal laws (Leviathan, c. 26): "Distributive are those that determine the rights of the subjects, * * * and these epeak to all the subjects. Penal are those which declare what penalty shall be inflicted on those that violate the law, and' speak to the ministers, and officers ordained for execution." 6! I THE NATURE OF LAW. (Ch. 1 that if? to say, which do not constitute or define either wrongs or remedies, but define the manner in which, and the conditions on which, remedies are applied to wrongs. Such rules of procedure are in no intelligible sense rules of conduct enforced by the state. Take, for example, the rules that hearsay is no evidence; that written evidence is superior to verbal; that a contract for the sale of land cannot be proved by verbal evidence; that judicial notice will be taken of such and such facts; that matters once decided are, as between the par- ties, decided once for all; that the interpretation of written docu- ments is the oflSce of the judge, not of the jury; that witnesses must be examined on oath or affirmation. Is it not plain that these are rules in accordance with which the judges administer justice, to the exclusion of their personal discretion, — not rules of action appointed by the state for observance by its subjects, and enforced by legal sanc- tions? There are two arguments that may be used to bring such rules of jirocedure within the definition now impeached. The first of these we have already sufSciently considered, — the argument, namely, that such rules differ from rules of substantive law only in being addressed to a different class of persons; the latter being addressed to the ordi- nary subjects of the state, the former to the judges. The second ar- gument is that rules of procedure are in reality rules laid down for the guidance of litigants, and differ from rules of substantive law merely in the fact that their sanction consists, not in ordinary punish- ment, but in the failure of the disobedient litigant to obtain the rem- edy which he claims, or to establish the defense which he sets up. Thus, in this view, the rule that hearsay is no evidence is in truth a command addressed by the state to all litigants, not to adduce such evidence in support of their claims ; and the penalty attached to such command is the rejection of such evidence, if offered, and the possi- ble defeat of the litigant in consequence of such rejection. Now, in the first place, even if all rules of procedure were capable of being transformed in this manner, this is a most perverse and unnatural method of regarding them. The fact that it is possible for a man to stand on his head is no suflicient justification for a description of him as an animal adopting that attitude. To regard the failure of a liti- gant to prove his case as a penalty inflicted on him for his failure to observe the rules of evidence is to force into such rules a meaning § 4) COMMAND AND CUSTOM. 61 which, as a matter of fact, they do not bear. A plaintiff is nonsuited, not as a punishment for his failure to adduce legal evidence, but sim- ply because, in the eye of the law, his case has not been proved. The injury sustained by a litigant who adopts a mistaken procedure is in no other sense the sanction of a rule of procedure than that in which the broken leg that results trom a fall is the sanction of the law of gravitation. In the second place, it is not even possible so to twist every rule of procedure into the semblance of a rule of action enforced by the state. If any one doubt this, let him try the experiment on the rule that judi- cial notice is taken of certain facts, or on the rule that the interpre- tation of documents is the function of the judge, or on the rule that witnesses must be examined on oath, or on the rule that the verdict of a jury must be unanimous. It will be suflScient merely to mention the third class of rules that do not fail within the definition which we are considering. They are rules relating to the existence, application, and meaning of other rules, — a class respecting which we shall have more to say hereafter. It would require great ingenuity to transform a general principle as. to the interpretation of statutes into the shape of a rule of action en- forced by the state. We see, then, that every rule of law is not a rule of conduct. But, furthermore, not every law that is a rule of conduct is one enforced or sanctioned by the state. I refer to what may be termed "permis- sive rules of action." By a "permissive rule'' is meant a rule declar- ing certain conduct not to constitute a wrong, — a rule, for example, declaring that witchcraft or heresy is no crime, or that damage done by ordinary competition in trade is no cause of action. It cannot be denied that these are "rules of law," in the sense in which that term is, ordinarily used, and it is plain that they fall within the definition of a rule of law as a rule acted on by the state in the administration of justice. But in what sense are they enforced by the state? They are not commands, but permissions. They define liberties, not rights. It cannot be said that they are in truth rules prohibiting any inter- ference on the part of others with those who perform, or wish to per- form, the actions so declared to be allowable. For in fact this is not their meaning. The rule that heresy is no crime does not mean that it is a wrong for any one to present or interfere with the expression ^2 THE NATQRE OF LAW. (Ch. 1 of heretical opinions, thougli it may be accompanied by a rule to tliat effect. It means that the state will not punish any one holding or expressing such opinions. Neither can it be said that such permissive rules may and ought to be disregarded and treated as nonexistent, on the ground that it is quite suflScient to declare what conduct is prohibited; without also declaring what conduct is allowed. If we remember that the admin- istration of justice is not governed solely by law, but partly likewise by judicial discretion, the fallacy of this argument becomes apparent. It does not follow that, because by a fixed rule of law certain kinds of conduct are declared to be wrong, all other conduct is therefore allowable. Some other conduct may be declared by permissive rules of law to be right, and the residue may fall within the province of judicial discretion. Hence the necessity of permissive as well as of imperative rules of law. That certain conduct amounts to negligence is an imperative rule of law; that certain conduct does not amount to negligence is a permissive rule of law. But there are many species of conduct to which, in this respect, neither an imperative nor a per- missive rule is applicable, and which are left to judicial discretion. § 5. General and Particular Commands. From, Austin's Jurisprudence^ §§ 29-30. Commands are of two species. Some are laws or rules. The oth- ers have not acquired an appropriate name, nor is there any short expression which will mark them precisely. I must therefore note them as well as I can by the ambiguous and inexpressive name of "occasional or particular commands." The distinction may, I think, be stated in the following manner: By every command, the party to whom it is directed is obliged to do or to forbear. JS^ow, where it obliges generally to acts or forbearances of a class, a command is a law or rule. But where it obliges to a specific act or forbearance, or to acts or forbearances specifically or individually, a command is occasional or particular. For instance, if you command your servant to go on a given errand, or not to leave your house on a given evening, or to rise at such an hour on such a morning, orto rise at that hour during the next week § 5) GENERAL AND PARTICULAR COMMANDS. 63 or month, the command is occasional or particular. For the act or acts enjoined or forbidden are specifically determined or assigned. But if you command him simply to rise at that hour, or to rise at that hour always, or till further orders, it may be said with propriety that you lay down a rule for the guidance of your servant's conduct. For no specific act is assigned by the command, but the command obliges him generally to acts of a determined class. If a regiment be ordered to attack or defend a post, or to quell a riot, or to march from their present quarters, the command is occa- sional or particular. But an order to exercise daily till further or- ders would be called a "general order," and might be called a "rule." If parliament prohibited simply the exportation of corn, either for a given period or indefinitely, it would establish a law or rule; a kind or sort of acts being determined by the command, and acts of that kind or sort being generally forbidden. But an order issued by parliament to meet an impending scarcity, and stopping the exporta- tion of corn then shipped and in port, would not be a law or rule, though issued by the sovereign legislature. The order regarding ex- clusively a specified quantity of corn, the negative acts or forbear- ances enjoined by the command would be determined specifically or individually by the determinate nature of their subject. Again, an act which is not an offense, according to the existing law, moves the sovereign to displeasure; and, though the authors of the act are legally innocent or unoffending, the sovereign com- mands that they shall be punished. As enjoining a specific punish- ment in that specific case, and as not enjoining generally acts or for- bearances of a class, the order uttered by the sovereign is not a law or rule. To conclude with an appropriate example, judicial commands are commonly occasional or particular, although the commands which they are calculated to enforce are commonly laws or rules. For instance, the lawgiver commands that thieves shall be hanged. A specific theft and a specified thief being given, the judge com- mands that the thief shall be hanged, agreeably to the command of the lawgiver. Now, the lawgiver determines a class or description of acts, pro- hibits acts of the class generally and indefinitely, and commands, with the like generality, that punishment shall follow transgression. 64 THE NATURE OP LAW. (Ch. 1 The command of the lawgiver is, therefore, a law or rule. But the command of the judge is occasional or particular. For he ordera a specific punishment as the consequence of a specific offense. The distinction immediately above stated and illustrated does not, indeed, accurately square with established forms of speech. For instance, an order by parliament stopping the exportation of corn then in port would very likely be called a law, because it wears the form of law, and is issued by the sovereign legislature. An act of attainder deliberately passed by a parliament, with the forms of leg- islation, would probably be called a law, though a similar order made by a sovereign monarch, without deliberation or ceremony, would be styled an arbitrary command. And, on the other hand, there are many commands, issued by way of delegated legislation, which really are laws, although not called so by common lang-uage. Such are various orders in council, orders issued by public departments; schemes of the charity commissioners, when duly laid before parlia- ment; orders or rules made under powers given in acts of parlia- ment relating to judicial procedure, or otherwise made in exercise of delegated legislative functions. According to the line of separation which I have attempted to de- scribe, a law and a particular command are distinguished thus: Acts or forbearances of a class are enjoined generally by the former. Acts determined specifically are enjoined or forbidden by the latter. A different line of separation has been drawn by Blackstone and others. According to them, a law and a particular command are distinguished in the following manner : A law obliges generally the members of the given community, or persons of a given class. A particular command obliges a single person, or persons individually. This is not a correct account of the distinction. For, first, commands which oblige generally the members of the given community, or persons of given classes, are not always laws or rules. Thus, in the case already supposed, — that in which the sovereign commands that all corn actually shipped for exportation be stopped and detained, — the command is obligatory upon the whole communi- ty ; but, as it obliges them only to a set of acts individually assigned, it is not a law. And, secondly, a command which obliges exclusively persons indi- § 5) GENERAL AND PARTICULAR COMMANDS. 65 vidiially determined may amount, notwithstanding, to a law or rule. For example, a father may set a rule to his child or children; a guardian, to his ward; a master, to his slave or servant. And cer- tain of God's laws were as binding on the tirst man as they are bind- ing at this hour on the millions who have sprung from his loins. Again, suppose that parliament creates and grants an office, and binds the grantee to services of a given description; this would be a law established by political superiors, and yet exclusively binding a specified or determinate person. From Hatigan's Science of Jurisprudence, 11-12. For the mere student, it is immaterial whether the law arose, as G-rotius contends, from a social instinct (or appetitus societatis), or from a fear of a war of all against all (bellum omnium contra omnes), as Hobbes maintains, or from a desire of happiness, according to Thomasius, or from a craving after perfection, as Wolff thinks. It is sufficient for his purpose to know that law develops itself pari passu with the notion of authority, which naturally inspires a respect for j^ 58 rpjjg question, indeed, what is law ? can only be likened, as Blunt- schli observes, to that larger and more celebrated question, what is truth? and no completely satisfactory answer is perhaps possible. But the fundamental notion which is now generally accepted as un- derlying the idea of law in jurisprudence, and which is sufficiently exact to enable us to construct our science, is that of "a rule which,, in the complex relations of society, is required to regulate the actions; of the individual members.'' '-'^ Or, expressed in the terser and more- technical language of Professor Holland, a law, in the proper sense- of the term, that is to say, as applied to law prevailing in a modern state as first conceived by Bodin and a century later by Hobbes, is "a general rule of external human action enforced by a sovereign! political authority." "" Some writers add to this definition that the rule must be permanent. .P>ut if by this exi^ression it is meant that the rule must be perpetual, as Suarez seems to think, although he hastens to explain that he only means perpetual in a negative sense, — that is to say, as excluding a rule established ad certum ac defini- 6 8 La Filosofia del Dirltto, per Professor Giovanni Abate Lougo (1885) p. 54. 69 The Nature of Positive Law, p. 269. 6 Jurisprudence, p. 37. KEBN.JTJR. — 5 66 THE NATURE OF LAW. (Ch. 1 turn tempus (for a fixed and definite time,)"^ — the addition would not be in harmony with actual practice; for there are many general rules enforced by a sovereign political authority which are only enacted for a fixed and definite time, which are nevertheless laws in the truest sense of the expression. Thus, for example, an income tax may be introduced, as it was in India, for a specified time.^^ During this limited period the will of the legislature would undoubtedly have the force of a law. If, on the other *iand, the term "perma- nent'' is only intended to imply that the rule ought to be stable,— that is to say, that it shall receive a general application for a period more or less long, — the addition is not necessary; for a command that vanishes the moment it has been obeyed once cannot be correct- ly spoken of as a "rule," which of itself implies that which is pre- scribed as a guide to conduct or action, and having a certain dura- tion."^ It involves, in short, the idea of repetition or recurrence. 61 De Legibus. 1, x. «2 Vide section 249 of Act 32 of 1860, which was to continue in force from the 31st July, 1860, until the 1st August, 1865, and no longer. 8 3 Les Principes Fondamentaux du Droit, par Le Comte Vareilles Som- mieres (Paris, 1889) pp. 9-12. <-"h. 2) THK SCOPE OF LAW. 67 CHAPTER II. THE SCOPE OF LAW. From, Amos' Science of Law, 13, H. In order to ascertain what are the materials of the science of law, it will be well to east a glance at the subject-matter, in its rud- est and most inartificial shape, to which the science relates. For this purpose the case mav be tal^en of a nation in what may be called the "early manhood" of its life, after all the early struggles for its self-conscious existence or for its independence are over, and yet before it has developed within itself all the complicated machinery of a highly-organized commercial and social life. In such a state there must, by the very hypothesis, be a more or less steadily fixed government, whether that government approach more to a mon- archical or an aristocratical or a democratical type. The stability of the state and its self-dependence imply agriculture, and agricul- ture implies property or ownership. The division of labor, again, which this economical condition presupposes, involves the habit of making contracts, even though they be of the most elementary form. The social condition cannot but rest upon a previously de- veloped, though now strongly fortified, domestic condition ; and this implies the fact of marriage, and the relations of husband and wife, parent and child, brother, sister, uncle, aunt, nephew, niece, and the like. The still remaining anarchical tendencies of certain indi- vidual members of the state, lagging behind the rest, will generate occasional acts of violence, threatening, directly or indirectly, the very life and existence of the state. These acts will excite the horror of all the more orderly members of the community, and will be denominated by some such term as "crimes." It is obvious that the characteristic classes of facts which have just been alluded to are so general and simple that their necessary occurrence at a certain epoch in the progress of every state may be predicted as a certainty. These facts, however, in .themselves, are of the utmost possible moment, and involve, by their permanence and universality, the elementary ingredients of a science of law. It will be seen that these facts, looked upon as a whole, imply, 68 THE SCOPE OF LAW. (Ch. 2 first, a certain number of definite relations of persons to one an- other, whether as governors or governed, husbands or wives, parents or children, or as otherwise allied by blood or marriage. Secondly, these facts involve certain determinate relations between the per- sons in the community, in respect of the things (or physical sub- stances) appertaining to the community as a whole. These things severally are owned by one or another, and not by the rest. The ownership of these things is the subject-matter of private arrange- ments and contracts between different members of the community. The violent or fraudulent abstraction of a thing owned from the owner may be one of the acts on the general prevention of which the very life of the community is held to depend, and, as such, is denominated a "crime." Again, the classes of facts already enumerated have two distinct sides to them, — one touching the outward lives of members of the community, that is, their acts; the other touching their inward lives, that is, their thoughts and feelings. Over the former of these sides the whole of the community can, by its aggregate pres- sure, exert a considerable amount of force, of a specifically ascer- tained quantity and quality. Over the latter side, that touching the thoughts and feelings of individual members, the utmost direct pressure consciously exerted by the community is of the feeblest efficacy, and, at the best, indefinite and precarious in the highest degree. The sphere of action of the community with respect to the former, or the acts of men, is that of law. The sphere of action with respect to the latter, that is, the thoughts and feelings, though not exclusive of acts, is morality. * * * From PoUocli's A First Booh of Jurixj^nidence, lf.]f.-1^7. In assuming a scientific character, law becomes, and must needs become, a distinct science. The division of science or philosophy which comes nearest to it in respect of the subject-matter dealt with is ethics. But, though much ground is common to both, the sub- ject-matter of law and ethics is not the same. The field of legal rules of conduct does not coincide with that of moial rules, and is not included in it; and the purposes for which they exist are distinct. Law does not aim at perfecting the individual character of men, but at regulating the relation of citizens to the commonwealth and to Ch. 2) THE SCOPE OF LAW. 69 one another. And, inasmuch as human beings can communicate with one another only by words and acts, the office of law does not extend to that which lies in the thought and conscience of the indi- vidual. The possible coincidence of law with morality is limited, at all events, by the range which theologians have named "external mo- rality." The commandment, "Thou shalt not steal," may be, and in all civilized countries is, legal as well as moral. The command- ment, "Thou shalt not covet," may be of even greater importance as a moral precept, but it cannot be a legal one. Xot that a legislator might not profess to make a law against covetousness, but it would be inoperative unless an external test of covetousness were assigned by a more or less arbitrary definition; and there the real subject-matter of the law would be not the passion of covetousness, but the behavior defined as evincing it. The judgment of law has to proceed upon what can be made manifest, and it commonly has to estimate human conduct by its conformity or otherwise to what has been called an "external standard." Action and intent shown in acts and words, not the secret springs of conduct in des-ires and motives, are the nor- mal materials in wliicli courts of justice are versed, and in the terms of which their conclusions are worked out and delivered. With rare exceptions, an act not otherwise unlawful in itself will not become an offense or legal wrong because it is done from a sinister motive; nor will it be any excuse for an act contrary to the general law, or in vio- lation of any one's rights, to show that the motive from which it pro- ceeded was good. If the attempt is made to deal with rules of the purely moral kind by judicial machinery, one of two things will hap- pen: Either the tribunal will be guided by mere isolated impres- sions of each case, and therefore will not administer justice at all; or (which is more likely) precedent and usage will beget settled rule, and the tribunal will find itself administering a formal system of law, which in time will be as technical and appeal as openly to an external standard as any other system. The process took place on a great scale in the formation of the canon law, and on a considerable scale in the early history of English equity jurisdiction. Besides and beyond the limitation of the field of law to external conduct there are many actions and kinds of conduct condemned by morality which, for various reasons, law can either not deal with at 70 THE SCOPE OF LAW. Ch. 2 all or can deal with only in an incidental and indirect manner. It would be the vulgarest of errors (as we have already hinted) to sup- pose that any kind of approval is implied in many things being left to the moral judgment of the community, and to such pressure as it can exercise. Law does not stand aside because lawgivers or judges think lightly of such things, but because, whether from per- manent or from transitory causes, the methods of legal justice are not appropriate for dealing with them, and the attempt to apply those methods would, so far as it could be operated at all, probably do more harm than good. At the same time, rules of law may well have, in particular circumstances, an effective influence in maintaining, re- enforcing, and even elevating the standard of current morality. The moral ideal present to lawgivers and judges, if it does not always come up to the highest that has been conceived, will at least be, gen- erally speaking, above the common average of practice. It will rep- resent the standard of the best sort of citizens. From 8almond''s First Pi'inciple.i of Jurisprudence^ 160-171. We have seen that a legal wrong is an action recognized by the law as hurtful, and therefore as calling for the application of a legal remedy. It must now be more particularly noticed that not every act which is hurtful in fact is recognized and remedied as such by law. There is merely an imperfect coincidence between the spheres of things hurtful in fact and things hurtful in law, the sphere of the latter being smaller than, and included in, that of the latter. This distinction is expressed in the technical language of English lawyers by the pair of contrasted terms "damnum" and "injuria," — the former comprising that which is hurtful in fact^ the latter, that which is wrongful in law. The space throughout which the sphere of the former fails to coincide with that of the latter, is the domain of what is technically known as "damnum sine injuria"; and the object of the present chapter is a brief examina- tion of some of the most important cases in which hurt or damage is thus sine injuria, and no ground of legal liability. That, in respect of good and evil, the general may differ from the particular consequences of an act, and that an act is to be judged as right or wrong from its general, not from its pai*ticular, results, are facts which we have already had occasion to notice. The pur- Ch. 2) THE SCOPE OF LAW. 71 pose of the. administration of justice is to put down that which is absolutely evil, not that which is merely relatively so; and hence there results an important instance of damnum sine injuria. There are many acts which in respect of their particular consequences are the cause of damnum, although in respect of their general results such damnum is sine injuria. Thus, the special result of competi- tion in trade may be ruin to individual traders, but the general re- sult is a gain to society at large. Hence such competition, though hurtful to individuals, is not wrongful. In the class of cases just mentioned, the hurtful act is neither a natural nor a legal wrong. The exemption from liability is recog- nized both by natural and by civil law. This, indeed, is the only case of damnum sine injuria allowed by natural law; for every act which in its general consequences is harmful is, by the very definition, a natural wrong. In the case of civil law, however, it is otherwise; for there are many natural wrongs which are not legal wrongs, and many reasons for refusing to treat an act as wrong for the purposes of the administration of justice, though it is wrong in truth. Wherever one of these reasons operates, we have an in- stance of damnum sine injuria, — a break in the coincidence of the spheres of natural and legal wrong. As an example of the reasons for treating as innocent in law acts which are wrongs in fact, we may take the smallness of the damage caused by the act in question. Proceeding on the maxim, "De minimis non curat lex," the law winks at many a wrong on the ground that it is so slight that the legal remedy would be worse than the disease. Another instance is difficulty of proof, for a wrong that cannot be proved is in the eye of the law nonex- istent. "De non existentibus et de non apparentibus eadem est ratio." These and such like instances are, however, of merely prac- tical importance; and there remains for consideration a case of damnum sine injuria which is of considerable theoretical interest. This we shall now proceed to examine. Every act is the cause of an infinite series of consequences. Now, the law never has regard to the whole of this series in estimating the character of the act as right or wrong, but looks only at a particular portion thereof, connected with the act in a particular manner, and decides according to the hurtful or harmless nature of 72 THE SCOPE OF LAW. (Ch. 2 that portion. It follows that all detrimental consequences that fall outside that part of the series, and are not connected with the act in the required manner, fall within the sphere of damnum sine injuria. On what principle, then, is the line drawn between those harmful consequences which do and those which do not ren- der the act wrongful in the eye of the law? What is the bond of connection (beyond that of mere causality) between an act and its consequences, which is required to render the actor legally respon- sible for those consequences? In answering this question, we must bear in mind that the legal remedies applied to wrongs are of two kinds, namely, punishment and redress; and we must discuss the matter separately with respect to each of these remedies. For the principle adopted in the case of the one is not, necessarily, that adopted in the case of the other. A mischievous consequence may be a ground of liability with respect to one of these remedies, and not with respect to the other. The object of punishing wrongdoers is to make men afraid of wrongdoing. Now, a wrong being an act followed by harmful con- sequences, it is clear that no man can be deterred by fear from com- mitting a wrong, unless he either foresees those harmful consequen- ces, or might foresee them by taking thought. So far, therefore, as the remedy of punishment is concerned, all those harmful coil- sequences of which the doer has neither actual nor potential fore- sight fall, in a rational system of law, within the sphere of damnum sine injuria. With respect to foresight, damage is of three kinds: (1) It may be actually foreseen, in which case the wrong is said to be willful or intentional. (2) It may be merely potentially foreseen, in which tase the wrong is said to be due to negligence. (3) Or, lastly, it may be neither actually nor potentially foreseen, in which case it is said to be due to inevitable accident, and is no ground of liability. It is accidental, inasmuch as it is not intended; inevitable, inas- much as it is not due to negligence. With respect, therefore, to the remedy of punishment, we have carefully to distinguish between intention, negligence, and inevi- table accident ("dolus," "culpa," and "casus"); the two former be- ing grounds of liability, the last being a ground of exemption from liability. "Actus non facit reum nisi mens sit rea." Ch. 2) THE SCOPE OF LAW. 73 The only portion of the foregoing analysis that calls for any spe- cial examination is the notion of negligence. A negligent wrong, I have said, is one iu which the damage is merely potentially fore- seen, as opposed to an intentional wrong, in which it is actually foreseen. Damage is potentially foreseen when it would have been foreseen had the actor taken thought or care, instead of being thoughtless or careless; had he been alert, circumspect, or vigilant, instead of being in a state of mental indolence or drowsiness. It is this failure to take thought or care, to keep open the eyes of the mind, to be mentally active, that is called "negligence." This, indeed, is not quite a complete account of the matter, for it is plain that both intention and negligence, both actual and poten- tial foresight, may exist in various degrees, and not every degree is suflicient for legal liability. Thus, actual foresight of damage may vary from absolute certainty that such damage will ensue, through the various degrees of probability, down to a knowledge of the mere possibility of such damage. But in every system of law it must attain a certain degree or standard before it constitutes a ground of liability. By every system of law, men are allowed knowingly to expose their fellows to a certain amount of danger; for, if the risk is small, it may be expedient to disregard it, in view of the advantage otherwise derivable from the dangerous form of acti\ity. A man is not liable for homicide because a fatal explo- sion takes place in his powder mill, though he established and car- ried on the industry with full knowledge of its dangerous character. Foresight of harm does not exist in the necessary degree. Turning from intention to negligence, it is obvious that the amount of thoughtfulness or care required to make future damage visible — to turn potential into actual foresight — is not the same in all cases, but varies within wide limits. Now, the law does not demand tlie utmost degree of thoughtfulness, care, circumspection, or menial activity of which human beings are capable. In other words, just as in the case of intentional wrongs it is not sufficient for liability that foresight should have existed in ever so slight a degree, so in the case of negligence it is not sufficient for liability that a possibility of foresight should have existed in however slight a. degree. Such potentiality, to be a ground of liability, must at- THE SCOPE OF LAW. (Ch. 2 tain to a certain standard. The standard of care adopted in or- dinary cases by English law is the care that would be taken under the circumstances by an ordinarily prudent and benevolent man. All damage which could not have been foreseen without a degree of mental alertness exceeding this standard falls, in general, with- in the sphere of damnum sine injuria. Negligence, then, is that degree of thoughtlessness which is the necessary condition of liability for the unforeseen consequences of an act. But we have here to notice an ambiguity in the meaning of the term, which has been the occasion of considerable obscurity and diversity of opinion in this portion of legal theory. As we have hitherto used it, the term "negligence" expresses a certain state of mind, and implies a hurtful act accompanying it. But, natural- ly enough, this relation between the application and the implication of the term is often reversed, and negligence then expresses the act and implies the accompanying state of mind. In the former sense it means thoughtlessness; in the latter it means harmful conduct resulting from thoughtlessness. In the former sense negligence is a condition of liability; in the latter it is a species of wrong. Now, so long as we recognize the fact that the complex notion ex- pressed by the term "negligence" includes, when viewed in its to- tality, both a certain species of conduct and a certain state of mind, it matters little which of these elements we regard as directly denoted by the term. This is merely a matter of convenience, and, so long as no confusion results, there is no reason why we should not use the term in both senses. But it must not be forgotten that, even when negligence is used as the name of a species of conduct, it at the same time necessarily implies an accompanying state of mind. The definitions of neg- ligence commonly accepted by English lawyers throw this mental element so much into the background that it is apt to be lost sight of altogether, and, indeed, some legal writers go so far as to deny its existence. Negligence, it is said, is conduct different from that of a prudent or reasonable man. There is not a word here as to the state of the person's mind; yet a slight analysis of the definition will show that the mental element is necessarily involved in it. The conduct which we expect from a prudent man is prudent con- (-!h. 2) THE SCOPE OF LAW. 7& duct. Negligence, therefore, is imprudent conduct; that is to say, conduct unaccompanied by a certain measure of circumspection and resulting foresight of consequences. In view of the fact that wrongs of negligence are unquestionably opposed to intentional wrongs, and that intention is a state of mind, it is impossible to deny that negligence, if it does not ac- tually denote a state of mind, at least implies it.^ It is only with respect to the remedy of punishment that intention or negligence, actual or potential foresight of consequences, is es- sential to liability. The application of the remedy of redress, as such, knows of no such limitation. But we must here recall the distinction formerly adverted to, between that species of redress which is rational and justifiable per se and that species which can be justified only so far as it operates as punishment; the distinc- tion, that is to say, between perfect and imperfect redress. An example of the former kind is the enforcement of the payment of a debt; an example of the latter is the enforcement of compensation for personal injuries inflicted. Xow, since the latter form of redress is justifiable only as being a form of punishment, it follows that it is subject to the same restrictions as the remedy of punishment. And, consequently, the maxim is applicable, "Actus non facit reum nisi mens sit rea." The existence of intention or negligence is a condition of liability. On the other hand, in the case of that form, of redress which is justifiable per se, the distinction between inten- tion, negligence, and accident is entirely immaterial. I am liable to make good damage done by me, not because I foresaw or might have foreseen it, but because it is such as admits of being made good. If I take property that does not belong to me, it is a very good reason for not punishing me that I believed it to be my own, and had no means of discovering my mistake; but this is no reason at all for not compelling me to return the property to its owner. It must now be observed that there is in legal theory no such thing as injuria sine damno. In the theory of the law, every legal 1 1 have myself, in my "Essays in Jurisprudence and Legal History" (page 143), expressed the opinion that negligence is not properly regarded as a state of mind; but, on further consideration, I have come to the conclusion set forth in the text. 76 THE SCOPE OF LAW. (Ch. 2 wrong is also a natural wrong, for there is no reason for treating an act as hurtful and wrong unless it is so in reality. Hence every legal wrong consists of two elements, namely, an act and harmful consequences resulting from that act. Now, to this a plausible ob- jection may be made. It may be said: "It is not true that damage is always essential to a cause of action. In most cases the act it- self constitutes the wrong, not the act plus consequential damage. Por example, if I break a contract made with my neighbor, I com- mit a wrong, and am liable accordingly, even though he suffers no loss thereby, but is rather a gainer. In an action for nondelivery of goods sold, it is no defense that the price has fallen since the con- tract was made, and that the plaintiff has therefore profited in- stead of having lost by the breach. So, if I walk across another man's field, I am liable for a trespess, though I harm him not a whit. In other cases, on the other hand, such as that of slander, the act itself is not wrongful, unless followed by damage. It is plain, there- fore, that wrongs are divisible into two classes, according as dam- age is or is not an essential element; and therefore we cannot define a wrong as an act followed by damage." But the objection is based on a misapprehension. The true dis- tinction is not between cases in which damage is and cases in which it is not necessary, but between cases in which damage must be proved and cases in which it is presumed by law to exist. In a very large number of cases the law itself takes notice that certain acts are followed by hurtful consequences. In such cases, there- fore, it is sufficient to prove the act alone; proof of damage being relevant with respect to the amount of compensation recoverable, but not with respect to the existence of a cause of action. In other cases the law makes no presumption as to the consequences of acts, and, if any one complains of wrong, it lies upon him to prove, not only an act, but damage resulting therefrom. Thus, if A. breaks his contract with B,, it is not necessary tor I!, to prove that he was thereby disappointed in his reasonable expectations or otherwise suffered loss, for the law takes notice that breach of contract is an act entailing hurtful consequences. If, on the other hand, I am negligent, I am not deemed guilty of any wrong until it has been proved that my negligence has been the cause of damage, for the Ch. 2) THE SCOPE OF LAW. 77 law does not regard negligence as necessarily entailing hurtful con- sequences. Although, therefore, wrongs differ as to the necessity of proof of damage, they are at one as to the necessity of its exist- ence. In the words of Lord Holt: ^ "Every injury imports a dam- age, though it does not cost the party one farthing." Damnum is sine injuria many a time; injuria is sine damno never. 2 Ashby V. White, Ld. Raym. 955. 78 DIVISIONS 01' LAW. C^h. 3 CHAPTER III. DIVISIONS OP LAW. § 1. Public and Private Law. 2. Written and Unwritten Law. 3. The Law of Persons and the Law of Things. 4. Civil and Criminal Law. 5. Law and Equity. 6. Suhstantive and Adjective Law. § 1. Public and Private La'W. J^rom Mar]cby''s Elements of Law, §§ ^91-295. Whenever people have attempted to write systematically about law, ceri:ain divisions of it have been adopted, not always identical, but running mostly on the same lines. The best-known and most widely accepted of these divisions of law is that which separates law into public and private. There has been much said about this division, which seems to proceed upon the assumption that the division is a scientific one, based upon some principle which can be accurately stated and ap- plied. Austin has, I think, clearly shown that there is no such principle, and that the division is not of that character.^ It is only a convenient method of arranging the topics of law for the pur- p ose of discussion. This is how it is put forward in the place where it originally appeared, namely in the Institutes of Justinian: "Jus publicum est quod ad statum rei Romanse spectat, jus privatum quod, ad singulorum utilitatem pertinet." ^ All I understand to be meant by this passage is this: Public law is that portion of law in which our attention is mainly directed to the state ; private law is that in which it is mainly directed to the individual. I do not think it means that these topics are capable of exact separation ; but that our attitude changes in regard to them. And, according as we as- sume the one attitude or the other, we call law public or private. The fact that this classification has been used for more than a 1 Lect. 44, p. 770, 2 inst. I. 1, 4. § 1) PUBLIC AND PRIVATE LAW. 79 thousand years testifies to its convenience: and if it is unscientific, this, though it is a fact which it is desirable to remember, does not render it incmiibent upon us to discard this division. I may also ■observe that, though the principle of the division may not be more accurate than T have stated, there has been very little practical difference of opinion as to what branches of law should be placed in each department; and such differences as have existed have been by no means important. If the ^-iew that I take of the distinction is correct, it would obvi- ously be a waste of time to discuss at any length the various at- tempts that have been made to explain accurately the distinction between public and private law. I will, however, notice one of those attempts, being that which has been most generally accepted as successful. It is said that public law comprises that body of law in which the people at large, or, as it is sometimes put, the sovereign, or the state as representing the people, is interested; whilst private law comprises that body of law in which individuals are interested. This is a forcible, and sometimes a useful, way of putting the distinction. But it is still not accurate. For, though the interest of the public is in public law conspicuous or predom- inant, there is hardly anv law in which thp intprpgt nf iTK^j^^i/^yfii^ is not also concerned . And so, also, in private law. The interes t of the public may be in the background, but it is almost always there. Thus the criminal law of theft ad statum rei publicae spectat, and is always classed as public law, but still private rights are large- ly concerned in it. So with the law of contract. Here we have to deal mainly with matters of private concern, but the legality of the transaction — in other words, the public concern in it — is not for- gotten. So the criminal law of trespass and the civil law of tres- pass to a considerable extent effect the same objects, though in one the public interest and in the other the private interest is chiefly regarded. From Holland's Elements of Jurisprudence, 116-118. The field of law, strictly so called, may be thus exhaustively di- vided between the law which regulates rights between subject and subject (civis and civis) and that which regulates rights between the State and its subiects^ (civitas and civis). But there is a third 80 DIVISIONS OF LAW. C<^h. o kind of law which it is for many reasons convenient to co-ordinate with the two former kinds, although it can indeed be described as law only by courtesy, since the rights with which it is concerned cannot properly be described as legal. It is that body of rules, usually described as International law, which regulates the rights which prevail between State and State (civitas and civitas) ^ The differences between these three kinds of Law, Private, Pub- lic, and International, depend upon the presence or absence of an arbiter of the rights of the parties. In Private law, which in many respects is the only typically per- fect law, it will be observed that both the parties concerned are private individuals, above and between whom stands the State as an inrpartial arbiter. In Public law also the State is present as arbiter, although it is at the same time one of the parties inter- ested. But in International law there is no arbiter at all, but both parties are egually judges in their own cause. The law where a political arbiter is present, be he, or be he not, identical also with one of the parties, is often called 'Municipal,' to distinguish it from the so-called law which is described as 'International,' and which has no arbiter to which it can appeal other than the opinion of the civilised world. It is plain that if Law be defined as we have defined it, a polit- ical arbiter by which it can be enforced is of its essence, and law without an arbiter is a contradiction in terms. Convenient there- fore as is on many accounts the phrase 'Inte rnati onal law,' to ex- press those rules of conduct in accordance with which, either in con- sequence of their express consent, or in pursuance of the usage of the civilised world, nations are expected to act, it is impossible to regard these rules as being in reality anything more than the moral codejDf^nations. 3 A statement remarkable for its date as to the nature of International law is to be found in Hooker's Ecclesiastical Polity, i. c. x. § 12: 'Besides that law which simply concerneth men as men [morality] and that which belongeth unto them as they are men linked to others in some political society [municipal law], there is a third kind of law which toucheth all such several bodies politic, so far as one of them hath public commerce with another, and this third is the law of Nations.' Montesquieu distinguishes 'droit civil,' 'droit politique,' 'droit des gens.' Esprit des Lois, 1. c. 3. § 1) PUBLIC AND PRIVATE LAW. SI Of the three departments therefore into which law may be di- viued, having regard to the political or non-political character of th'„ persons whose rights it regulates, it must be borne in mind that what is not very happily described as 'Municipal law,' in its two departments 'Private' and 'Public,' is alone properly so called, while 'International law^ is law only by analogy. From Rolland's Elements of Jurisprudence, 3W-32'2, 325. The correlation of the parts of public law one to another is indeed far from being settled. It never attracted the atten- tion of the Roman lawyers, and has been very variously, and somewhat loosely, treated by the jurists of modern Europe. The subject is indeed one which lends itself but reluctantly to sys- tematic exposition, and it is with some hesitation that we propose to consider it under the heads of — I. Constitutional law; II. Ad- ministrative law; III. Criminal law; IV. Criminal procedure; V. the law of the State considered in its quasi-private personality; VI. the procedure relating to the State as so considered. The first four of these heads contain the topics which are most properly comprised in Public law. * » * The primary function of Constitutional law is to ascertain the political centre of gravity of any given state. It announces in what portion of the whole is to be found the 'internal sovereignty,' 'suprema potestas,' ' Staatsgewalt, ' or, as Aristotle called it, rb xbpwv Tiii(; TzoXeuKs.'' In other words, it defines the form of government. The sovereign part of the State, as thus ascertained, is omnipo- tent.^ Since it is the source of all law, its acts can never be il- * 'Polit. ill. 10. 1. XioXiTeia jih) yap iari rd^tg ral; irdXeati) fi wspl rdf apxag, riva rpdvov rsvtfirfVTaLj Koi ri to Kipiov riig ^aTicrela^ fial tc rb reXo^ SKCtarri^ Tvq Kocvuvia^ kcriv. lb. iv.. s "The principle in the English government, that the parliament is omnip- otent, does not prevail in the United States; though, if there be no consti- tutional objection to a statute, it is with us as absolute and uncontrollable as laws flowing from the sovereign power under any other form of govern- ment. But in this and all other countries where there is a written constitu- tion, designating the powers and duties of the legislative, as well as of the other departments of the government, an act of the legislature may be void as being against the constitution. The law with us must conform, in the first place, to the constitution of the United States, and then to the subordinate KBEN.JTTE. — 6 82 DIVISIONS OF LAW. (Ch. 3 legal. As little can they be, strictly speaking, unconstitutional. The latter term is properly applied only to characterise an act of an inferior political authority in excess of its delegated powers. Thus a statute passed by the Congress of the United States may be unconstitutional, because the sovereign people has empowered the President and Congress to legislate only subject to certain reservations, and has entrusted to a Supreme Court the duty of deciding whether any given enactment is or is not made in pur- suance of the restricted powers thus delegated; but the authority of the Queen, Lords, and Commons in England is fettered by no such limitation. An act is, strictly speaking, never unconstitu- tional unless it is also illegal, and can never be either if it is the act of the sovereign power. Only in a lax sense of the term is it permissible to describe as unconstitutional acts of the sovereign power which run counter to the expectations and political usages of the inhabitants of a country. * * » The various organs of the sovereign power are described by constitutional law as at rest; but it is also necessary that they should be considered as in motion, and that the manner of their activity should be prescribed in detail. The branch of the law which does this is called Administrative law, 'Verwaltungsrecht,' in the widest sense of the term. In this sense Administrat ion has been defined as ' the exercise of political powers within the limits of the cn n^jtitntinn^' as 'the total concrete and manifoldly chan- ging activity of the State in particular cases',' and as 'the func- tions, or the activity, of the sovereign power*.' ' constitution of Its particular state, and if it Infringes the provisions of eitlier .it is so far void. The courts of justice have a right, and are in duty hound, to bring every law to the test of the constitution, and to regard the constitu- tion, first of the United States and then of their own state, as the paramount or supreme law, to which every inferior or derivative power and regulation must conform. The constitution is the act of the people, speaising in their original character, and defining the permanent conditions of the social alli- ance; and there can be no doubt on the point, with us, that every act of the legislative power contrary to the true intent and meaning of the constitution, is absolutely null and void." 1 Kent, Comm. 449, 450.— Ed. 6 Alirens, Cours, ii. p. 380. ' Bluntschli, u. s. iii. p. 4G.j. * Patter, apud Holzendorft', Encyclopiidie, Erster Theil (ed. i.) p. 695. § 2) WRITTEN AND UNWRITTEN LAW. 83 Different views are taken as to the topics whicii are included under this very wide conception. It may fairly be said to include the making and promulgation of laws, the action of the govern- ment in guiding the State as a whole, the administration of jus- tice, the management of the property and business transactions of the State, and the working in detail, by means of subordinates entrusted with a certain amount of discretion, of the complex ma- chinery by which the State provides at once for its own existence and for the general welfare. * * * § 2. Written and Unvrritten Law. From Maine's Ancient Lato, 13, llj,. The epoch of customary law, and of its custody by a privileged order, is a very remarkable one. The condition of jurisprudence which it implies has left traces which may still be detected in legal and popular phraseology. The law, thus known exclusively to a priv- ileged minority, whether a caste, an aristocracy, a priestly tribe, or a sacerdotal college, is true unwritten law. Except this, there is no such thing as unwritten law in the world, English case law is sometimes spoken of as unwritten, and there are some English theo- rists who assure us that, if a code of English jurisprudence were pre- pared, we should be turning unwritten law into written, — a conver- sion, as they insist, if not of doubtful policy, at all events of the great- est seriousness. Now, it is quite true that there was once a period at which the English common law might reasonably have been termed unwritten. The elder English judges did really pretend to knowledge of rules, principles, and distinctions which were not entirely revealed to the bar and to the lay public. Whether all the law which they claimed to monopolize was really unwritten, is exceedingly question- able; but at all events, on the assumption that there was once a large mass of civil and criminal rules known exclusively to the judges, it presently ceased to be unwritten law. As soon as the courts at Westminster Hall began to base their judgments on cases recorded, whether in the year books or elsewhere, the law which they admin- istered became written law. At the present moment a rule of Eng- lish law has first to be disentangled from the recorded facts of ad- judged printed precedents, then thrown into a form of words varying 84 DIVISIONS OF LAW. C^h- 3 with the taste, precision, and knowledge of the particular judge, and then applied to the circumstances of the case for adjudication. But at no stage of this process has it anj characteristic which distin- guishes it from written law. It is written case law, and only different from code law because it is written in a different way. § 3. The Law of Persons and the Law of Things. From Marhhy's Elements of Law, §§ WB, ^99, 300. Private law has been again subjected to a classification which is nearly as celebrated, and which is derived from the same source. In the language of the Institutes, "jus privatum vel ad personas pertinet, vel ad res, vel ad actiones"; or, as modern authors say, private law consists of the law of persons, the law of things, and the law of pro- cedure. This classification is just as inaccurate and just as useful as the last. In one sense it may be said of every law, public or pri- vate, "ad personas pertinet." Every law is addressed to a person, bidding him do or not do a particular thing. But the objects of law, as they are called, may be either things or persons; and it is with reference to this division between the objects of law that the classifi- cation of private law into the law of persons and the law of things has been made. There are, however, very few laws of which the ob- jects are exclusively persons or exclusively things. The law, for ex- ample, which places the son under the control of the father, gives also to the father the fruits of the son's labor. iVnd even the law which enforces a contract for the supply of goods affects the liberty of action of the contracting parties. Yet no one hesitates to place the first in the law of persons and the second in the law of things. As to the subdivision of private law, it will, I think, be found that in the law of persons we chiefly find rights and duties which are at- tached to certain classes of the community; that is, a certain indeter- minate number less than all. In the law of things we find chiefly rights and duties which affect the community at large. When we find an aggregate of rights and duties attached to certain classes of the community, we call that aggregate, as I have explained above, a status, or condition. Hence the law of persons has some- times been called the law of status or condition. § 3) THE LAW OF PERSONS AND THE LAW OF THINGS. 85 From 2 Austin's Juriiip}-ude/ice, §§ 970-973. From law considered with refervnoe to its sources, and to the man- ner in which it begins and ends, I pass co law considered with ref- erence to its purposes, and to the subjects about which it is conver- sant. The first great distinction of law considered under this aspect, is the celebrated one into the ''law oi persons'' and the "law of things"; or, as I think it ought to be stated, the "law of things" and the "law of persons." This distinction may be stated generally as follows : There are certain rights and duties, with certain capacities and in- capacities to take rights and incur duties, by which persons, as sub- jects of law, are variously determined to certain classes. By a ca- \ pacity I mean this : A person is capable of a given right and of a I given duty if, on the happening of a given event, the law would in- vest him with that right^ or impose on him that duty. The rights, duties, capacities, or incapacities, which determine a given person to any of these classes, constitute a conditi on or stat us with which the person is invested. One and the same person may belong to many of the classes, or may occupy, or be invested with, many conditions or status. For ex- ample, one and the same person, at one and the same time, may be son, husband, father, guardian, advocate, or trader, member of a sov- ereign number, and minister of that sovereign body. The rights, duties, capacities, and incapacitiis, whereof conditions or status are respectively constituted or composed, are the appropri- ate matter of the department of law which commonly is named the "law of persons," — "jus quod ad personas pertinet"; "jus personar- um"; "de conditione hominum." Less ambiguously, and more sig- nificantly, that department of law might be styled the "law of status." For though the term "persona," in one sense of the word is properly synonymous with "status," yet in its usual and more commodious sig- nification it denotes, not "status," but "homo," — a man, including wo- man and child ; or it denotes an aggregate or collection of men. The department, then, of law, which is styled the " la,w of perso ns," is_conjversant about status or conditions; or, expressing the same thing in another form, it is conversant about persons, meaning men, as bearing or invested with persons, meaning status or conditions. 86 DIVISIONS OP LAW. (Ch. 3 The department of law which is opposed to the "law of persons" is commonly named the "law of things," "jus quod ad res pertinet," or the department of law "de rebus." How this department of law came to be called the "law of things" is somewhat obscure ; but, referring to what has been said in Lecture 12, supra, about the various meanings of this flexible word "res," it seems not impossible to catch the train of ideas. It has been seen that "res," or "thing," in its widest meaning, embraced the whole matter with which laws are conversant (see volume 1, p. 240). Hav- ing for convenience singled out a department of law and called it, not without significance, "law of persons," it seems natural that the au- thors of those institutional treatises — familiar with the term "res" as wide enough to embrace all the subject-matter of law — should call the opposed department the "law of things." This would be the more easily suggested to their minds from the circumstance that "res," in the narrow and strict sense of the word was already op- posed, as has been shown ^ to persons. That such was the general conception of the distinction by the Ro- man jurists is manifest from the order adopted in the Institutes. The first book of the Institutes of Justinian, following Gains, treats of the law relative to status or conditions under the name "de jure per^ sonarum," or "de condicione hominum." The second opens with words to this effect: "Having treated of the persons, let us now treat de rebus." It then proceeds to divide "res" into "corporales" and "incorporales," and then treats of rights and duties under their various subdivisions. It would be absurd to suppose that the law of persons can peculiarly relate to persons, meaning "homines," or human beings, or the law of things to things, in the proper sense of the term. Many rights and duties treated of in the law of persons relate to things properly so called; as, for instance, an estate in land belonging to a married woman. And many rights and duties treated of in the law of things have no regard to things proper; as, for instance, the right arising from an obligation to forbear under a contract. The distinctio n, therefore, between the law of things and law of persons rests upon the notion of status or cond ition . The law of per- » 2 Aust. .Tin-, pp. 2-10, 241. § 4) CIVIL AND CRIMINAL LAW. 87 pons is that part of the law which relates to status or conditions. The law of things is the law — the "corpus juris" — minus the law of status or conditions. The law of persons is the law of status or con- ditions, detached, for the sake of convenience, from the body of the entire legal system. The question, therefore, which first arises is this: What consti- tutes a status or condition? The rights, duties, capacities, or incapacities, which, as above men- tioned, determine a given person to a given class, constitute his status or condition. His condition is not the source of his distinctive rights and obligations, for these are his condition. The source of these rights and obligations is the fact, event, or incident which invests him with the condition ; that is to say, which gives him the rights and capaci- ties, and subjects him to the duties and incapacities, of which the condition is composed. For example, a barrister or an attorney is distinguished from other men by peculiar obligations which are im- posed on him and by peculiar rights which he enjoys. These obliga- tions and these rights are the condition of barrister or of attorney. The source or cause of his condition, or of his distinctive obligations and rights, is his call to the bar, or his admission as attorney. § 4. Civil and Criminal Law. From SalmoruTs First Principles of Jurisprudence^ 67-7^. Based on the distinction between the remedy of punishment and that of redress is the distinction between the administration of criminal and that of civil justice. T he former is the application to wrongs of the remedy of p unishment; the latter is the applica- tion of the remedy of redre ss. Similarly a crime is a wrong re- garded in relation to the remedy of punishment, while a civil wrong is a wrong regarded in relation to the remedy of redress. Not all wrongs are punished, neither are all redressed; while many are dealt with in both ways. Hence, a wrong may be merely civil or merely criminal, or both civil and criminal. The distinction often drawn between corrective and retributive justice is equivalent to that between civil and criminal. It is scarcely necessary to say that with those who hold that the object of all law is punishment, this explanation of the distinction ■SS DIVISIONS OF LAW. (Ch. 3 between civil and criminal justice is inadmissible. It is necessary for sncb to discover some other ground of the distinction, and that which has found almost universal acceptance is that a crime is a wrong done to the state or the community at large, while a civil inju- ry is inflicted merely upon determinate individuals. Blackstone' s statement of this view may be taken as representative. "Wrongs," he says/" "are divisible into two sorts or species: Priva te wrongs and imblic wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals considered as individuals, and are therefore frequently termed 'civil injuries'; the latter are a breach and violation of public rights and duties, which aifect the whole communitj- considered as a community, and are distinguished by the harsher appellations of 'crimes' and 'misde- meanors.' " But the objections to this view seem insurmountable; for a lit- tle consideration will make it very plain that the distinction be- tween crimes and civil Avrongs cannot be based on any difference between the acts themselves, so named, or between their respective consequences. For, in the first place, the line drawn between these two species of wrongs is different in diiierent legal systems, and varies from time to time in the same system. What is a civil wrong to-day may be made by parliament a crime to-morrow. And, in the second place, if every wrong is a crime which in actual fact is injurious to the community at large, then all wrongs must be crimes. For even those which primarily and directly affect specific individuals have a secondary, indirect, and diffused effect on the com- munity at large, or on an indeterminate portion of it. Both rob- bery and breach of contract primarily affect particular individuals, but secondarily each affects society by virtue of the general insecuri- ty of property and diminution of mutual trust which such wrongs tend, respectively, to produce. But it is universally admitted that crimes are merely a species of wrongs; therefore, the essential dif- ference cannot be one bet^\ een the acts themselves. Consequently, it must lie in the manner in which, or the point of view from which, the_acts^are dealt with or looked at by the^law. This, indeed, is a conclusion which most adherents of the view now mider consid- 103 Bl. Comiu. 2. § 4) CIVIL AND CRIMINAL LAW. 89 eration would probably accept. Let us, therefore, ame nd Black - stone's statement, and say that a wrong amounts to_a.crime when and in so far as it is regard ed by the law as done to the conamunity at large, while a civil wrong is one regarded by th-ft law as inflicted on some determinate individual. But even so we shall not attain to the truth. How are we to know what wrongs the law regards as inflicted on the community, and what as inflicted on individuals? What distinction, in legal practice, is founded on this alleged dis- tinction in legal theory? In what special way does the state treat the one class of offenses as distinguished from the other? It can- not be contended that the distinction is a mere barren theory, with- out any results in practice. It is certainly not a product of a refined jurisprudence, but is one of practical importance in every legal system that has made any considerable advance from barbar- ism. In answer to this inquiry it will, perhaps, be said that the funda- mental practical distinction between criminal and civil justice is that in the former the community itself, by its bodily form, the state, is a party to the proceedings, as being the person injured by the wrong, while civil proceedings are between private persons. But this view merely requires to be stated for its fallacy to appear. Every legal proceeding in which the community is a party is not criminal; and eA'er^' proceeding in which only private persons are parties is not civil. It will scarcely be contended that an action by the state against an individual for the recovery of a debt, or for damages for breach of contract, or for the restoration of property belonging to the state, or for the enforcement of a public trust, is a criminal proceeding. Yet all these are proceedings in which the Mate is the party plaintiff, and in which consequently the state is clearly regarded by the law as the party injured by the wrong com- plained of. The truth is that the distijnction between crim es and civil injuries is perfectly well established, even within the sphere of wrongs done to the state or community at large. Such wrongs are sometimes crimes, sometimes civil injuries, and the division be- tAveen public and private wrongs, and that between crimes and civil injuries, are, therefore, nptjeincldent, but cross, divisions. So, on the other hand, there are criminal proceedings to which the state is no party. One instance of this is the obsolete procedure of appeals 90 DIVISIONS OF LAW. (Ch. 3 of felony. These were private prosecutions at the suit of the injured party, yet, as they ended, if successful, in the hanging of the defend- ant, it can scarcely be contenc d that they were civil actions, or that an offense so dealt with was a mere civil injury. But it is not neces- sary to have recourse to ancient history for instances. Most of the ■\ery numerous offenses that are now punishable on summary con- viction may be so dealt with at the suit of a private party ; yet the pro- ceedings are undoubtedly criminal. This contention being thus disposed of, in what other way can it be suggested that the supposed theoretical distinction between pub- lic and private wrongs is manifested in practice? The only possible suggestion is that the practical difference lies in the remedy applied. And, if we get this length, it is difficult to avoid the furthc r conclu- sion that, since the fundamental distinction between legal remedies is tiat between punishment and redress, this is the distinction on which is based the division between civil and criminal justice. And if we admit that this is the pi-actical distinction between civil pro- cedure and criminal procedure, we must admit, further, that it is also the theoretical distinction between a civil injury and a crime. It is idle to contend that, although in practice the distinction between a crime and a civil injury is that the former is a ground of punish- ment and the latter a ground of redi-ess, yet in legal theory the dis- tinction is that a civil injury is a wrong to an individual, and a crime a wrong to the community at large. For this is equivalent to con- tending that the only ground the state has, or in reason can have, for punishing a wrong, is that such wrong is one done to the community ; and. similarly, that the only actual or possible reason for redressing or undoing a wrong is that it is done to a determinate individuaL But no such contention can be maintained. Reason demands that, in general, the two remedies of punishment and redress shall be, not alternative, but cumulative . If possible, the law should not only un- do a wrong in the present, but also take measures to prevent its rep^^'- tition in the future. The first requisite is satisfied by redress; the second, by punishment. ^^ 11 There are, of course, various exceptions to such duplication of remedies. For example, punishment is the sole remedy in eases where redress is im- possible; and redress is the sole remedy In those cases in which it is itself a sufficient precautionary measure for the future. § 4) CIVIL AND CRIMINAL LAW. 91 It is clear that the pjii^joses of these remedies are entirely inde- Efindent of the distinction between public and private wrongs. A wrong ought to be prevented by punishment, whether it is done pri- marily to an individual, or merely to the society at large. A wrong ought equally to be redressed whether its incidence is determinate or indeterminate. The element of truth contained in the contention lies in the fact that in the case of wrongs that are not done to any specific individual, redress is usually less practicable and less urgent- ly required than in those cases in which the mischievous conse- quences fall on a single head; while, on the other hand, in the case of wrongs which are inflicted primarily on particular individuals, if both this primary mischief and the secondary diffused mischief which accompanies it are small in amount, redress is often itself an adequate substitute for punishment. For these reasons, the line be- tween criminal and civil, and that between public and private,, wrongs, are to_ a considerable extent coincident. But such coinci- dence is far from complete. Public wrongs are often redressed. A man is not punished for not paying his taxes. He is compelled to pay them. And private wrongs are often punished as such. In the case of robbery or murder, for example, what possible warrant is there for separating the injury to the community from that done to the specific person robbed or murdered, and for asserting that the state, in infiicting punishment, looks merely at the former? What sense is there in the idle fiction that libel is redressed as being an injury to the character of the individual, but punished as tending to a breach of the public peace? Before leaving this matter, an explanation requires to be made. We have already seen that a certain species of redress, which we have distinguished as imperfect or unilateral, is not pure redress, but a hybrid between redress and punishment. What shall we say. Therefore, of a wrong to which such penal redress, as it may be called, is applied? Is it a civil or a criminal wrong? In strict theory it should be regarded as both, differing from other wrongs which par- take of both characters in the single circumstance that the civil and the criminal remedy are united, instead of being separately applied. In actual law, however, such wrongs are regarded as purely civil. They talie their character from the primary object of the remedy ap- plied to them, which, as we have seen, is redress. 92 DIVTSIONS OF LAW. (Ch- 3 From Marhhy^s Elements of Law, §§ 599, 600. Liability is not unfrequently divided into civil and criminal liability. This classiiieation of liability is not based upon any distinction in the nature of the two kinds of liability, but upon a difference in the tri- bunal in which the party liable is proceeded against. If the court where the party is proceeded against be what is called a "criminal court," or "court of criminal jurisdiction," the liability is considered to be criminal, and the breach of duty is called a "crime" or an "of- fense." ^^ If the court in which the proceedings are taken be a civil <>ourt, or court of civil jurisdiction, the liability is considered to be civil, and the breach of duty is called a "civil injury." But there are some courts which exercise both jurisdictions, and there is then some difficulty in distinguishing criminal and civil liability. By long habit we have come to consider certain kinds of personal violence, certain breaches of the laws which protect property, and certain kinds of fraud to be crimes. But where there is no such tradition as, for ex- fimple, in the case of the refusal of a father to support his bastard child, it has been found very difficult to determine whether or no the breach of duty is a crime. The French law draws the line between civil and criminal liability by means of the Code. Civil injuries are those breaches of duty which are dealt with by the Code Civil. Of- fenses are those breaches of duty which are dealt with by the Code Penal. Offenses are divided into "crimes" (specially so called), "d^lits" (using in a narrower sense the same word as is used to de- scribe a certain class of civil injuries), and "contraventions de police"; the latter class containing a good many matters which we should bring under civil liability. Whilst, too, we find that in modern times the division between civil injuries and crimes is fluctuating and uncertain, we observe that in the earlier stages of society, if ii existed at all, it was based on en- tirely different notions.^' To exact for all injuries both to person and property a payment in money to the person injured appears to have been the first form of legal liability for injuries to private persons alike in Greece, in Rome, and among the Teutonic tribes. The first 12 Ciu-iouslj- enough even in a penal code the duty is never defined; only the breach. 13 Maine, Anc. Law, c. 10; Kemble's Saxons in England, bk. 1, c. 10. § 5) I.AW AND EQUITY. 9.> idea of criminal law, as distinguished from this, seems to have grown out of the punishment by the sovereign authority of offenses directly against itself. And the impulse to the more general development of criminal liability in later times seems to have been due, in this coun- try, to an extension of this last notion. It is supposed, by rather an odd fiction, that by every offense the "king's peace" is disturbed, and his "dignity" offended. And it was formerly necessary in all cases that it should be so stated in the indictment; not only where acts of violence had been committed, but even where the offense charged was such as obtaining goods by false pretenses, or selling ale on a Sunday. Modern writers still attempt to preserve a somewhat similar notion, when they tell us that civil injuries are an infringement of rights be- longing to individuals considered as individuals; whereas crimes are breaches of public rights and duties belonging to the whole com- munity. However, the examples given above sufficiently show that this distinction is not adhered to. § 5. La-wr and Equity. From Maine's Ancient Law, ^8-30. The next instrumentality by which the adaptation of law to social wants is carried on I call "equity" ; meaning by that word any body of rules existing by the side of the original civil law, founded on dis- tinct principles, and claiming incidentally to supersede the civil law in virtue of a superior sanctit y inherent in those principles. The equity, whether of the Roman praetors or of the English chancellors,, differs from the fictions which in each case preceded it, in that the in- terference with law is open and avowed. On the other hand, it dif- fers fxom leg islation, the agent of legal improvement which comes • after it, in that its claim to authority is grounded, not on the preroga- tive of any external person or body, not even on that of the magis- trate who enunciates it, but on the special nature of its principles, to which it is alleged that all law ought to conform. The very concep- tion of a set of principles, invested with a higher sacredness than those of the original law, and demanding application independently of the consent of any external body, belongs to a much more ad- vanced stage of thought than that to which legal fictions originally suggested themselves. 94 DIVISIONS OP LAW. (Ch. 3 Legislation, the enactments of a legislature which, whether it take the form of an autocratic prince or of a parliamentary assembly, is the assumed organ of the entire society, is the last of the ameliorating instrumentalities. It differs from legal fictions just as equity differs from them, and it is also distinguished from equity, as deriving its authority from an external body or person. Its obligatory force is independent of its principles. The legislature, whatever be the ac- tual restraints imposed on it by public opinion, is, in theory, empow- ered to impose what obligations it pleases on the members of the community. There is nothing to prevent its legislating in the wan- tonness of caprice. Legislation may be dictated by equity, if that last word be used to indicate some standard of right and wrong to which its enactments happen to be adjusted; but then these enact- ments are indebted for their binding force to the authority of the legislature, and not to that of the principles on which the legislature acted; and thus they differ from rules of equity, in the technical sense of the word, which pretend to a paramount sacredness entitling them at once to the recognition of the courts, even without the con- currence of prince or parliamentary assembly. It is the more nec- essary to note these differences, because a student of Bentham would be apt to confound fictions, equity, and statute law under the single head of "legislation." They all, he would say, involve lawmaking; they differ only in respect of the machinery by which the new law is produced. That is perfectly true, and we must never forget it; but it furnishes no reason why we should deprive ourselves of so con- venient a term as "legislation," in the special sense. Legislation and equity are disjoined in the popular mind, and in the minds of most lawyers; and it will never do to neglect the distinction be- tween them, however conventional, when important practical conse- quences follow from it. From Maine's Ancient Law, 68-72. It would be wearisome to enter on a detailed comparison or con- trast of English and Roman equity, but it may be worth while to mention two features which they have in common. The first may be stated as follows: Each of them tended, and all such systems tend, to exactly the same state in which the old common law was when equity first interfered with it. A time always comes at which § 5) LAW AND EQUITY. 95 the moral principles originally adopted have been carried out to all their legitimate consequences, and then the system founded on them becomes as rigid, as unexpansive, and as liable to fall behind moral progress as the sternest code of rales avowedly legal. Such an epoch was reached at Rome in the reign of Alexander Reverus, after which, though the whole Koman world was undergoing a moral revolution, the equity of Rome ceased to expand. The same point of legal history was attained in England under the chancellor- ship of Lord Eldon, the first of our equity judges, who, instead of enlai'ging the jurisprudence of his court by indirect legislation, de- voted himself through life to explaining and harmonizing it. If the philosophy of legal history were better understood in England, Lord Eldon's services would be less exaggerated on the one hand, and better appreciated on the other, than they appear to be among contemporary lawyers. Other misapprehensions, too, which bear some practical fruit, would perhaps be avoided. It is easily seen by English lawyers that English equity is a system founded on moral ru les, b ut it is forgotte n that these rules are the morality _Qf pa.st centuries, not of the present; that they have received nearly as much application as they are capable of; and that, though of course they do not differ largely from the ethical creed of our own day, they are not necessarily on a level with it. The imperfect theories of the subject which are commonly adopted have generated errors of opposite sorts. Many writers of treatises on equity, struck with the completeness of the system in its present state, commit them- selves expressly or implicitly to the paradoxical assertion that the founders of the chancery jurisprudence contemplated its present fixity of form ■\\'hen they were settling its first basis. Others, again, complain — and this is a grievance frequently observed upon in forensic arguments — that the moral rules enforced by the court of chancery fall short of the ethical standard of the present day. They would have each lord chancellor perform precisely the same oflflce for the jurisprudence \^hich he finds ready to his hand, which was performed for the old common law by the fathers of English equity. But this is to invert the order of the agencies by which the improvement of the law is carried on. Equity has its place and its time, but I have pointed out that another instrumentality is ready to succeed it when its energies are spent. y6 DIVISIONS OF LAW. (fill. 3 Another remarkable characteristic of both English and Roman equity is the falsehood of the assumptions upon which the claim of the equitable to superiority over the legal rule is originallj de- fended. Nothing is more distasteful to men, either as individuals or as masses, than the admission of their moral progress as a sub- stantive reality. This unwillingness shows itself, as regards in- dividuals, in the exaggerated respect which is ordinarily paid to the doubtful virtue of consistency. The movement of the collective opinion of a whole society is too palpable to be ignored, and is gen- erally too visibly for the better to be decried ; but there is the great- est disinclination to accept it as a primary phenomenon, and it is commonly explained as the recovery of a lost perfection, — the grad- ual return to a state from which the race has lapsed. This tendency to look backward instead of forward for the goal of moral progress produced anciently, as we have seen, on Eoman jurisprudence, ef- fects the most serious and permanent. The Eoman jurisconsults, in order tO' account for the improvement of their jurisprudence by the praetor, borrowed from Greece the doctrine of a natural state olman — a natural society — anterior to the organization of common- wealths governed by positive laws. In England, on the other hand, a range of ideas especially congenial to Englishmen of that day ex- plained the claim of equity to override the common law by sup- posing a general right to superintend the adm inistration of justice which was assumed to be vested in the king as a natural result of his paternal authority. The same view appears in a different and a quainter form in the old doctrine that equi ty flowed from the king's conscience, — the improvement which had in fact taken place in the moral standard of the community being thus referred to an inherent elcA'ation in the moral sense of the sovereign. The growth of the English constitution rendered such a theory unpalatable after a time; but, as the jurisdiction of the chancery was then flnn- ly established, it was not worth while to devise any formal substi- tute for it. The theories found in modern manuals of equity are very various, but all are alike in their untenability. Most of them are modifications of the Roman doctrine of a natural law, which is indeed adopted in terms by those writers who begin a discussion of the jurisdiction of the court of chancery by laying down a dis- tinction between natural justice and civil. § 5) LAW AND EQUITY. 97 From MarMry's Elements of Law, §§ IW-l'BS. There are, howeyer, two countries of Europe in which the rules of conduct we have just been considering have played a different and more conspicuous part. I have already alluded to the effect of equity on Roman law, and the equity of the En';lish chancellors is not wholly dissimilar, and its effects have not been less important. For a full and clear exposition of the method by which, upon an assumed principle of natural equality, or equity, tlie Roman law- yers managed to get rid of dogmas and distinctions which belonged to the strict law of Rome, but which were not found in the law com- mon to all nations, I must refer the student to the chapter on "Eq- uity" in Sir Henry Maine's Ancient Law. Our own notion of equity is so far identical with this, that the moral law comes in as an avowed remedy for the inconvenience and inapplicability of an al- ready existing system. But tlie origin of English equity is in that early stage of history when the idea of law was very incomplete, and the exercise of the judicial function had not been clearly separated from the ordinary exercise of sovereign authority. The decrees of the court of chancer y were, in their origin, founded on a sort of dispensing power residing in the sovereign by virtue of the prerog- ative. It was the king's conscience which was moved by an injus- tice; and, because it was one wliich was not remediable by the or- dinary law, the chancellor received a commission to remedy it,, sometimes from the king himself, but sometimes also from parlia- ment.^* Of course, it was easy to pass from this to a general com- mission to redress grievances for which the strict rules of law sup- plied no adequate remedy, without noticing that thereby power was given to the court of chancery practically to fix the limits of its own- jurisdiction, by determining in •nhat cases the deficiencies of the common law rendered it necessary for itself to interfere. Notwithstanding this, equity has, to a great extent, lost in Eng-- land that feature which, at iirst sight, it would seem easiest to pre- serve, namely, its elasticit y. ' Sir Henry Maine ^^ considers that this is due to courts of equity having originally adppteA_ certain moral principles, which have been carried out to all their leg iti- mate con sequenc es,\and which fall short of the corresponding ethic- 14 1 Spence, Eq. Jur. p. 408. i" Anc. Law (1st Ed.) p. 69. KEBN.JUK. — 7 9S DIVISIONS OF LAW. (Ch. 3 al notions of the present day. I venture to think that it is also due , in part at least, to the v ery different conception ofja w itself by modern lawyers, and to the great importance which is now at- tached to the stability of law, and to the necessi ty, in order to secure it, fgr_a complete sep aration of legislative and judicial func- tions. I do not, of course, canvass the acute and truthful general- ization that equity precedes legislation in the order of legal ideas, but I would base it on a far more general principle than the pre- liminary assumption of ftxed ethical rules. Consider the matter from the opposite point of view. Equity pre- cedes legislation in legal history. Why? Because the idea of law as an inflexible rule, without the possibility of modiflcation, is wholly unsuited to the early notions of the functions of courts of justice. According to a notion which extends far down into our own history, and which even now very largely exists in the popular mind, the Ijind^n^ofjudges is not so much to enforce the rigid commands of a sovereign as to redress grievances . The complete inversion, of this conception is marked by the treatise of Austin. The first steps towards it were taken in the respect paid to precedent. Until it was complete, it was impossible to separate the province of law from the province of morality. Both ideas are comprehended un- der the term "justice." The flexibility and adaptability to special circumstances, which are the very essence of the remedial functions of courts of equity, conflict with the idea that the rules to be ad- ministered are rules of law, and with the conception of law which now prevails in jurisprudence. The elasticity of equi t y now depends on the same cause which gives elasticity to the common law, — that it is law made by judges in the course of judicial decision; that it is ex post facto and con- crete, and not, like an act of parliament, prospective and abstract. From SalmoncTs The Fir»t Principles of Jiiriaprudence^ 89-95. It must be already obvious that law is not an essential element in the administration of justice. We cannot have the former with- out the latter, but we may have the latter without the former. The adnijiiistration of justice consists essentially not, as is commonly said, in the enforcement of law, but in the applic ation of remedies to wrongs. And this function may or may not be exercised in § '5) LAW AND EQUITY. 99 accordance with pre-established principles. The proportion between the sphere of law and that of judicial discretion is not fixed, but variable, and the former. may even be completely excluded by the latter. The development of a legal system consists in the gradual encroachment of law on judicial discretion, — the progressive trans- formation of questions of fact into questions of law. Consequent- ly, if we trace such a system far enough back, we may come to a time when even the beginnings of law had not made their appear- ance. Our historical knowledge is insufficient for this in the case of the common law, for its commencement is of time whereof there is no memory. But it is otherwise with the competing system that has, within comparatively modern times, grown up within the court of chancery. In its origin, the jurisdiction of the chancellor was| absolutely unfettered by any rules whatever. His duty was to do ^'that which justice and reason and good faith and good conscience requires in the case." ^° And of the requirements of justice and reason and good faith and good conscience he was in each particular case to judge at his own absolute discretion. In due time, however, there commenced that process of the encroaahaii£ii±,of legal 4ii±ix- ^^PlS-Jffi2S-JJi^i£i2J_JU?-'^''fition, of law upon fact, which marks the growth of all legal systems, and at length the sphere of discretion became as narrow in the court of chancery as in that of the king's bench. ^^ Though law is thus not essential to the administration of jus- tice, it is, for divers reasons, expedient. In the first place, it ren- ders the course of justice uniform, and therefore knowable. It is important not only that the state, in administering justice, should distinguish accurately between right and wrong, and should apply fitting remedies to wrongs, but also that the subjects of the state should be able to predict the decisions to which, on such matters, 16 Spence, Eq. Jur. I. 408. 17 Sir William Markby, in his Elements of Law (4tli Ed., p. 12 et seq.), calls attention to this fact of the possibility of the administration of justice without law. "This conception,'' he says, "of a judicial decision as the mere application of rules of law to events which have occurred, may possibly be an ideal which we ought to endeavor to realize. But the history of law shows a very different conception of a judicial decision. It is worth while to reflect to how large an extent tribunals have existed, and do exist, without law." 100 DIVISIONS OF LAW. (Ch. 3 the state will come. A necessary condition of such prevision is uniformity of judicial action; and law is, as has already been seen, the chief cause of such uniformity. In the second place, law pre- vents the errors of individual judgment. Inasmuch as the wis- dom of many is greater than that of one or few, insomuch is a de- cision in accordance with pre-established principle more likely to be right than one come to pro re nata by individual judgment. And finally law protects the administration of justice from the distort- ing influence of improper motives on the mart of those invested with judicial functions. "At first,'' says Hooker,^' "when some cer- tain kind of regiment was approved, it may be nothing was then further thought upon for the manner of governing, but all permitted unto their wisdom and discretion, which were to rule, till by ex- perience they found this for all parts very inconvenient; so as the thing, which they had devised for a remedy, did indeed but increase the sore which it should have cured. They saw that to live by one man's will became the cause of all men's misery. This constrained them to come unto laws '\\lierein all men might see their duties be- forehand, and know tlie penalties of transgressing them." TSTevertheless, the existence of law is not an unmixed benefit. The substitution of fixed principles for free discretion is open to a some- what serious objection. Principles of law are, as we have seen, almost always general in their nature. Now, a general principle is based upon abstraction; that is to say, on the disregard or elimina- tion of the variable and less material elements, and the retention merely of the invariable elements in the particular cases falling within the principle. And we can never be sure that, in applying a general rule to a particular case, the eliminated elements may not be material; and if peradventure they are material, and we apply the general rule without having regard to them, we fall into error. This is the great objection to the substitution of law for judicial discretion. The more general the rule, the greater is the tendency to error , for the greater is the elimination of possibly material ele- ments. But, on the other hand, the more guarded, qualified, and restricted the rule, the greater its complexity and the difficulty of its application. All that we can do, therefore, is to steer a mid- 18 Ecclesiastical Polity, bli. 1, c. 10, § 5. § 5) LAW AND EQUITY. 101 die course, so as to avoid as far as possible these two evils that lie on either side. It is to a recognition of this and other disadvantages inherent in the administration of legal justice that we owe the distinction be- tween law and equity. Sir Henry Maine " has defined equity as "inY body of rules existing by the side of the original civil law, founded on distinct principles, and claiming incidentally to super- sede the civil law, in virtue of a superior sanctity inherent in these principles." But to regard it as a body of fixed rules is to mistake its essential ch aract er. The true and original distinction between law and equity is one, not between two conflicting bodies of rules, but between a system of judicial administration based on fixed rules and a competing system governed solely by judicial discre- tion^ It has already been pointed out that originally the chancellor in the exercise of his jurisdiction did that which was right in his own eyes, unbound by any pre-established rule, and that it was only by a gradual course of development that his discretion became lim- ited, even as was that of his brethren who sat in the courts of com- mon law. Just in so far as h is di scretion was thus excluded by rule , in so far did the system administered in his court cease to be a system of equity in the tr ue sense, and become a system t he same in essence as the common law . That this was the original aspect in which equity was regarded appears sufSciently from the definitions given us by the old books. In one of these we read: "Lawmakers take heed to such things as may often come, and not to every particular case, for they could not though they would. Therefore in some cases it is necessary to leave the words of the law, and to follow what reason and justice requireth, and to that intent equity is ordained; that is to say, to temper and mitigate the rigour of the law." ^° And again: -^ "The cause why there is a chancery is for that men's actions are so di- verse and infinite that it is impossible to make any general law which shall aptly meet with every part icular act, and not fail in some circumstances." Before the institution of the system of equity, the law was rigid 10 Anc. Law (2d Ed.) p. 28. 20 Cited from Doctor and Student in Spence, Eq. .Tur. I. 413. 21 Per Lord Chancellor Ellpsmere, quoted Id. 102 DIVISIONS OF LAW. C^h. 3- and absolute. The possibility of the change in this respect brought about by the establishment of equity was due to the idea that the king was the source and fountain of justice. The administration of justice was part of the royal prerogative, and the exercise of it had been delegated by the king to his servants, the judges. The judges themselves were bound by the principles established in their courts, but not so the king. Consequently, when any conflict arose between the rules of the royal courts and the dictates of natural justice, it was allowable for the king to disregard such rules, and to do that which seemed right in his own eyes. In other words, there was an appeal from the arbitrary rules of law to the sense of right and justice possessed by the king, — from the legal jus tice of the king's court s to the na tural justice of the king. This appellate jurisdiction was, like the original judicial functions of the crown, delegated to a judicial officer, the chancellor, who, as exercising such jurisdiction, was regarded as the keeper of the conscience of the king. "It is the holy conscience of the queen," it was said, "that is in some sort committed to the chancellor."* By degrees the diaiicellor suffered himself to be restrained by rule and precedent in his execution of the dictates of the royal conscience, and it came to be recognized that ^^ "with such a conscience as is only naturalis et interna this court has nothing to do. The con- science by which he was to proceed was merely civilis et politica." Strictly analogous to the administration of equity in its original form is the exercise of the royal prerogative of mercy. What the former was in civil justice, the latter was and is in criminal jus- tice. The former implied an appeal from law to the royal con- science; the latter, an appeal from law to the royal mercy. The exercise of mercy, however, unlike that of equity, has never resulted in the growth of a body of fixed principles, but has retained its orig- inal character. Langdell A Brief Survey of Equity Jurisdiction, 1 Ilarv. Lair Rev. 116-118. ('^How is it that equity has the power to invade at will the prov- inces of other courts? xWhat object has equity in assuming juris- * Per Sir C. Hatton, cited in Spence, Eq. .Tur. I. 414. 2 2 Per Lord Nottingham, cited 1 Spence, Eq. Jur. 417. § 5_) ],AW AND HQUITY. 103 diction over rights wliicb it is the special province of other courts to protect ?(^What is the extent of that jurisdiction? The answer to the first of these questions ^Aill be found in the fact that the ju- risdiction of equity is a prerogative jur isdiction, i. e. it is exercised in l egal c ontemplation^by jhe sovereign^ who is the fountain from which all justice flows, and from whom, therefore, all courts derive their jurisdiction. The answer to the second question is that the object of equity in assuming jurisdiction over legal rights is to pro- mote justice by supplyin g de fe cts in the remedies which the courts of law afford. The answer to the third question is that the juris- diction is co-ex tensiv e wit h it s object: that is, equity assumes juris- diction over legal rights so far, and so f ar on ly, as justice c an be thereby promoted . But then the question arises, how does it happen that the pi^otection afforded by courts of law to legal rights is in- sufftcient and inadequate, and how is it that equity is able to supply their shortcomings? The answers to these questions, so far as re- gards the largest and most important part of the jurisdiction exer- cised by equity over legal rights (namely, that exercised over com- mon-law rights), will be found chiefly in the different methods of pro- tecting rights employed by courts of common law and courts of equity respectively, i. e. in the differen t methods of compulsion or coercion employed bj;^ them. A court of common law never lays a command upon a litigant, nor seeks to secure obedience from him.^^ It issues its commands to the sheriff (its executive officer), and it is through the physical power of the latter, coupled with the legal operation of his acts and the acts of the court, that rights are protected by the com- mon law. Thus, when a common-law court renders a judgment in an action that the plaintiff recover of the defendant a certain sum of money as a compensation for a tort, or for a breach of ob- ligation, it follows up the judgment by issuing a writ to the sheriff^ 23 So, if a defendant has refused to perform a contract, a court of law can only give tbe plaintiff damages, no matter how important to the latter actual performance may be. So a defendant may threaten to do the plaintiff an irreparable injury, or he may be actually doing it, and repeating it from day to day, yet a court of common law cannot prevent it. It can only give the plaintiff damages after the injury is committed. Langd. Bq. PI. (2d Ed.) 32. —Ed. 104 DIVISIONS OF LAW. (Ch. 3 under which the latter seizes the defendant's property, and either delivers it to the plaintiff at an appraised value in satisfaction of the judgment, or sells it, and pays the judgment out of the pro- ceeds of the sale. Here, it \Aill be seen, satisfaction of the judg- ment is obtained partly through the physical acts of the sheriff, and partly through the operation of law. By the former the property is seized and delivered to the plaintiff, or seized and sold, and the proceeds paid to the plaintiff. By the latter the defendant's title to the property seized is transferred to the plaintiff, or the title to the property is transferred to the purchaser, and his title to its pro- ceeds to the plaintiff. So if a judgment be rendered that the plain- tiff recover certain property in the defendant's possession, on the ground that the property belongs to the plaintiff, and that the de- fendant wrongfully detains it from him, the judgment is followed up by a writ issued to the sheriff, under which the latter dispossesses the defendant, and puts the plaintiff in possession. This is an in- stance, therefore, in which a judgment i s enfor ced through thp p hys- ical power of the sheriff alone. If, however, the property be mov- able, and the defendant remove or conceal it so that the sheriff can- not find it, the court is powerless. So, under a judgment for a re- covery of money, the court is powerless, if the defendant (not being subject to arrest) have no property which is capable of seizure, or none which the sheriff can find; and it matters not how much prop- erty incapable of seizure he may nave. Even when the defendant is subject to arrest, his arrest and imprisonment are not regarded by law as a means of compelling him to pay the judgment, but his body is taken (as his property is) in satisfaction of the judgment. Nor is our common law peculiar in its method of protecting rights; for the same method, substantially, is, and always has been, em- ployed in most other systems of law with which we are acquainted. "Nemo potest prsecise cogi ad factum" was a maxim of the Roman law, and it has been adhered to in those countries whose systems of law are founded upon the Roman law. Equity, however, has always employed, almost exclusively, the very method of compulsion ana coercion which the common law, like most all other legal systems, has wholly rejected. For, when a person is complained of to a court oi equity, the court first ascer- tains and decides what, if anything, the person complained of ought I 5) LAW AND EQUITY. 105 to do or refrain from doing; then by its order or d ecre e it c omman ds him to do or refrain from doing what it has decided he ought to do or refrain from doing; and finally, If he refuses or neglects to obey the order or decree, it punishes him by imprisnnmpTit f or his dis- obedience . Even when common law and equity give the same re- lief, each adopts its own method of giving it. Thus, if a court of equity decides that the defendant in a suit ought to pay money or deliver property to the plaintiff, it does not render a judgment that the plaintiff recover the money or the property, and then issue a writ to its executive officer commanding him to enforce the judgment; but ic commands the defendant personally to pay the money or to deliver possession of the property, and punishes him by imprisonment if he refuse or neglect to do it. This method was borrowed by the early English chancellors from the canon law, and their reasons for borrowing it were much the same as those which caused its original adoption by the canonists. The canon-law courts had power only over the souls of the litigants. They could not touch their bodies nor their property. In short, their power was spiritual, not physical, and hence the only way in which they could enforce their sentences was by putting them in the shape of commands to the persons against whom they were pro- nounced, and inflicting upon the latter the punishments of the church (ending with excommunication) in case of disobedience. If these punishments proved insuflScient to secure obedience, the civil power (in England) came to the aid of the spiritual power, a writ issued out of chancery (de ex communicato capiendo), and the defendant was arrested and imprisoned. When the English chancellor began to assume jurisdiction in equity, he found himself in a situation very similar to that of the spiritual courts. As their power was entirely spiritual, so his was entirely physical. Through his physical power he could imprison men's bodies, and control the possession of their property; but nei- ther his orders and decrees, nor any acts, as such, done in pursuance of them, had any legal effect or operation; and hence he could not affect the title to property, except through the acts of its owners. Moreover, his physical power over property had no perceptible in- fluence upon his method of giving relief. Even when he made a de- cree for changing the possession of property, it tooli the shape, as 106 DIVISIONS OF LAW. (Ch. S we have seen, of a command to the defendant in possession to deliver possession to the plaintiff; and it was only as a last resort that the chancellor issued a writ to his executive ofQcer, commanding him to dispossess the defendant and put the plaintiff in possession. § 6. Substantive and Adjective Law. From 2 Austin'' s Jurisprudence^ § 103'2. If I adopted the language of Bentham, and of certain German writ- ers, I should style the law of primary rights and duties "substantive law," and the law of sanctioning or secondary rights and duties, "ad- jective or instrumental law." ^^ In other words, I should divide the law of things, or the bulk of the legal system, into law conversant about rights and duties which are not means or instruments for ren- dering others available, and law conversant about rights and duties which are merely means or instruments for rendering others avail- able. Substantive law, as thus understood, is conversant about the rights and duties which I style "primary"; adjective larw, about the rights and duties which I style "secondary." Ent it will appear, on a moment's reflection that the terms "sub- stantive" and "adjective" law tend to suggest a complete misconcep- tion of the nature of the basis on which the division rests. These terms suggest the division of rights and duties into two classes, under the following descriptions: (1) Those which exist in and per se; which are, as it were, the ends for which law exists; or which subserve immediately the ends or pur- poses of law. (2) Those which imply the existence of other rights and duties, and which are merely conferred for the better protection and en- forcement of those other rights and duties whose existence they so suppose. Now, although sanctioning rights and duties, or rights and duties arising out of injuries, are of this last character, many rights and 24 It defines the rights which it will aid, and specifies the way in which it win aid them. So far as it defines, thereby creating, it is suhstantivo law. So far as it provides a method of aiding and protecting, it is adjective law or procedure. Holl. Jur. 78. — Ed. § 6) SUBSTANTIVE AND ADJECTIVE LAW. 107' duties which are primary or principal, or which do not arise out of injuries, are also of the same nature. The division, therefore, of law into law regarding primary rights and duties, and law regarding sanctioning or secondary rights and duties, cannot be referred to a difference between the purposes for which those rights and duties are respectively given by the state. And I object to the names "sub- stantive and adjective laAv," as tending to suggest that such is the basis of the division. It appears to me that the true principle of di- vision rests exclusively upon a difference between the events from which the rights and duties respectively arise. Those which I call "primary" do not arise from injuries, or from %4olations of other rights and duties. Those which I call "secondary" or "sanctioning" (I style them "sanctioning" because their proper purpose is to pre- vent delicts or offenses) arise from violations of other rights and du- ties, or from injuries, delicts, or offenses. 108 THE RELATION OF ENGLISH LAW TO AMEKICAN LAW. (Ch. 4 CHAPTER IV. THE RELATION OP ENGLISH LAW TO AMERICAN LAW. From 1 Kenfs Commentaries^ Ji.72-Ji.73. But though the great body of the common law consists of a col- lection of principles, to be found in the opinions of sages, or decreed from universal and immemorial usages, and recei\ang progressively the sanction of the courts, it is, nevertheless, true that the common law, so far as it is applicable to our situation and government, has been recognized and adopted as one entire system by the constitu- tions of Massachusetts, New York, New Jersey, and Maryland. It has been assumed by the courts of justice, or declared by statute, with the like modifications, as the law of the land in every state. It was imported by our colonial ancestors, as far as it was applicable, and was sanctioned by royal charters and colonial statutes. It is also established doctrine that English statutes, passed before the emigration of our ancestors, and applicable to our situation and in amendment of the law, constitute a part of the common law of this country. Fr'ovi IlammoncVs Notes {1 Hammond'' s BlacJcstone, 283-2, 9; Van Ness v. Paeard, 2 Pet. 137, 144; Terrett v. Taylor, 9 Crauch, 46; Town of Pawlet v. Clark, Id. 333; Rex v. Vanghan, 4 Burrows, 2.jU0. Ch. 4) THE EELATION OF ENGLISH LAW TO AMERICAN LAW. 109' The system of law so adopted was the common law, therefore, as modified by all statutes passed prior to the date of adoption. Such statutes are not written law with us, but a part of the common law. * * ** There are, however, dissenting opinions holding that the English- statutes are adopted as such, and not as part of the common law. Judge Minor speaks of the common doctrine as "pernicious and un- warrantable." ° In New York, the constitution of 1777," declared "that such parts of the common law of England and of the statute of E. and G-. B. * * * as together did form the law of said colony on the 19th of April, 1775, shall be and continue the law of this state"; and the statute of 1788 was evidently intended to interpret the clause under- lined, which was omitted in the constitutions of 1821 and 1846.'' From Dillon's Laws and Jurisprudence of England and America^ 155-157. Now, the great fact which, as we approach this subject, meets our view, is that the common law (including in the phrase "common law," as here used, the supplemental equity system of the court of chancery, which grew out of the common law, and constitutes a part of it) underlies the whole system of American law and jurisprudence. The expression the "common law" is used in various senses: (a) Sometimes in distinction from statute law ; (b) sometimes in distinc- tion from equity law; and (c) sometimes in distinction from the Roman or civil law. I use it in this lecture in the latter sense. I do not stop to inquire how the. common law came to be introduced here and adopted by us. I deal with the fact as it exists, which is iWils. Law Lect. 48-55: Sedg. St. & Const. Law, 6; Chalm. Col. Op. pp. 208, 209; 1 Kent, Gomm. p. 473, and notes; Com. v. Leach, 1 Mass. 59; Com. v. Knowlton, 2 Mass. 534; Doe v. Winn, 5 Pet. 241; Bogardus v. Trinity Church, 4 Paige, 197; State v. Rollins, 8 N. H. 550. 5 Inst. 1, 43; 1 Kent,' Comm. 473; Levy v. MeCartee, 6 Pet. 110. Cf. Jolm- son, J., in 5 Pet. 245. That was a New York case, and the point decided was that a statute passed in 1788, "that none of the statutes of England or Great Britain shall be considered as laws of this state," repealed a statute of 11 & 12 Wm. III. c. 6, and all other English statutes, and did not leave them in force as jjart of the common law. 6 Article 35. ^ See Sedg. St. & Const. Law, pp. 10, 11. 110 THE RELATION OF ENGLISH LAW TO AMERICAN LAW. (Ch. 4 -that the common law is the basis of the laws of every state and terri- tory of the Union, with unimportant and gradually waning excep- tions. And a most fortunate circumstance it is that, divided as our territory is into so many states, each supreme within the limits of its power, a common and uniform general system of jurisprudence underlies and pervades them all; and this quite aside from the excellences of that system concerning which I shall presently speak. My present point is this : that the mere fact that one and the same system of jurisprudence exists in aU of the states is of itself of vast importance, since it is a most powerful agency in promoting commer- cial, social, and intellectual intercourse, and in cementing the nation- al unity. This view is so important that I must take leave to dwell upon it for a moment. Jurisprudence, as I have heretofore pointed out, is not something in the air, — something lifted up above and abstracted from the life of men, — but an eminently practical science, which has to do directly with the conduct and relation's of men, and with their conduct and relations as members of a particular state. It therefore necessarily partakes of a national character, — as, for example, Roman jurispru- dence, German jurisprudence, English jurisprudence, etc., referring thereby to the principles and character of the distinctive legal sys- tems of these several peoples. The Roman law affiliates the legal systems of continental Europe, and gives them a common and or- ganic character. So, the common law affiliates the legal systems of England and the United States, and also the legal system of each of the American states with the legal systems of all of the other states of the Union. It makes them all akin. It gives them an organic character. It is a living bond of union, since it is the cause and medium of a constant and active intercommunication and inter- course, making the people of the whole country neighbors. The legal systems of our 44 states have not only the same general character, but they are substantially uniform and identical. So completely is this the case that I speak from my observation and experience when I state that a thoroughly educated and trained lawyer of any one state, having access to the statutes and reports, is competent to deal with, and in fact our lawyers daily do deal with, questions and cases arising in and governed by the laws of any of the other states. Un- doubtedly, there are frequent inconveniences and occasional mis- Ch. 4) THE RELATION OF ENGLISH LAW TO AMERICAN LAW. Ill chiefs growing out of diversities in local legislation, and undoubtedly these could be materially "educed, and ought to be; but, after much experience and reflection, I am of opinion that these inconveniences and mischiefs are somewliat exaggerated; for, after all, the common law gives to our legal system in all of the states not only a distinc- tive, but essentially a homogeneous, character. From BlacFs Inferpi'datlon of Lcmm^ If.3f)^ 1(37. A decision by the superior courts of Great Britain, while it would not be conclusive upon the courts of this country, as a direct au- thority, will be entitled to high consideration, as an evidence of the law, where it does not turn upon a local statute or custom, but is explanatory of the common law or of the doctrines of equity." "Great Britain and the thirteen original states had each substan- tially the same system of common law originally, and a decision now by one of the higher courts of Great Britain as to what the common law is upon any point is certainly entitled to great respect in any of the states, though not necessarily to be accepted as- bind- ing authority any more than the decisions in any one of the other states upon the same point. It gives us the opinions of able judges as to what the law is, but its force as an authoritative declaration must be confined to the country for which the court sits and judges. But an English decision before the Revolution is in the_ direct line nf autho rity." " Thus, the English decisions construing the com- mon or statutory law, made before the separation of the two coun- tries, are entitled to much higher authority than those which may have been rendered since that event. In particular, with reference to statutes of the parent country which were adopted in the Amer- ican states, or constituted a part of the original law which they as- sumed to live under after the War of Independence, English deci- sions upon their construction, made after the separation, are not to be received as absolute or imperative authority by our courts, except in so far as they show what was the course of judicial deci- sions prior to that event.^" 8 Hilliaid v. Ilicharclson, 3 Gray, 349. 9 Cooley, Const. Lim. 52. 10 Mayor, etc., of Baltimore v. Williams, G Md. 235. 112 THE SOURCES OF ENGLISH AND AMERICAN LAW. (Ch. 5 CHAPTER V. THE SOURCES OP ENGLISH AND AMERICAN LAW. From 1 Slackstone's Commentaries, 63. The municipal law of England, or the rule of civil conduct pre- scribed to the inhabitants of this kingdom, may with sufficient pro- priety be divided into two kinds: The lex non scripta, the unwrit- ten or common law; and the lex scripta, the written or statute law.^ The lex non scripta, or unwritten law, includes not only general customs, or the common law properly so called, but also the partic- ular customs of certain parts of the kingdom, and, likewise, those particular laws that are by custom observed only in certain courts and jurisdictions. When I call these parts of our law "leges non scriptse," I would not be understood as if all those laws were at present merely oral, or communicated from the former ages to the present solely by word of mouth. It is true, indeed, that, in the profound ignorance of letters which formerly overspread the whole western world, all laws were entirelj' traditional, for this plain reason: that the nations among which they prevailed had but little idea of writing. Thus, the British as well as the Gallic druids committed all their laws as well as learning to memory; ^ and it is said of the primitive Saxons here, as well as their brethren on the continent, that "leges sola memoria et usu retinebant." ' But with us at present the mon- uments and evidences of our legal customs are contained in the rec- ords of the several courts of justice, in books of reports and judicial decisions, and in the treatises of learned sages of the profession, preserved and handed down to us from the times of highest an- tiquily. However, I therefore stj'le these parts of our law "leges non scripta?," because their original institution and authority are not set down in writing as acts of parliament are, but they receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom. » * ♦ 1 Nevitt v. Bank, (i Smedes & M. (Miss.) 596. a Cacs. de b. G. lib. 6, e. 13. s Spelm. Gl. 302. Ch. 5) THE SOURCES OF ENGLISH AND AMERICAN LAW. llo Our ancient lawyers, and particularly Fortescue,* insist with abundance of warmth that these customs are as old as the primitive Britons, and continued down, through the several mutations of gov- ernment and inhabitants, to the present time, unchanged and una- dulterated. This may be the case as to some; but in general, as Mr. Selden in his notes observes, this assertion must be understood with many grains of allowance, and ought only to signify, as the truth seems to be, that there never was any formal exchange of one system of laws for another, though, doubtless, by the inter- mixture of adventitious nations, — the Komans, the Picts, the Sax- ons, the Danes, and the Xormans, — they must have insensibly intro- duced and incorporated many of their own customs with those that were before established; thereby in all probability improving the texture and wisdom of the whole, by the accumulated wisdom of divers particular countries. Our laws, saith lord Bacon, are mixed as our language; and, as our language is so much the richer, the laws are the more complete. And, indeed, our antiquaries and first historians do all positively assure us that our body of laws is of this compounded nature, for they tell us that in the time of Alfred the local customs of the several provinces of the kingdom were grown so various that heir found it expedient to compile his Domebook or Liber Judicialis, forj the general use of the whole kingdom. This book is said to have been extant so late as the reign of King Edward the Fourth, but is now unfortunately lost. It contained, we may probably suppose, the principal maxims of the common law, the penalties for misde- meanors, and the forms of judicial proceedings. * * * But the irruption and establishment of the Danes in England, which followed soon after, introduced new customs, and caused this Code of Alfred in many provinces to fall into disuse, or, at least, to be mixed and debased with other laws of a coarser alloy. So that about the beginning of the eleventh century there were three principal systems of laws prevailing in different districts.^ Out of these three laws, Roger Hoveden " and Ranulphus Oestren- sis' inform us. King Edward the Confessoi' extracted one uniform l law or digest of laws, to be observed throughout the whole kingdom,! 4 Chapter 17. s Hall. Const. Hist. 55. = In Hen. II. ' In Edw. Confessor. KBEN.JUH.— 8 114 THE SOORCES OF ENGLISH AND AMERICAN LAW. (Ch. 5 though Hoveden and the author of an old manuscript chronicle" assure us likewise that this work was projected and begun by his grandfather, King Edgar. * '■ * Both these undertakings of King Edgar and Edward the Confes- sor seem to have been no more than a new edition or fresh promul- gation of Alfred's Code or Domebook, with such additions and im- provements as the experience of a century and a half had suggested; for Alfred is generally styled by the same historians the "Legum Anglicanarum Conditor," as Edward the Confessor is the "Restitu- tor." These, however, are the laws which our histories so often mention under the name of the "Laws of Edward the Confessor." * * '■ These, in short, are the laws which gave rise and origin to that collection of maxims and customs which is now known by Ihe name of the "common law," — a name either given to it in contra- distinction to other laws, as the "statute law," the "civil law," the "law merchant," and the like, or, more probably, as a law common to all the realm, the "jus commune" or "folcright" mentioned by King Edward the Elder, after the abolition of the several provincial customs and particular laws beforementioned. But, though this is the most likely foundation of this collection of maxims and customs, yet the maxims and customs so collected are of higher antiquity than memory or history can reach, nothing being more difhcult than to ascertain the precise beginning and first spring of an ancient and long-established custom; whence it is r that in our law the goodness of a custom depends upon its having been used time out of mind, or, in the solemnity of our legal phrase, Mime whereof the memory of man runneth not to the contrary. This it is that gives it its weight and authority; and of this nature are the maxims and customs which compose the common law, or lex ^lou scripta, of this Jdngdom. This unwritten or common law is properly distinguishable into three kinds: (1) General customs , which are the universal rule of the whole kingdom, and form the common law, in its stricter and more usual signification; (2) particular customs, which for the most part affect only the inhabitants of particular districts; (3) certain particular laws, which by custom are adopted and used by some particular courts, of pretty general and extensive jurisdiction. 8 lu Selfl. ad Eaclmer. 6. Ch. 5) THE SOURCES OF EKGIJSH AND AMERICAN LAW. 115 As to general customs, or the "common law," properly so called: This is that law by which proceedings and determinations in the king's ordinary courts of justice are guided and directed. This, for the most part, settles the com-se in which lands descend by in- heritance; the manner and form of acquiring and transferring prop- erty; the solemnities and obligation of contracts; the rules of ex- pounding wills, deeds, and acts of parliament; the respective rem- edies of civil injuries; the several species of temporal offenses, with the manner and degree of punishment; and an infinite number of minuter particulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires. * * * But here a very natural and very material question arises : How are these customs or maxims to be known, and by whom is their validity to be determined? The answer is, by the judges in the several courts of jxistice. They are the depositaries of the laws, — the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. Their knowledge of that law is derived from experience and study; from the "viginti annorum lucubrationes," which Fortescue " men- tions; and from being long personally accustomed to the judicial decisions of their predecessors.^" And, indeed, these judicial de- cisions are the principal and most authoritative evidence that can be given of the existence of such a custom as shall form a part of the common law. From HaTrvrnmid's Notes, 1 Hammond'' s Blachstone, 206- These are the laws which gave rise and origin to that collection of maxims and customs which is now known by the name of the "common law"; yet the maxims and customs so collected are of higher antiquity than memory or history can reach. Much wit and some serious argument have been spent upon this doctrine of the immemorial antiquity of the common law. * * » The actual rules and customs of the common law may change almost with every generation. We may trace -with the greatest ease the dying 9 Chapter 8. 10 Grisham v. State, 2 Yerg. (Tenn.) 595. Cited Fraser v. Willey, 2 Fla. 119; Tison V. Mattair, 8 Fla. 125; Lockwood v. Crawfoffl; 18 Conn. 370; Panie v. Smead, 2 D. Cbip. 56. 116 THE SOURCES OF ENGLISH AND AMERICAN LAW. (Ch. 5 out of a large part of the institutions and usages and legal concep- tions of the Year Books, or the introduction at a much later period of most of those which fill our reports to-day. We may prove from history that the particular rules of law have their birth and continu- ance and decay as truly as the generations of men; and yet the sys- tem of common law as a whole may as truly be styled of immemorial antiquity as the succession of ancestors to whom the present repre- sentatives of a family owe their existence. The common law is com- mon reason, and, like that, has an existence quite independent of its teachings to each successive generation. There is, however, a sense in which this immemorial existence may justly be asserted of each common-law doctrine. The particular cus- tom or maxim or rule which we now call a part of the common law cannot show the precise date of its birth, or its individual progeni- tors, as every member of the family can do. It has come "without obser-s ation," as a mere development or growth from M'hat existed before it. It has not, like a statute or a decision, its fixed date of beginning, prior to which we can say that it \'ias not. When it makes its first appearance, it is not as something nsw in principle, but only a new application of familiar and settled principles; and even this new application is to something of the same species or class with those previously governed by it. The common law changes only as the persons and things which are its objects change. It is easy to see that all the rules which govern the vast subject of rail- way communication — the relations of carriers to their passengers and the owners of their freight — must b? very modern, for no such questions could have arisen sixty years ago. Yet by far the largest part of those new rules have been formed of the principles which regulated the stagecoach and the carrier's wagon, modified only to fit the novel qualities possessed by a powerful, rapid, and dangerous means of communication. Tracing any^njrule back from decision to decision, we cannot find at any step a place where the court has ^ consciously made a new law. If each of these steps has differed a little from the one by which it was reached, still each rests upon its predecessor for all the authority which can be said to be purely legal. The law does not change, but the world it governs does. The im- memorial quality of the common law is not affected by any novelty in its applications; and each of its rules is entitled to be considered Ch. 5) THE SOURCES OP ENGLISH AND AMERICAN LAW. 117 immemorial also, if it is necessarily implied in the system, and if, in tracing it back, we can find no definite beginning, no point at which an act of legislation intervened. * * * From MarJcby''s Elements of Lmrs, §§ 89-91. In England alone we find the overwhelming influence of the Eo- man law successfully resisted. True it is that not a few maxims of the Eoman law have been transferred to English law, but no one has ever been able to quote a text of the Roman law as au- thority either in the courts of common law or the courts of chan- cery. It was only within the very narrow jurisdiction which the ecclesiastical courts managed to secure, and in the comparatively insignificant affairs of the admiralty courts (which dealing with for- eigners felt the want of a universal law), that the Eoman law was accepted. For a long time the ecclesiastics struggled to procure for it a more general acceptance. The crown generally leaned in its favor, ^^ though occasionally, under the influence of the fear that its introduction might throw too much power into the hands of the church, the sovereign cast his weight into the other scale. But the English lawj'ers as a body never wavered. The judges, with a dogged persistence, kept the Corpus .Juris as an authority out of their own courts, and restrained the ecclesiastical courts if they attempted to interfere in matters which did not belong to \ them. The nobility and the commons were equally opposed to the introduction of Eoman law. If must at times have been a hard struggle to maintain against the learning and influence of the clergy the ruder customs of England, to «hich Glanvil, Fleta, and Bracton can scarcely bring themselves to allow even the name of law. And all the writers I have named attempted to introduce the principles of Eoman law into English courts by incorporating them into works professing to treat of the laws and customs of England. But the attempt met with little success. It was perhaps due to this very admixture of Eoman law that the authority of even so accomplished a writer as Bracton was repudiated so emphatically by the judges. The resource of the English lawyers, when called on to fill the 11 Besides tbe servile maxim so often quoted, "Quod principi placuit legis hatet vigorem," which Bracton qualifies, there is much in the Corpus Juris which flatters and favors despotism. 118 THE SOURCES OF ENGLISH AND AMERICAN LAW. (Ch. 5 gap which, was elsewhere supplied by the Eoman law, was custom. Of this custom the judges were themselves, in the last resort, the repository. But the judges usually observed a discreet silence as to the source from which they derived the rules upon which their decisions were based. Here and there a judge or a counsel arguendo would mention a precedent, but, if we may trust the reports con- tained in the Year Books, even this was rare. Still, there appears to have been very little tendency to innovation; and there was doutbless a tradition of the courts to which every judge knew that he must conform at the peril of his reputation. Some record of the proceedings of the superior courts of justice was always kept, and we have a series of such records commencing as early as 6 Eich. I (1194). These early records might, and probably did, afford some guide in future cases, though they were not drawn up with that object. Moreover, at least as early as the reign of Edward I. I the practice was begun of drawing up, in addition to these records, reports of cases heard and determined, the main, and apparently the sole, object of which was to furnish judges with precedents to guide them in their future decisions. In these Year Books there is very little argument, but only an ascertainment by oral discus- sion of the points at issue with the decision of the court. The re- porter, however, frequently criticises the decision, and sometimes indicates in a note the general proposition of law which he supposes the decision to support. Eeference is also sometimes made by the reporter to other cases involving the same point. The later Year Books give the arguments somewhat more fully, but still we do not find previous cases frequently cited. From this we might be disposed to infer that the practice of citing cases in support of an argument or a judgment was still very rare even in the reign of Henry the Eighth, when the last Y^ear Book was published. Yet this can hardly be so, for the reports of Plowden, in the reign of Edward YI., which are much fuller than the latest Year Books, show that cases were at that time freely cited, and it is not likely that the practice came suddenly into existence. Moreover, we can scarcely account for the existence of the Year Books at all unless we suppose that the lawyers studied them and made some use of them. The importance attached to the Year Books is further shown by the numerous reprints of them which Avere issued as soon as the Ch. 5) THE SOURCES OF EXGLTSH AND AMERICAN LAW. 119 art of printing was discovered, and also by the popularity of the abridgments made of them by Fitzherbert and Brooke. Probably, therefore, the influence of precedent upon the decisions of the judges is not to be measured by the number of cases quoted in the Year Books. It is, however, always as indicating the custom of England, and not as authority, that the decisions of earlier judges were used dur- ing all this period and long afterwards. In the patent of James I.^ = for the appointment of official reporters, it is, indeed, recited that the common law of England is principally declared by the grave resolutions and arrests of the reverend and learned judges upon the cases that come before them from time to time, and that the doubts and questions likewise which arise upon the exposition of statute laws are by the same means cleared and ruled. Neverthe- less, we find Blackstone still saying that the first gronnd^j,nd_chief corner stone of the lav\s of^_England is general and immemorial cusjom. But long before Blackstone's time, and in some measure perhaps owing to the patent of James I., a very important change had taken place in the view held by judges as to the force of prior decisions. These decisions were at first evidence only of what the practice had been, guiding, but not compelling, those who con- sulted them to a conclusion. But, when Blackstone wrote, each single decision standing by itself had already become an authority, which no succeeding judge was at liberty to disregard. This im- portant change was very gradual, and the practice was very likely not altogether uniform. As the judges became conscious of it, they became much more careful of their expressions, and gave much more elaborate explanations of their reasons. They also betrayed great- er diffidence in dealing with new cases to which no rule was ap- plicable,— "cases of first impression," as they were called; and they introduced the curious practice of occasionally appending to a de- cision an expression of desire that it was not to be drawn into a precedent. 12 Pat 15 Jac. I., in volume 7, pt. 3, p. 19, of Rymei's Foedera (Ed. 1741): 1 Bl. Comm. p. 72. 120 THE SOURCES OF ENGLISH AND AMERICAN LAW. (Ch. O From Carter\s '■''The Ideal and the Actual in the Lair^"" 9-11. It seems to me that this attempted explanation of the genesis of law by the hypothesis of a command is wholly illegitimate. There is no occasion for any hypothesis. The whole process is open to ob- servation as matter of fact, and the solution of the question lies, like that of any similar problem, in a scrutiny of the actual facts. We know that we have judges, and that all we know of the law comes from their declarations. The statute book, indeed, is open to us; but we do not know the meaning of this, in any controverted case, except from the declaration of the judges. All the knowledge, there- fore, which we really have of the law, comes from the judge. But how does he get at the law? Does he make it? If he did, it would be his command, and he would be the sovereign, which would be itself fatal to the theory. Any such imputation of sovereignty to the judge would be contrarj- to the observed and manifest fact. Xo such function was ever yet assumed by a judge, either openly or tacitly. The exercise of any such power would be ground for his impeachment. We all know the method by which he ascertains the law. There is no secret about it, and no occasion for resorting to hypothesis. It is in operation every day before our eyes. We have only to take note of it. Iiet us examine the process. The statute book is first examined, and, if that speaks to the point ;>nd clearly, all doubt vanishes. Eut in the great majority of cases the statute book is silent, and what is the next resort? Inquiry is made by the judge concerning what his predecessors have done, and if he finds that a similar state of facts has been considered by them, and the law pronounced in reference to it, he declares the same rule. But in many, indeed most , of the controversies brought before him, no record is found of a precisely s imilar case , and the law is to be d_e- clared.Jor the first tjme. Here is the interesting and crucial test of the question how the law springs into existence. That the judge cannot make the law is accepted from the start. That there is al- ready existing a rule by which the case must be determined is not doubted. Unquestionably, the functions of making and declaring the law are here brought into close proximity; but, nevertheless, the distinction is not for a moment lost sight of. It is agreed that the true rule must be somehow found. Judge and advocates all together— engage in the search. Cases more or less nearly approach- €1). 5) THE SOURCES OF ENGLISH AND AMERICAN LAW. 121 ing the one in conti'oversy are adduced. Analogies are referred to. The customs and habits of men are appealed to. Principles already settled as fundamental are invoked and run out to their consequen- ces; and, finally, a rule is deduced which is declared to be the one which the existing law requires to be applied to the case. In all this, the things which are plain and palpable are (1) that the whole process consists in a search to find a rule; fi) that the rule thus sought for is the Just rule, — that is to say, the rule most in accordance with the sense of justice of those engaged in the search; (3) that it is tacitly assumed that the sense of justice is the same iii_all those who are Thus engaged, — that is to say, that they have a common standard of justice, from which they can argue with, and endeavor to per- suade, each other; (4) that the field of search is the habits, cus- toms, business, and manners of the people, and those previously de- clared rules which have sprung out of previous similar inquiries into habits, customs, business, and manners. The conclusion is already suggested that our unwritten law ( «hich is the main body of our law) is not a command, or a body of commands, but consists of rules springing from the social standard of justice, or from the habits and customs from which that standard has itself been derived. I have been dealing with the process of making or finding the law as it is actually going on day by day iu an old and civilized society; but the truth I am seeking to establish is perhaps better illustrated by a resort to the instances of early communities in which society is just beginning to develop itself, and where the same process is ex- hibited in a simple form. In early Rome, and in every other in- stance of which we have authentic information, we find that the first step in the administration of justice has been to elect a judge . The creation of judges everywhere antedates the existence of formal law. But, though formal law does not at first exist, the law itself exist s, or there would be no occasion to appoint a judge to administer it. The social standard of justice exists in the habits, customs, and thoughts of the people, and all that is needed in order to apply it to the simple affairs of such a period is the selection of a person for a judge who best comprehends those habits, cuttoms, and thoughts. I shall not degrade the subject, if I call up a meaner illustration. In all athletic games — baseball, cricket, or prize fighting — a referee is appointed to see fair play. There are no commands proceeding 122 THE SOURCES OF ENGLISH AND AMERICAN LAW. (Ch. & from a sovereign or superiors to subjects or inferiors; but there is a standard of justice founded upon the habits and usages of the game^ and there is consequently a law which it is the function of the referee to declare. We have here in miniature the whole scheme of human justice. From MarM>y''s Elements of Law, 98-100. A very much more important question has been raised, as to the correct appreciation of the process of making law by judicial deci- sion. Austin has minutely criticised this process, but the published lecture which contains these criticisms is, as is so frequently the case with the scanty remains we have of the writings of that eminent jurist, made up of two disjointed fragments; and it is of course,, therefore, not summed up into any final conclusions. It appears to me that the essential difference between the generation of law by judicial decision and by express legislation lies in two of the char- acteristics of judiciary law noted by Austin, namely, that it is ex post facto, and that it is always implicated with the peculiarities of Ihe particular case in which it is applied. All the objections which can be raised against judiciary law may be traced to one or both of these characteristics, — its bulk, the difficulty of ascertaining it, its inconsistency, and so forth. To the combination of these two characteristics may be also traced its great, though possibly its only, advantage, — that of flexibility, oi capacity of being adapted to any new combination of circumstances that may arise. Were the judges in England compelled, as in Italy, France, and Spain, and as has been attempted in India, to state separately and fully what French law- yers call the "motives," and Spanish lawyers the '-points," of their decisions, — that is to say, their findings in fact and the rules of law which guide them, — there N\ould be a complete revolution in the his- tory of English case law. The law, being stated in distinct proposi- tions, altogether separate from the facts, would be easily ascertained. This, coupled with our notions as to the authority of prior decisions, would render a conflict so conspicuous as to be almost impossible. The law would soon become clear and precise enough; but, so far as judicial decision was concerned, it would become much more rigid. It is because English judges are absolved from the necessity of stating general propositions of law, and because, even when these Ch. 5) THE SOURCES OF ENGLISH AND AMERICAN LAW. 123 are stated, they are always read as being qualified by the circum- stances under which they are applied, that our law remains bulky and uncertain, but has also, in spite of our respect for precedent, remained for so long a period flexible 'V^'hether it would be found jjossible to combine our practice as to the generally unquestionable authority of prior decisions '^\-ith the practice of laying down ab- stract propositions of law, separate from and independent of the par- ticular facts, is an experiment which, as far as I am aware, has not yet been tried. The nature of the process of reasoning which has to be performed in order to extract a rule of law from a number of decided cases by elimination of all the qualifying circumstances is a very peculiar and difficult one. The opinion of the judge, apart from the decision, though not exactly disregarded, is considered as extrajudicial, and its authority may be got rid of by any suggestion which can separate it from the actual result. Unless, therefore, a proposition of law is absolutely necessary to a decision, however emphatically it may have been stated, it passes from the province of auctoritas into that of mere literatura. Curiously enough, it is notjhejjpinion^of the judge, but the result to the suitor, which makes the law.^' Paley has called the process by which law is extracted from a series of decisions the competition of opposite analogies.^* Austin considers that this process is not necessarily confined to the extrac- tion of law from judicial decisions, and that it may as well be em- ployed in the application of ascertained rules of law to particular cases. But, as I have said, it is the peculiarity of English judges that they do not think themselves bound to distinguish these two op- erations, and that they very frequently perform them simultaneously. They, in fact, determine the law only by applying it. And I think Paley's description of forensic disputation and judicial decision is both forcible and accurate. "It is," he says, "by the urging of the 13 This is consistent with the idea that the basis of the law which cojnes to us through judges is custom, and not opinion. 1*2 Moral Philosophy, p. 259. Austin seems to have thought at first that Paley was speaking only of the application, and not the extraction, of law (lecture 37, p. 653); but he afterwards changed that opinion (Fragments, p. 1031). Very likely, Paley did not, any more than judges, distinguish the two processes. 124 THE SOURCES OF ENGLISH AND AMERICAN LAW. (Ch. 5 different analogies, that the contention of the bar is carried on; and it is in the comparison, adjustment, and reconciliation of them with one another, in the discerning of such distinctions, and in the fram- ing of such a determination as may either save the various rules al- leged in the cause, or, if that be impossible, may give up the weaker jmalogy to the stronger, that the sagacity and wisdom of the court are exercised." § 1) JUDICIAL DECISIONS AS PRECEDKNTS. 125 CHAPTER VI. JUDICIAL DECISIONS AS PRECEDENTS. § 1. Decisions, Opinious, and Dicta. 2. .Judicial Decisions as Precedents— Between Federal and State Courts. 3. Between Courts of Different States. § 1. Decisions, Opinions, and Dicta. FroTn 1 Blackstone' s Commentaries^ 69-73. It is an establisked rule to abide by former precedents where the same points come again in litigation ; as well to keep the scale ; of justice even and steady, and not liable to waver with every new judge's opinion, as also because, the law in that case being solemnly , declared and determined, what before was uncertain and perhaps indifferent is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments; he being sworn to determine, not accord- ing to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one.^ Yet this rule admits of 1 "No passage of Blaclistone has been the object of more criticism, and even ridicule, than thi.s, with its corollary that, if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sen- tence was bad law. but that it was not law. Jlr. Austin spealss of the 'child- ish fiction' employed by our judges, that 'judiciary or common law is not made by them, but is a miraculous something made by nobody, existing, I suppose, from eternity, and merely declared from time to time by the judges.' * * * The assumption that the judges malie new law by au- thority delegated from the sovereign, whenever they decide a case, runs all through this work. Mr. Digby scornfully says that Blackslone's state- ment that 'judicial decisions are not the source of law, but evidence of a pre-existing law, * * * would at the present day have few theo- retical supporters, though its practical influence is still considerable.' Dig. Hist. Real Prop. p. 53. At least one eminent teacher of law in America takes the same view. Pom. Mun. Law (preface to 2d Ed.) p. 7, §§ 2S4, 29.5, 298, et seq. .Vfter these names it would be useless to quote the swarms of minor writers who have held Blackstone up to riducule In small books and 126 JUDICIAL DECISIONS AS PRECEDENTS. (Ch. 6 exception, where the former determination is most evidently con- trary to reason; much more if it be clearly contrary to the divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresen- tation; for, if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law,— that is, that it is not the established custom of the realm, as has been erroneously determined. And legal periodicals. Sucli writers may not think themselves answered by the unbroken testimony of the judges themselves, who from the earliest Year Books to the latest reports of the highest courts have unanimously agreed that they neither made nor could make new law in deciding cases which come before them for adjudication. » * * "The position of Austin and his followers rests upon a confusion between the historical and the scientific aspect of that doctrine. Historically con- sidered, it is true that our judges make law. Looking over the long series of their decisions, we can see that almost every one of great name has made the law different from what it was before; has enlarged or narrowed a rule, introduced a new distinction, recognized a principle not before obvious, or in some way left the mark of his own reasoning upon the cases sub- mitted to him. In many instances such individual work has been accepted for a time as law, and subsequently rejected as due to mistake or the idiosyn- crasy of a peculiar mind. In Blackstone's words, 'it has been held by sub- sequent judges to be no law.' But, even where the effect of each new de- cision has been permanent, the fact of growth and development of the law by distinct stages is no less clear. Some judges in each generation have made changes not only accepted and acted upon by their times, but which have become a part of the permanent law of posterity. In the historical aspect of the system they have actually made new law. Indeed, if this were not so, there could be no historical study of the law in any true sense of the term. Its progress and life consist in the new law thus uttered by the judges of every generation. So it is in every science. We can trace historically the growth of creeds, the development of theological, philosophical, or scientific truths in the utterances of successive thinkers and students. No one infers from this that these men have made theological or scientific truth. No one believes that the observation and experiments by which our knowledge of physical science is constantly increasing are so many additions to nature and its laws. Every judge is as careful that his decisions should be based upon law actually existing when he makes them as the scientific observer is that his observations should represent the facts of nature. Nothing is more com- mon in our reports than to find the courts stop at the limit of judicial power, no matter how persuasive the equities of the case may be, and regret their § 1) DECISIONS, OPINIONS, AND DICTA. 127 hence it is tiiat our lawyers are with justice so copious in their en- comiums on the reason of tlie common law; that tliey tell us that the law is the jierfection of reason, that it always intends to con- form thereto, and that what is not reason is not law. Not that the particular reason of every rule in the law can at this distance of time be always precisely assigned, but it is sufficient that there be nothing in the rule flatly contradictory, to reason, and then the law will presume it to be well founded.* And it hath been an an- inability to lay down a new law or to change an old one, because that can be the work only of the legislature. They do this in cases where there can be no doubt of their earnest desire for the pui-pose of justice to carry their juris- diction to its utmost limit; and it is a gross misrepresentation to speak of such action as a 'childish iiction,' or an attempt to conceal the process of actual legislation. All this is by no means inconsistent with the acknowl- edged fact of the constant growth. and development of the law in time. Xo one, indeed, has expressed this fact more clearly than Blackstone himself, in his frequent statement of historic changes of the common law, and in the pages where he has referred to it as 'ripening,' and by other metaphors which imply the same process. "The precedents by which each judge feels himself bound in deciding on the common law do not constitute that law, but are merely evidence of it. To use a distinction already referred to, they are the sources from which we know it, but not the sources from which it derives its own existence. This, also, is uni- versally agreed to by the courts themselves. It has been expressly deter- mined by the highest authorities. Thus, when the question was whether the decisions of the highest state courts were laws, and therefore by the thirty-fourth section of the judiciary act made rules of decision in the trials At common law in the federal courts, the supreme court of the United States decided that they were not, saying by Story, J.: 'In the ordinary use of language, it will hardly be contended that the decisions of courts consti- tute laws. They are, at most, only evidences of what the laws are, and are not of themselves laws. They are often re-examined, reversed, and quali- •Qed by the courts themselves, whenever they are found to be either defective or ill founded, or otherwise incorrect' Swift v. Tyson, 16 Pet. 1. The same language has very recently been quoted with approval by Harlan, J., in Rail- road Co. V. National Bank, 102 U. S. 14, 29, and by Clifford, J., in the same case. Id. Di." 1 Hammond's Blackstone, 213-217.— Ed. ♦Herein agreeing with the civil law (Ff . 1, 3, 20, 21) : "Non omnium, quK a majoribus nostris constituta sunt, ratio reddi potest. Et ideo rationes eorum, quae constltuuntur, inquiri non oportet: alioquin multa ex his, quse certa sunt, subvertuntur." 128 JUDICIAL DECISIONS AS PRECEDENTS. (<-'b. *> cient observation in the laws of England that whenever a stand- ing rule of law, of which the reason perhaps could not be remem- bered or discerned, hath been wantonly broken in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniencies that have followed the innovation. The doctrine of the law, then, is this: That precedents and rules must be followed, unless tlatly absurd or unjust; for, though their reason be not obvious at first view, yet we owe such a deference to former times as not to suppose they acted wholly without consid- eration. To illustrate this doctrine by examples. It has been de- termined, time out of mind, that a brother of the half blood shall never succeed as heir to the estate of his half brother, but it shall rather escheat to the king or other superior lord. Now, this is a positive law, fixed and established by custom, which custom is evi- denced by judicial decisions, and therefore can never be departed from by any modern judge without a breach of his oath and the law; for herein there is nothing repugnant to natural justice, though the artificial reason of it, drawn from the feodal law, may not be quite obvious to everybody. And therefore, on account of a supposed hardship upon the half-brother, a modern judge might wish it had been otherwise settled ; yet it is not in his power to alter it. But, if any court were now to determine that an elder brother of the half blood might enter upon and seize any lands that were purchased by his younger brother, no subsequent judges would scruple to de clare that such prior determination was unjust, was unreasonable, and therefore was not law. So that the law and the opinion of the judge are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake thr law. Upon the whole, however, we may take it as a general rule " that the decisions of courts of justice are the evidence of what is common law ," in the same manner as, in the civil law, what the emperor had once determined was to serve for a guide for the future.^ The decisions, therefore, of courts, are held in the highest regard, 2 "Si imperlalis majestas causam cognitionaliter examinaverit, et partibus, cominus constitutis sententiam dixerlt, omnes omnino judices, qui sub nostro imperio sunt, sciant banc esse legem, non solum illi causae pro qua producta est, sed et in omnibus similibus." C. 1, 14, 12. § 1) DECISIONS, OPINIONS, AND DICTA. 129 and are not only preserved as authentic records in the treasuries of the several courts, but are handed out to public view in the numerous volumes of reports which furnish the lawyer's library. These reports are histories of the several cases, with a short sum- mary of the proceedings (which are preserved at large in the rec- ord), the arguments on both sides, and the reasons the court gave for its judgment, taken down in short notes by persons present at the determination. And these serve as indexes to, and also to explain, the records, which always, in matters of consequence and nicety, the judges direct to be searched. The reports are extant in a regular series from the reign of King Edward the Second, in- clusive, and, from his time to that of Henry the Eighth, were taken by the prothonotaries or chief scribes of the court, at the expense of the crown, and published annually, whence they are known un- der the denomination of the "Year Books." * * * Besides these reporters, there are also other authors to whom great veneration and respect is paid by the students of the common law. Such are Glanvil and Bracton, Britton and Fleta, Hengham and Littleton, Statham, Brooke, Fitzherbert, and Staundforde, with some others of ancient date, whose treatises are cited as authority, and are e'sidence that cases have formerly happened in which such and such points were determined, which are now become settled and first principles. From 1 Kenfs Commentanes, ^,75-^76. A solemn decision upon a point of law, arising in any given case^ becomes an authority in a like case, because it is the highest evi- dence which we can have of the law applicable to the subject; and" the judges are bound to follow that decision as long as it stands unreversed, unless it can be shown that the law was misunder- stood or misapplied in that particular case." If a decision hast 3 Beyond the court pronouncing the decision, and beyond courts subordinate to it, the decision does not have imperative authority as a precedent; yet, in so far as the decision establishes a doctrine, as heretofore explained, the decision is recognized in all courts as of persuasive authority. Thus, decisions of the courts of any state are cited in other states, and decisions of lower courts are cited in courts of last resort. Further, English cases are cited in American courts, and American cases in English courts. Wambaughi,. Study of Cases (2d Ed.) 88.— Ed. KBBN.JUK. — 9 130 JUDICIAL DECISIONS AS PEECEDENTS. (Ch. 6 been made upon solemn argument and mature deliberation, the presumption is in favor of its correctness; and the eommanity have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. It would there- fore be extremely inconvenient to the public if precedent were not duly regarded and implicitly followed. It is by the notoriety and stability of such rules'that professional men can give safe advice to those who consult them; and people in general can venture with confidence to buy and trust, and to deal with each other. If ju- dicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has been once deliberately adopted and declared, it ought not to be disturbed unless by a court of appeal or review, and never by the same court, except for very cogent reasons, and upon a clear man- ifestation of error; and, if the practice were otherwise, it would be leaving us in a state of perplexing uncertainty as to the law. From Black'' s Interpretation of Laws, 38]f,-389. A case is to be cited as an authority for the particular projwsition of law which was held to govern the rights of the parties and to de- termine the judgment which should be given. This proposition or doctrine of law is called the "ratio decidendi" of the particular case; that is, the legal reason which caused the case to be decided as it was decided. It may or may not be explicitly set forth in the opinion of the court.* Sometimes it is assumed, and the reasoning of the court is directed to the application of the rule to the special state of facts before it.' Sometimes the rule is categorically or broadly 4 "The reader should remember that it is the decision, that is, the judgment rendered in the case , and not the opinion of the court, which settles the po int of law involved and makes the precedent. The decision is the conclusion of the court on the premises; the opinion sets forth the reasons of the de- termination, and usually states and explains them at greater or less length. The opinion, disclosing the reasons of the judge for his decision, is of course of great importance in the informatiou it imparts as to the principles of law which influenced the court and were supposed to govern the case, and which should guide litigants." Black, Interp. Laws, 384.— Ed. 6 "If the case could not have been decided as it was without the recognition and application of a given rule or principle of law, the decision is an au- thority for that rule or principle, although it may not have been expressly § 1) DECISIONS, OPINIONS, AND DICTA. 131 stated. But it is not the very words of the court, but the underlying principle of law, which fixes the position of the decision as an au- thority. Even if the opinion of the court should be concerned with unnecessary considerations, or should state the proposition of law im perfectly or incorrectly, yet there is a proposition necessarily in- volved in the decision and without which the judgment in the case <;ould not have been given; and it is this proposition which is es- tablished by the decision (so far as it goes) and for which alone the case may be cited as an authority. The fact that a particular case was decided in a particular way is an argument to induce the courts to decide a similar case in a similar way, even though the judges, in the first case, imperfectly apprehended, or incorrectly stated, the le- gal reason which led them to their decision. » * • Questions in a case which were not raised by the parties, not presented to the attention of the court, and not considered by the judges, are not concluded by the decision in the case, and the judg- ment is not an authority upon such questions, even though they are logically present in the case and might have been argued as affect- ing its decision, and even though such questions, if raised and de- liberated upon, would have caused a different judgment to be given. In order that the decision in one case should be available as a precedent for the decision of another case, it is not necessary that the circumstances of the two cases should be identical. Each case actually in the courts involves numerous facts or circumstances which may never be present in any other. But many of them may be immaterial to the rule of law announced in the case. If the point of difference between the two cases is such that its presence or absence could make no difference in the determination of the rule of law by which the case is to be governed, it is immaterial, and will not affect the authority of the former case as a precedent in the latter. But if there be a fact or circumstance in the former case which is not present in the latter case, and which is of such a nature that the former case could not have been ruled as it was had that fact or circumstance been absent, then the former case is not an authority for the decision of the latter. The ascertainment of such material points of difference, and the indication of their in- stated or mentioned by tlie court, but only tacitly assumed." Black, Interp. Laws, 385.— Ed. 132 JUDICIAL DECISIONS AS PRECEDENTS. (Ch. 6 fluence upon the decision to be rendered, is known as "distinguish- ing" cases. * * * But it also frequently happens that a case may be decided strict- ly on precedent, although no earlier case can be found which is on all fours with it or even a direct precedent for it. For several cases, all dealing with the same general topic, though with dissiniilar aspects of it, may, by their combination, establish a general rule which is broader than the doctrine of any one of the cases taken by itself, and broad enough to include the novel case to which it is to be applied. Let it be supposed, for example, that it has been decided that an inscription painted on glass is admissible as doc- umentary evidence in a proper case, notwithstanding the nature of the substance and the method of putting the writing upon it. Suppose further that a second case has made a similar decision with regard to an inscription cut into wood, and that a third case has laid down the same rule with reference to an inscription carved on stone. A case now arises in which the question is as to the ad- missibility of an inscription engraved on a gem or a ring. No one of the three previous cases is identical with it. Yet those cases, taken together, may be considered as having settled the general rule that neither the substance on which a document is inscribed nor the manner of the inscription is material, so long as it is leg- ible and sutliciently enduring in character. And this general rule is broad enough to include the case on trial and to furnish a prin- ciple for its decision. From Austin's Jurisprudence^ § 900. A law or rule of law, made by judicial decisions, exists nowhere in a general or abstract form.^ It is implicated with the peculiar- ities of the specific case or cases, to the adjudication or decision of which it was applied by the tribunals; and, in order that its im- port may be correctly ascertained, the circumstances of the cases to which it was applied, as well as the general propositions which oc- cur in the decisions, must be observed and considered. The reasons 6 It is the duty of appellate courts, as well as of those of first instance, to pass judgment only upon the cases actually before them. They have no jurisdiction to pronounce judgments on most questions or hypothetical cases. Black, Interp. Laws, 387. § 2j BETW15EN FEDERAL AND STATE COURTS. 133 given for each decision must be construed and interpreted accord- ing to the facts of the case by which those reasons were elicited; rejecting as of no authority any general propositions which may have been stated by the judge, but were not called for by the facts of the case, or necessary to the decision." The reasons, when so ascertained, must then be abstracted from the detail of circum- stances with which in the particular case they have been impli- cated. Looking at the reasons so interpreted and abstracted, we arrive at a ground or principle of decision which will apply univer- sally to cases of a class, and which, like a statute law, may serve as a rule of conduct. § 2. Judicial Decisions as Precedents — Between Federal and State Courts. Thayer '"'■ The Case of GelpcJee v. Dubuque,^ ^ ^ Harvard Law Re- mew, 313-319. There is a well-known difference in the way in which cases may be brought into the United States courts : (a]_ They may come there i because the case involves a question under tne constitution, treaties, \ or laws of the United States. In such cases the United States supreme court is the ultimate tribunal of appeal, whether the case has come up from a state court or from an inferior court of the United States. It has no duty of following the laws of the states, for it is now administering the law of its own government. If, in such a case, there be a question of impairing the obligation of a contract, and the state court has held that there is no contract to 7 A dictum is an expression of opinion in regard to some point or rule of law made by a judge in the course of a judicial opinion, but not necessary to the determination of the (^e_ before the coiirt. It may be either put forth as the personal opinion of the judge who delivers the judgment of the court, or introduced by way of illusuration, argument, or analogy, but not bearing directly upon the question at issue; or it may be a statement of legal principle over and above what is necessary to the decision of the controverted questions in the case. Dicta may be entitled to respect, on account of the learning or general accuracy of the judge who pronounces them; but, as they are not the judicial determinations ofthe court, they are never entitled to the force and effect of precedents. Black, Interp. La\\s, 394. 134 JUDICIAL DECISIONS AS PEECEDENTS. (Ch. 6 be impaired, the supreme court may re-examine that question with entire freedom, although it involve the construction of the con- stitution or statutes of the state. It is not in any way bou nd to follow the decision of the state court. Such an unfettered power is necessary in order to the full exercise of the jurisdiction of the su- preme court. In the case of Ohio Life Ins. & Trust Co. v. Debolt,^ on error to the supreme court of OMo, Chief Justice Taney, speak- ing, probably, for a majority of the court, remarked: "The duty imposed upon this court to enforce contracts * * * would be vain and nugatory if we were bound to follow those changes in judicial decisions which the lapse of time and the change in ju- dicial officers will often produce. The writ of error to a state court would be no protection to a contract if we were bound to follow the judgment which the state court had given, and which the writ of error brings up for revision here." ^. But there is an- other ground for coming into the courts of the United States. A case may come there, * * * not because of any question aris- ing under the constitution or laws of the United States, but simply because the plaintiff and defendant are citizens of diff eren t states or countries . In such a case the court is administering the law of the state. In this sort of case the general rule is that, since the court is applying the law of the state, it will follow, in determin- ing what that law is and in construing it, the. decisions of jts^high- est court . If the question has not ever come up in the state court, or if there be no settled rule there, the United States court must, of course, decide for itself. But, even after such an independent deci- sion has been made, if the highest court of the state should an-ive at a different conclusion, the United States court will, in general, change from its own previous decision, and will adopt that of the state courts.'' Nothing could more plainly mark the secondary character of the jurisdiction of the United States courts in this re- gion of it. But there are various qualifications of these doctrines. The most conspicuous of them is the principle of Swift v. Tyson,^" in which the novel and much-contested doctrine was laid down that, 8 16 How. 432. 9 Green v. Neal's Lessee, 6 Pet. 291; CaiToll Co. Sup'rs v. U. S., 18 Wall. 71. 10 16 Pet. 1 (1812). § 2) BETWEEN FEDEKAL AND STATE COURTS. 135 upon questions of what are called general commercial law, the courts of the United States did not undertake to follow the state courts. This declaration was not required for the decision of that case, but it has been followed, and is an established rule of the United States jurisprudence. Its soundness in point of principle is, perhaps, open to question; at any rate, it is undergoing much criticism at the present day. The same principle is laid down as regards the construction of ordinary language. ^^ But in that case there was a strong dissenting opinion of McKinley, J., concurred in by Taney, C. J. Again, where the United States court has al- ready decided a question, and a later decision of the state differs from this, the United States court may at least wait a while be- fore changing its own decision.^^ And, finally, it was long ago intimated that a United States court would not follow the state decisions where these were regarded as biased, and unjust to citi- zens of other states. It will easily ap]>ear that in some sense and to some extent there should be a recognition of such a principle as the one just named. All state courts must keep within the line of reason in order to make it just that the United States courts should follow them. Yet, nothwithstanding all these qualifications, it is still true, and is recognized as the sound general principle in the class of cases now under discussion, that the courts of the United States will follow the decisions of the state courts in as- certaining and construing their own lay . Declarations to this ef- fect are many and emphatic.^* It is with one of the qualifications of this rule that we are con- cerned in this case, namely, the one arising out of the danger to citizens of other states from local prejudice. I have said that some power of varying from the decisions of the states must necessarily exist as regards this sort of case; that, at least, the local courts must keep within the limits of reason. Shall the range of the United States courts, in differing from the local tribunals, go further than that, an'd how much further? * * * Shall they be limited merely to the prevention of results which would be absurd and ir- 11 Lane v. Vick, 3 How. 464, 470. 12 Shelby v. Guy, 11 Wheat. 361. 13 Elmendorf v. Taylor, 10 Wheat. 152, 159, 160; Webster v. Cooper, 14 How. 428, 502-505; Nesmith v. Sheldon, 7 How. 812; Williamson v. Berry, 8 How. 495, 558; I.effingwell v. Warren, 2 Black, 599. 136 JUDICIAL DECISIONS AS PEECEDEKT3. (Ch. 6 rational, or may they properly go further? As I have already said, in this class of cases, as in all others, whenever a question develops which involves the law of the United States, the United States court must, as touching that, act independently, although its ground of jurisdiction over the ease was originally merely the citizenship of the parties. But suppose no question of that kind to arise. * * • The lower United States courts, as we have seen, deal with such cases, because they have concurrent jurisdiction with the state courts on the ground of the citizenship of the parties; and having regard to the reason that they are given this concurrent juris- diction, namely, the danger of injury to citizens of other states or countries, by reason of the bias of the state courts, it may be laid down that wherever state courts are likely to be under a local bias, adverse to the citizens of other states or countries, the United States courts must hold themselves at liberty to depart from the decisions of the local courts in construing and applying the local law and the local constitution, to look into the question for them- selves, and to adopt their own rules of administration. This ap- pears to be only a just assertion of the power intended to be given to these courts by the constitution of the United States, in dealing with the class of cases now under consideration. To this effect is the reasoning of Mr. Justice Bradley, speaking for the court, in Burgess v. Seligman.^* Assuming this to be so, we have thus far only determined that the United States courts will look into such questions for them- selves. The statement of Chief Justice Taney in the case of Rowan v. Runnels * did not go beyond this. But in the case of Gelpcke v. City of Dubuque ^'^ the supreme court flatly refused to look into the merits of the question at all; and, in declining to fol- low the later decision of the Iowa court, a rule was laid down which established the validity of the bonds, irrespective of any opinion whether, as an original question, they were lawfully and constitu- tionally issued or not. The supreme court, quoting 'substantially an obiter remark of Taney, C. J., in Ohio Life Ins. & Trust Co, v. Debolt,^^ put forward this proposition: "The sound and true rule is that ifjthe contract when made was validjbyjthe_lawsj)lj 14 107 U. S. 20, 2 S-up. Ct. 10. is 1 Wall. 175. * 5 How. 139, 16 16 How., cit. p. 432. § 2) BETWEEN FEDERAL AND STATE COCKTS. 137 as then expounded by all departments of the government, and ad- ministered in its courts of justice, its validity cannot be impa i red by any subsequent action of legislation or decision of its court s alter- ing the construction of the law ," ^^ Has the United States court any right to say this? To announce that it will not look into the ques- tion whether the bonds are originally authorized by the state con- stitution or not? Any right to say that although, in this court's judgment, it may be true, as an original question, that they were issued in violation of the state constitution, the court will still hold them to be valid ? With a certain qualification, I think that it has. The laying down of some rule of administration is legitimate, for the court, as we see, has the right to look into the question for it- self; and all courts, in regulating the exercise of their functions, lay down, from time to time, rules of presumption and rules of ad- ministration. It is a usual, legitimate, necessary practice. It is, to be sure, judicial legislation; but it is impossible to exercise the judicial function without such incidental legislation. If this rule in Gelpcke v. City of Dubuque '^ be understood, as it was prob- ably meant, as being subject to a certain qualification, it appears to me good. It will not do, of course, to allow the United States courts, through the medium of any principle of presumption or judicial administration or anything else, to sanction a violation of the state constitution or the state laws. There might be a case wherein the violation of the constitution was gross and palpable, and such that those who took part in it, whether in making con- tracts or doing anything else, must be held to have known what they were doing; and in such a case no court would be justified in lay- ing down a rule that would protect these parties. But courts often have to recognize, especially in the region of constitutional law, that there is more than one reasonable and allowable interpreta- tion of a thing. It is familiar that they will not set aside the in- terpretation put upon the constitution by a co-ordinate legislature, in enacting a law, unless the mistake be very plain indeed, — so plain (in the ordinary phrase used in such case) as to be beyond reasonable doubt. If the rule be understood in this sense only, that a,ny contract which was held good at the time of making it by the 17 Gelpcke v. City of Dubuque, 1 Wall. 206. " i Wall. 20G. 138 JUDICIAL DECISIONS AS PRECEDENTS. (Ch. & highest court of the state, and which came within a permissible in- terpretation of the state constitution and law, will be sustained in the United States courts, I think that it is a sound one, and should be upheld. It is a rule which the state court should accept;, and, if the adoption of it by the United States court led to resistance on the part of the state authorities, that is a result which must be submitted to and dealt with as may be possible. Such temporary consequences were probably anticipated when the constitution was formed; but it may be confidently expected that so just a rule will ultimately commend itself to all courts. It will be observed that the rule is one regulating the administration of a particular juris- diction of the United States courts. It does not necessarily follow that this same rule should be applied in any other class of cases. From Black'' s Interpretation of Laws, 378-381. The settled construction put upon a public statute of a state by the courts of that state will be accepted as authentic by the courts of the United States, and will be adopted and applied by them, without inquiry as to its soundness, unless some question of federal law is involved, such as the conformity of the statute to the con- stitution or laws of the United States. This rule was announced by the supreme court of the United States at an early day, and has ever since been consistently fol- lowed and adhered to.^^ » » » If there is no decisio n by the courts of the state on the inter- pretation of a statute of the state, and nothing on which to found a practical construction, or if the decisions o f the s tate courts a re confl icting and the interpretation unsettled, then the federal courts will decide f or themselves as to the true construction of the stat- ute.^" And if the highest judicial tribunal of a state a dopts new views as to the proper construction of a statute of the state, and re- v erses its former decision s, the federal courts will follow the latest adlkd-gd judications .." But the rule that the courts of the United 19 The author's citation of eases lias been omitted. 20 Gardner v. Collins, 2 Pet. 58; Solin v. Waterson, 17 Wall. 596; Burgess v. Seligman, 107 U. S. 20, 2 Sup. Ct. 10; Myrick v. Heard, 31 Fed. 241; Southern Pac. R. Co. T. Orton, 32 Fed. 457. 21 Lefflngwell v. Warren, 2 Black (U. S.) 599; Green v. Neal, 6 Pet. 29'! ; Suydam v. Williamson, 24 How. 427. § 2) BETWEEN FEDERAL AND STATE COURTS. 139 Slates must accept as binding the interpretation of a state statute by the courts of that state is subject to this excepti on, that in cases where the federal courts are called upon to interpret the contracts of state s, they will not follow the construction adopted by the supreme court of the state in such a matter when they entertain a different opinion; and this, whether the contract alleged be claimed to be such under the form of state legislation, or has been made by a covenant or agreement by the agents of a state by its author- ity. * * * "VVTiere t_wo or more states have adopted statutes in the same or substantially the same terms, but their cqurtg jiiff er in regard to the interpretation_ of th.e._statute, the federal courts will administer the laws of each state, as therein construed, with- out regard to the apparent inconsistency which will result in their own decisions. In this event, such local statutes are treated as dif- ferent laws, each embodying the particular construction of its own state, and enforced in accordance with it in all cases arising under it.^^ As a deduction from the general rule that the decisions of the supreme court of a state, interpreting a statute of such state, are binding on the federal courts, it has been held that where the su- preme court of the United States, upon a mistaken view of the purport and effect of a decision of the supreme court of the state in such a case, renders a decision in conflict therewith, that decision is not binding on the state courts. ^^ From Blade's Interpretation of La/ws, Jf27-I^8. The extent to which the federal courts will feel themselves bound to follow the precedents established by the decisions of the state courts has already been pointed out, with special reference to ques- tions concerning the interpretation of state constitutions and stat- utes.^* It may now be further stated that substantially the same rules apply in the case of decisions which have settled a rule of property (more particularly concerning the law of real estate) and in regard to those which have been occupied with the solution of questions arising out of peculiarities of local law or usage, where 22 Shelby v. Guy, 11 Wheat. 361; Christy 7. Pridgeon, 4 Wall. 190; Louisi- ana v. Pillsbury, 105 U. S. 278, 294; Randolph's Ex'r v. Quidnicli Co., 13.5 U. S. 457, 10 Sup. Ct. 05.5; Bauserman v. Blunt, 147 U. S. (U7, 13 Sup. Ct. 4'GO. 23 Goodnow V. Wells, 67 Iowa, 054, 23 N. W. 804. 24 See ante, pp. 378-380. 140 JUDICIAL DECISIONS AS PEEOEDEKTS. (Ch. 6 no question arises under the federal constitution or ]aws.^= The cases in which the fe deral courts consider themselves as entirely independ ent of the judicial decisions of the states may be summa- rized as follows : (Firsti where such decisions are i nconsistent with the decisions of the supreme court of the United States on ques- itions of constitutional law , or involve a construction of the federal i constitution , or a t reaty or ac t of congress , or the determination of a federal question . ^econm where the question is one of general i commercial law , not depending on state statutes or usages, (j^ird^ where the question is one depending on general public policy . CFourth) where the question is one of general equity jurisprudence. ^" In the courts of the states, where the question arises under the constitution or laws of the United States, or treaties made by the authority of the national government, any decision bt the United States supreme court on the point at issue is to be regarded by the state courts as not only a precedent entitled to consideration, but as absolutely binding and authoritative. And even though the su- preme court of a state should entertain a radically different view, jet it will decide in accordance with the rulings of the supreme fed- eral court, because, if its decision should be adverse to any right or claim made under the constitution or laws of the Union, that de- cision could be reviewed on error by the supreme court of the United States, and its judgment reversed.^' As to similar decisions by the inferior courts of the federal system, the state courts are not bound by them, if the question has not been adjudicated by the supreme court, but they will receive a respectful consideration and be ad- mitted to exercise a persuasive influence on the determination of the state court. The decisions of the supreme federal court, other than such as concern the construction of the constitution or laws of the Union, are not binding as authority on the courts of a state, although they are entitled to great respect.-^ 2 5 Burgess v. Seligman, 107 U. S. 20, 2 Sup. Ct. 10. 2 8 The author's citation of cases has been omitted. 2T Black V. Lusli, 69 lU. 70. 2s Lebanon Banli v. Mangan, 28 Pa. St. 4.j2; Merchants' & Miners' Transp. ■Co. V. Borland (N. J. Ch.) 31 Atl. 272. § 3) BETWEEN COURTS OF DIFFERENT STATES. 141 § 3. Same— Between Courts of DiflFerent States. From Blade's Interpretation of Laws^ If31^-lf36. We have already seen, in another connection, that the construc- tion put upon a state statute by the courts of that state will be ^C; cepted as correc t, and followed as conclusive, by the courts of an - other state , when called upon to interpret and apply the statute to causes pending before them.^" It remains to be here stated that this rule has been extended beyond the mere question of statutory construction, and made to apply to all cases where the pending issue is to be governed by some law other than the lex fori, and where authoritative expositions of such foreign law can be found pro- ceeding from the courts. • * * A like authority is conceded to the rulings of foreign courts in the case of adopted statutes or constitutional provisions. "Where a particular statute or clause of the constitution has been adopted in one state from the statutes or constitution of another, after a judi- cial construction has been given to it in such last-mentioned state, it is but just to regard the construction as having been adopted, as well as the words; and all the mischiefs of disregarding precedents would follow as legitimately here as in any other case." '" But aside from these special and exceptional cases, and generally where the determination of the issue is not complicated with any questions of the applicability of foreign law, decisions rendered in another state may be entitled to respectful consideration, in pro- portion to the learning and sound judgment which they display, but are not technically of force as precedents. "The doctrine of stare decisis is only applicable in its full force within the territorial ju- risdiction of the courts making the decisions, since there alone can such decisions be regarded as having established any rules. Rul- ings made under a similar legal system elsewhere may be cited and respected for their reasons, but are not necessarily to be accepted as guides, except in so far as those reasons commend themselves to the judicial mind." ^^ It should also be noted that a decision 2!" See ante, p. 381. 3 Cooley, Const. Lim. 52. And see ante, pp. 32, 159. 31 Cooley, Const. Lim. 51. The author's citation of cases has heen omitted. 142 JUDICIAL DECISIONS AS PRECEDENTS. (Ch. 6 which is good authority at home may be of no value in another ju- risdiction, on account of differences in the legal systems of the two states. For instance, if the judgment in the case turns entirely upon the provisions of a statute, it will not be available in another state, unless the statute law of the latter jurisdiction is substan- tially the same in this respect. So also, if the decision is made in accordance with some local custom or some settled peculiarity of the law of the state in which it was given. ■Ch. 7) PERSONS AND THINGS. 143 CHAPTER Vn. PERSONS AND THINGS. Frmi MarJcby^s Elements of Law, §§ 125-133; 135-11^. Things Real and Imaginary. The terms "persons" and "things" occur very frequently in law, and it is necessary to try and get some idea of what we mean by them. I will first deal with the term "thing." In its narrowest and strictest sense, a thing is a permanent, sensible object, other than a person. But it is sometimes used to denote any object, real or imag- inary, about which we can speak or think. To its use in this ex- tended sense there can be no objection, provided it be understood that we cannot give physical attributes to imaginary objects. Things Corporeal and Incorporeal. Objects which are sensible are what we call corporeal, as land, gold, corn, and so forth. But, if we include amongst things those objects which we can conceive, we have two classes of things, cor- poreal and incorporeal. Rights are incorporeal things, and the law deals with them as such. Thus, a debt or a patent may be pledged, sold, and transferred either inter vivos or by will. In other words, a right may be itself the object of rights. Whilst a right is itselt necessarily incorporeal, the object of the right may be either corporeal or incorporeal. Thus, if A. owe a debt to B., the object of B.'s right is money, and is corporeal; but the debt itself treated as the object of pledge or sale or bequest is incorporeal. Things Movable and Immovable — Things Real and Personal. Things are divided into movable and immovable, and this divi- sion corresponds to an obvious physical distinction. This division of things is not much in use in England. English lawyers prefer to divide things into real and personal. A learned modern author sug- gests that the terms "real" and "personal" were not in use prior to 144 PEESONS AND THINGS. (Ch. 7 the seventeenth century.^ But I find them used, apparently as fa- miliar expressions, in the reign of Henry the Seventh.^ It is not unlikely that the terms "real"' and "personal" are connected with the division of actions in the Eoman law into actioJis in rem and ac- tions in personam. The actio in rem of the Roman law was founded on what was called a "jus in rem"; the actio in personam, upon a "jus in personam." I shall explain the terms "in rem" and "in personam" more fully hereafter. It is sufficient to say now that a jus in rem is a right of ownership, or a right available like ownership against persons generally, whilst a jus in personam is a right available against an individual, or against determinate individuals. Now, English lawyers also divided actions into real and personal; and the real action, like the actio in rem, was based upon a jus in rem, whilst the personal action, like the actio in personam, was based upon a jus in personam. But in the English law there was a further distinction between real and personal actions, a distinction of which the Eoman law knew nothing. In a real action the very thing itself could be recovered in specie, and the judgment could not be otherwise satis- fled. In a persona l action the judgment could always be satisfied by the payment of a sum of mo ney. But, further (and this is the point of connection we are seeking for), a real action could only be broughl in respect of immovables, and hence immovables got the name ol "realty." Movables, on the other hand, were always sued for in a personal action, and got the name of "personalty." In a general way, therefore, real things, in the English law, were things which could be recovered in a real action, — in other words, land and rights over land, — and all things which could not be so re- covered were considered as personal. If there were any things, the nature of which was doubtful, they were set aside as mixed; and for some purposes of procedure this rough classification was sufficient. But the classification of things into real and personal had to be ap- plied to a purpose for which greater accuracy was requisite. Real things, at a man's death, go to his heir, and personal things to his executor or administrator. Everything in its turn, therefore, has had to be marked as real or personal. * * » ' Williams, Real Prop. p. 7 and note. 2 Year Book, 6 Hen. VII., fo. 9. Ch. 7) PERSONS ANL THINGS. 145 Persons. Persons are human beings capable of rights. To constitute a hu- man being capable of rights, two things are necessary, — birth and Bu^vi^•al of birth. What Constitutes Birth. There are expressions to be found in English law books which look as if the foetus, or even the embryo, in the mother's womb, were capa- ble of rights " Thus, we find it said that the unborn child may take by devise or inheritance. But I think the true meaning of this is, not that the unborn child really takes, but that the right is reserved for the child until the moment of its birth. This appears also to be the view of the best German jurists.* What constitutes birth has been very carefully considered by Eng- lish lawyers in reference to the very common charge of child mur- der. If the child has not been born, the charge of murder cannot be sustained. The question, therefore, what constitutes birth, is in these cases a very important one. The main circumstance which constitutes birth, so as to render a charge of murder sustainable, is complete separation from the mother.^ Nothing is said about ma- turity, but the use of the word "child" seems to assume that the foetus must have assumed the human shape. The child must also be born alive. There is no other express requirement. Death. A human being ceases to be a person at death. The determina- tion of this event presents no difficulties of the kind we have been considering. If the body is under view, there is rarely any diflfl- culty in determining whether or no it has ceased to live. But if a man leaves his home, and gives up all communication with his fam- ily and friends, so that all trace of him is lost, then it becomes very 3 1 Bl. Comm. 130. * tfnger, Syst. d. osterr. allgem. Land-R. vol. 1, p. 232; Wlndscheid, Lehrb. d. Pandekten-R. § 52; Vangerow, Lehrb. d. Pandekten, § 32. See Dig. 1, 5. 7; 50, 16, 129. B Steph. Dig. Cr. Law, art. 218. The division of the navel string is not necessary. KEEN.JUK.— 10 146 PERSONS AND THINGS. (Ch- 7 difficult to determine whether or no he is aiive or dead. So, also, it is sometimes difficult to determine at what exact moment death has taken place, if that determination is necessary. There are certain rules which are intended to obviate these difficulties, but these be- long to the head of evidence. Rights and Duties Attached to Aggregates of Persons. Rights and duties are sometimes attached to an aggregate of hu- man beings in such a way that the individuals composing the aggre- gate are altogether lost sight of; that is, the aggregate is looked upon as a single person (a fictitious one, of course), to whom the lights belong, and upon whom the duties are imposed. Strange as this conception appears to us when we come to reflect upon it, yet it is very common. As a familiar example of it, I will take the case of the University of Oxford. The University of Oxford is an aggre- gate of persons, consisting of the chancellor, masters, and scholars. In common language, the university is said to own a large amount of property; to make contracts; to buy and sell; to bring and de- fend actions. This language is perfectly accurate. These things are done, but, in the eye of the law, not by any individual member of the university, but by the university as a whole. And the com- jilete distinctness of the university, as a person , from the individual members which compose it, is seen by this: that if any member of the university occupies, say, a house belonging to the university, he occupies it, not as being himself owner, but as tenant or licensee of the university. So, also, if a member of the university were to intrude upon the property of the university, he would commit a tres- pass. So, also, if I were to make a contract with the university, there would be no "vinculum juris" whatsoever between myself and the individual members of the university. The contractual relation would exist between me and the fictitious person called the "uni- versity" alone. The university is always present to our minds as^ the person to whom the rights and duties are attached. Rights Attached in Early Times to Families. The attribution of a capacity for rights and duties to an imaginary person is not to be looked on simply as the resource of an advanced and highly-technical system of jurisprudence. The idea, though it Ch. 7) PERSONS AND THINGS. 147 has received considerable modern development, reaches far back into antiquity. Some of the earliest legal conceptions we meet with are those in which rights and duties are attached, not to single individ- uals, but to families Now, a family is an aggregate which in ^'arly times formed such an imaginary person as I have been de- scribing. In early times the homestead, the cattle, and the house- hold utensils are spoken of in law as belonging, not to the individuals who composed the family, but to the family itself. The reason of this I take to have been the simple one that the law did not advance beyond the threshold of the family residence. The rights of the family inter se (if it could be said that there were any) were not yet legal rights. They were disposed of, not by the law, but by the fam- ily council. It was enough, therefore, for the law to say that the rights belonged to the family en bloc, without defining them any further. But, even after the rights of the individual members of the family inter se began to be legally recognized, the conception of the family as the subject of legal rights and duties still remained, and was extended to artificial aggregates. Juristical Persons — How Conceived by Continental Lawyers — Need not be Aggregates of Persons. Continental lawyers call an imaginary person to which rights and duties are attributed a "juristical person." A juristical person is generally an aggregate of real persons, but there is no difficulty in creating an imaginary person which does not contain any real per- son. Thus, under the Roman law, there was an interval between the death of a person, and the assumption of the inheritance by his successor. During this period the Eoman lawyers found it very in- convenient that there should be no one to represent the estate. Ac- cordingly they made the estate itself into an imaginary person, or, Rs the phrase was, "hzereditas personse vice fungitur." So, in order to have some person who could represent the claims of the public, they created another imaginary person, called the "flscus" or "treas- ury," How They are Created. There is a natural tendency, whene-s'er we consider a group of rights and duties as connected with a particular subject, to speak of 148 PERSONS AND THINGS. (Ch. 7 them as belonging to that subject.^ For example, if property he given for the maintenance of a hospital we naturally speak of it as "belonging to the hospital." So, if a contract is made with some three or four persons who are jointly carrying on trade, we speak of it as a contract "made with the firm." So, when a man has become insolvent, we speak of the property which is divisible amongst his creditors as "belonging to his estate.'' So, also, we speak of rent be- ing due from the land. If the rights and duties thus spoken of were really attributed to the hospital, the firm, the estate, or the land, there would in each case be a juristical person. But, if we examine these cases more closely, we shall often find that there is a natural person to whom the right or duty in question really belongs, and that these expres- sions are only used to indicate the extent of the right or duty, and how it is transferred. Thus, when we say that an estate is liable for a debt, we generally mean that the owner of the estate is liable, but that the liability can only be enforced by seizing or selling the estate, and that on the transfer of the estate the liability passes over to the transferee. If that is our meaning, there is no juristical per- son, but only the use of a figurative expression which indicates short- ly the legal situation, but does not fully or accurately describe it. Difference of Opinion amongst Continental Lawyers — Opinion of English Lawyers. All lawyers agree that juristical persons should be created to some extent. But there is a good deal of difference of opinion as to what is, and what should be, necessary for their creation. Some persons would allow that the estate of a deceased person is a juristical per- son,^ but would not allow that the public treasury is so. Others, again, who would admit the public treasury, would not admit the land subject to burdens. The real question seems to be that just indi- cated. To whom do the rights and duties belong? The person who in a court of law, or in a legal transaction, represents those rights s This tendency Is by no means confined to lawyers and to legal relations. In common language, we use such expressions as "a school gaining a dis- tinction." 7 See Sav. Syst. d. h. Rom. Eechts, § 89; Unger, Syst. d. osterr. allgem. Privat-Rechts, vol. 1, p. 317; Holzendortf, Jurist. Encyc. s. v. Stiftungen. Ch. 7) PERSONS AND THINGS. 149 and duties, — is he acting on Ms own behalf, or on behalf of some fictitious creation which acts through him? This is substantially the same question, and it is in this latter form that it is generally put by English lawyers. When an inquiry is made whether a particular thing or aggregate is a juristical person, they always consider one point only, namely, whether or no it has capacity to act. If it has capacity to act, it is a juristical person, otherwise not. .TuRiSTicAL Persons Act through Their Representatives. Of course, this capacity to act is also an ideal capacity, though it produces real effects. An ideal being can never really act, but it can be represented by a real person who can act, and can create duties and obligations on behalf of the juristical person by way of repre- sentation. The act of the representative, though not so in reality, may conveniently be treated, as to all its legal effects, exactly as if it were the act of the juristical person; and, where the ideal creation has this capacity of acting through a representative, English lawyers allow that it is a juristical person, or, as we call it in England, a cor- poration. And the term "corporation" with us implies the attribu- tion of the capacity to act through a representative. This is so clear, that, when a corporation is created, the capacity to act need not be specially granted. So far as it is possible that acts should be done through a representative, it will be presumed that a corpora- tion may do those acts, provided that they are consistent with the purpose for which the corporation was created. Corporations in England are Always Aggregates of Persons, but A Change in the Members does not ArFEcr the Corporation. All corporations in England consist of aggregates of persons, but, as appears from what has been already said, the juristical person, the corporation, is something totally distinct from the persons who compose it; and hence it follows that no change in the persons who compose the corporation produces any change in the corporation. If one shareholder goes out of a company which is a corporation, and another comes in, the corporation still remains the same corpo- ration as before. The shareholders of the New River Company must have been all changed over and over again since its formation, and yet the juristical person, the corporation, to whom all the rights and 150 PERSONS AND THINGS. (Ch. 7 duties are attached, has been one and the same continuously from its creation. Even although the Members Manage the Peoperty op the Cor- poration IN Their Own Interest. The view that the individual members of the corporation are not the owners, not even the co-owners, of the corporate property, which is undoubtedly the true view, is sometimes obscured by the circum- stance that the members of the corporation have in their own hands the management of the property of the corporation, and have also a right to apply the profits of it to their own use. Thus, in a munici- pal corporation, or coi-poration of a town, the freemen, who are the persons who compose the corporation, have very often the right to regulate the common lands adjacent to the town, and to turn out their own cattle there. So, too, a shareholder in a railway company has a right to vote at meetings, and to receive his share of the profits of the undertaking. Still, the freeman has only what is called a "jus in alieno solo," just as he might have if he were not a freeman. So the shareholder's right to his dividend is a claim by him against the company, — a debt due to him from the company. If he were to help himself to his dividend out of the company's cash box, he would com- mit a theft. Corporations — How Created in England. A corporation can, of course, be created by act of parliament, and many corporations are so created. The queen has also power to cre- ate corporations by letters patent under tlie great seal. Private per- sons cannot create a corporation at their own will and pleasure, but, under the authority and restrictions of certain acts of parliament, any number of persons, not less than seven, may, by following the prescribed forms, become a corporation. Corporations Sole. There is a curious thing which we meet with in English law, called a "corporation sole." A corporation sole is always some sort of oflScer, — generally an ecclesiastical officer. Rights and duties are frequently attached to an officer for the purposes of his office only. When an officer vacates his office, these rights and duties pass to his Ch. 7) PERSONS AND THINGS. 151 successors; and, it being convenient to distinguish the rights and duties which attach to a man jure proprio from those -which attach to him jure officii, it is permissible to speak of the latter as attached, not to the man, but to his office, just as it is permissible to speak of rights and duties which pass with the land from owner to owner, as attached to the land. But this language is merely figurative, and there is no doubt that as in the one case the rights and duties spoken of as attached to the land are really attached to the natural persons who are successively owners of the land, so in the other case the rights and j iuties sp okgn of as attach ed to the :5fflce^a^''eally attach.edJ:o the natural persons who are the successive holders of the office. The term "corporation sole" is therefore, as it appears to me, a mis- nomer. The selection of persons who are styled "corporations sole" is a purely arbitrary one. The queen is said to be a corporation sole, and so is a parson. But the secretary of state for India is not so, nor is an executor, though there is at least as good reason why both these persons should be treated as corporations sole as a parson. And, on an examination of the position of so-called corporations sole, it will be seen that they are not really juristical persons, but only natural persons peculiarly situated as regards the acquisition and incurring of rights and duties. 152 KIGHT3. (Gil. 8 CHAPTER Vni. RIGHTS. § 1. Nature of Rights. 2. Classification of Rigbts. § 1. Nature of Eights. From ]Iolland\s Elements of Jurisprudence, 71, 7^. What then is a 'legal right'? But first, what is a right gener- ally? I It is one man's CM?^citj_of influencing the actsof^aBoth by I means, not of his own strength, but of the opinion or the force of I society. When a man is said to have a right to do anything, or over any- thing, or to be treated in a particular manner, what is meant is that public opinion would see him do the act, or make use of the thing, or be treated in that particular way, with approbation, or at least with acquiescence; but would reprobate the conduct of any one who should prevent him from doing the act, or making use of the thing, or should fail to treat him in that particular way. A 'right' is thus the name given to the advantage a man has when he is so circumstanced that a general feeling of approval, or at least of acquiescence, results when he does or abstains from doing certain acts, and when other people act or forbear to act in accordance with his wishes; while a general feeling of disap- proval results when any one prevents him from so doing or ab- staining at his pleasure, or refuses to act in accordance with his wishes. Further than this we need not go. It is for Psy- chology to inquire by what, if any, special faculty the mind is capable of affirming or denying the existence of rights. History may also to some extent unravel for us the growth of such concep- tions, as to rights^ as are now prevalent; and these are among the most vexed questions of Psychology and of the History of Civi- lisation respectively. Jurisprudence is absolved from such re- searches. The only conception of a Right which is essential to her § 1) NATURE OF EIGHTS. 163 arguments is that which we have already propounded, and about the truth of which, as far as it goes, there can be no question. Jurisprudence is specifically concerned only with such rights as are recognised by law and enforced by the power of a State. Wei may therefore define a 'legal right,' in what we shall hereafter see' is the strictest sense of that term, as a capacity residing in one| man of controlling, with the assent and as^istance^ of the State,i the actions of _others. That which gives validity to a legal right is, in every case, the force which is lent to it by the State. Anything else may be the occasion, but is not the cause, of its obligatory character.^ Sometimes it has reference to a tangible object. Sometimes it has no such reference. Thus, on the one hand, the ownership of land is a power residing in the landowner, as its subject, exercised over the land, as its object, and available against all other men. So a father has a certain power, residing in himself as its subject and exercised over his child as its object, available against all the world besides. On the other hand, a servant has a power residing in himself as its subject, over no tangible object, and available against his master to compel the payment of such wages as may be due to him. If it is a question of might, all depends upon a man's own powers of force or persuasion. If it is a question of moral right, all de- pends on the readiness of public opinion to express itself upon his side. If it is a question of legal right, all depends upon the readiness of the State to exert its force on his behalf. It is hence obvious that a moral and a legal right are so far from being iden- tical that they may easily be opposed to one another. Moral rig hts have, in general, but a subjective suppor t, leg al righ ts have the objective support of the ph ysical force of the State. The whole purpose of laws is to announce in what cases that objective sup- port will be granted, and the manner in which it may be obtained. In other words. Law exists, as was stated previously, for the defini- tion and protection of rights. I . , We have seen that a 'moral right' implies the existence of cer- tain circumstances, with reference to which a certain course of lAs Thomasius says of 'Pactum,' 'non est causa sed tantum occasio otillga- tionis.' 154 EIGHTS. (Ch. & action is viewed with general approbation, and the contrary course with disapprobation; that a 'legal right' exists where the one course of action is enforced, and the other prohibited, by that or- ganised society which is called 'the State.' The Elements of a Right. We have next to consider more particularly what is the charac- ter of those elements from which a Eight results. They are (1) A person 'in whom the right resides,' or who is 'clothed with the right,' or who is benefited by its existence. (2) In many cases, an object over which the right is exercised. (3) Acts or forbearances which the person in whom the right resides is entitled to exact. (4) A person from whom these acts or forbearances can be ex- acted; in other words, against whom the right is avail- able; in other words, whose duty it is to act or forbear for the benefit of the subject of the right. The series of elements into which a Eight may be resolved is therefore : The Person entitled. The Object The Act or Forbearance. The Person obliged. It will be observed that the first and the last terms of the series are a person. The second term is the object of the right (whether it be a physical thing, or what the law chooses to treat as such) if any (for there exist large classes of rights which have reference to no object, either physical or assimilated to such) ; and the third term is made up of the acts or forbearances to which the person in the fourth term is bound. It will be convenient to call the person entitled 'the person of inherence'; and the person obliged, 'the person of incidence.' The intermediate terms may be shortly referred to as 'the object' and 'the act' respectively. That this series is no technical abstraction but a simple formula for the representation of the indisputable elements of a right, may be more apparent from an example. A testator leaves to his daugh- ter a silver tea-service. Here the daughter is the 'person of in- § 2 CLASSIFICATION OF RIGHTS. 155 herence,' i. e. In whom the right resides; the tea-service is the 'ob- ject' of the right; the delivery to her of the tea-service is the 'act" to which her right entitles her; and the executor is the 'person of incidence,' i. e. the person against whom her right is available. Or take an example of a right where, as we stated to be often the case, the second term of the series is wanting. A is B's servant. Here B is the 'person of inherence,' reasonable service is the 'act' to which he is entitled, and A is the 'person of incidence,' against whom the right is available. The nature of the right varies with a variation in any one of the four terms which are implied in it, and the variations in the nature of the right give rise to the main heads or departments of law. § 2. Classification of Kights. Rights in Rem — Rights in Personam. From, 1 Austvri's Jurisprudence^ § 609. 1 proceed to distinguish rights in rem from rights in personam,, which I do shortly as follows: Rights in rem are those which avail against persons generally . Rights in personam are those which avail exclusively against, cer - ^in or det:ei;mjn{it(; pfraons. This distinction is one which pervades the writings of the Ro- man lawyers, and is assumed by the Roman institutional critics as- the main groundwork of ' their arrangement. Nevertheless, the terms "jus in rem," "jus in personam," are not explicitly adopted by these writers to indicate the distinction. These terms were de- vised by the civilians who wrote subsequently to what has been termed the revival of the study of Roman Law, and I adopt them as the terms which most adequately and least ambiguously express the distinction.^ "Jus in personam certam sive determinatam," is expressive and free from ambiguity. Cut down to "jus in person- am" it is also sufficiently concise. "Jus in rem," standing by itself, 2 "The same opposition has also been denoted by the less descriptive terms 'ius in re' and 'ius ad rem,' which first occur in the canon law, and by the terms 'absolute' and 'relative,' which, by employment with many other meanings, are too void of precision for the purpose." Holland, Jur. 129. 156 RIGHTS. (Gh- 8 is ambiguous and obscure. But wlien it is contradistinguished to jus in personam, it catclies a borrowed clearness from the expres- sion to which it is opposed. And here I must make a remark as to what "jus in rem" does not mean. Recurring to the phrase I have already used in styling per- sons and things the subjects of rights, that phrase might be varied by saying that the rights exists over, in, or to a thing. And, as I have already indicated, I employ these expressions only in the case of rights which avail against persons generally. The student might be apt to infer that "jus in rem" means a right over, in, or to a thing. He would be wrong. I do not say that the ideas are historically unconnected; but, however that may be, the phrase "i n rem ," as here used, denotes not the subject, but the compass of the right. It denotes that the right in question avails against persons generally, and not that the right in question is a right over a thing. For many of the rights which are rights in rem are either rights over Or to persons, or have no subject (person or thing).. These two classes of rights are further distinguishable thus: The duties which correlate with rights in rem are always negative: that is to say, they are duties to f orbear or abstain . Of the obli- gations which correlate with rights in personam, some are negative, but som^e (and most) are positive; that is to say, obligations to do or perform. I shall now briefly give a few instances to illustrate the character of the rights comprised in these two great classes respectively. Instances of rights in rem are: (1) O wnership or property. This is a term of such complex or various meaning that I must defer the full and accurate explanation of it. But, for the present purpose, the following is a sufficient definition of "ownership" or "property' : "The right to use or deal with some given subject in a manner or to an extent which, though not unlimited, is indefinite." Now, in this description it is necessarily implied, that the law will protect or relieve the owner against every disturbance of his right; that is to say, all other persons are bound to forbear from acts which would prevent or hinder the enjoyment or exercise of the right. But here the duties which corrcspoud to the right of property ter- minate. Every positive duty which may happen to concern or re- § 2) CLASSIFICATION OF EIGHTS. 157 gard it, and every negative duty regarding it which binds exclusive- ly certain persons, is not a duty properly corresponding to the right of property, but to some right collateral to the right of property, and flovring from some incident specially binding the person upon whom the duty is incumbent, e. g. from a covenant with the owner, or from a breach of one of the negative duties which properly corre- spond to the right of property, as a trespass laying the trespasser under the duty to make reparation. Ownership or property is therefore a species of jus in rem. It is a right residing in a person, over or to a person or thing, and availing against other persons universally or generally. The obli- gations implied by it are also negative as well as universal. Where the subject of a right in rem happens to be a person, the position of the party who is invested with the right wears a double aspect. He has a right (or rights) over or to the subject, as against other persons generally. He has also rights (in personam) against the subject, or lies under obligations (in the sense of the Roman lawyers) towards the subject. I shall revert to this matter. ) The servitutes of the Roman law, and of the various modern sys- Tems which are modifications of the Roman law, may also be ab- ducted as examples of rights in rem. Servitus (for which the English "easement" is hardly an adequate expression) is a right to use or deal with, in a given and definite manner, a subject owned by another. Take, for instance, a right of way over another's land. According to this definition, the cap- ital difference between ownership and servitus consists in this: that in the former case the right of dealing with the subject is larger and indeed indefinite, in the latter case narrower and de- terminate. But each is a right in rem. For servitus avails against all mankind (including the owner of the subject). It implies an obligation upon all (the owner again included) to forbear from every act inconsistent with the exercise of the right. But this negative and universal duty is the only obligation which correlates with the jus servitutis. Every special obligation which happens to regard or concern it is a duty answering, not to the jus servitutis, but to some right extraneous or merely collateral to it, e. g. the owner of the subject may have granted an easement over it, and covenanted with the grantee for quiet enjoyment. The gran- 158 EIGHTS. (Ch. 8 tor here lies under two duties which are completely distinct and disparate, although the objects of the duties are the same. One of these duties arises from the grant, and thereby he is bound, like the rest of the world, to forbear from molesting the grantee in ex- ercise of the right created by the grant. The other arises from the contract by which he is specially bound. Instances of rights in personam are: (1) A right arising from a contract. Eights which, properly speaking, arise from contracts avail against the parties who bind themselves by contract, and also against the parties who are said to represent their persons; that is to say, who succeed, on certain events, to the aggregate or bulk of their rights, and therefore to their faculties or means of fulfill- ing or liquidating their obligations. But, as against all other per - sons , the rights which, properly speaking, arise from contracts have no force or effec t, although, by a confusion of thought, to which I shall revert, rights in rem are sometimes imagined to proceed from contract. This occurs in the case where the same transaction bears the double character of a contract and a conveyance. To avoid in the meantime the effect of this confusion, I assume, in the following example, that we are considering the case on the principles of the Eoman law, or of some system of law consciously based on the Roman law. Suppose you contract with me to deliver some movable (a horse, a garment, or what not) ; but, instead of delivering it to me, in pur- suance of the contract, that you sell and deliver it to another. Now, here, the rights which I acquire by virtue of the contract or agreement are the following: I have a right to the movable in question, as against you specially (jus ad rem acquirendam). So long as the ownership and the possession continue to reside in you, I can force you to deliver me the thing in specific performance of your agreement, or, at least, to make me satisfaction in case you detain it. After the delivery to the buyer, I can compel you to make me satisfaction for your breach of the contract with me. But here my rights end. As against strangers to that contract, I have no right whatexer to the movable in question. And, by con- § 2) CLASSIFICATION OF BIGHTS. 159 sequence, I can neither compel the buyer to yield it to me, nor force him to malve me satisfaction as detaining a thing of mine. But if you deliver the movable, in pursuance with your agreement with me, my position towards other persons generally assumes a different aspect. In consequence of the delivery by you, and the concurring apprehension by me, the thing becomes mine. T have now jus in rem, — a right to the thing delivered, as against all mankind; a right answering to obligations negative and universal. And, by consequence, I can compel the restitution of the subject from any who may take and detain it, or can force him to make me satisfac- tion as for an injury to my right of ownership. (2) Eights of action, with all other rights founded upon injuries, are also jura in personam. For they answer to obligations attach- ing upon the determinate persons , from whom the injuries have proceeded, or from whom they are apprehended. It is true that difficulties have arisen about the nature of actions in rem, i. e. those actions (or rather those rights of action) of which the ground is an offense against a right in rem, and of which the in- tention (scope or purpose) is the restitution of the injured party to the exercise of the violated right. But these and other difficulties besetting the theory of actions, appear to have sprung from this: that the nature of the right which is affected by the injury, and the nature of the remedy which is the purpose of the action, are fre- quently blended and confounded by expositors of the Roman law. .And this confusion of ideas absolutely disparate and distinct seems to have arisen from the abridged shape of the expressions by which rights of action are commonly denoted. By an ellipsis commodi- ous and inviting, but leading to confusion and obscurity, a name or phrase applicable to the violated right is often extended improper- ly to the remedy. Thus, the phrase "in rem" is extended to certain actions, which, though they are necessarily directed against de- terminate persons, are grounded upon violations of rights availing against all mankind. And thus certain actions are styled "ex con- tractu," although they properly arise from the nonperformance of contracts, and are only remote and incidental consequences of the contracts themselves. All rights in personam are rights to acts and forbearances, and to IGO RIGHTS. (*^'ll- '^ nothing more. The species of rights which have been termed "jus ad rem" form no exception. What has been styled "jus ad rem" is an elliptical expression, and is more properly rendered "jus ad rem acquirendam,"' or still more completely "jus in personam ad jus in rem acquirendum." That is to say, the person entitled has a right, availing against a determinate person, to the acquisition of a right availing against the world at large. And by consequence his right is a right to an act of conveyance or transfer on the part of the person obliged. From 1 Austin'' s Jurisprvdence, §§ SJi^-oJi-?, 55^-555. Of rights existing otct persons, and availi ng a gainst oQiSX- per- sons sfcnerallv , I may cite the following as examples : The right of the father to the custody and education of the child; the right of the guardian to the custody and education of the ward ; the right of the master to the services of the slave or servant. Against the child or ward, and against the slave or servant, these rights are rights in personam; that is to say, they are rights an- swering to obligations (in the sense of the Roman lawyers) which are incumbent exclusively upon those determinate individuals . In case the child or ward desert the father or guardian, or refuse the lessons of the teachers whom the father or guardian has appointed, the father or guardian may compel him to return, and may punish him with due moderation for his laziness or perverseness. If the slave run from his work, the master may force him back, and drive him to his work by chastisement. If the servant abandon his serv- ice before its due expiration, the master may sue him as for a breach of the contract of hiring, or as for breach of an obligation (quasi ex contractu) implied in the status of servant. But, considered from another aspect, these rights are of another character, and belong to another class. Considered from that as- pect, they avail against persons generally , or against the world at large, and the duties to which they correspond are invariably neg- ative. As against other persons generally, they are not so much rights to the custody and education of the child, to the custody and education of the ward, and to the services of the slave or servant, as rights to the exercise of such rights without molestation by § 2) CLASSIFICATION OF RIGHTS. 161 strangers. As against strangers, their substance consists of du- ties, incumbent upon strangers, to forbear or abstain from acts in- consistent with their scope or purpose. In case the child (or ward) be detained from the father (or guard- ian), the latter can recover him from the stranger. In case the child be beaten, or otherwise harmed injuriously, the father has an action against the wrongdoer for the wrong against his interest in the child; and so on. And here I may remark conveniently that, where a right in rem is a right over or to a person, the person is neither invested with the right, nor is he bound by the duty to which the right coiTesponds. He is merely the subject of the real right, and occupies a position analogous to that of a thing which is the subject of a similar right. For example, independently of his rights against the child, and independently of his obligations towards the child, the parent has a right in the child availing against the world at large. Inde- pendently of his rights against the parent, and independently of his obligations towards the parent, the child has a right in the parent availing against the world at large. The murder of the parent by a third person might not only be treated as a crime or public wrong, but might also be treated as a civil injury against that right in the parent which belongs to the child. * * » Having cited examples of real rights which are rights over per- sons, I will cite an example or two of real rights which are not rights over things or persons, but are rights to forbearances merely : (1) A man's ri ght or interest in his good name is a right which avails against persons, considered generally. They are bound to forbear from such imputations against him as would amount to in- juries towards his right in his reputation. It is therefore a right ^ in rem. But there is no subject, thing, or pe rson ov er which it can be said to exist. (2) A monopo ly, or the right of selling exclusively commodities of a given class (a patent right, for instance), is also a real right. All persons, other than the party in whom the right resides, are bound to forbear from selling commodities of the given class or description. But, though the right is a real right, there is no subject, person, or thing over which it can be said to exist, unless KEBN.JUB. — 11 162 EIGHTS. (Ch. 8 it be the future profits, above the average rate, which he may pos- sibly derive from his exclusive right to sell. (3) Many examples of this class of rights might be selected from among "franchises," — a law term embracing an immense variety of rights, having no common property whatever except their sup- posed origin, being all of them considered to have been originally granted by the crown. Such, for example, is a right of exclusive jurisdiction in a given territory, or a right of levying a toll at a certain bridge or ferry. The rights in personam which concur with the rights in question (e. g. the rights answering to the obliga- tions on the persons who happen to traverse the bridge) are per- fectly distinct from the rights in rem of which the franchise con- sists, namely, the obligation not to impede the exercise of the juris- diction, the levying of the toll, or the passage over the bridge, nor to carry passengers across within the limits of the ferry, to the detriment of the exclusive right of the person entitled. • • » Eights Antecedent and Eemedial. From Holland'' s Elements of Jurisprudence, 130. The last of the great divisions of rights distinguishes those where the act is due for its own sake, from those where it is made due merely on default of anotter act. The former kind have been by various writers styled rights 'primary,' 'sanctioned,' 'of enjoyment'; the latter kind have been described as rights 'sanctioning,' 'sec- ondary,' 'restitutory,' 'of redress.' We prefer to distinguish them as rights 'antecedent' and rights 'remedial.' The nature of the distinction is sufficiently simple. The rights -of the owner of a garden not to have it trespassed upon, of a serv- ant to have his wages paid, of a purchaser to have his goods de- livered to him, are all of the former kind, viz. rights 'antecedent,' which exist before any wrongful act or omission. They are rights which are given for their own sake. The right of the owner of a garden to get damages from a party of men who have broken into his grounds, of a servant to sue his master for unpaid wages, of a purchaser to get damages from a vendor who refuses to deliver the goods sold, are, on the other hand, of the latter kind, or rights 'remedial'; they are given merely in substitution or compensation § '2) CLASSIFICATION OF EIGHTS. 163 for rights antecedent, the exercise of which has been impeded, or which have turned out not to be available. If all went smoothly, antecedent, or primary, rights would alone exist. Remedial, or sanctioning, rights are merely part of the ma- chinery provided by the State for the redress of injury done to antecedent rights. This whole department of law is, in an es- pecial sense, 'added because of transgressions.' 164 ACTS. CCb. 9 CHAPTER IX. ACTS. From MarUy's Elements of Law, U 3U-2J^7, 25^-2o8, 260-269, 273- •277. Acts aee Events under Human Control. The first thing to be considered is what kind of event is an act. An act, as I understand it, is an event regarded as under human con- trol. There are few, if any, events which can be said to be wholly within human control. There are, on the other hand, few events by which man is in any way affected the results of which might not have been changed had his conduct been different. Few events, therefore, can, strictly speaking, be said to be either altogether de- pendent on, or altogether independent of, human control. But many events are regarded by the law as under human control, and I know of no reason why they should be so regarded except that the legal result of them depends, in some measure, upon the conduct of the party who has exercised control over them. I wUl analyze ^ a little further the nature of an act. An act is the bodily movement which foUows immediately upon a volition. What follows upon an act in connection with it are its consequences. It is necessary to remember this, although, in common language, we often use the word "act" to express both an act and its consequences; as, for example, when we speak of an act of murder. Xo Act without a Bodily Movejient. Without a bodily movement no act can be done. A silent and mo- tionless man can only forbear. Act Prompted by Desire — Motr-e. Every act is prompted by some antecedent desire which determines the will. This incentive to a determination of the wiU is called 1 In this analysis I have closely followed Austin (Lect. 18-21). His ex- planation seems to me the most intelligible that has been put forward. His authorities are Locke, especially the chapter on "Power" in the essay on Human Understanding (book 2, c. 21). and Brown's Inquiry into the Relation of Cause and Effect, particularly part 1, § 1. Ch. 9) ACTS. 163 "motive," and without it we should not act at all. It follows that in every act we contemplate some result, namely, the result of satisfying the desire. If I yawn or stretch my limbs, it is to relieve the discomfort of weariness, and I contemplate this relief as the result of my act. Intention. When the doer of an act adverts to a consequence of his act, and desires it to follow, he is said to intend that consequence. End not Attained Directly. The contemplated end of every act is the satisfaction of desire, and this which is the end is also the motive. The end and the motive are only the same thing seen from two different points of view. The end is rarely attained directly. In common language, a man rarely does an act for the mere sake of doing it. Perhaps we some- times laugh or shout for no other reason. But generally there are some, and frequently there are many, intermediate events resulting one from another, all of which must happen before my ultimate end or purpose is attained. For example, A. and B. have been competi- tors for a prize. A. is successful. Thereupon B.'s rage and disap- pointment are so great that he conceives the desire to do A. an injury. B., accordingly, contrives an elaborate plot to injure A. B. has no immediate satisfaction in carrying out this plot. On the contrary, it causes him infinite pains and trouble, which he would much rather avoid. But he expects and desires, as an ultimate consequence of his act, that, A. having been injured, he will himself find pleasure in the pain suffered by A., and so his own pain of envy will be assuaged. All these intermediate consequences were adverted to and expected, and were therefore intended, but as means only, and not as an end. Act Always Intended. An act must always be intended, although the consequences of an act may not be so; for an act is always the result of a determination of the will which sets the muscles in motion in order to produce that motion as a consequence, even if no other consequence is desired. This excludes from the category of acts the reflex motions of the muscles, and the motions of a man in his sleep. 166 ACTS. (Ch- 9 Consequences Adverted to not Always Desired oe Expected. Intention, then, is the attitude of mind in which the doer of an act adverts to a consequence of the act, and desires it to follow. But the doer of an act may advert to a consequence, and yet not desire it, and therefore not intend it. Adverting to a consequence, the doer of an act may either expect it to follow, or not expect it to follow. Knowledge. Expectation that a consequence will follow, or, as it is sometimes expressed, knowledge that it is likely to follow, without any desire that it should follow, is an attitude of mind which is distinct from in- tention; and it is not, I venture to think, permissible to treat them as one, as Austin does.^ 1 shall call this second attitude of mind, in which consequences are adverted to and are expected to foUow, but are not desired, "knowledge." Effect of Intention and Knowledge on Legal Results of Acts. These two attitudes of mind, in each of which there is advertence to consequences, have the most important effects upon the legal results of acts. There are numberless rights and duties which depend upon the existence of a particular intention or knowledge in the doer of an act, that is, upon the act being done with advertence to particular consequences, and either a desire that they should, or an expectation that they will, follow. 2 The framers of the Indian Penal Code, in their definition of "murder," had before them, I thinlj, either Austin's analysis, or a similar one. But they introduce "knowledge" as a state of mind differing from intention. The objection to this term is that it may either mean "knowledge with advertence," or "knowledge without advertence." I think it must mean "knowledge with advertence," in the Indian Penal Code, but it is not quite clear. The framers of the Draft Criminal Code for England have used the word "means" instead of "intends." I do not know what is gained by this. See section 170 of the Draft Code. Ch. 9) ACTS. 167 Mere Advertence without Desire or Expectation has no Effect. If consequences of an act are adverted to, and are neither desired nor expected, then there is neither intention nor knowledge; and, so far as any legal result of the act depends upon intention or knowl- edge, it will not ensue. Xor do I think that in any case the simple attitude of advertence, without expectation or desire, has any bear- ing upon the legal result of an act. But advertence without expecta- tion OT desire, if coupled with one other circumstance, does aifect the legal result. If consequences be adverted to, and considered as not likely to happen upon grounds which a reasonable man would not consider sufficient, then the legal result in many cases is effected. For example, the doer of an act who stands in this attitude of non- expectation as regards consequences, and who has arrived at this attitude in this reprehensible manner, very often becomes thereby liable, which means that a particular legal result is attached to the act, when, if the same act had been done and the same attitude of mind had been arrived at upon reasonable grounds, he would not be liable. Thus, if I fire at a target, having first taken all proper pre- cautions, and I nevertheless kill a passer-by, I may incur no liability; but, if I do the same act, having first taken only insufficient precau- tions, I may be guilty of manslaughter. Rashne-s. When a person does an act adverting to consequences which, upon insufficient grounds, he expects not to follow, he is said to be rash, and his conduct is called "rashness." Inadvertence. These are the cases of advertence. I now come to consider cases in which consequences have followed from an act which consequences the doer did not at all advert to. Now, inadvertence, like advert- ence, without desire or expectation, does not, taken by itself, affect the legal result of an act. But, if the inadvertence is due to an ab- sence of that care and circumspection which a man might reasonably be expected to exercise, then the legal result is very often effected. For example, the doer of an act, in this case also, very often becomes- 16S ACTS. (Ch. 9 liable; whereas, if the inadvertence exists in spite of due care and circumspection having been taken, he escapes liability. Thus, if I fire off a rifle without first looking to see whether any one is in the line of fire, and I kill some one, I may be guilty of manslaughter; but if I buy a rifle of a well-known maker, and, without examining it to see if it has any defects, I fire it off, and it bursts, and kills some one standing near, I may incur no liability at all. Heedlessness. When a person does an act without adverting to the consequences, and he has failed to do so because he has not used due care and cir- cumspection, he is said to be heedless, and his conduct is called "heedlessness." Acting with intention, acting with knowledge, acting with rash- ness, and acting with heedlessness, are four different conditions affecting the legal result of the act done. It is obvious that in the explanation I have given of these terms there is no pretense of com- Ijlete scientific accuracy. The explanation I have given may even be open to objection on psychological grounds. But these terms are in daily use by lawyers, who by means of them describe the condi- tions under which legal results ensue. I have therefore endeavored to state what I conceive to be meant by these terms. If lawyers attach any other meaning to them, or if, with the meaning I have attached to them, they express ideas which are false, let this be stated, and the error rectified. But, at any rate, let us endeavor to understand what we ourselves mean; and, when we have arrived at a meaning, let us adhere to it. Othee Conditions of Mind than Those Described. If an event be adverted to, the expectation of its happening may vary very greatly, and it is conceivable that the legal result should be made to depend upon the strength of the expectation. So there are degrees of reprehensibility in rashness and heedlessness which we endeavor sometimes to express by the use of such words as "gross" or "crass." So, the Koman lawyers spoke of "culpa lata," "culpa levis," and "culpa levissima," "diligentia," and "exacta diligentla." These terms assume the possibility of assigning so many different standards by which to measure conduct. I do not think the use of Ch. 9) ACTS. 169 them, or the neglect of them, affects the analysis of the mental atti- tude of the doer of an act which I have given above. Forbearance. A forbearance is the determination of the will not to act. It is inaction or omission, together with advertence to the act which is not done, and a determination not to do it. A forbearance, there- fore, like an act, is always intended. The consequences of a for- beai-ance may be desired or not desired, expected or not expected, adverted to or not adverted to; and there will accordingly be inten- tion, knowledge, rashness, or heedlessness, under the same condi- tions as in the case of acts. It is not, therefore, generally necessary to distinguish forbearances from acts. Mental Condition without Act Produces no Legal Result. It is, I believe, generally agreed that a mere mental condition, un- accompanied by any external act, is, legally speaking, nullius mo- menti, and produces no legal result whatever. This might well be so for the simple reason that such a mental condition would in most cases be undiscoverable. It may also perhaps be doubtful whether the mental condition is sufficiently under our control to justify legal results being based upon it. Legal Result of an Act Generally Now Dependent on Mental Condition. There are, of course, many cases in which the legal results either of an act or of a forbearance are wholly independent of the mental atti- tude of the person who acts or forbears. But in modern times the number of these cases has been considerably reduced. And some of these very cases illustrate very strongly the prevalence of the idea that the legal result of an act ought to depend upon the mental condi- tion of the doer. For example, it has been said to be the law in England that, wherever A. so conducts himself towards B. that B. may reasonably infer the existence of an intention on the part of A. to do something, the legal result is the same as if that intention ex- isted, whether it really exists or not. And these cases are always put as cases of estoppel; that is, the intention to do this thing is assumed to exist, whether it exists or not. It would be much 170 • ACTS. ■ (Ch. & simpler to attribute the legal result to the act without any reference to the intention of consequences- but no one has ever thought of doing this, so wedded are we to the view that the legal result of an act must depend on the mental condition of the doer of it as regards these consequences. This View has been Recently Developed. No doubt, the view that the legal result of an act depends upon the attitude of the doer as regards the consequences has been much developed in later times. We always find in the earlier stages of law much more attributed to the act, and much less to the attitude of the doer's mind. * * » The same disregard of intention of consequences is observable in the early English law. In early times a deed was looked upon as valid and binding, not as a formal expres- sion of intended consequences, but as an outward and visible solemn act. Only a deed made within the jurisdiction and process of the court could be relied on in an action of debt. And a deed sealed by a party's seal might be good against him even though the seal had not been affixed by him or by his directions.'' This conception of a deed as something which in itself produces a legal result, apart from intention, was, no doubt, the origin of the classification of contracts into contracts by deed and contracts by parol. There is a very important class of acts in which the legal result follows because that result was itself contemplated and desired as one of the consequences of the act. From the fact that legal results are in contemplation in this class of acts, Germans call them "Rechtsgeschafte." Frenchmen call them actes juridiques. En- glish lawyers have not yet agreed upon any name for them. The terms "juristic acts" and "acts in the law" have been suggested. In all such acts the doer (as the phrase is) "expresses his intention"; that is, he indicates, or is supposed to indicate, by some means or other, that he desires something. 3 See PoL Cont. (3d Ed.) p. 151. So, aa accidental destruction of the seal would make the deed void. Sheph. Touch. (Ed. 1780) p. G7. Under Mahomme- dan law, if a husband uses words of divorce, they are effectual, whatever may have been his intention. Baillie's Digest of llahommedan Law, p. 208. Some of the rules relating to seisin were founded on the notion that the act, without any reference to the intention, was effectual. Ch. 9) ACTS. 171 It is probable that before long English lawyers will follow the example of continental lawyers, not only in appropriating a name to acts of this class (and whether they are called "acts" in the law, or "juridical acts," or "juristic acts," does not seem to me very material), but also in discussing them generally. If we take the commonest examples of this class, contracts, sales, mortgages, wills, and settle- ments of property, we shall find that up to a certain point the prin- ciples which regulate them are very nearly the same. The mode in which the intention is ascertained, the effect of fraud, misrepre- sentation, mistake, undue influence, and agency, are, or at any rate might be, and ought to be, much the same in all. Brevity and sim- plicity, therefore, is attained by discussing these principles once for all; and this I have endeavored to do to some extent, though in the present condition of English law it is not possible to carry the discus- sion very far. Mental Condition, How Ascertained. A man's mental condition at any given moment, and his conduct in arriving at that condition, are facts, and, like any other facts, if disputed, they must be proved. There is a special set of rules which the law has prescribed for the conduct of an inquiry into the exist- ence of disputed facts, which are called "rules of evidence"; and there are special rules of evidence applicable to the inquiry into the particular facts of a man's mental condition at the time when he does an act, and his conduct in arriving at that condition. These rules I shall consider under the head of "Evidence." Rules for Ascertaining. Whatever may be thought of the wisdom of judges in early times in disregarding to the extent they did the attitude of the doer of an act as regards the consequences of it, there can be no doubt that the difiQculty which they apprehended in ascertaining this condition was not an imaginary one. The mental condition of a person at any time is, unless he chooses to inform us of it, a matter which it is very difficult to ascertain. The inquiry into the conduct by which he ar- rived at that condition is no less difficult. Yet it is into inquiries of this kind that modern judges, and even modern juries, are daily called upon to enter. There may in some cases be evidence, of the usual 172 ACTS. (Ch. 9 kind, of motives which are likely to lead to the absence or presence of the intentions imputed. Means of knowledge may also exist from which knowledge may be infeiTed, and other circumstances may in- dicate advertence. It is also probable that an ordinary man ad- verts to and expects the ordinary consequences of his acts. And there are standards of conduct supplied by experience by which heed- lessness and rashness may be determined. But it cannot be denied that we generally arrive at a conclusion as to a man's attitude with regard to the consequences of his act by a very rough method. We compare the conduct of the person doing an act with that of an aver- age man; and, by this comparison, we determine whether or no he was acting intentionally or heedlessly or rashly. Thus, if a man uses language which, under ordinary circumstances, would mean one thing, while the speaker protests that he has used it to express an- other, very little attention would be paid to this protest.* We are compelled, when we wish to determine what was intended \)j the words used, to consider how a man of ordinary intelligence would undei'stand them. So, if a man rides over another in the street, it is determined whether he is rash or heedless by considering whether he has acted as an average man ought to act. Such cases might seem to suggest that the reference of the legal result of an act to the men- tal attitude of the doer of it in relation to the consequences is but a pretense after all. This, however, would be an erroneous conclusion. If an act produced a legal result merely because a particular per- son did it, and not at all because of the mental attitude of that per- son as regards the consequences when he did it, then the existence of circumstances aif ecting that attitude « ould have no effect. But, to take the examples I have just put, we do not, because of the lan- guage used by him, impute intention to an insane person, nor do we treat him as rash or heedless because his conduct differs from the ordinary standard of carefulness. Perhaps as strong a case as any which could be put is the follow- ing: Suppose A. to have made a will giving in due form a legacy * This is not upon the doctrine of estoppel (a doctrine which English judges are rather fond of resorting to, to get them out of all difficulties), taut it is one of the rules for inferring intention. If there is no intention, then there must be rashness, heedlessness, or breach of duty to make the party Uable. See 2 Smith's Lead. Gas. (7th Ed.) p. STO. Ch. 9) ACTS. 173 to B. Suppose, further, that A., after having made his will, de- clares, in the presence of several persons whose credit is unimpeach- able, that he has altered his mind, and that he revokes the legacy. Now, a will is an event in which more than in any other case the legal result depends upon that mental condition which is called the "in- tention" of the testator. The whole object is to fulfill the testator's wishes. B. will, nevertheless, in the case put, take the legacy. This Is because we are in the habit of arriving at a conclusion as to the existence of a testator's intention by an artificial method, — by look- ing only at what he has written and signed in the presence of wit- nesses, and to nothing else, however trustworthy it may be. Now, every artificial method of inquiry into the truth of alleged facts, though, taken on the whole, it may serve the cause of truth in the majority of cases, always involves error in a minority, and the case I have put is one of the minority. But still, even in the case of a will, the legal result is not independent of the intention. We refer to the surrounding circumstances to explain the directions of the will. We ask what were the motives which induced it. We in- quire into the state of the testator's mind. And the legal result may be modified by these inquiries. If the legal result of the act were altogether independent of the intention, these inquiries would be altogether fruitless. Rules of Construction. It is the same with what are called "rules of construction," by which I mean those rules which have been laid down for determin- ing what inference is to be drawn as to intention from express mani- festations of it. These rules, like the rules of evidence just now referred to, are artificial; and there is no doubt that it is possible, by the application of such artificial rules, to miss the real intention. It is, however, supposed that, by the application of these rules, the intention is better ascertained in the general run of cases than in any other way. The supposition may or may not be correct, but there is no doubt whatever that, whether the rules are really useful or not, the legal result is still connected with the intention. Thus, we constantly hear judges lamenting the result to which some es- tablished rule of construction drives them, because they think that this is not what was intended. But the intention which is thus pre- .174 ACTS. (Ch- 9 sumed is always treated as a real intention. If there has been fraud or undue influence, or the party using the expressions under consid- eration is insane, the result is modified accordingly. We never now go back to the view of earlier times, and say that the act alone is conclusive. English judges have sometimes said, when applying these arbitrary rules of construction, and referring to the person whose intentions are in doubt, that they will consider, "non quod volult, sed quod dixit." Roman lawyers, who were less fettered by rules of construction, used to say, "non quod dixit, sed quod voluit." Still the situation of all judges is the same. They can only infer the intention from the language, and, in drawing that inference, they must be liable to err, because they must be guided by their experi- ence as to what ordinary persons would mean by the terms used. Acts of Which the Object is to Manifest Intention. There are, as I have already pointed out, some acts of which the very object is to manifest the intention of the person who does them; and these manifestations of intention play a very important part in law, because to a very large extent the mere fact that a legal result is intended and expressed to be intended is sufficient to in- duce it. The connection here between the expressed intention and the legal result is so immediate that we often speak as if the legal result was due to no other agency than that of the party or parties expressing the intention. This way of looking at the matter is, however, not strictly correct ; and, although the inaccuracy is some- times harmless, it has, I think, led to some confusion. It seems in some cases to have been thought that it was an easier process to arrive at liability where there was intention than where there was none; it being apparently forgotten that the affixing of lia- bility is an independent process, to which the one preliminary req- uisite, and the only one, is the sovereign will. It is, probably, in consequence of some misunderstanding as to the origin of liability that we occasionally find judges making desperate efforts to base liability upon intention, when they might just as well have ex- plained it without any reference to intention at all. For example, the struggle to explain the right to recover back money paid by mis- take by an imaginary intention on the part of the payor to repay it seems to me to be labor wholly thrown away. •Ch. 9; ACTS. 175 Formal and Informal Manifestations of Intkntion. Manifestations of intention may be either formal or informal. A formal manifestation of intention is a manifestation of intention made in accordance with certain forms which the law has prescribed as necessary for producing a legal result. Forms are useful for four reasons: First, to make us act with deliberation; secondly, to distinguish the preparations which often precede a final deter- mination from the final determination itself; thirdly, to facilitate proof; fourthly, to give publicity to the act. Express and Tacit. Manifestations of intention may also be express or tacit. An intention is manifested expressly when it is manifested by any means which are resorted to for that purpose. It is tacitly man- ifested by any means which, though not resorted to for that pur- pose, have the effect of disclosing it. The commonest ways of man- ifesting an intention expressly are by speaking and writing, but any action of the muscles, such as a nod or a wink, may be used for that purpose, provided only that it is understood. Surrounding Circumstan',es. When we infer the existence of intention from an act or acts not done for the purpose of manifesting it, we always look at the sur- rounding circumstances to see what light they throw upon the action. How far we can look at the surrounding circumstances to explain acts which are done for the express purpose of manifesting intention has not, I believe, been discussed generally, but only in reference to those manifestations which we call "contracts." I shall not, therefore, discuss that question here, further than to ob- serve that the permissibility of a resort to the surrounding circum- stances depends in some measure upon whether the manifestation of intention, besides being express, has also been formal. I have referred to the distinction between express and tacit man- ifestations of intention because it is one frequently made. There seems, however, to be a disposition to attribute to it more impor- tance than it deserves. In some things which are said upon the subject there seems to lurk a notion that an express manifestation 176 ACTS. (Ch. 9 of intention and a tacit manifestation of intention operate in differ- ent ways. I do not thinli that this is the case. Whether the man- ifestation be express or tacit, the endeavor is to decide on the ex- istence of the intention. Action Theodgh an Intermediary. I have already said that no one can do an act without putting his own muscles into motion. But a man very often does no more than communicate motion to some inanimate object, as when he fires a gun iv^d hits with a bullet an object at a distance. The blow struck by the uullet is in such a case considered as his act, as much as the pressure of his finger on the trigger. Sometimes, instead of communicating motion to an inanimate object, he communicates a wish for some motion to an animal; as when he sets a dog to hunt game in a field. Here, also, we consider the hunting of game to be his act. Or the wish for the motion may be communicated to a human being; as when a tradesman bids his servant deliver goods to a customer. Here, also, the delivery is considered as the tradesman's act. Agency. When a human being is employed to do an act, he is called an "agent." When I do an act under the fear of some evil with which I am threatened by some one, not in pursuance of a legal right, and I do it for the purpose of avoiding that evil, I am said to do it under duress. It is also sometimes said that I do the act against my will. To do an act against the will of the doer is, however, im- possible; for an act supposes a determination of the will to do the act, and without such determination there can be no act at all. Thus, if, by sheer force, I put a pen into your hand, and trace your name with it, this is not your act done against your will; it is not your act. But if I hold a pistol to your head, and threaten to shoot you unless you sign, the signature is then your act, and follows on a determination of your will just as much as if you had signed under any other inducement. Having before you the choice of two things, — to sign or to be shot,— you choose the less disagreea- ble alternative. Ch. 9) ACTS. 177 An act, therefore, done under duress, is as much a man's act as an act done under any other motive. And it is the same in regard to the consequences. When, under duress, I do an act, I may not desire the consequences which follow, but I may know that they are likely. Thus, A. says to B., "unless you kill C, I will kill you." If thereupon B. kills C, B., though he does not desire C.'s death, yet knows that C.'s death is likely just as well as if A. had offered him a bribe to fire a loaded pistol at 0., and he had done so. In these cases, therefore, if the legal result is different, it is not because the attitude of the doer of the act as regards the conse- quences is different, but because, for reasons which have appeared suflBcient, a different legal result has been assigned. A person may, if he chooses, express an intention which is not really present to his mind. Thus, I may promise to give a man £5 when I do not intend doing so. This is what is called a "mental reservation." Now, it is, I believe, a universal rule to treat the expressed intention as a real intention, just as it is a rule to treat the unmanifested intention as if it had no existence. It is not quite an adequate statement of the matter to say that the mental reservation is disregarded. Not only so, but this is one of the cases in which the same legal result is attributed to a nonexistent intention as would have been attributed to it if it had been an ex- isting one. Where an intention is expressed under duress, it is very likely not to be a real intention; the party who uses the expression merely pretending that such is his intention. But, according to principle,, this should make no difference. If the party expresses an inten- tion to promise, there should be a contract ; if to make a testamen- tary disposition of his proper-ty, there should be a will ; if to make- a conveyance, the ownership should pass, — these results being mod- ified, if necessary. Another matter which is said to affect the legal result of aets„ but in a way and to an extent which it is not always easy to per- ceive, is ignorance or mistake. Ignorance and mistake are gen- erally classed together, and the considerations applicable to them are the same. If it were necessary to distinguish them, I should say that ignorance is not to know of facts which do exist, and mis- take is to suppose facts to exist which do not. But both are cov- KEEN.JUB.— 12 178 ACTS. (Ch. 9 ered by the word "error," and, for the sake of brevity, I shall use that word only. Of course, when a man acts under the influence of error, he, nev- ertheless, wills to do that to which his desires lead him. Such phrases, therefore, as "nulla voluntas errantis" have no real mean- ing. Nor do I understand what Blackstone means when he says that in cases of error the will and the deed act separately.^ Error when Wholly Immaterial. If there is error, then the act which a man wills to do produces consequences other than those which he desired or expected. But, in considering the effect of error upon the legal' result of an act, we may get rid of those cases in which the error is immaterial; that is, those cases in which there are other consequences as to which there was no error, and which are sufficient to induce the legal result. For example, a bar of metal belonging to A. is ex- amined by B., who, without asking any questions, comes to the conclusion that it is gold. He thereupon offers to purchase it, and the offer is accepted. The error is immaterial, because there is an intention to buy a specific thing which is alone sufficient to induce the legal result. Error in Criminal Cases. The law as to en-or has, I think, got into some confusion by not bearing in mind what is and what is not material. Thus, a great deal has been made of the distinction between errors of law and of fact, and criminals are often told that when they set up an excuse That they did not know the law, though they may excuse themselves by errors of fact, yet they are presumed to know the law, and there- fore that they cannot set up as an excuse an error of law. This sounds very unreasonable, and would be unreasonable if it were true. But, generally speaking, it is not true. The intention to break the law is, in most cases, wholly immaterial. A man is not punished for breaking the law, but for doing an act which is harmful. Where an intention to break the law is an element in the offense, as in most eases of larceny, ignorance of the law can be successfully pleaded. 6 Comin. vol. 4, p. 27. Ch. 9) ACTS. 179 Imputation of Intention or Knowledge. But in some cases, where there are no consequences desired or ex- pected which would induce the legal result, nevertheless the legal result is arrived at by imputing to the doer of the act an intention or knowledge which had no existence. Whether or no this impu- tation will be made is a matter of law. In some cases it would be made; in others not. Eehor of Law and of Fact. In determining whether or no an intention or knowledge will be imputed when, by reason of error, the intention or knowledge does not exist, I do not think the law pays anj' attention to whether the error is one of law or one of fact. The whole question of imputing intention or knowledge is a very intricate one, and depends on a variety of considerations, but not on this one. Thus, in criminal cases we hardly ever impute intention or knowledge at all, the di- rect infliction of punishment being reserved for real, and not for imaginary, offenses. In transactions between man and man we very often do impute intention, but, as I shall show hereafter, only by reason of the assumption that the expressed intention and the real intention necessarily correspond. This, undoubtedly, in many cases, leads to the imputation of an unreal intention, but one of a very special kind. The assumption that the expressed intention and the real intention necessarily agree is justified by our experience that, upon the whole, this assumption is a useful one.' So, also, intention is imputed where there is what is called "malice in law," because in such cases a wrong has been done which the law desires to redress. But, as I have said, in none of these cases is the dis- tinction between errors of law and errors of fact of any importance. 8 If I understand him rightly, what Mr. Pollock calls "real common intention" is the intention as it appears from the expressions used. Contracts (3d Ed.) p. 426. It was not necessary, perhaps, for him to advert to the possible difference between the expression and the reality, which is, as I have said, practically ignored. But I could not ignore this difference in my endeavor to get at the bottom of the rules of the law upon this difficult subject. * » * 18U ACTS. (Ch. 9 In Wh4t Cases Important. If, therefore, the distinction between errors of law and errors of fact, which has been made a great deal of, is of any importance at all, it must be so in that class of cases in which, the normal legal result having followed notwithstanding the error, there is an at- tempt made to get rid of that result by the action of the court. That this can be done in one class of cases there is no doubt. Thus, if A. pays money to B. on account of a debt which has already been paid, believing the debt to be still due, the usual legal result of such a transaction follows, namely, that the money becomes the property of B.; but it can be recovered back by A. In this single class of cases, also, as the law now stands, the dis- tinction between errors of law and errors of fact is of importance, since, if the error is one of law, the money cannot be recovered. Why this should be so I cannot say. In Courts of Chancery. There is also a peculiar class of cases in which courts of chancery have endeavored to undo what has been done under the influence of error, and to restore the parties to their former position. The courts deal with such cases in a very free manner, and I doubt whether it is possible to bring their action under any fixed rules. But here again, as far as I can judge by what I find in the text- books and in the cases there referred to, the distinction between er- rors of law and errors of fact, though very emphatically announced, has had very little practical effect upon the decisions of the courts. The distinction is not wholly ignored, and it may have had some in- fluence, but it is always mixed up with other considerations, which, not unfrequently, altogether outweigh it. The distinction between errors of law and errors of fact is there- fore probably of much less importance than is commonly supposed. There is some satisfaction in this, because the grounds upon which the distinction is made have never been clearly stated. Blackstone says that the reason of the distinction is because every man not only may know, but is bound to know, the law.' This statement is, how- '! Comm. vol. 4, 13. 27. Ch. 9j ACTS. 181 ever, obviously untrue; and, even if it were true, it would not ex- plain the distinction. Austin, after rejecting Blackstone's explana- tion, says: "If ignorance of law were admitted as a ground of ex- ception, the courts would he involved in questions which it were scarcely possible to solve, and which would render the administra- tion of justice next to impossible."" Why so? Alleged errors of fact are as difficult to investigate as alleged errors of law. And neither in the Roman law nor in modern continental systems is the distinction drawn between errors of law and errors of fact with the same sharpness as in England." Infancy, Insanity, and Fraud. There are other circumstances which influence the contemplated result of an act, which continental lawyers are in the habit of dis- cussing generally, but which for English lawyers can as yet be hardly disengaged from the particular classes of transaction with which they happen to be connected. As examples, I may mention insanity, infancy, misrepresentation, and fraud. I may, however, point out once for all that it is very rare, indeed, that, on any of these grounds, an act simply fails to produce its contemplated legal result. The matter generally requires a much more delicate adjust- ment than this, especially where, as is frequently the case, the inter- est of third persons is concerned. Void and Voidable. English writers on law generally assume that all the cases in which the legal result of an act is affected by these special circum- stances may be covered by saying that the act is "void" or "void- able." But these are words of very uncertain meaning. The word "void," where it is used at all accurately, means, I think, devoid of the legal result contemplated.'" The word "voidable" means, I sup- pose, that the result may be made "void" by some one. But the 8 Lect. 25 (3d Ed.) p. 498. » See Dalloz, Rep. s. v. Obligation, art. 142, sqa.; S. v. Peines, art. 369, sqq.; Civ. Code art. 1108, sqq.; Preuss. Allgem. L. R. I. 4, 75; Unger, Syst. d. Osterr. Prac. R. vol. 2, pp. 33, 34; Schwarze, Strafgesetzbucli, § 9; Sav. Syst. d. h. Rom. Rechts, vol. 3, Beyl. 8. 10 See Pol. Cont. (3d Ed.) p. 7. 182 ACTS. (Ch. 9 questions remain, by whom and by wliat process? Continental law- yers make a triple division. First they set apart those cases in which the contemplated legal result fails altogether; as, for exam- ple, a will of lands made by an infant. Such acts they call "abso- lutely void." In the next class they place cases in which, as re- gards some persons, the act fails altogether to produce its contem- plated legal result, but, as regards others, the result is produced; as, for example, in the case of n bishop's lease exceeding the period prescribed by the law, which is good as against the bishop, but not as against his successor. These acts they call "relatively void.'' Then the third class comprises those acts which produce their legal result; but this result can be set aside by the action of some person concerned either with or without restitution; as, for example, a con- tract induced by fraud. These acts are called "voidable." I think there is some advantage in this triple classification, but it does not carry us far towards attaching a precise meaning to the terms em- ployed; and, in the hot contests that have taken place whether an act is void or absolutely void or voidable, it seems to me that the disputants have frequently used the words in different senses. Restitution. It is in connection with cases in which the contemplated legal re- sult has taken effect, but is to be set aside, that we come across the important topic of restitution. There is a large number of cases in which the legal result contemplated will follow, but it can be set aside by a court, not however simply, but upon certain conditions. This is called "restitution,' the parties being restored as nearly as possible to their original condition. This is the course which jus- tice most frequently requires, and it was the inability to order resti- tution that crippled the action of courts of common law in England, and relegated cases of this class, in a great measure, to courts of chancery. But, though courts of chancery have been in the daily habit of maliing restitution, it is remarkable that this convenient word has not yet found a place in accepted English legal terminology. Ratification. From a consideration of the steps which may be taken to invali- date the legal result of an act, we naturally pass to the subject of Ch. 9) ACTS. 183 ratification. There has been some dispute as to what is meant liv this term also. What I understand to be meant by "ratification" is this: After an act has been done which has had its legal result, but which legal result may, by taking tne proper steps, be counter- acted or modified, if the person who is empowered to take these steps signifies his intention not to take them, or does some act by which he loses his right to take them, he is said to ratify the act in question. This, I think, is the proper meaning of the word "ratification." The word is, however, sometimes used by English lawyers to express something different from this. Thus, if an agreement be made by B. in the name of A., without A.'s knowledge or authority, and then A. consents to be bound by the agreement, the legal result is the same as if A. had antecedently authorized the making of the agree- ment; and A., in such a case, is said to ratify the agreement. There are various ways of looking at this matter, which I may discuss here- after. All I have to say now is that, if this be called ^'ratification," then we give the same name to two things which are essentially dif- ferent 184 OWNERSHIP. (Ch. 10 CHAPTER X. OWNERSHIP. From Marlch/s Mements of Law, §§ 307-3m, 335. If we consider aay material object, such as a field, a piece of furni- ture, a sum of money, or a sack of wheat, we shall see that various rights exist with respect to it. There is the right to walk about the field, to till it, to allow others to till it, and so forth; there is the right to use the piece of furniture, to repair it, to break it up, to sell it; there is the right to spend the money, to hoard it, to give it away; there is the right to grind the wheat, to make it into bread, to sow it for next year's crop, and so forth. All these rights which I have spoken of are rights over the thing available against the world at la£ge, — jura in re and in rem. If all the rights over a tiling were centered in one person, that person would be the owner of the thing, and ownership would ex- press the condition of such a person in regard to that thing. But the innumerable rights over a thing thus centered in the owner are not conceived as separately existing. The owner of land has not one right to wallt upon it, and another right to till it. The owner of a piece of furniture has not one right to repair it, and another right to sell it. ^Vll the various ri ghts which an owner has over a thing are conceived as merged in one general right o f ownership . A person in whom all the rights over a thing were centered, to the exclusion of every one else, would be called the absolute and ex- clusive owner. This means that no one has any right over the thing except himself. It does not mean that he may exercise his ownership in accordance with his uncontrolled fancy. In the exer- cise of all legal rights, whether of ownership or of any other kind, each of us is under a certain control arising out of the relation in which we stand to the ruling power, or to other members of the society to which we belong. I cannot exercise my rights in such a way as to infringe the law or the .rights of others. To take an ex- ample: I am the absolute and exclusive owner of a large quantity of charcoal, sulphur, and saltpeter. I am stiU the absolute owner, Ch. 10) OWNEKSHIP. 185 although the law forbids me to mix them together and keep them in my house. No one by reason of that restriction has a jus in re over them. Nor is my ownership affected. The restriction is on my liberty of action only. But if I have pledged the saltpeter as security for a loan, then the pledgee has a jus in re over it; and my right to dispose of it is re- stricted, not by a mere restriction on my liberty of action, but be- cause one or more of the rights of ownership have been detached and given to another. So if I grant a right of way to a neighbor across my land, or if my neighbor has a right to graze his cattle there, he has a jus in re over the land, and certain fragments of ownership have been detached and transferred to him. Absolute and exclusive ownership is rare, and yet I do not think it is possible to explain what is meant by ownership, except by starting with this abstract conception of it. It is to this that we always re- vert when we are trying to form a conception of ownership. Ownership not an Aggkegate op Rights. Ownership, as I have said, is conceived as a single right, and not as an aggregate of rights. To use a homely illustration, it is no more conceived as an aggregate of distinct rights than a bucket of water is conceived as an aggregate of separate drops. Yet, as we may take a drop or several drops from the bucket, so we may detach a right or several rights from ownership. The distribution of rights detached from ownership which we actually find in use is very extensive. Thus, it would be no strange thing to find a piece of land, and that A. had a right to till it, B. a right to walk across it, C. a right to draw water from a spring in it, D. a right to turn his cattle on it to graze, E. a right to take tithe on it, F. a right to hold it as security for a debt, and yet no one of these persons would be considered as the owner. In such a case as this the owner would be stripped nearly bare of his rights, and it may seem, at first sight, purely arbitrary to continue to call such a person the owner. But this is not so. Though his ownership is greatly reduced, he is still in essentially a different posi- tion from that of any other person. So long as the rights I have mentioned are in the hands of any other person, they have a separate 186 OWNERSHIP. (Ch. 10 existence, but as soon as thej^ get back into the hands of the person from whom they are derived, — as soon as they are "at home," as it were, — they lose their separate existence, and merge in the general right of ownership. They may be again detached, but by the detach- ment a new right is created.^ However numerous and extensive may be the detached rights, how- ever insignificant may be the residue, it is the holder of this residuary right whom we alv/ays consider as the owner. An owner might therefore be described as the person in whom the rights over a thing do not exist separately, but are merged in one general right. Or an owner might be described as the person whose rights over a thing are only limited by the rights which have been detached from it.- This residuary right, e^'en in its slenderest form, is of great legal importance. It enables the holder of it to assume a position of great advantage in' all legal disputes. All (he can say) belongs to me which cannot be shown to belong to any one else. Every one who Intermeddles is an intruder, unless he can establish his right to do so. Everybody also must take just what he is entitled to, and no more. The presumption is always in favor of the owner. Ha'ii.ng thus endeavored to explain the conception of ownership^ I now advert to an extended use of the word which has given rise to much controversy and to some confusion. The word "ownership," and its English equivalent "property," as well as the corresponding words in other languages, dominium, pro pri^t^, eigenthum, besides being used to express that relation of a person to a thing which I have just now endeavored to describe, have been used to describe generally the position of an\ person who has a right or rights over a thing. Any person having a j us in re has been called owner, not indeed of the thing, but of that righ t. Perhaps this extended use of the term is to be regretted, as tending to confuse the conception of ownership, ^'^evertheless it exists, and we must master it. Nor can it be denied that between the ownership of a thing and the so-called ownership of a right there is much analogy, lioth owners have jus in re and in rem. Both can deal with the ob- 1 This. I take to be the meaning of the maxim "nemini res sua servlt,"— a man cannot have a separate jus in re over his own property. 2 I do not attempt to defiue ownership. Ch. 10) OWNERSHIP. 187 ject of their right (with the usual limitation) as they please. The ownership of a right as well as the ownership of the original thing can very frequently be divided. Subordinate rights may be again detached from it, and made over to others. Thus, if A. be the OAvner of a piece of land, and he lets it to B. for a term of years, A. is still the owner, and, as regards him, B. merely has a jus in re aliena. But, as regards other persons than A., B. will be considered as the owner, not of the land, but of the lease; and, if B. then sell his growing crops to C, C. will have a jus in re aliena as regards B., namely, the right to come on to the land and take the crops when they are ripe. And there is this further analogy between the posi- tion of A. and B.: that as B.'s detached rights, if they went back to A., would merge in A.'s general right of ownership of the land, so C.'s detached right to take the crops if it went back to B. would merge in B..'s general right of ownership of the lease. In the view of some jurists, not only is it wrong to speak of the ownership of a jus in re alien.l, but it is wrong to speak of the owner- ship of anything which is not a material object capable of being per- ceived by the senses. It seems to me a strange thing to speak of a thing as erroneous which is universally done; and especially when, after all, the question is only one of convenience, — how shall we shape our conception of ownership? The Eoman lawyers, as a mat- ter of fact, did speak of the ownership of things which had no cor- poreal existence. They spoke, for example, of the ownership of a usufruct, and they spoke of the ownership of an haereditas, both which the authors of the Institutes have been careful to show are incorporeal; and modern legislation has in the clearest manner adopted the view that things which have an ideal existence may be owned. In England this use of the word "ownership" has taken deep root. Another peculiarity of the English law of ownership arises out of the very strange conflict between common law and equity. To take a simple case: If I give land to you in trust for myself, at common law T cease to be the owner, in equity I continue to be so. How this came about is an inquiry which belongs to the history of English law, and need not be now pursued. It is only noticed here as an idea of "ownership" by which the attempts at simplifying the no- tions comprised under that term have been eluded. The court of 188 OWNERSHIP. (Ch. 10 fhtmcery. had it confined itself to compelling owners of property either to fulfill certain fiduciary relations, such as those of guardian and ward, or to fulfill the wishes of persons from whose bounty they had received the ownership, would have kept within the limits of analogous institutions in other systems of jurisprudence. Had, too, this been done, not only in those cases where there are special rea- sons for the exercise of good faith, but in all cases alike where the owner of land had accepted the ownership, subject to a condition to exercise his rights for the benefit of some other person, and the ordinary remedies of law were insuflScient to compel him to do so, this would have been a stretch, perhaps, of the doctrines of equity, but would have been very likely beneficial, and would have intro- duced no entirely new principle. But the English court of chancery has done a great deal more than this. It has created an entirely new interest in land; an interest as comprehensive, as general, as beneficial, as transferable, as ownership itself, which is ownership in fact, only the rights of the owner are somewhat clumsily exercised, and so it is frequently called.^ A/)ie,s, ''''The Nature of Ownership,^- 3 Harv. Law Rev., 31If.-316. It is customary to speak of one as owner of a thing, although he ceased to possess it for a time, either by his own act, as in the 3 A cestu i que trust Is frequently spoken of as an equitable owner of tlie land. This, though a frequent form of expression, is clearly inaccurate. The trustee is the owner of the land, and, of course, two persons with ad- verse interests cannot be owners of the same thing. What the cestui que trust really owns is the obligation of the trustee, for an obligation is as truly the subject-matter of property as any physical res. The most striking dif- ference between propertj' in a thing and property in an obligation is in the mode of enjoyment. The owner of a house or a horse enjoys the fruits of ownersiiip without the aid of any ofhei' person. The only way in which the 0T.vuer of an obligation can realize his ownership is by compelli ng its performance by the o bligor. Hence in the one case the o"\'\ner is said to have a right in rem, and in the other a right in personam. In other respects the common rules of property apply equally to ownership of things and own- ership of obligations. For example, what may be called the passive rights of ownership are the same in both cases. The general duty resting upon all mankind not to destroy the property of another is as cogent in favor of an obligee as it Is In favor of the owner of a horse. And the violation of this duty is as pure a tort in the one case as in the other. Ames, "Purchase for A'-alue without Notice," 1 Harv. Law Rev. 0, 10. Ch. 10) OWNERSHIP. 189 case of a lease or bailment, or without Ms consent, as in the case of a loss or disseisin. And yet every one would admit tliat the power of present enjoyment is one of the attributes of perfect own- ership . It is evident, therefore, that it is only by an inaccurate, or at least elliptical, use of language, that a landlord, bailor, loser, or disseisee can be called a true owner. The potential is treated as if actually existent. On the other hand, no one will affirm that the tenant, bailee, finder, or disseisor can be properly described as owner. For, although they all have the power of present enjoyment, and consequently the power of transfer, their interest is either of limited duration, or altogether precarious. It would seem to fol- low, therefore, that wherever there is a lease, bailment, loss, or dis- seisin of a res, no one can be said to be the full owner of it. And this, it is submitted, is the fact. Onlv he in whom the power to enjoy and the unqualified right to enjoy concur can be called an "owner," in the full and strict sense of the term. The correctness of this conclusion is confirmed by the opinion of Blackstone, ex- pressed with his wonted felicity. After speaking of the union in one person of the ^ossessifln, the right of possession, and the right ofprogerty, he adds: "In which union consists a complete title to lands, tenements, and hereditaments. For it is an ancient maxim of the law that no title is completely good unless the right of pos- session be joined with the right of property, which right is then denominated a 'double right' ('jus duplicatum,' or 'droit droit'). And when to this double right the actual possession is also united, there is, according to the expression of Fleta, 'juris et seisinae conjunctio,' then, and then only, is the title completely legal." * A true property may therefore be shortly defined as possession coupled with unlimited right of possession. If these two elements are vested in different persons, there is a divided ownership. Let us test these results by considering some of the modes by which a perfect title may be acquired by one who has neither, or only one, of these two elements of complete ownership. The typical case of title by original acquisition is title by occu- pation. For the occupier of a res nullius does acquire a perfect 4 2 Bl. Coram. 199. See, also, Id. 196: "And, at all events, without such actual possession no title can be completely good." ]90 OWNERSHIP. (Ch. 10 title, and not merely possession. The fisherman who catches a fish out of the sea, or the sportsman who bags a bird, is at once absolute owner. He has possession, with the unqualified right of possession, since there is no one in rerum natura who can right- fully interfere with him. It is on the same principle that a stran- ger who occupies land on the death of a tenant pur autre vie is owner of the residue of the life estate. For no one, during the life of the cestui que vie, can legally disturb him. / A derivati ve title is commonly acquired from an owner by jur-]) chase or descent. The title in such cases is said to pass by transfer . For 3:11 practical purposes, this is a just expression. But if the transaction be closely scrutinized the physical res is the only thing transferred. The seller's right of possession , being a relation be- tween himself and the res, is pur ely personal to him, and cannot, in the nature of things, be transferred to a nother. The purchaser may and does acquire a similar and coextensive right of possession, but not the same right that the seller had. What really takes place is this: The seller transfers the res , and abandons or extinguishes his right of possession. The buyer's possession is thus unqualified by the existence of any right of possession in another, and he, like the occupant, and for the same reason, becomes absolute. * * * A deriva ti ve title may be acquired by an equitable astopp el. If the owner of land permits another to sell and convey it as if it were the seller's own, the purchaser gets at law only the seisin. The original owner's title (that is, his right to recover the seisin) is not otherwise affected by the conveyance, but a court of equity will grant a permanent iniunction against the owner's assertion of his common-law right, and thereby practically nullify it, so that fhe purchaser's title is substantially perfec t. Ch. 11) POSSESSION. 191 CHAPTER XI, POSSESSION. From MarMyy's Mements of Law, §§ 353-360, 363-364., 366, 367, 371- 373, 383-383, 391-396. I will now proceed to consider what is the conception of posses- sion in a legal sense, and I will first examine the physical element which, as I have said, lies at the bottom of the conception of pos- session. It is very common to say that possession consists in the corporal seizure or apprehension of the thing possessed by the possessor, and that, in all cases where this corporal contact does not exist, there is not a real, but only a fictitious, possession. And there has been derived from this a theory of symbolical possession, which Savigny considers to be not only erroneous, but to the last degree confusing, when we come to deal with practical questions, and which he has taken great pains to combat. The truth is that, though we undoubtedly do possess most of the things with which we are in corporal contact, and though we come into corporal con- tact at some time or other with most of the things which we pos- sess, corporal contact has nothing whatever to do with the matter. A man walking along the road with a bundle sits down to rest, and places his bundle on the ground, at a short distance from him. No one thinks of doubtinsr that the bundle remains in his exclusive possession, not svmbolically or fictitiously, but really and actually, whereas the ground on which he sits, and with which he is there- fore in corporal contact is not in his possession at all. So, as Savigny puts it very forcibly, a man is bound hand and foot with cords, — no one thinks of saying that he possesses the cords; it would be just as true to say that the cords possess him. Corporal contact, therefore, is not the physical element which is involved in the conception of possession. It is rather the possi- bility of dealing with a thing aswe like, and of excluding others. iTwe^ consider the various modes in which possession is gained and lost, we shall recognize this very clearly. 192 POSSESSION. (Ch. 11 Take, for instance, first the case of land. A man buys a piece of land. He pays the price, and both parties sign the contract of sale. The buyer goes to take possession. It is not necessary for him to come into physical contact with every part of the land by walking all over it. He enters upon it, and stands there; the seller withdraws, or signifies his assent; and the buyer is at once in full possession. This is on the supposition that the claim to take pos- session is unopposed. If the seller is there, and disputes the pur- chaser's right to take possession, however unjustly, or if a third per- son is there who disputes the right of both, all the walking upon the land in the world, until this opposition is overcome, will not give the buyer possession; and for this reason,— because the phys- ical element which is necessary to put the buyer in possession is not corporal contact, but the physical power of dealing with the land exclusively as his own. In such a case there are but two modes in which he can obtain possession, — either by inducing those who oppose him to yield, or by overcoming their opposition by force. It is not necessary, in order to obtain possession, that the pur- chaser should step onto the land at all. If it is near at hand, and the seller points it out to the buyer, and shows that the possession is vacant, and sisrnifies his desire to hand it over to the buyer, whilst the buyer signifies his desire to receive it, enough has been done to transfer the possession. The physical possibility of the buyer deal- ing with the thing exclusively as his own, which is all that is nec- essary, exists, whether he thinks proper to use it by stepping onto the land or not. If we consider what is necessary in order to retain possession, we shall find the same notion more strikingly exemplified. In order to retain possession, it is not necessary that the possessor should remain on, or even near, the land. Possession having been once re- ceived, it is not necessary that the physical power of dealing with the land as he pleases should be retained by the possessor at every moment of time. He will continue in possession, if he can repro- duce that physical power at any moment he wishes it. A man who leaves his home, and goes to follow his business in a neighboring town, may still retain possession of his family house and property. An examination into the mode of acquiring the possession of movable things will lead us to the same result. Possession of Ch. 11) POSSESSION. 19S movable things can undoubtedly be taken, and very frequently is taken, by placing oneself in corporal contact with them. I can take possession of money by putting it into my pocket; of a coat, by putting it on my back; of a chair, by sitting upon it. But this con- tact is not necessary. I should take possession of the money just as well if it were laid on the table before me; of the coat, if it were put into my wardrobe; of the chair, if it were placed in my house. In the same way, if I purchase heavy goods lying at a pub- lic wharf, I take possession of them by going to them with the sel- ler, and by his there signifying his intention to deliver them, and by my signifying my intention to receive them. So, also, if I buy goods stored in a warehouse, possession is given to me by handing over the keys. So, too, timber is delivered by the buyer marking the logs in the presence of the seller, not because of the corporal contact or prehension which takes place in marking, but because that is the intention of the parties. The marking might take place without any change of possession, as, for instance, if the logs were marked to prevent their being changed, but they were not to be delivered till the price was paid.^ In all these cases it is a great mistake to suppose that there is anything fictitious or symbolical or constructive in the acquisition of possession. Each case depends on the physical possibilitv of dealing with the thing as we like, and of excluding others. In all the cases above put, except two, the thing is actually present before- us. But in one of these two, namely, that in which we say posses- sion is taken by placing the thing in my house, we only apply to a particular case a well-known principle, which embodies the very^ idea we are now insisting on, namely, that a man has the actual custody of all that is in his house, by reason of the complete and exclusive dominion which he has over it^. The other of these two cases is that in which the keys of the warehouse where the goods are stored are handed over by the seller to the buyer. But there cannot be a more complete way than this of giving to the buyer the power of dealing with the things sold exclusively as his own^ And as in the case of immovable things, so in the case of mov- ables, when possession of them has once been taken, it may be re- 1 Sav. Fob. § 16, p. 219. ^ Id. § 17, p. 220. 3 Sav. Pos. § 16, p. 223. KBBN.JUK. — 13 194 POSSESSION. (Ch. 11 tained so long as the power exists of reproducing the p hysica l ca- pacity of dealing with the thing, and of excluding others. Thus, if, after handing over and receiving possession of goods at a pub- lic wharf, both buyer and seller go away, the goods remain in pos- session of the buyer. INot so, however, if the goods are in the ware- house of a private person, unless the owner of the warehouse agrees to give the buyer the use of the warehouse as a place for keeping his goods. The consideration of the modes in which possession is lost will make the result clearer still. Every act by which our physical con- tjsii is completely destroyed puts us out of possession. It makes no difference whether the person who does the act himself gains pos- session thereby, or indeed whether any one does so. Thus, if I take anything belonging to you, and throw it into the sea, you lose possession, though no one gains it. We may also lose possession of a thing, not only by the act of another person in removing it, but simply because, under the circumstances, we cannot any longer ex- ercise that control, as, for instance, if a tiny jewel drops from my hand in passing through a dense forest, or a captured animal of its own accord escapes back into the wild. So, also, if we leave a thing somewhere, but cannot recollect where, and search for it in vain, we have lost possession of it. There is said to be an exception to this where the thing, though it cannot be found, is still in the owner's house, or on his adjoining premises, — as, for instance, if I drop a coin in my garden, and cannot, on searching, find it, it is said that I do not lose possession of it. But there is a reason for this which shows that it is no real exception. Everything in a man's house and in his garden is, on a principle already adverted to, and widely recognized by the law, considered to be in the immediate custody of the owner of the house and garden, by reason of his exclusive control .and dominion over them and all persons residing therein. On the other hand, a man does not lose possession of a thing by leaving it in a place which he knows, and to which he can return. Thus, if I leave my hatchet in a wood, intending to return the next day and continue my work, I retain possession of the hatchet all the time. But if any one else should find it, and should take it away, from that moment I lose possession. Ch. 11) POSSESSION. 195 The same general rule applies to the loss of immovables. The possession lasts so long as there is any physical control over them, and cease s when that physical contro l ceases. I do not lose posses- sion of my house by filling it with my friends and servants, even if I should go away and leave them there. But should they, on my return, refuse me admittance, declining upon some pretext to ac- knowledge my rights as owner, then, until I have ejected them, I have lost possession. The physical element, however, forms only one portion of the conception of possession. Besides this, there is what I may call a mental element , without which the physical relation will remain as a mere fact, having no legal consequences, and not in any way' subject to special legal considerations. In order to constitute pos- session in a legal sense, there must exist, not only the physical pow- er to deal with the thing as we like, and to exclude others, but also the determination to exercise that physical power on our own behalf. This important feature in the legal conception of possession may be illustrated by the consideration of a simple case. A person has a valuable article of jewelry, which he wishes to send from London to his house in the country ; and for that purpose he gives it to his serv- ant, with instructions to take it to his house, and there deliver it to his wife. The servant does not thereby gain possession of the jewelry, nor does the master lose it. True it is that the servant has the physical control over the jewelry; but, if he is obedient to his master's orders, he has no intention of exercising that control upon his own behalf. The master, on the other hand, by delivering the jewelry to his servant, does not for one moment lose possession of it, if his orders be carried out. Through his servant, who is obe- dient to his orders, he has the physical control which is necessary to possession, and he has also determined to exercise that physical control on his own behalf. That a person can be in possession of a thing by his representa- tive has never been doubted. But there has not been a complete agreement amongst jurists as to the nature of that possession. It has been frequently treated as a fictitious possession; but against this Saviguy argues, and, it appears to me, successfully. 196 POSSESSION. (Ch. 11 The error of treating possession through a representative as iic- titions or constructive possession only is a branch of the error noted above, which treats corporal contact as necessary to true posses- sion. AJljthatJs_ necessary to my possession being the power to res2j^JLJEli£^i££l_pontrol, and the determinatign to exercise that control on my own behalf, it is clear that I possess the money in the pocket of my servant, or the farm in the hands of my bailifl:, just as much as the rings on my finger, or the furniture of the house in which I live. This, however, presumes a representa tive who is obedien t to my commands. In other words, whilst, in order to constitute posses- sion of a thing through my representative, I must determine to ex- ercise control over it on my own behalf, the representative must also determine to allow me to exercise that control. As soon as my representative determines to assume control on his own behalf, or to submit to the control of another than myself, my possession is gone. If there be any cases in which this rule does not apply, they are exceptions which the law has introduced to obviate the effects of fraud, or for some similar purpose, as in the case already discussed, where some one has intruded upon the property of an absent owner. Derivativ e possession is the possession which one person has of the property of another. The physical control of a representative is sometimes called his possession, though, as we have seen, the legal possession in this case is in the principal. But derivativ e possession is true legal possessi on: the holder of the thing having the physical control over it, coupled with the determination to ex- ercise that physical control on behalf of himself. Hence, between tjie bare detention of a representative, which is not possession in a legal sense at all, and derivative possession, which is true legal possession, though detached from ownership, there can be no confusion. But there are many well-known legal relations in which the transfer to one man of the physical control over the property of another forms an essential feature; and it is frequently a question to be determined, whether or no, subsequently Ch- 1i) POSSESSION. 197 to this transfer of the physical control, the possession is in the owner through the transferee as his representative, or whether the trans- feree holds it derivatively on behalf of himself. Quasi Possession' of Incorporeal Things. The term "possession," as we have hitherto explained it, clearly assumes some tangible, existing thing, over which the party in possession may exercise his physical control: but the Roman law- yers extended the idea of possession to abstractions; to things which are not perceptible to the senses; to "incorporeal things," as they are usually called by lawyers. Possession, in a legal sense, as distinguished from the mere phys- ical control or detention, does not rest upon a notion exclusively ap- plicable to things corporeal. The notion up on which the legal idea of possession rests is that of making the simple exercise of this phvsical control a subjec t for legal conside ration and protec- tion, apart from ownership. But the simple exercise of any right may, it is obvious, be so considered and protected. To What Things Applicable. We must not conclude from this that all that we hare said about possession may be applied, without discrimination, to the exercise and enjoyment of any rights whatever. Many of the rules which govern the question of possession are founded on the existence of ' something which may be seen, felt, and handled, and it is only by a metaphor that these rules can be extended to a right which may be enjoyed. This is an easy metaphor, when confined within cer- tain limits; as, for example, when we speak of a person who enjoys the use of a pathway or a water course running over the land of another as being in possession of the way or of the watercourse. But it would be at the least a bold metaphor to speak of a doctor in large practice as in possession (in a legal sense) of his practice. The Roman lawyers contented themselves with extending the legal idea of possession to those rights which they denominated "servitudes," — a class of rights similar to, but more extensive than, that class of rights which we call "easements." And they con- stmc/.ed, for the protection of the enjoyment of rights of this class, 198 POSSESSION. (Ch. 11 rules closely analogous to those for the protection of the physical control over things corporeal. Modern lawyers have attempted to give to the idea of possession a much wider extension ; and this ex- tension, with us, is somewhat indefinite. Thus by statute the pos- session of an advowson is expressly protected as distinguished from the title to it. So, also, a person collecting tolls has been treated as in legal possession of the right to take tolls: and it has been even suggested that we might treat a person collecting the interest of a debt as in possession of a debt. Whether or no such an extension of the idea of possession is useful, this is not the place to consider. It is certain that the extension, if made at all, should be made with some circumspec- tion. Care must be taken, in each new application, not only that the nature of the subject is such that the idea of possession is capa- ble of being analogically applied to it, but also that it is one to which the legal consequences of possession are suitable. To apply those consequences to the exercise of all rights, without discrim- ination, would produce the greatest confusion. To whatever extent the idea of possession has been carried, the discussion of it has remained within the limits assigned by the Roman lawyers, namely, the possession of things corporeal, and of servitudes. All, therefore, that we can say further on this sub- ject, must be in connection with the latter class of rights, which we shall hereafter consider. Ch. 12) CONTRACT QUASI CONTRACT TORT. 19!) CHAPTER XII. CONTRACT— QUASI CONTRACT— TORT. From MwrUy's Elements of Law, §§ (50^-6'g^, 626-628. In endeavoring to discover what is meant by "contract," I shall make use of the inquiry into the meaning of the term contained in Savigny's System of Modern Roman Law/ of which the following is a paraphrase. "The idea of contract," says Savigny, "is familiar to all, — even to those who are strangers to the science of law. But with lawyers it is so frequently brought into play, and is so indispensable, by reason of the frequency with which they have to apply it, that one might e:5pect from them an unusually clear and precise conception of \t But in this we are not a little disappointed. "I will try," he says, "to show what a contract is, by the analysis of a case which no one can doubt is one of true contract. If, then, with this view, we consider the contract of sale, the first thing that strikes us is several persons in presence of each other. In this par- ticular case, as in most, there are precisely two persons; but fre- quently, as in a contract of partnership, the number is quite uncer- tain, so that we must adhere to plurality in this general and indeter- minate form, as a characteristic of contract. These several persons must all have come to some determination, and to the same deter- mination; for, so long as there is any indeterinination, or want of agreement, there can be no contract. This agreement must also be disclosed, — that is, the wishes of each must be stated by, and to each, until all are known; for a resolution which has been simply taken and not disclosed will not serve as the basis of contract. "Moreover, we must not neglect to observe the object which is aimed at. If two men were to agree to assist each other reciprocally, by example or advice, in the pursuit of virtue, science, or art, it would be a very odd use of the term to call this a contract. The dif- ference between such cases and the contract of sale, which we have selected as the type, is this: In the latter the object which the par- 1 Section 140. 2U0 CONTRACT QUASI CONTRACT — TORT. (Cll. 12 ties have in view is a legal relation, whereas in the former the ob- jects are of quite another kind. But simply to say that the object which the parties to a contract have in view is a legal relation, does not go to the root of the distinction. When the judges of a court of law after a long discussion agree upor a decree, we have every one of the characteristics hitherto noted, and it is a legal relation that the decision has in view, but yet there is no contract. The bottom of the distinction is that the judges have before them a legal relation to which they are no parties. In the case of a contract of sale, the legal relation which the parties contemplate is their own. "These characteristics may be summed up in the following deJi- nition : A contract is the concurrence of several persons in a dec- laration of intention, wliereby their legal relations are determined." It will be observed that this deiiuition of "contract" includes, not only those agreements which are a promise to do or to forbear from some future act, but those also which are carried out simultaneously with the intention of the parties being declared. English writers are not very clear upon this point. While, on the one hand, they would seem, in practice, to treat as contracts only those agreements which bind us to do or to forbear at some future time, yet we find, on the other hand, that in their definitions of "contract" they gen- erallj- take the widest possible ground, rejecting all the limitations suggested by Savigny, and making, in fact, the two words "contract" and "agreement" synom'mous. From some expressions in passages subsequent to that which I have quoted, I gather that Savigny intended to treat the perform- ance of a contract as itself a contract. Thus, if I rightly understand him, lie says that the agreement for the sale and purchase of a house is one contract, and the consequent delivery of possession by the ven- dor to the purchaser is another. This, with deference to so great an authority, I venture to doubt. I think there is here a confusion, which is exceedingly common, between contract and transfer or con- veyance, such as Austin has several times pointed out in the course of his lectures. Subject to this modification (and for. our present purpose it is not an important one), I think Savigny's analysis of contract may safely be adopted. » * * No doubt, if we adopt Savigny's conception of contract, we shall Ch. 12) CONTRACT QUASI CONTRACT TORT. 201 find cases where all the conditions named by him are present, and where, nevertheless, contractual liability is denied. And we shall also find cases where some of these conditions are not present, where contractual liability is affirmed. It is a practical question whether we shall, on this account, endeavor to reform our conception of con- tract so as to meet these cases, or treat them as exceptional cases, in which a contractual liability is created, though in reality no con- tract exists.' To show what I mean when I say that, though the conditions of contract are satisfied, there is no contractual liability, I may sup- pose A. to ask B. to take charge of his property, and to distribute it amongst his creditors, and that B. assents, and takes charge of the property accordingly, but afterwards applies it to another purpose. The conditions laid down by Savigny for the presence of a contract between A. and B. are here satisfied, and there is a breach of that contract by B. Nevertheless, B. is not considered to be contractual- ly liable. We put such cases into a separate group, which we call "breaches of trust." On the other hand, if A. were to ask B. to take charge of all the goods which he might send to B., and sell them to the best advantage, remitting the proceeds to A., if B. were not duly to account for the proceeds he would be liable to A. contractually. This shows how closely the two groups approach each other. Indeed, it shows more, - — it shows that they overlap. English lawyers have not made any very distinct attempt to define authoritatively either "contract" or "contractual liability." Several writers have recently given us a very careful analysis and explana- tion of "agreement," and this is, no doubt, a very useful step in under- standing the nature of a contract; but we have still to inquire, what is a contract? for it is clear that every agreement is not so. Some persons, after having defined an agreement, go on to tell us that a contract is an agreement "enforceable" at law. This, how- ever, really means no more than that there is a kind of agreement 3 If we could find a definition of "contract" whicli would save us from the necessity of calling tilings contracts whicl) were not contracts, it would be convenient. But this has not been done. I have more hope of reforming legal language by finding some more appropriate name for the liability which is now called contractual, but which is really not so. 202 CONTEACT — QUASI COKTRACT — TORT. (Ch. 12 ■which it is the legal duty of a party to perform, and that if he does not perform it he may be sued in a court of law, for that is what I understand to be meant by "enforceable." Before we know what is and what is not a contract, and what is a)id what is not contractual liability, this explanation must be supplemented either by a com- plete enumeration of cases in which an agreement is so enforceable, or by some general statement of such cases, with an enumeration of exceptions. The latter is what is commonly attempted. It is said that all agreements will be "enforced" (that is, all agreements are contracts) unless the contrary is stated. This accurately describes the general attitude of modern law in relation to agreements, which adopts the principle, "Pacta sunt servanda." I have, however, never seen an enumeration of exceptions which was complete; and without this enumeration the difficulty of defining "contract," and of separat- ing off the group of cases in which there is contractual liability, is only avoided, and not solved. Why the liability of a trustee should not be considered a con- tractual liability is a question to which I do not find any very clear answer. The best answer I can give is that, though the duty comes, into existence upon the consent of the parties, the nature of the duty is not under their control, and the remedy is not the same as on a breach of contract. The conception of contract as set forth by Savigny does not soh'e all the difficulties about contract, but it appears to me to have this advantage: that it calls attention to a point which English lawyers have rather lost sight of. It reminds us that the agreement, in or- der to becomea, contract, must be one in which the parties_iiQnlem- plate the creation of a legal relati.Q.n between themselves. ~ That there are agreements which will be considered not to be con- tracts, because this legal relation is not contemplated, is, I think, abundantly clear. Suppose, for example, that two friends, A. and B., agree to walk together at a definite time and in a definite direc- tion; no one would say that this is a contract, and yet it is clearly an agreement. The reason, and the only reason, why it is not a con tract, is, as far as I am aware, that the parties, presumably, do not contemplate a legal relation. But I doubt whether such a reason Jias ever been given by any English lawyer. Another advantage of Savigny's definition of "contract" is that it ^^'- ^'^) CONTRACT QUASI CONTEACT TORT. 203 <^^^a^h' describes the true relation of the parties, and how it arises. It arises because there has been between the parties a transaction having reference to their legal rights, for which we have no special name, but which the Germans call "rechtsgeschaft," and the French call "acte juridique." And the relation which is created is, I think,, better described generally as a legal relation than as that of an en- forceable agreement, which appears to mean an agreement upon which an action can be brought.* But I should be disposed to say (which Savigny may very likely have meant) that the legal relation contemplated must be that of two persons having the one a definite claim against the other. A contract is a manifestation of intention, and the same difficulty arises in contract, as in all other manifestations of intention, when we have, in cases of dispute, to ascertain what the intention really was. We can only infer intent ion from acts, and whether we make this inference by the aid of artificial rules, or without them, we shall inevitably, in some cases, attribute intention wrongly. This is a difficulty which is inherent in all inquiries into disputed facts. In acts of which the very object is manifestation of intention, if the parties are careful, the difficulty is not, under ordinary circum- stances, very great. But from the slovenly mode in which parties to a contract, in the hurry of business, or from carelessness, frequently express themselves, great difficulties often arise in ascertaining what legal relation the parties intended to create. It is with reference to this inquiry that it is said, "The intention of the parties governs the contract." But the difficulty of asce rtaining the intention^till remains. The person to whom the promise is made (or "promisee," as he is called) may say that he expected one thing, and the promisor may say that he intended another. In which sense is the promise to be taken? * • * The practical solution of the difficulty is, I think, simple enough. Austin rightly points out that there is a distinction between the intention of the parties and the sense of the promise; and it is the sense. of the promise, rather than the intention of the parties, which governs the contract. Of course, the sense of the promise - It does not seem that those who define "contract" as an enforceable agree- ment would have any name for an agreement which produced legal results^ but not the legal result of being enforceable by action. 2U4 CONTRACT — QUASI CONTRACT — TOET. (Ch. 12 may be different to different persons. The promisor mar consider that his words bear one sense, the promisee may consider that they bear another, and a stranger may consider that they bear a third. But the judge, who has to decide what legal obligation has resulted from the transaction, determines what the sense is. And in doing this he may fairly use the assertions of the parties them- selves as a guide to his own conclusion. Having first ascertained the terms in which the parties expressed themselves, he may hear what each party says as to their true interpretation, and what each, respectively, says he intended by them. He may also consider what interpretation would be put upon them by an uninterested man of ordinary understanding. He may even go further, and consider the surrounding circumstances, so far as they throw light upon either the sense of the promise, or the intention of the prom- isor, or the expectation of the promisee. But after all he must put upon the words his own interpretation, and from the sense which he attaches to the words he must presume the intention. So that the current phrase, "the intention of the parties governs the contract," is really only true to this extent: that it governs the con- tract, where both parties are agreed what the intention was. Where there is a dispute as to the intention, the contract, or rather the contractual liability, is governed by the intention, as it is presumed from that sense which, under all the circumstances, the judge thinks ought fairly to be attached to the promise. * * * The English law says that there is no liability upon a contract, unless the contract fulfills one of two conditions, namely, either that it is made upon a "consideration," or that it is contain- ed in a deed under seal. A contract, we are told, is made upon "consideration" when some thing is done, forborne, suffered, or undertaken by one party at the request of another, which is made the foundation of the promise of that other. This rule about consideration is not recognized by any other sys- tem of law in the modern or ancient world. It is only recognized in England, and in those countries which have derived it from Eng- land. • » • Ch. 12) CONTRACT QUASI CONTRACT TORT. 205 From Holland'' s Elements of Jurisprudence, M3, Ml^ The right which, loolied at from the point of view of the Law which imposes it, is described as an obligation, is described, from the point of view of the person of inherence, as a 'ius in personam.' The difference between a right of this liind and of the kind dis- cussed in the preceding chapter is obvious enough. When a man owns an estate, a general duty is laid upon all the world to refrain from trespassing on his land. If he contracts with a landscape gardener to keep his grounds in order for so much a year, then the gardener owes to the landowner a special duty, over and above the duty owed to him by all the world be- sides. If a surgeon is practising in a town, while there is a duty incumbent on all not to intimidate patients from resorting to him, or otherwise molest him in the exercise of his profession, there is no general duty not to compete for his practice. Any one may legally establish a rival surgery next door. Suppose, how- ever, that the surgeon has bought his business from a predeces- sor, who, in consideration of being well paid, has covenanted not to practice within twenty miles of the town in question. Here the predecessor, beyond and above the duties owed by others to his successor, owes him the special duty of not competing with him by the exercise of his profession in the neighbourhood. In the cases supposed, the landowner and the practising surgeon have respectively rights 'in personam,' against the gardener and the re- tired surgeon, over and above the rights 'in rem' which they enjoy as against every one else. Most frequently antecedent rights 'in personam' arise, as in the above cases, out of the agreement of the parties. They are however often due to some cause with which the parties have nothing to do. In these cases, although the person of inci- dence has not undertaken a special duty to the person of in- herence, yet the Law casts that duty upon him, as if he had so undertaken it. There is a ligeance between two individuals, al- though the chain that binds them was not linked by their own hands. Every one has, for instance, a right that public ministerial officers, such as sheriffs, registrars, or postmen, shall exercise their functions for his benefit when occasions arise entitling him to their services. Similar rights 'in personam' are enjoyed against per- 206 CONTRACT — QUASI CONTRACT TORT. (Ch. 12 sons filling certain private fiduciary positions, such as trustees, executors, administrators, and trustees of bankrupts. So also against persons who happen to enter into certain transitory rela- tions with others, such as persons to whom money has been paid by mistake, or whose affairs have been managed by a 'negotiorum _gestor.' Finally, against persons who occupy certain family re- lationships to others, e. g. against wives and children, and vice versa against husbands and parents. Ant ecedent rights 'in personam' are divisible, according to the investitive fact to which they owe their origin, into two great classes. Such rights either arise or do not arise out of a contract. In the former case they are described as rights 'ex co ntractu .' In the latter case, since they arise from facts of various kinds to which it pleases the Law to affix similar results, we shall describe them as rights 'ex lege' . From Holland'' s Elements of Jtirisprudence, The State lends its force to assure the performance of those promises of which it thinks fit to take cognisance. This it en- deavours to do by putting some sort of pressure upon the will of the promisor, which it therefore indubitably so far subjected to the will of the promisee. The fact that the pressure thus applied may often fail of its effect has given rise to an ingenious inversion of the theory of contract. According to Mr. Justice Holmes, a con- tract may be regarded as 'the taking of a risk.' 'The only universal consequence of a legally binding promise is, that the law makes the promisor pay damages if the promised event does not come to pass. In every case it leaves him free from interference until the time for fulfilment has gone by, and therefore free to break his contract if he chooses.' But, as the able advocate of this view is compelled to admit, 'when people make contracts they usually contemplate the performance rather than the breach'; nor can it be seriously maintained that the performance of a contract is more optional than that of any other legal duty. Libel or assault, equal- ly with breach of contract, are possible to any one who is prepared to be answerable in damages for the indulgence of a taste for defamation or violence. ^h- 12) CONTRACT QUASI CONTRACT TORT. 207 From Amos' The Science of Law, 215^^ The word "contract" has habitually been applied, in all countries, to a number of legal transactions, which, on one ground or another, in no way satisfy the description of a true legal contract as given above. Such, for instance, are "quasi contracts," which only re- semble contracts in respect of the legal situation of the parties when once the situation they depict has been attained. There are cases in which a person, through a series of accidental circumstances, may be in possession of what belongs to another, or may have parted with what belongs to himself on grounds which he afterwards discovers to be insufficient. He has committed no injury to a right of ownership, or has so far sustained none. Buti it is clearly inequitable that he should retain what does not be- long to him, or be unable to recover what does. He clearly is lia-l ble to a special duty, as towards the owner of what he possesses, or has a special legal right against the person who possesses what belongs to himself. He has a duty to restore, or a right to enforce restoration. Or he may be in both positions at once, and then he is situated exactly in the same way as if he had made a pair of contracts, or a single two-sided, or so-called "bilateral," contract. I The rights and duties really belong to the law of ownership, and should be treated under that head; but their similarity to the obligatory relations aiising out of a contract have, in many systems of law, led to their being afiflliated to contract law, and being treated under that head. The English expression, "implied contracts," seems to cover assumed or fictitious engagements of this nature, and also to cover unmistakable contracts when the evidence for them has to be gathered from a number of surrounding circumstan- ces, rather than from the express language of the parties. There are some important transactions to which the term "con- tract" is frequently applied, although they can in no way be said to satisfy the description of a legal contract as above given. Such, for instance, are marriage and sale. It is customary to speak, not only of a contract to marry, which is an unmistakable legal con- tract, but of the act of marriage, or assemblage of acts which con- stitute a marriage, as being a contract. There is undoubtedly an analogy between the situation of two persons who marry one an- other, and that of two persons who make a contract with each other. 208 CONTRACT QUASI CONTRACT TORT. (Ch. 12 and this analogy may be closer in some countries and periods than in others. Indeed, the analogy may be so close in the case of some marriage laws that the difference between a marriage and a con- tract vanishes altogether. The analogy consists in (1) the necessary reciprocity of sentiment and intention which accompanies the joint act; (2) the result of the joint act, which is that each of the parties has legal rights and duties in respect of the other; (3) the character and extent of some of these rights, which frequently may be qualified by the joint will of the parties, as ascertained on the occasion of entering upon the marriage. But this analogy is only an_aaalagy, and no more, because the rights and duties of the parties are primarily fixed .bxJi-e—gtate; and such qualifications of those rights and duties by the parties themselves as the state allows — as, with respect to property, man- agement of business, education of children, and the like — are treat- ed as wholly s^bsidiarx_tQ_the _general policy of the state in respect to the rights themselves. Again, in all states in which unrestricted liberty of divorce is not allowed, no mere agreement b v the parties themselves can can - cel the marriage, whereas it is of tiie _very essence of a cpntract that either contractpr can release the other from his^ duties to per- form the contract. Thus, though it is true that law often, in re- spect to certain matters, limits the region of free contract, and to that exent modifies the conception of contract altogether, yet in these cases persons are only restrained as to the matters to which the contract shall not extend. Whether or not it shall extend to all matters legally permissible is left to the free will of the parties. But in marriage, as also in service, in some states of society, — and not so long ago in England, — all the main rights and duties resulting from the relationship (and which are the expression of it) are sharply marked out both by positive and negative limits. The practical reliance (so far as the relationship is regarded from its legal and not its moral side) of each of the parties is placed, not on the good faith of the other leading him or her to do what has been promised, but on the presumed willingness of the other to conform to the course arbitrarily marked out for him or her by law. It is obvious from this investigation, as has been already indicated, Ch- 12) CONTRACT — QUASI CONTRACT TORT. 2UD that marriage has a tendency to glide into a mere contract, and that the prevailing distinction between marriage and a contract must be testedJmthe amount oj^ voluntariness J2 ermi,tte() in consti- tuting the terms of the relationship and the conditions of its dura- tion. The formation and preservation of the family group is, how- ever, in any healthy state, of far too great moment to be relegated to the capricious choice of individual persons in the community. On this ground, marriage is an act by whk-ji a status, or special legal relationship s anctioned. by Qie^statCj is entered upon, and not a mer e contract made. It is even a more inveterate habit to speak of a "contract of sale" than of a "contract of marriage," and yet the transaction termed a "sale" is still less analogous to a true contract than marriage is. A sale is in itself nothing more than an exchange or mutual con- veyance of property between two persons, the property (or a part of it) conveyed on one side being the common circulating medium of the country; that is, money. All that is essential to a sale is that the parties should intend to effect it, and should in form effect it. Wlien two parties make a mutual interchange of money for goods, and intend that one shall represent the price or the reason for thus surrendering the other, all the necessary elements of a sale are completely present. In very primitive times, before the notion of contract, or even of good faith, has acquired any steadiness, no other sort of sale than this exists. The exact character of it is t^-pified in the Eoman solem- nity of mancipatio, in which the notion of mutual conveyances was. the only one present. In modern purchases in what is called "mar- ket overt," the same notion is alone to be found; and, there being no engagement reaching to the future, there is no room for the oper- ation of contract. But by a series of steps, some of the earlier of which have been skillfully tracked out by Sir H. S. ilaine, the notion of contract be- comes naturally imported into the more primitive and elementary notion of sale. First, the custom becomes habitual of one party- conveying what belongs to him, while the other party abstains for a time from performing his reciprocal function; and, next, the cus- tom becomes habitual of neither party making any convej-ance at the time, but only of agreeing to make conveyances in the future. Ini KEEN.JUK.— 14 210 CONTRACT QUASI CONTRACT TORT. (Ch. 12 this last case a contract for a fu tM:fi..aala. has talcen Jt.he^£lace for the moment of an actual sale; but the contract for a sale is not a substitute for a sale which must talie place afterwards, unless, as happens under some legal systems, courts of justice impart to cer- tain contracts for a sale all the legal character and incidents of an actual sale. The relation of a contract to a conveyance, and, more especially, of a contract for a sale to an actual sale, is perplexed by certain pe- culiarities in the transaction styled a "sale,' to which the habits and convenience of mankind have given birth. Thus, the case may be supposed that a sale has been made of the general kind recognized and supported by law, and yet that neither party has complied with the formalities (whatever they happen to be) which in every case are indispensable to the legal conveyance of the property or money. Here the law occupies a somewhat ambiguous position. On the one hand, it asserts that the parties have conveyed that which, by the appropriate act, they signified their purpose to convey. On the other hand, the law asserts they have neither of them conveyed that which, without the forms appropriate In each case, could not be con- veyed. It is from a sort of instinctive resistance to this ambi- guity of attitude that the notion of sale itself slowly undergoes a metamorphosis. It acquires a double meaning — ^First, the simple and original one of mutual and reciprocal conveyance; secondly, the derivative meaning of a contract, the terms of which are that each party shall, in default of immediate conveyance, take such steps as may be needed to make an effectual conveyance at a future time. In this way, by an extensive use of the term "sale," the legal ambiguity above described is cured. The law no longer asserts that a sale means only simultaneous acts of mutual conveyance. It means this, but it also means contracts to convey jn -default of ini- mediate conveyance. Another source of complication in the relationship of contract to sale is that in the case of most sales a number of subsidiary con- tracts are usually either expressly made by the parties, or implied by law; such legal implication being based on the ordinary habits of mankind, on general convenience, or on particular customs preva- C"' 12) CONTEACT QUASI CONTRACT TOKT. 211 lent in respect of certain classes of transactions. Such are con- tracts with respect to rescission of the sale, or to compensation, in case of hidden defects, known or not known to the seller, coming aft- erwards to light; with respect to the possession of the thing sold, either before or after the actual conveyance has taken place; with respect to the responsibilities of the possessor for injuries to it sus- tained during the possession; with respect to giving compensation in case of eviction; and possibly, as in the case of an English com- mon-law mortgage, with respect to resale hereafter on certain con- ditions being complied with by the seller. ' The number of surrounding contracts which thus hang round all the most important sales naturally lead to the suppression of the notion of the sale itself as independent of these contracts. This is the more likely to be the case where, as in England, the same deed of conveyance commonly operates at once as transferring the property, and as furnishing evidence of, or rather as constituting, a series of subsidiary contracts. From Langdell, A Brief Survey of Equity Jurisdiction, 1 Harv. Law Rev. 55-58. ' Rights are either absolute or relative. Absolute rights are such as do not imply any correlative duties. Relative rights are such as do imply correlative duties. Absolute rights are of two kinds or cl^lsses : First, those rights of property which constitute ownership .or dominion as distinguished from rights in the property of another, — ^jura in re aliena; sec- ondly, personal rights, i. e. those rights which belong to every per- son as such. Relative rights, as well as their correlative duties, are called "ob- ligations," i. e. we have but one word for both the right and its cor- relative duty. The creation of every obligation, therefore, is the creation of both a right and a duty; the right being vested in the obligee, and the duty being imposed upon the obligor. Undoubt- edly, the word "obligation" properly expressed the duty, and the use of the same word to express the right is a defect of nomenclature which is unfortunate, as it has given rise to much confusion of ideas. Obligations are either personal or real, according as the duty is im- ' posed on a person or a thing. An obligation may be imposed upon 212 CONTRACT QUASI CONTKACT TORT. (Ch. 12 a person either by his own act, namely, by a contract, or by act of law.' Obligation may be imposed upon a thing either by the will of its owner, manifested by such act or acts as the particular sys- tem of law requires, or by act of law. It is in such obligations that those rights of property originate which are called rights in the prop- erty of another, — jura in re aliena. Instances of real obligations will be found in servitude or easements, in which the law regards the servient tenement as owing the service; also in the Roman pig- nus and hypotheca, in which the res pignerated or hypothecated to secure the payment of a debt was regarded as a surety for the debt. The pignus has been adopted into our law under the name of "pawn" or "pledge." The hypotheca has been rejected by our common law," though it has been adopted by the admiralty law. A lien is another instance of a real obligation in our law; the very words "lien' and "obligation" having the same meaning, and the same derivation. A familiar instance of a real obligation created by law will be found in the lien of a judgment or recognizance.'' Relative rights differ from absolute rights in this: that the former 5 Strictly, every obligation is created by tJris-law. When it is said that a contract creates an obligation, it is only meant that the law annexes an obligation to every contract. A contract may be well enough defined as an agreement to which the law annexes an obligation. Strictly, also, a tort gives rise to an obligation as much as a contract, namely, an obligation to repair the tort, or to make entire satisfaction for it; but this is an obligation which the law imposes upon a tort feasor merely by way of giving a remedy for the tort. In the same way, the breach of a contract gives rise to a new obligation to repair, or make satisfaction for, the breach. « It would, however, be more correct to say that our law does not permit the owner of property to hypothecate it at his own will and pleasure; for hypothecations created by law do not exist with us, as will presently be seen. ' Such a lien is an hypothecation created by law. It is what civilians call a "general hypothecation," because it attaches to all the land of the judg- ment debtor or recognizor, whether then owned by him, or afterwards ac- quired. Instances of hypothecations of goods created by law will be found in the lien given to the landlord on the goods of his tenant to secure the payment of rent, and in the lien on beasts damage feasant given to the person in- jured to secure satisfaction for the injury done. These liens are enforced by distress. The former is in a sense general, i. e. it attaches on all the goods which are on the demised premises when the rent becomes due. Ch. 12) CONTRACT QUASI CONTKACT TORT. 213 add nothing to the sum or aggregate of human rights; for what an obligation confers upon the obligee is precisely commensurate with what it takes from the obligor. Absolute rights, therefore, malie up the entire sum of human rights. Every violation of a right is either a tort, or a breach of obliga- tion. Every v iolation of an absolute right is therefore a tort ■ So is every violation of a right arising from an obligation (i. e. of a rela- tive right), which does not consist of a breach of the obligation. Hence every act committed by any person i n violation o f a right cre- ated by a real. obl igation is a tort , for such an act cannot be a breach of the obligation. Whether a right created by a personal obligation can be violated by an act which constitutes a tort, i. e. by an act which does not consist of a breach of the obligation, is a question involved in much doubt and difficulty. In Lumley v. Gye " and in Bowen v. Hall " this question was decided broadly in the affirmative; for it was held in each of these cases that it was a tort maliciously to procure an obligor to break his obligation. In each of them, however, the court was divided. In Lumley v. Gye there was a very powerful dissent- ing opinion, which was fully adopted by one of the judges in Bowen V. Hall; and, though the writer is not at present prepared to say that the decisions were wrong, yet neither is he prepared to admit that they are right. An obligation may, however, be so framed as to make it possible for the obligor or a third person to destroy the obligation before the time for its performance arrives. For example, if the performance of an obligation be made conditional upon the happening of an event which is subject to human control, any act which prevents the hap- pening of that event will destroy the obligation; and there could be no doubt that such an act, if done for the purpose of destroying the obligation, will constitute a tort. Nor does the writer see any rea- son to doubt that it would also be a tort maliciously to procure an- other person to destroy an obligation, even though the person com- mitting the act of destruction were the obligor. For most practical purposes, however, it may be said with suffi- cient correctness that a right cr eated by a personal obligation ,ia. sub- « 2 El. & Bl. 216. » U Q. B. Div. 333. 214 CONTEACT QUASI CONTRACT TORT. (Ch. 12 jeet to TJolati on only hj a breach of the obligation, and hence only by the obligor ; for it will very seldom happen that any question will arise as to the violation of such a right by any person other than the obligor, or in any way other than by a breach of the obligation. F?^mn Amos' The Science of Lav\ 'BW-MS. There is one common notion with respect to contract which yet remains to be examined; that is, the notion of contracts being transferred in life, or on death descending by intestate succession or testamentary disposition. As above explained, a legal contract was seen to be eminently a personal agreement; that is to say, an agreement in which the promisor relied upon his own ability and disposition to keep his promise, and the promisee relied upon the same likewise. In pursuance of this essential conception, it must seem wholly anomalous to admit of any substitution of persons in the course of carrying out the contract; and yet the rapid play of commerce depends more upon what may be called the "market- able value" of contracts than, perhaps, upon any other single legal institution. What is needed, then, is to xmderstand what is meant by a contract being bought or sold, or descending to heirs and ex- ecutors. At this point the inconvenience is experienced in English law of having no word at hand like "obligatio" — signifying the legal relations created by a contract — to oppose to the contract itself, out of which the legal relation arises. In Eoman and in Continental law, through the use of the term "obligatio," there is no danger of confusing the rights and duties wliich it denotes with the formal act which is the cause and sign of their having accrued. But it is quite customary in England to hear of co ntrac ts descending to a man's heirs or executors, and of their being assigned and bou^htjir sold. What is really meant is that the rights and duties whic h have attached through the making of a contract are the subjects of the several legal operations indicated. There are, indeed, cases in which it may be difficult to distinguish Avhether a person doing a certain act with the help of another per- son's name, and possibly by the use of documents signed by him, is simply (1) succeeding to the rights and duties of the other, arising out of his contract with a third person; or (2) making a fresh con- Ch. 12) CONTRACT QDASI CONTRACT — TORT. 215 tract for himself; or (3) merely personating the original contractor, and by such temporary intervention assisting the actual contractor to avail himself of rights under the contract. The first of these cases is tliat of those contracts, the benefit or burden of which descends to a man's heirs or successors, or of those which, in the words of English law, "run with the land"; tliat is, which attach to every one into whose hands a certain piece of land comes, whether it be as landlord or as tenant. Whether the„ rights and duties under a conti'act sliall descend and puss from one person to another in these or in any other ways must depend, as do all other qualifications of these rights and duties, upon the will of the contractor, subject, of course, to the recognition of such consequen- ces on the part of the state. The convenience is so great of a man's being able to bind, not only himself, but also all those who inlierit his estate, and of a man's being able to rely on the performance of an engagement, not only by the individual person who binds him- self, but (if its object be yet unaccomplished at the time of that per- son's death) by those who succeed him and inherit his means of completing the perfonnance, that the notion of succession to obliga- tions — or to the rights and duties arising out of contracts — becomes a most familiar one in all systems of haw, and the process of such succession is usually facilitated as much as possible by legislation. In the second case above alluded to, a person might seem to be only availing himself of the contract of another when really he is also or solely making a new contract for himself. This is the case of the contracts made by what are called "negotiable instruments," to which class of contracts belong those ardsing out of bills of ex- change and promissory notes. These instruments are simple writ- ten forms conveying a promise to pay money to any possessor of the instrument at a certain date; the money either to be paid directly by the promisor, or indirectly through a third person, in whose hands the promisor has deposited money for the purpose of satis- fying the demand. The essence of these instruments is that, by the mere transfer of the document, accompanied, it may be, with the aflOxing to it of the transferror's name, a new set of rights and duties are called into being, exactly reproducing the original ones created between the original promisor and promisee; and yet all the while 216 CONTRACT QUASI CONTRACT TOET. (Ch. l2 the original promisor, and each intermediate one, continue bound to the actual possessor of the document. This process may be re- peated any number of times. The peculiarity, however, is that, since each transfer of the document creates a fresh contract, all the successive contracts co-exist at the same time. The real explanation of this is that each promisor in turn lays himself under a contingent duty to pay a certain sum of money to the person who holds the document, and presents it at the proper time and place. He makes no contract with any one but the per- son to whom he immediately transfers the document, but the na- ture of the contract so made is such that any future holder of the document has all the rights arising under the contract which any previous contractor had. Thus, each promisor is liable to pay the debt once to some person or other. * » * Amex^ Inalienability of Glioses in Action^ 3 Harr. Law Rev. 337-3Ji.l. The rule that a chose in action is not assignable was a rule of the widest application. A creditor could not assign his debt. A reversioner could not assign his reversion, nor a remainder-man his remainder. A bailor was unable to transfer his interest in a chat- tel. And, as we have seen, the disseisee of land or chattels could not invest another with his right to recover the res or its value. In a word, no right of action, whether a riglit in rem or a right in personam, whether arising ex contractu or ex delicto, was as- signable, either by act of the party, or by operation of law. A right of action for the recovery of lands or chattels, or of a debt, which, like lands or chattels, was regarded as a specific res, did, indeed, descend to one's representative in the case of death. This was hardly a departure from the rule, since the representative was looked upon as a continuation of the persona of the deceased. There were, however, a few exceptions to the rule. The king, 41S might be supposed, could grant or receive the benefit of a chose in action. * * * Again, certain obligations, by the tenor of which the obligor expressly bound himself to the obligee and his assignees, could «*>* be enforced by a transferee. If, for instance, one granted an annuity to A. and his assigns, or covenanted to enfeoff A. and his assigns, or made a charter of warranty to A. 'Cll. 12) CONTRACT QUASI CONTRACT TORT. 217 and his assigns, the assignee was allowed to bring an action in his own name against the grantor, covenantor, and warrantor, respec- tively. The significance of this exception lies in the fact that it goes far to explain the reason of the rule which prohibits the assignment of rights of action in general. The traditional opinion that this rule has its origin in the decision of the "sages and founders of our law," to the "multiplying of contentions and suits," ^^ shows the power of a great name for the perpettation of error. The inade- quacy of this explanation by Lord Coke was first pointed out by Mr. Spence.^^ The rule is not only older than the doctrine of mainte- nance in English law, but is believed to be a principle of universal law. A right of action in one person implies a corresponding duty in an- other to perform an agreement or to make reparation for a tort; that is to say, a chose in action always presupposes a personal re- lation between two individuals. But a personal relation, in the very nature of things, cannot be assigned. Even a relation between a person and a physical thing in his possession, as already stated, cannot be transferred. The thing itself may be transferred, and, by the consent of the parties to such transfer, the relation between the transferror and the thing may be destroyed, and replaced by a new but similar relation between the transferee and the res. But where one has a mere right against another there is nothing that is capa- ble of transfer. The duty of B. to A., whether arising ex con- tractu or ex delicto, may, of course, be extinguished and replaced by a new and co-extensive duty of B. to C. But this substitution of duties can be accomplished only in two ways, — either by the con- sent of B., or, without his consent, by an act of sovereignty. The 10 Lampet's Case, 10 Coke, 48a. 11 "But in regard to choses in action, as tlie same doctrine lias been adopted in every state of Europe, it may be doubted wlietber the reason which has been the foundation of the rule everywhere else was not also the reason for its introduction in this country, namely, that, the credit being the personal right of the creditor, the debtor, being obliged towards that per- son, could not, by a transfer of the credit, which was not an act of his. become obliged towards another." 2 Spence, Bq. Jur. 850. See, also, Pol. Cont. (5th Ed.) 206; Holmes, Com. Law, 340, 341; Maitland, 2 L. Q. Rev. 495. iil8 CONTRACT QUASI CONTRACT TORT. (Ch. 12 exceptions already mentioned, of assignments by or to the king, * * * are illustrations of the exercise of sovereign power. Fur- ther illustrations are found in the bankruptcy laws which enable the assignee to realize the bankrupt's choses in action, and in St. 4 & 5 Anne, c. 16, which abolished the necessity of attornment. Where the substitutio n of duties is by consent, the consent may be given either after thejiuty arises, or contemporaneously with its creation. In the former case the substitution is known as a "no- vation," unless the duty relates to land in the possession of a ten- ant, in which case it is called an "attornment." A consent contem- poraneous with the creation of the duty is given whenever an ob- ligation is by its terms made to run in favor of the obligee and his assigns, or in the case of annuities, covenants, and warranties, before mentioned, or to owner or bearer, as in the case of bills and notes and other negotiable securites. Here, too, on the occasion of each successive transfer, there is a novation by virtue of the obligor's consent given in advance; the duty to the transferror is extinguished, and a new duty is created in favor of the transferee. The practice of attornment prevailed from time immemorial, but was confined to the transfer of reversions and remainders. Nova- tion, although now a familiar doctrine, was, if we except the case of obligations running to the obligee and his assigns, altogether unknown before the days of assumpsit upon mutual promises. The field for the substitution of duties by consent was therefore ex- tremely limited, and in the great majority of cases a creditor would have found it impossible to give another the benefit of his claim, had not the ingenuity of our ancestors devised another expedient, namely the letter of attorney. By such a letter, the owner of a claim appointed the intended transferee as his attorney, with pow- er to enforce the claim in the appointor's name, but to retain what- ever he might recover for his own benefit. In this way the prac- tical advantage of a transfer was secured, without any sacrifice of the principle of the inalienability of choses in action. ^^ 13 In 1 Lil. Abr. 12.j, it is said: "A statute merchant or staple, or bond, etc., cannot be assigned over to another so as to vest an interest whereby the as- signee may sue in his own name, but they are every day transferred by let- ter of attorney, etc. Mich. 22 Car. B. R." See, also, Deerlng v. Carring- ^^- ^2) CONTRACT QUASI CONTRACT TORT. 21& Indeed, so efPectual was the power of attorney as a transfer, that, during a considerable interval, it was thought unduly to stimulate litigation, and therefore to fall within the statutory prohibition of maintenance, unless the power was executed for the benefit of a creditor of the transferror. Powers executed for the benefit of a purchaser or donee were treated as void from thg beginning of the fifteenth century, if not earlier, till near the close of the seventeenth century.^* The objection of maintenance at length gave way before the mod- ern commercial spirit, and for the last two centuries debts have been as freely transferable by power of attorney as any other property. ^"^ By statute, in many jurisdictions, the assignee may even sue in his own name. But it is important to bear in mind that the assignee, under the statute, still proceeds, in a certain sense, as the represent- ative of the assignor. The statute of itself works no novation. It introduces only a change of procedure.^* ton, 1 Lil. Abr. 124; Shep. Touch. (6th Ed.) 240; 2 Bl. Comm. 442; Leake, Cont. (2d Ed.) 1183; Gerard v. Lewis, L. R. 2 C. P. 308, 309, per Willes, J. These letters of attorney for the attorney's own use, whether borrowed from the similar procuratio in rem suam of the Roman law or not, are of great antiquity. (1309) Riley, Memorial of London, 68. "Know ye that I do assign and attorn in my stead E., my dear partner, to demand and receive the same rent of forty shillings, with the arrears, and by distress the same to levy in my name, * * * and all things to do as to the same matter for heb own PROFIT as well as ever I myself could have done in my own proper person.'' See, also. West, Symb. 521. 14 The doctrine of maintenance was pushed so far that It came to be regarded as the real reason for the inalienability of choses in action, and the notion be- came current that no contracts were assignable, not even covenants or policies of insurance, and the like, although expressly payable to the obligee and his assigns. Even bills and notes were thought to derive their assignability solely from the custom of merchants. Warranties, being obviously not open to the objection of maintenance, continued assignable, and so did annuities, although not without question. Perk. Conv. 101. 16 Formerly an express power of attorney was indispensable (Mallory v. Lane, Cro. Jac. 342), the notion of ar implied power being as much beyond the conception of lawyers three centuries ago as the analogous idea of an implied promise (2 Haiv. Law Rev. 53, 58). To-day, of course, the power wiU be im- plied from circumstantial evidence. \ 16 Accordingly, an assignment in New York, where, by statute, actions must I 220 CONTRACT QUASI CONTRACT TOBT. (Ch. 12 be brought by the real party in interest, will not enable the assignee to sue in Massachusetts, where the old rule tiat an assignee must sue in the assignor's \name still prevails. Leach v. Greene, 116 Mass. 534; Glenn v. Busey, 5 ■Mackey, 233. If the statute truly effected a change of title, the assignee, lilie 'the indorsee of a bill, could sue in his own name anywhere. WEST PDBLIBHINa CO., PRINTBIBS AND STEREOTYPEas, ST. PAUL, MINH.