COPY i CORNELL LAW LIBRARY yfli OJornell &aui ^rfyool Htbrary Cornell University Library K 230.A52S3 A systematic view of the science of juri 3 1924 017 837 455 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017837455 THE SCIENCE OF JURISPRUDENCE. L0ST)O> T : rillSTED BY SrOTTISWOOBR AND CO., NETY-ST Jl EtfT SQUAIIK AXD rAttUAMENT bTKEET A SYSTEMATIC VIEW OF THE SCIENCE OF JURISPRUDENCE. BY SHELDON AMOS, M.A. OF TUB INKER TEMPLE, BARRISTER- AT -LAW ; PROFESSOR OF JURISPRUDENCE, UNIVERSITY COLLEGE, LONDON ; TUTOR TO THE INNER TEMPLE IX JURISPRUDENCE, CIVIL LAW, AND INTERNATIONAL LAW. LONDON : LONGMANS, GKEEN, AND CO. 1872. All rights reserved. \ h 5 IS M'* IN MEMORIAM A. A.— F. D. M. " Si a Spiritus Legibtis ita se mortale genus regi sitieret, ut humanis prceceptis nihil indigeret, id verb et decorum et scdutare esset; at quoniam se ad Spiritus svblimitatem elevare Divinteque Legis vocem amplecti non cujusque est, ac verb quos hue Virtus ducat numero valde pauci sunt, bene sese adhuc res haberet si saltern secundum Leges Humanas viveretur." leo. nov: lxxxhi. " If Mankind would suffer themselves to be guided hy the Laws of the Spirit, so as to need no commandments of men, that were seemly and healthful indeed ; but since it is not everyone who can lift himself to the sublime heights of the Spirit and take in the accents of Divine Law, and since they whom Virtue leads hither are few indeed, it were still well if life were passed in obedience to Human Laws." ANALYSIS OF TOPICS. PAG 15 CHAPTER I. GENERAL DESCRIPTION OF THE PROVINCE OF THE SCIENCE OF JURISPRUDENCE 1 CHAPTER II. GENERAL VIEW OF THE HISTORICAL DEVELOPMENT OF THE MATERIALS OF THE SCIENCE OF JURIS- PRUDENCE CHAPTER III. RELATION OF THE SCIENCE OF JURISPRUDENCE TO ALL OTHER SCIENCES 16 Physical and Psychological Science .... 29 Ethical Science 29 Science of Social Ethics 34 Science of Political Economy so Science of Legislation 37 Science of Government (in the narrower sense) . 38 CHAPTER IV. MATERIALS, OR CONTENTS, OF THE SCIENCE OF JURIS- PRUDENCE 40 [I. Description of the Original Fact of Law in Itself : Account of the Historical and Logical Genesis of that Fact : Vlll ANALYSIS PAGE Explanation of all the Leading Terms essen- tially involved in the Meaning of the Term Law. II. An Investigation of the Possible Sources of Law (or Immediate Modes by which Actual Laws are, or may be, created), and of the Process of Interpretation, as severally Modi- fying the Operation and Nature of Law. III. A Classificatory Arrangement of the Contents of all Possible Systems of Positive Law. IV. An Investigation of Theories of Variation in the Quality, Number, and Mutual Kela- tions of all the above Elements, — whether such Variation operates in Time or in Space] 44 CHAPTER V. THE SOURCES OF LAW, AND THE INTERPRETATION OF LAW 50 [I. Judicial Legislation, — in its Several Modes . 52 II. Statutory Legislation,— or Direct Changes con- sciously introduced into the Existing Legal System by the Supreme Political Authority. III. Statutory Legislation, — or Indirect Changes introduced through the Medium of Subordi- nate Legislatures of all sorts. IV. Codification. V. Scientific Eeflection on the Nature of Law] . 58 CHAPTER VI. DISTRIBUTION OF THE MAIN DEPARTMENTS OF A LEGAL SYSTEM 61 ANALYSIS. IX PAGfi CHAPTER VII. AN EXPLANATION OF LEADING TERMS .... 69 State 71 Law 73 Right and Duty 76 Person and Thing 79 A Peculiar Class of Terms respecting the Possible Modifications of Moral Eesponsibility : as Infancy, Sex, Idiocy, Insanity, Intoxication, Ignorance, Error, Compulsion, Fraud, Will, Intention 85 Act and Event 93 Motive 95 CHAPTER VIII. CLASSIFICATION OF LAWS 96 CHAPTER IX. LAWS DIRECTLY RELATING TO THE CONSTITUTION AND ADMINISTRATION OF THE STATE (CONSTI- TUTIONAL LAW) 103 A. Description of the General Nature, Province, and Limits of this part of the Law . . 103 B. Meaning of the Phrase Supreme Political Authority 107 I. Description of what is meant by the Phrase Supreme Political Authority generally. II. Description of the Modes in which such an Authority may be constituted in a given Community. III. Precise Determination of the Modes in which the Person, or all the Persons, representing the Supreme Political Authority, is, or are, Constituted 110 X ANALYSIS. PAGE C. Legal Relations to each other and to all other Persons of the Persons (if more than one) composing the Supreme Political Authority no I. Eights of Each Constituent Portion of the Supreme Political Authority in its Corporate Capacity as against the Rest. II. Eights of Each Constituent Portion in its Cor- porate Capacity as against the Individual Members of it, and as against all other Mem- bers of the Community. III. Eights of Individual Members of Each such Con- stituent Portion, against (1.) all the other Members ; against (2.) all other Persons in the Community 113 D. Modes in which Changes are brought about in the Classes of Persons composing the Supreme Political Authority, or in the Relations of such Persons to Each other and to all other Persons 113 I. Limits within which the Constitution of the Supreme Political Authority admits of Change, whether in respect of, (1.) the Description of the Persons who compose the Several Parts of it, or (2.) the Eights of the Several Con- stituent Parts of such Authority in their Corporate Capacity as against Each other. II. Description of the Formal Machinery by which Changes of the above Limits may be effected no E. General Import of the Phrase Executive Au- thority. Legal Relations to Each other and to all other Persons of the Persons (if more than one) composing that Authority, and the Modes in which Changes are brought about in those Relations . . . n? ANALYSIS. XI TAGK I. Precise Meaning of the Phrase Executive Authority. II. Modes in which the Head or the Subordinate Members of that Authority may be Con- stituted, Suspended, or Removed. III. Eights and Duties of the Several Component Members of the Executive Authority. IV. Special Securities accorded to Citizens for their Individual Protection against Usurpation of Right, Neglect of Duty, or Malversation gene- rally, on the part of any Member of the Executive Authority 121 CHAPTER X. LAWS OF OWNERSHIP 122 A. General Character and Purpose of Laws of Ownership 125 B Things Owned 128 [1. "Natural Agents " as opposed to all other Things. 2. Things set apart for the General Purposes of the State, as opposed to all other Things. 3. Things Movable and Immovable. 4. Res Fungibiles and Non-fungibiles. 5. Things Corporeal and Incorporeal. 6. Singulce Res and Universities Rerum. 7. Sundry other Oppositions, as Things Divisible and Indivisible, Principal and Accessory, Existing and About-to-exist] 129 C. Persons who Own. [1. Infants and Minors. 2. Idiots and Lunatics. 3. Felons and Outlaws. 4. Aliens. 5. Married Women] • . ... 143 XU ANALYSIS. PAGE D. Eights of Ownership 147 I. Dominium, or Absolute Ownerships in which the Mode of User, the Duration of the Eight, and the Facilities of Alienation, are Unlimited or Indefinite. IT. All Lesser Eights, including Estates for Life, for Years, or upon Condition ; Trust Estates, Copyhold Estates and Estates Tail in English Law, Metayer Tenancies, Emphyteusis, and Usufructuary Estates generally ; Servitudes or Easements, and generally all Jura in Re, according to the largest Intent of the Classical Jurists, including the Eights of Carriers, of Depositaries, of Mortgagees, and of the merest Possessors 149 E Facts (Acts or Events) which determine the Accruing of a Eight of Ownership . . 154 [1. Occupancy. 2. Specification. 3. Accession. 4. Invention. 5. Prescription. 6. Alienation in Life. 7. Alienation on Death. 8. Adjudication. 9. Forfeiture.] F. Modes of Protecting Eights of Ownership. I. Summary Process, of the Nature of an Interdict or an Injunction. II. Action or Suit- having in view the Compensation of an Owner for Injuries received. III. Action or Suit having in view not Compensation so much as actual Eestoration or Restitution. IV. A Criminal Proceeding ^ ANALYSIS. X1I1 PAGK CHAPTER XI. LAWS OF CONTRACT . . . . - 176 A. Explanation of the Legal Term Contract ■ . 170 B. Persons who Make Contracts 181 [1. Infants. 2. Lunatics and the like, including Drunkards, 3. Persons under Duress of all kinds, Physical, Moral, or Legal. 4. Married Women. 5. Agents. 6. Outlaws. 7. Aliens.] 184 C. Acts by which the Making of a Contract is signified. [I. A Mental state of each of the Persons professing to Contract, implying Acquiescence in the one and the same contemplated Course of Action indicated by the Purpose or Object of the Contract. II. An Actual and Physical Communication, hav- ing reference to the before-mentioned state, through the only possible Media for com- municating a Knowledge of states of Mind. III. Possibly, a Supplemental Act insisted upon by Law for the Purpose of furnishing Evidence of the presence of I. and II ] 194 D. Eights Accruing through the Making of a Contract. I. Eights to Performance of all the Acts Promised, and in the Mode, Measure, and Time Promised. II. Eights, in the event of the Non-performance of the Acts promised seeming probable, to do such Acts as may Minimise Loss. XIV ANALYSIS. PACE III. Eights to (by Judicial Process) (1.) compel Per- formance, or (2.) obtain Compensation for Losses sustained through the Non-performance of Acts Promised. IV. Rights to a Dissolution of the Contract on clearly ascertained Conditions 201 E. Classification of Contracts 213 I. Contracts in Aid of the Essential Relationships of Society. II. Contracts in Aid of Co-operation for Social and Industrial purposes. III. Contracts in Aid of Co-operation for more or less Artificial and Complicated Commercial purposes 215 CHAPTER XII. LAWS AFFECTING SPECIAL CLASSES OF PERSONS . 230 A. Husband and Wife : Parent and Child . . 236 I. General Description of the Moral and Legal Relationship of Husband and Wife. II. Authentic Signs that the Legal Relationship has been created 239 III. Rights and Duties Accruing (1.) as between the Parties; (2.) as between the Parties, and each of them, respectively, on the one hand, and the Children of the Marriage on the other ; (3) as between the Parties and all other Persons • 243 IV. Authentic Signs that the Legal Relationship has been terminated 252 B. Guardian and Ward 258 I. General Description of the Legal Relationship. II. Events of different sorts on the happening of which the Relationship is demanded. ANALYSIS. XV m*H IT 1 TAGS} . Mode of Appointment of Guardians for different Purposes. IV. Eights and Duties of Guardians and Wards respectively. "V. Duration of Guardianship and Modes of Chang- ing and Supplementing Guardians. VI. Modes of Investigating and Eedressing Injuries committed by Guardians 262 C. Trustees, Executors, and Administrators . . 262 I. Description of the Legal Eelations implied in the Fact of Trusteeship 267 II. Modes in which the Eelationship takes its Eise . 268 III. Eights and Duties of Trustees 272 IV. Modes of Enforcing the Duties of Trustees . . 275 D. Barristers, Advocates, Solicitors, Attorneys, Proctors, Writers to the Signet, Notaries Public, and the like 276 I. Complete and generally Descriptive List of the Classes of Persons specially Authorised to assist Private Persons in the following respects : — 1. Informing them as to the exact Nature and Extent of their Legal Eights and Duties, and of the Nature and Mode of Use of the Remedial Processes provided by Law for the Enforcement of the same. 2. In case of Impending Legislation, Preparing the Subject-matter .of Dispute for Judicial Investigation. 3. Representing Litigants in a Court of Justice. 4. Performing Public and Solemn Acts, demanded either by the Practice of Courts of Justice in the Course of Litigation, or by Mercantile or other Customs Judicially Recognised . . . 279 II. Qualifications and Modes of Appointment through which Persons become Members of the Classes now under Consideration. III. Eights and Duties of such Classes of Persons seve- rally in respect of each of the kinds of Functions enumerated in I. IV. Modes of Enforcing such Eights and Duties, whether by the Ordinary or the Extraordinary Processes of a Court of Justice, a XVI ANALYSIS. rAUB V. Special and Arbitrary Provisions in Contem- plation of the Possible Events of Sudden Change, Eemoval, Incapacity, or Death, of such Persons in the midst of the Performance of their appropriate Functions .... 280 E. Certain Classes of Corporate Bodies, — as those instituted for Ecclesiastical, Municipal, Educational, or Eleemosynary Purposes . 281 CHAPTER XIII. LAWS OF CIVIL INJURIES AND CRIMES . . . .283 Grounds of Distinction between a Civil Injury and a Crime . 283 LAWS RELATING TO CIVIL INJURIES 287 A. Injuries to Eights to (1.) Personal Security; (2.) Free Locomotion ; (3.) Conditions of Health ; (4.) Eeputation. B. Injuries to Eights of Ownership. C. Injuries to Eights under a Contract. D. Injuries to Eights Appertaining to Special Classes of Persons 288 LAWS RELATING TO CRIMES 297 A. General Description of a Crime. B. Essential Constituent Elements of a Crime . 299 I. The Act. II. The Intention. III. Grounds of Exculpation. IV. Distinction between Consummate Crimes and Crimes consisting in Attempts to Commit Crimes. V. Principals and Accessories. C. Classification of Crimes 300 ANALYSIS. XV11 PAGE 1. Acts Directly or Indirectly Menacing the Consti- tution and Administration of the State. 2. Acts Directly Violating the Eights of Private Persons. 3. Acts Violating the Eights of Special Classes of Persons. D. Enumeration and Classification of Punishments . 301 1. Enumeration of Possible Punishments. 2. Eules for the Application of Punishment. 3. Grounds of Extinction of Liability to Punishment. SPECIAL DISSERTATIONS ON MALICE, INSANITY, THE PUNISHMENT OF DEATH, AND EVIDENCE OF CHARACTER 304 CHAPTER XIV. LAWS OF PROCEDURE 317 A. The Establishment of Courts of Justice, — In- ferior, Superior ; Civil, Criminal ; Original, and of Appeal ; and for Local Matters . . 319 B. The Formal Mode of Investigation of Alleged Breaches of Law, by : — 324 I. Preliminary Process for the Purpose of Ascer- taining the Eeal Matters in Controversy. {Pleading and its various Modes.) . . .324 II. Trial of Issue of Fact. (Distinction between Direct and Circum- stantial Evidence) 329 III. Trial of Issue of Law 310 C. "Sentence, Assignment of Punishment or of Measure and Mode of Compensation, and Execution of Sentence 341 D. Extraordinary Bemedies. [Interdict or Injunction, Mandamus, "Commercial Tribunals," Bankruptcy, Distress.] • • • • 342 a2 XVIU ANALYSIS. PAGE E. Limitation of Actions ■ 346 F. Parties to Actions 348 CONFLICTING THEORIES OF CRIMINAL PROCEDURE . 349 The " Litigious " and the " Inquisitorial " Theories 350 The Institution of a Minister of Justice or of a Public Prosecutor 351 The " Prerogative of Pardon " 352 Current Suggestions for a New Definition, or for New Methods of Trying the Crime, of Murder 356 The French Verdict of Extenuating Circumstances 358 Trial of Political Crimes 360 The Doctrine of Extradition 362 The " Unanimity of Juries " 363 CHAPTER XV. PRIVATE INTERNATIONAL LAW 366 Nature and General History of Private Interna- tional Law 366 A. Laws Eelating to the Constitution and Admi- nistration of the State 372 I. Territorial Sovereignty 372 II. Citizenship 374 III. Domicile 376 B. Laws of Ownership 378 [Lex Loci Rei Sito3, Lex Domicilii.'] C. Laws of Contract 383 [Lex Loci Contractus, Lex Loci Actus, Lex Fo7-i.] D. Laws Affecting Special Classes of Persons . . 384 [Marriages and Divorces Abroad.] ANALYSIS. XIX I'AGB E. Laws of Procedure 387 [Bankruptcy, Limitation of Actions, and Foreign Judgments.] CHAPTER XVI. PUBLIC INTERNATIONAL LAW 391 Nature and General History of Public International Law 301 Distinction between International Law and Inter- national Morality 393 The Conditions of the Creation and Growth of a System of Public International Law . . 395 The Sources of International Law (Described and Enumerated) 404 The Sanctions of International Law (Described and Enumerated) 409 Conception of a State as a Person or Subject of International Law 414 Limitations on the Independence of States . . .416 Rights of States (Described and Enumerated) . . 419 [Modes of Acquiring Territory. Eights Under Treaties ; and Obstacles in the way of Pro- tecting such Eights] ' 422 Limitations on the Exercise of the so-called Eight of War 431 Modern Aspects of Neutral Claims . . . .432 Modes of Enforcing Duties of Neutrality . . .437 Duties of Belligerents; the Treatment of Non- Combatants 438 Geneva Conventions of 1864 and 1868, and St. Petersburg Convention of 1868 . . .449 Prospects of Permanent Peace, and Functions of International Law in Promoting it . . 451 XX ANALYSIS. TAGE CHAPTER XVII. GENERAL PROSPECTS OF THE SCIENCE OF JURIS- PRUDENCE 457 CHANGES MANIFESTING THEMSELVES IN EUROPEAN SOCIETY; FUNCTIONS OF THE JURIST IN RELATION TO THEM 457 Demand for Political Eeforms 458 National Church Establishments 461 Ownership of Land 462 Theories relating to the Legal and Political Conse- quences of Difference of Sex 464 CODIFICATION 471 Its History in Germany 473 Obstacles to its being effected in England . . .473 Written and Unwritten Law 475 Fusion of Law and Equity in England . . . .479 State of Written and Unwritten Law in England . 485 Suggestions as to Codification in England, and its Prospects 488 LEGAL EDUCATION 490 Functions of Universities 493 Lectures and Private Study 495 Topics of Study 499 GENERAL CONSIDERATIONS AS TO THE MUTUAL RELA- TIONS, IN THE FUTURE, OF LAW AND OTHER SOCIAL FORCES OR FACTS ., ... 509 There is scarcely a Topic in this Work which has not been the subject of repeated Lecturing, Teaching, and Conversational or Critical Dispu- tations with Students. Thus the keen-minded members of the Author's successive Classes must have their share in the responsibility or the merit of attempted Innovations. It is to serious Stu- dents, Professional and Unprofessional, — Men and Women, — that this Book is addressed ; though no Book, — if it serve its purpose as a Book, — can dispense with Oral Teaching, — if Oral Teaching also truly serve its purpose as such. No English Writer, however, on Scientific Juris- prudence (be his temperament ever so cautious, self-restrained, and practical) can keep out of view the glaring demand for a Systematic Recon- struction of the Material Contents of English Law. The Possibility and the Modes of such a Recon- struction are discussed at some length in the last Chapter of this Work. In view of such a Task being one day, — or progressively from day to day, — undertaken, it has been essayed here to lay the indispensable Foundations by moulding a Precise XXU PREFACE. Terminology, by insisting on Logical Methods of Classification, and, above all, by drawing an un- mistakeably clear Line of Demarcation between Ethical and Legal Conceptions. In the Chapter on Laws of Procedure the passages with reference to Circumstantial Evidence are very slightly varied from some forming part of an Article by the Author on the same Subject which appeared in the Number of the Westminster Review for January, 1865. In revising the Proof-Sheets, the Author omitted to notice that, on Page 300, " Principals and Accessories " appears as " Principles and Accessories." On the same Page, " VI. and VII.'' would be more properly printed as " C. and D.," as in the "Analysis of Topics." On Page 175, " Slander of Title " is accidentally made to appear as though it involved a Criminal Process. THE SCIENCE OF JURISPRUDENCE. CHAPTEE I. GENERAL DESCRIPTION OP THE PROVINCE OF THE SCIENCE OF JURISPRUDENCE. The Science of Jurisprudence may be said, broadly, to deal with the necessary and formal facts expressed in the very structure of civil society, as that structure is modified and controlled by the facts of civil government and of the constitution of human nature and the physical universe. This attempted description needs some expan- sion. To allege that Jurisprudence is a Science is to say that it is concerned with certain sequences of facts which, within the limits of recorded experience, are invariably the same for all times and places. As, however, the sequences of facts in question are those due to the exist- ence of Law — that is, of a body of commands formally published by a Sovereign Political Authority — the times and places in which those facts are found must be such as admit of the presence of Law. In other words, the Science B 2 THE SCIENCE OF JURISPRUDENCE. of Jurisprudence deals with certain sequences of facts invariably present at all times and in all countries not absolutely barbarous or without any kind of Government. Now the existence of any kind of Government, even of the most inartificial and primitive, involves the presence of Law just as much as Law involves that of Government. Law and Government are born together, grow together, and die together. Furthermore, the presence of Law implies the opposition to each other of two different sets of persons in the community. There are, first, those who devise and impose the law ; there are, secondly, those to whom the law is addressed and whom the first set of persons punish in the event of the law being disobeyed. Now the relations of these two sets of persons to each other admit of infinite diversity, and, in fact, may travel through the whole scale of State Constitutions which have existed or may exist on the face of the earth. But when once this relation of lawgivers and law-receivers is created, and whatever be its nature, there are some se- quences which are permanent and invariable. For example, every law contemplates the possibility of an act of disobedience to it, and every act of alleged disobedience to a law entails certain inevitable conse- quences. These consequences, implied as they are in the very meaning of the terms Law and Government, as interpreted with reference to the actual condition of the human beings for whose use they are provided, may be arranged as follows : — (1.) Allegation by the Lawgiver, or his deputies the Executive, that the act complained of is an act specially forbidden by the law, or that it falls under the class of acts generally forbidden by the law. This involves GENERAL DESCRIPTION OF ITS PROVINCE. 3 Interpretation of the law, with all the attendant distinc- tions as to the so-called Sources of Law, whether written or unwritten, and the production of the requisite Evidence as to the nature of the act. (2.) Allegation of moral responsibility in the offender, that is, the assertion of his having known or having had imputed knowledge of the existence of the law said to have been disobeyed, of his having contemplated both the performance of the whole act and its immediate con- sequences when he moved his muscles in such a way as to bring it about, and of his having had the physical power so to move his muscles or to abstain from moving them ; all this is gathered up in the allegation of Intentional breach of the law. (3.) Adjudication, more or less formal. (4.) Punishment in default of pardon at the hands of the Lawgiver, or the making of a fresh law productive of a like result. Now it is to be noticed that in any imperfectly organ- ised State several of these steps will be hurried through without their being judicially lingered over, and there may happen to be no Executive officer properly appointed to secure due attention to all of them. Nevertheless the very nature of a general command, addressed by one set of persons to another set, and enforceable by punishment, in- volves, by way of sequences as natural and as necessary as the fall of a heavy body to the ground on being disengaged from its support, every one of these stages. It is the pro- vince of the Science of Jurisprudence to discover what these inevitable stages are, and to bring them out into the light of day under as clear and obvious a system of arrange- ment as possible. By thus fixing the attention of the B 2 THE SCIENCE OF JURISPRUDENCE. Legislator upon them, the Jurist assists him in beneficially legislating in view of them. If the Legislator is thereby reminded that an alleged act of disobedience cannot be really such unless it is logically included among the acts forbidden by the general terms of a command, he will be cautious how he uses general language and in what terms he attempts to prevent the performance of individual acts. If, again, the Legislator is reminded that a law is only capable of being addressed to persons who are able to obey or disobey it at their will, and that therefore an alleged act of disobedience cannot be really such if it be purely acci- dental and in no wise intentional, he will arm his executive officers with every ministerial aid towards obtaining the best possible evidence as to the true mental conditions and surroundings of all acts forming the subject-matter of judicial enquiries. This might suffice to establish that the Science of Juris- prudence is a real Science, and that the sequences with which it deals are independent of the special injunctions going to form the system of positive Law in any particular country. But, as this line of investigation has not been fully tracked before, it may be worth while to take another illustration of the universality of the Science of Jurispru- dence from the region of Laws of Ownership. It is an old and favourite diversion with moral philo- sophers to speculate as to the origin of the fact of Property, or, to use a less ambiguous and abused expression, of Ownership. Some have held that the idea and prevalent fact of Ownership are mere creatures of antecedent Law. Others have insisted upon their being coeval with Law, or have gone so far as to maintain that Ownership was one of the antecedent and ultimate facts which were the main GENERAL DESCRIPTION OF ITS PROVINCE. 5 occasion of the appearance of Law, and thereby of all further social development. The concurrent results of many recent investigations seem to indicate that the notion of individual Ownership, though always dormant, is in its clearer manifestations, of very slow growth. Furthermore, the notion of Ownership as between family and family long precedes the union of a number of families into such a society as admits of the existence of Law properly so called. There is no doubt that it is one of the main functions of early as of all later Law to precipitate social progress in the matter of Ownership by redressing the physical ine- qualities that exist between the social atoms : by protecting the weak against the strong ; and by ensuring to the family, and afterwards to the individual proprietor, the secure enjoyment of such objects of the natural world as are held necessary to the support of life, or are otherwise recog- nised by the general sentiments of the population as matters of just appropriation by one family or individual person to the exclusion of all others. This rudimentary conception of Ownership, so embraced and fortified by the legal systems of all communities however primitive, im- plies the presence of certain permanent facts which, being independent of all the modifications introduced by particular legislation, are true materials for the Science of Jurisprudence. Thus the fact of a Law of Ownership peremptorily involves the distinct contemplation of the following series of facts : — (1.) Persons who own. (2.) Things owned. (3.) Events upon the happening of which the fact of Ownership commences or determines. (Title.) THE SCIENCE OF JURISPRUDENCE. (4.) Qualification of fact of ownership as to time of commencement and mode of exercise. (5.) Exercise of Ownership, with or without actually recognised claim in the person so exercising it. (Possession.) Each of these leading kinds of distinguishable matter in the whole body of the Law of Ownership involves still finer distinctions, which are quite as necessary and uni- versal as the broader and larger ones. Thus — to take not more than one instance : — The things to be owned may be either Movable or immovable. Perishable or imperishable. Destructible or indestructible through use. Divisible or indivisible. Enjoyable at the same time only by one person, or by more than one person, or by all persons equally or otherwise. It is the noting and classifying of such distinctions as these, treated as essential sequences of fact following upon the more general fact of the mere existence of a Law of Ownership, and wholly independent of the particular regu- lations of which the whole body of that law may be accidentally compounded, that constitutes the Science of Jurisprudence. It is not necessary to insist further than has been done already upon the importance of the cultivation of this science to the practical Legislator. It is obvious that the Judge and the Advocate have a like concern in its suc- cessful prosecution. If the Statesman need the accurate mapping out of the whole field of necessary matter upon which the discriminating voice of the Legislature is called GENERAL DESCRIPTION OP ITS PROVINCE. 7 to pronounce, in order to his perceiving what are the gaps and defects in the existing system of Law, the Judge and the Advocate quite as much need to have those gaps and defects clearly illuminated in order to their being saved time, trouble, and misapprehension in vainly looking up and down for what, perhaps, nowhere exists. The Jurist has nothing to do with the relative political expediency of one or another method of filling in those gaps. He has only to show where they are, and what will be the necessary operation upon the whole existing legal system of filling them up in any assigned way. He will point out, for instance, that the death of an owner involves the inex- orable consequence, either that the thing owned ceased to have an owner, or that it be owned by some fresh person, to be designated in accordance with some par- ticular legal enactment. Such a legal enactment, the Jurist will go on to say, may either have the effect of giving the thing to the Lawgiver in the name of the State, or of allowing it to be owned by the first person who gets hold of it ; or of giving it to one or another or all of the children or other relations of the previous owner ; or of allowing the previous owner in his lifetime, or some one else, to point out by writing or otherwise who is to succeed to the vacant ownership. The Jurist will signify to the Statesman that such questions must needs arise, and will point out whether the existing legal system does or does not contain enactments to answer them, and so to prevent, by anticipation, public confusion and uncer- tainty. If, after due consideration of the different possible modes of supplying the want, the Statesman determines that a testamentary method is the best one to inaugu- rate, the Jurist again steps in and explains that a Will in- 8 THE SCIENCE OP JURISPRUDENCE. volves, as necessary sequences of fact, the following incidents : — (1.) A person to make it. (2.) Persons to carry it into effect. (3.) Formalities to ensure its regularity, and to provide easily accessible evidence of its contents. (4.) A time at which it begins to operate upon the matters purporting to be dealt with by it. (5.) Formalities to determine the fact of its alteration, or revocation, if there be such. Here again exactly the same process of pointing out gaps and describing the necessary consequences following upon any assigned mode of filling them is performed by the scientific Jurist. He stands by in tranquil possession of a calm and dispassionate spirit, as free from haste as from prejudice, from a disposition to favour any political project, however beneficial, as from one to cleave to any existing institution merely because it is time-honoured and precious. CHAPTER II. GENERAL VIEW OF THE HISTORICAL DEVELOPMENT OF THE MATERIALS OF THE SCIENCE OF JURISPRUDENCE. The Science of Jurisprudence has for its purport the noting and classifying of all the sequences of fact brought about by the contact of the fact of Law with all the other facts of human life, carried on as that life is in the midst of the actual and indestructible conditions of the physical world. It has thus been seen that, however rudely and imper- fectly constructed a legal system in any community may chance to be, none the less does the operation of that system supply copious materials for the cognisance of the Jurist. The simplest form of Government, and the roughest principles of Ownership, afford a number of invariable sequences calling for exact description and arrangement. But, as moral sentiments improve, and intercourse between man and man for industrial and social purposes becomes more frequent and complex, new kinds of law are constantly demanded, and, how- ever tardily it may be in proportion to the urgency of the demand, are gradually supplied. Thereby new sequences, due to the contact of these new laws with the permanent or the more transient facts of human life, are again brought to light, and the Science of Jurispru^ dence is constantly receiving a proportionate extension and enrichment. A Law of Entail, for instance, at once 10 THE SCIENCE OF JURISPRUDENCE. brings into view the persons made capable by Law of creating the entail, of the persons made capable of benefit- ing by it, and of the land or other things with respect to which the capacity given by Law may be exercised. Further limitations appear on the horizon as to the length of time during which the entail may continue, as to the modes by which the period of its natural efflux may be restricted or extended, and of the casual events upon the happening of which its enduring validity may be made to depend. A Law of Bankruptcy is a further instance of the mode in which the facts with which the Science of Jurispru- dence deals become multiplied as civilisation progresses. A law of this nature implies — (1.) a distinction of " acts of bankruptcy " from all other acts ; (2.) a designation of what shall be the formal modes of making a claim to participate in the assets, and what the principles of distributing the assets among the rival claimants; and (3.) what shall be the rights and duties of the bankrupt after his discharge. So, again, a Law of Divorce, when such a law comes to be enacted, involves a precise description of the acts or events which shall entitle the husband or wife to claim a divorce, and also an enunciation of the legal rights and duties of the divorced persons in respect of property owned or to be owned at anytime by either of them, and in respect of the nurture and education of and provision for the children of the marriage. These cursory illustrations have been selected almost at random to make more unmistak- ably clear the truth that Jurisprudence is a growing Science, in the sense that the facts with which it deals are constantly accumulating as a more complicated social condition is being brought about. HISTORICAL DEVELOPMENT OF' ITS MATERIALS. 11 It is not necessary here to investigate the problem as to whether legislation must always continue to be exhibited in this aggressive aspect, as striking out new lines of policy, and impressing with its imperious sanctions each novel mode of social intercourse and co-operation. It is possible that a " stationary " phase may ensue in Law aswell as in industry and in social life, without involving retro- gression or torpor. The purpose of the Lawgiver will then be confined to repealing useless or vicious laws, to facilitating the working of good ones, and to satisfying more just and refined moral sensibilities, instead of cover- ing any new fields of human activity with his sometimes oppressively caressing wing. However this may be, sufficient has been said to explain how it is that the mode in which special systems of Law have grown up in different countries has a most important bearing on the actual contents of the Science of Jurispru- dence at any given period. The value of such speculations as those of Professor Maine and of the great German histo- rical school is by no means to be measured by the mere amount of what they have contributed in the way of interesting antiquarian research. Those speculations owe their chief importance to the vivid apprehension they impart of new juridical conceptions, as they are progres- sively brought to light by the agency of actual legislation working in obedience to the higher moral aspirations of growing societies. For example, the process by which the Family became expanded into the Tribal community, at once the expression and the cause of a more intimate social intercourse, gave rise to the Law of Adoption. The existence of a Law of Adoption at once discovered groups of persons, events, times, and conditions needing demar- 12 THE SCIENCE OF JURISPRUDENCE. cation in applying and interpreting the Law. The Science of Jurisprudence had thereby received a most fruitful extension. So, likewise, as social habits and moral senti- ments admitted of the Legislator fixing attention rather on the individual than on the family interest in Property, and on the mental rather than the mechanical and formal elements in Contract, the Science of Jurisprudence itself obtained new and most weighty materials. The person, with his incommunicable and inseparable moral respon- sibility, became henceforth the integer from which all further conceptions of legal relationship were to start, and the correct analysis of such mental attributes, states, or habits, as intention, negligence, motive, fraud, mistake, malice, and the like, becomes one main department of juridical enquiry. Broadly stated, the Science of Jurisprudence may be described as depending for its materials upon the growth of Positive Law, and the growth of Positive Law as deter- mined by national progress expressed in such facts as improved moral notions and a more highly organised industrial life. ' Thus the Science of Jurisprudence is ulti- mately dependent for its comprehensiveness upon all the variable facts of human life and of the natural world. Some of these facts are universally present in every quarter of the globe, wherever man is found. Such facts are — birth, death, differences of sex, of age, and of mental and bodily health and strength, of language, of physical growth, of time, of place, and of that incalculable concurrence of events which is implied in the word " accident." Another, class of facts is confined to such a condition of society as is found after the first step at least has been taken in the career of civilisation. Such are — Government, Positive HISTORICAL DEVELOPMENT OF ITS MATERIALS. 13 Law, Marriage, Ownership, and rudimentary Contracts. Another class of facts, again, is peculiar to societies making distinct moral and industrial progress, and struggling to adapt their positive laws to. the necessities brought to light by the facts of that progress. Professor Maine has described with inimitable clearness the actual process by which a progressive nation strives to burst free from the swaddling clothes in which the Law appropriate to a primitive society has wrapped it. By the legal " fiction " the form of the old law continues to be maintained in procedure as a sort of tribute to the sentimental and unprogressive instincts of the bulk of the nation, while the wants of a nascent age are provided for through an artificial interpretation of that law. By " equity" a new series of legal principles, broader, of more modern hue, and of greater elasticity than the old ones, are developed side by side with their more rigid rivals, and are administered in different Courts of Justice by a new set of judicial officers and solely in reference to questions which fresh social facts have brought to the surface. This novel law-making authority encroaches more and more courageously on its antiquated predecessor, till finally it gets the upper hand, and is only arrested in its tendency to absorb the whole field of legislation by the apparition of a still more effective instrument — that of direct and conscious " Legislation." From the time that a nation has acquired consistency enough to admit of a complete division of labour, the existence of a Profession wholly consecrated to the study and practice of the Law becomes one of the most momen- tous engines in the adaptation of Positive Law to national exigencies. No doubt the existence of such a Profession has, in some respects, a directly conservative bearing. 14 THE SCIENCE OP JURISPRUDENCE. The 'habits of mind generated by a life-long devotion to the art of interpreting words used by others, and of straining the significance of particular instances so as to bring them into apparent harmony with recognised prin- ciples is, of itself, scarcely favourable to the development of a liberal disposition and intelligent political aspirations. A small and compact body of men, moreover, with minds better trained than those of the average members of the community, and directly interested in the maintenance of all the details of the system in learning which the best years of their life have been spent, are peculiarly exposed to the solicitations of indolence and political selfishness. The history of the English Bar up to the days of Eomilly, Mackintosh, and Brougham, has been an unhappy illus- tration of the truth of these assertions. Anomalous, however, as it may seem, the appearance of a Legal Profession is a necessary condition precedent to any large-minded reconstruction of the existing legal system. For the promotion of mutual understanding between the Bench and the Bar and among the members of the Bar, an accurate and unbending ternujaology is sure to be sought for, and to be more a*!fl more nearly approached. This itself converts the study of Law into a severe logical exercise, and predisposes the minds of the better class of students to scientific habits in the region of moral investigation. If the Law is in conflict with the moral requirements of the day, it will appear far more unmis- takably to be so when it stands forth relieved from all complicity with the common moral sentiments, as collo- quially expressed, and is arranged in the technical language generated among a narrow class of practitioners. It may take long to close the gap between moral senti- HISTORICAL DEVELOPMENT OF ITS MATERIALS. 15 ments and legal axioms ; it may be arduous to introduce piecemeal changes ; it may involve a conflict with the united strength of a spirited Profession to introduce com- prehensive changes ; but when once a spirit of change has breathed upon a compactly organised legal system, the more completely that system is separated, through the attention for ages bestowed upon it by an exclusive learned Profession, from the language and common forms of ordinary social intercourse, the more unsparing will be the modifications it must finally undergo. The saga- cious and almost revolutionary measures demanded by Bentham, and mostly carried out since his time, have been only rendered possible through the clear and isolated shape in which the whole legal system of England has stood apart from all other institutions in this country — moral, religious, and political. However, it must not be forgotten that a compact system of Law, cultivated by a close professional corporation, has at least the advantage of opposing a strong barrier to all inconsiderate changes, and of not taking the hue of each moral vagary as it comes uppermost in the country. So much will suffice to show that one main instrument in developing Law, and thereby in supplying materials to the Science of Jurisprudence, is the rise of a Legal Profes- sion. Briefly, the Science of Jurisprudence owes its growth to the mutual action and reaction of Positive Law and the facts of human life, as exhibited in the world constituted as it is. The more obvious intermediate instruments through which Positive Law is made to respond to the call of those facts of human life are, Judicial Interpretation operating by means (amongst others) of legal fictions, Courts of Equity, the rise of a Legal Profession, and direct Legislation. CHAPTEE HI. RELATION OF THE SCIENCE OF JURISPRUDENCE TO ALL OTHER SCIENCES. A Science may be correctly described as " an organised body of permanent and universal facts, arranged in such a way as to exhibit their invariable relations to each other and to the whole body." It is now becoming a familiar idea that all the facts of the outer world, as well as all the facts of individual and of social human life, admit of being mapped out into different Sciences, however true it may be that some classes of facts have to wait longer than others for the process to be performed upon them. Of all classes of facts those appertaining to the life of man as a social being are the most complex, inasmuch as they include and presuppose all the rest, and they are the most reluctant to be brought into that clear and determinate relation to each other which the conception of a true Science demands. Nevertheless, certain of these classes of facts have already been presented in a strictly scientific form ; such as those recognised by the Sciences of Political Economy, History, Social Ethics, and even General Politics. The slow progress of these branches of Science has been due, not more to the actual complexity and obscurity of the facts contemplated by them, than to the want of a discriminating and conscious logical power on the part of immature races, and to the slow and gradual way in ITS RELATION TO ALL OTHER SCIENCES. 17 which some important groups of social facts come to the surface. Thus in Political Economy, all the large depart- ment of the Science which treats of banks, of paper money, and even of rent and machinery, has no application what- ever in a primitive, though partially civilised, community, such as Eome under the Kings, Greece under the Archons, •and England in the time of the Heptarchy. The facts with which the full-grown Science deals have not yet made their appearance. While, however, this last-mentioned obstacle to the progress of a Science is constantly and, as it were, spon- taneously removing itself, the other obstacle, due to the obliquity and confusion of men's vision, is apt to be pro- longed to a very late stage in the national life. The truly scientific habit of mind is so alien to the unanalysing, semi-conscious instinct by force of which the large mass of mankind must always do their work, and language is so constantly being reinforced from the common observations and feelings of the vulgar rather than from the keen and accurate conclusions of the Sage, that the separation of any one class of facts from all the rest is a matter of the greatest difficulty to inaugurate, and of lasting struggle to maintain. Furthermore, this provisional separation or isolation of social facts is always a violent, and, therefore, in some way, a false process. Each faculty of man is so controlled by all the rest, as well as so modified in its action and quality by the physical medium in which it works, that any hypothetical results drawn from contemplating it by itself must be peculiarly misleading. Even in a very primitive society there will be found present at once the germs of all the leading classes of' social facts, hereafter to become the subject-matter of the several c 18 THE SCIENCE OF JURISPRUDENCE. branches of Ethical and Political Science. In this is dis- covered the identity of the logical and historical methods in use for the investigation of all the facts of social life. The bare facts cannot be described, nor the terms in which that description is communicated adequately ex- pounded, except by reference to the mode in which the facts have been historically evolved. On the other hand, the historical account of the generation of social facts can only be rendered interesting and intelligible by referring the process of such generation to the necessary action of the human mind working under special conditions, and in obedience to its own rules of action. Definition. — The Science of Jurisprudence deals with the facts brought to light through the operation upon the fact of Law {considered as such, and neither as good nor bad) of all other facts whatsoever, including among these other facts the facts resulting in the creation, and express- ing the historical and logical vicissitudes, of Law itself. It is quite impossible to contemplate Law as an isolated social phenomenon, standing alone among an indefinite number of other social phenomena. In no conceivable condition of mankind could it ever have stood alone. It is peculiarly the product of every social force existing at any moment in the community ; it reacts back upon the social forces as being in itself the most potent force of all. Before a law attains its end through the processes of administration and interpretation it is directly qualified by every strong wave, and by ah the multitudinous weaker waves, of thought and feeling by which, for the time, the community is swayed. The work of the Jurist is the evaluation and classification of these influences, so far as they react upon the pure fact of Law : ITS RELATION TO ALL OTHEK SCIENCES. 19 it is not for him to say what are the degree and mode of their operation at any particular epoch or in any particular country, nor how some kinds of Law are practically affected more than others. Such investigations are relegated to the historian, the statistician, the traveller, or the moral philosopher. The Jurist supplies each of these with the instruments for their investigations. He assists them in clearing the field from all irrelevant matter ; he warns them against confusing the influence of what is partial and transitory with what is universal and everlasting ; he teaches them how to lay hold, in Law itself, upon all that is essential to its very nature, and to suspend for a time all moral and political judgments with respect to its justice, its expediency, or its capacity of attaining its ends. Professor Maine has rendered the greatest service to the Jurist in calling attention to the spontaneous modes in which Law gradually disengages itself, in primitive society, from a vague sentiment about the sacredness of customs, and of respect for a competent Authority publicly deter- mining isolated questions of moral right or wrong. The growing fixity and distinctness which Law gradually assumes is only one of a large class of similar phenomena, which have the most complex modes of action and reaction upon one another. Thus the fact of individual Ownership — implying as it does a recognition, on the part of the whole community, of a person's claim to the peaceable retention of that of which he is in actual use, and next, of that of which he may at any moment wish to resume the use — must be treated as an organic element of social development, as well as a corollary from the other elements of Family Life and of the joint occupation of land which was undoubt- edly bound up with that Life. So, likewise, this very fact o 2 20 THE SCIENCE OF JURISPRUDENCE. of Family Life — implying as it does a steady recognition of the fixed relations of husband and wife, father and child, brother and sister, and of other bonds of consanguinity and affinity — is an independent mark of a growing sentiment of order and reciprocal duty, which, in conjunction with the fact of Ownership, leads on at once to the next and almost contemporaneous stage of Government and Law. Professor Maine has explained the formal creation of Government to have been due to the aggregation of families, coupled with the recognition of a Patriarchal Authority in one or some of them. This explanation is no doubt historically accurate ; but the following account may appear, from a philosophical point of view, an indis- pensable complement to it. An embryonic notion of man's true social nature has, by the supposition, been already developed through the facts of Ownership and Family Life. The maintenance of these great classes of facts implies the predominance of social control over individual caprice, and the subordination of the individual life to the ends of the social life, includ- ing in these ends the highest personal life of the individual himself as an integral member of the associated body. So soon as the bystanders learn to experience a shock of indignation or horror at an invasion of a customary claim of ownership or of the sanctity of the marriage-tie, and applaud the judgment of one who denounces the transgres- sion, Government and Law have already begun. That the strongest and wisest (who, when the division of labour has advanced only a very little way, are likely to be one) should act as the permanent enunciators of the growing social Conscience ; that they should be always ahead of the community in moral apprehension, but never very far ITS RELATION TO ALL OTHER SCIENCES. 21 ahead, and even, generally very far behind certain indi- vidual persons in the community ; that they should exhibit through their acts a constant personal struggle between their self-seeking tendencies and their prophetical and governmental functions ; that in their conflicts with each other they should be ever turning to an ill account the influence they possess with the people, and that they should be supplanted from time to time by other more worthy and more conscientious exponents of the social aspirations ; that, in default of such government being maintained, anarchy and barbarism instantly recur ; — ah this is strictly in accordance with anticipations based on the results of the best psychological and ethical inductions, as it also coincides in all respects with the actual facts. Law, then, is the formal and outward expression of the moral order demanded by the joint spontaneous sentiments of a people and of its rulers. In order, however, to appre- hend more precisely the relation of Law to all other classes of social phenomena, it is necessary to denote with greater particularity the stages travelled by a national community between the epoch at which the first moral crystallisation in the shapes of Ownership and Family Life is discovered and the epoch at which conscious Legislation and syste- matic Government begin. The union of families through natural, fictitious, and friendly ties, systems of village co- proprietorship, the continuous satisfaction of a progressive tendency towards an effective division of labour, the neces- sities of self-defence and of the exercise of a rude Criminal Jurisdiction, are sufficient to account for the rudimentary forms of Government and Legislation which invariably characterise the lengthy period, intervening between the epochs above noted. It is during this critical period that 22 THE SCIENCE OF JUKISPRUDEJSTOE. the mostimportant Sources of Law, as it is afterwards truly developed, first make their appearance. It is then that the community is forming, in accordance with the physical and ethical conditions which envelope it and with its own historical antecedents, its habits of life, modes of thought, and peculiarities of sentiment, all of which combine with an indefinite number of other elements to make up what is called the national genius or character. As material expressions of such genius, certain customary forms and symbolic acts are reverentially preserved, quite as much from a sense of their antiquity and from the indefinite number of subtle associations linked with them, as from a belief in their utility or in the danger of admitting change. Furthermore, the authority of leaders of tried character and known desert serves to impress the moral maxims they enunciated with a stamp which, for ages to come, dispenses with all other more rational superscription. Lastly, the great similarity that marks all acts of violence in a society so uniform and so continuous begets a corre- sponding similarity in the modes of adjudicating upon them and of punishing transgressors. All this time a number of concrete and complex insti- tutions are assiduously taking their rise, supplementing the primary ones of Ownership and Family Life, and winning to themselves, like the symbolic acts aforesaid, the loyalty and reverence of successive generations. Such were the institution of the Eoman "Familia" with all its offshoots, the " Feuds" of Middle- Age Europe, and the "Lex Mer- catoria," (or " custom of merchants,") which has so pro- foundly modified the Positive Commercial Law of modern States. From this enumeration of the social elements which, in a progressive yet primitive community, are ever noiselessly making their way, it will be seen that there is ITS RELATION TO ALL OTHER SCIENCES. 23 contained in them, first of all, the main materials out of which a system of Formal and Positive Law will hereafter be built up ; and secondly, a confession of the urgent need for such a Positive Legal System in order to prevent local order from degenerating into putrid corruption, to give uniformity and consistency to what is heterogeneous and scattered, and to substitute an effective national Sanction for the feeble and vacillating action of mere casual popular sentiment. Thus everything will be prepared for the appearance of the scientific and conscious Legislator. Such a character will not be generally^ represented by a single man, as by a Solon, a Lycurgus, a Numa, or an Alfred, who were rather codifiers and reformers than original legislators, but in many men at once. Some of these men will be those who happen to be charged with the execution of the rude customary system of Law actually in force, and who, from contact with the real wants and modes of life of the people, being made practically aware of the insufficiency of the traditional system, will be the first to writhe under it. These men will spontaneously endeavour to amend that system by restrictive or extensive interpretation of written documents, by " fictions," by " equity," by inventing rules of orderly Procedure, and by gradually constructing an organised mode of mediation between general legal principles and the specialities of particular cases. At the same time other persons in public situations of autho- rity and influence, as members of the governing body of the State, or of some out of several departments of that body, will also be daily confronted with the impotence of the mere accidental rules which have grown up through a series of irregular impulses, to determine the moral claims of citizens in all the multiplying intricacies of their family, 24 THE SCIENCE OF JURISPRUDENCE. industrial, and commercial relations. Conscious attention becomes fixed on the rules already in force; they are, partly, recognised and brought out to the light of day, and, possibly, couched for the first time in formal and unequivocal language ; they are partly corrected, amended, and supple- mented ; they are partly abolished and a substitute found for them in new rules artificially prepared and systemati- cally written down and published. At this epoch the stage of conscious legislation has been finally reached. It is then taken up by all the more advanced individuals in the community, who co-operate with the professional Legis- lator in laying bare abuses brought about through the operation of the judicial system, in inventing measures of reform, and, if the Legislator be indolent or incompetent, in employing such moral or physical pressure as may be at hand to force such measures upon him for immediate adoption. From this brief review of the invariable phenomena that attend the development of Government and Law, however much the outward circumstances may differ from nation to nation, it will be apparent that the notion of Law itself, as the formal expression of moral order, overriding all the accidental deviations due to indivi- dual passion or caprice, is permanent throughout. It is, indeed, scarcely apprehended at first, except in the most tentative and desultory fashion ; it continues for a long time only unconsciously grasped at, and, as it were, simulated in local institutions, ceremonies, symbolic forms, customs, and traditionary usages ; it gradually becomes clearer and clearer, till at last it expresses itself distinctly and consciously to the whole community in the shape of " a series of formal commands of the Supreme ITS RELATION TO ALL OTHER SCIENCES. 25 Political Authority, purporting to control the acts of all persons in the community." So far as all the social facts above alluded to as operating on the complete development of Law become matters of strictly scientific investigation, as at this day they all are, the kind of relation which exists between the Science of Jurisprudence and all other Sciences is readily ascer- tained. The Science of Jurisprudence deals with the operation of all facts whatsoever, (and, pre-eminently among them, with all the complex facts which express the growth of human society,) upon the fact implied in the notion of Law elucidating itself ever more and more distinctly as a nation grows. If for the present purpose all the Sciences be classified as Physical, Psychological, Ethical, and Political, the relation between these and the Science of Jurisprudence will be at once deducible from the following considerations. Every law strictly so called is in itself, and may easily be reduced to the form of, a command, purporting to control the acts of persons in the community. The acts which the command affects so to control may have re- ference in their immediate consequences to very different classes of Persons, as : — (1.) To the persons publishing the command, as in the case of laws of treason, taxation, conscription or forced military service, judicial Procedure ; (2.) to the agent him- self who is directly addressed by the command, as in the case of laws forbidding suicide, sumptuary laws, and some sorts of sanitary laws ; (3.) to a definite number of other persons, as in the large mass of all laws of Ownership, Contract, Personal Kelationship, and Crimes ; (4.) to an indefinite number of other persons, as in the case of laws 26 THE SCIENCE OP JURISPRUDENCE. generally forbidding Fraud and misrepresentation, public nuisances, blasphemous Libels, sedition, riot, and con- spiracies of all sorts. It must be especially noted, that here only the immediate consequence of the act which the law affects to control is taken as the ground of classi- fication, inasmuch as, in many or all of their secondary and ulterior consequences, the operation of each of these classes of acts upon the public well-being may be scarcely distinguishable. Again, a further classification obviously suggests itself. One large class of acts which Law affects to control is directly and immediately concerned with visible and material things, detached portions of the medium by which persons are surrounded and in which they move and have their being. Such are the acts controlled by laws of Ownership, by large portions of laws of Contract and of laws of Civil Injuries and Crimes, as well as by certain portions of laws affecting Special Classes of Persons, of which last the rights and duties of trustees and of husband and wife in respect of material things is an instance. The other large class of acts which Law affects to control has no immediate reference to things, as is exemplified in the acts regulated by laws of service or hiring, of marriage, of slander and libel, of treason, and of personal injuries and crimes. From this brief investigation it appears that all laws whatever admit of a twofold classification, based on the immediate consequences of the acts they affect to con- trol. One mode of classification is determined by the quality of the persons involved in these consequences: the other mode is determined by the answer to the question whether a material thing is or is not looked ITS RELATION TO -ALL OTHER SCIENCES. 27 upon as interposed between the act forbidden and its immediate consequences. All that has occupied so large and significant a space both in English and foreign Systems of Law with reference to the distinction between so-called real and personal rights, and the law of persons and things, has been due to an indistinct apprehension, groped after at the suggestion of a series of historical and practical necessities, of the validity of one or other of the two true modes of classification just indicated. The con- fusion has been all the greater from the lurking belief that somehow the several methods of classification can in the same legal system be carried out independently with- out interfering with one another. Thus, under the law of persons, in Eoman law, things were supposed not to enter into consideration ; while under the law of things the quality of the persons immediately affected by a trespass or by a breach, of Contract was liable not to be brought into sufficient relief.. The same confusion has communi- cated itself to all modern Systems of Law, though the .practical necessities of daily life have restricted the field of its vicious operation. From the above analysis it would appear that all the phenomena of Law, as they present themselves in a na- tional society, may be distributed under three main heads, including severally : — (1.) All the historical vicissitudes attending the formal communication of the will of the person or per- sons imposing the law. [Under this head will be treated such matters as the history of the Growth of Law, the nature of its Sources, actual and possible modes of Legislation, the need and the modes of Interpretation, so far as the facts implied in 28 THE SCIENCE OF JURISPRUDENCE. the mention of any of these topics react upon the quality and operation of Law itself.] ■ (2.) An enumeration of the essential contents of any single law viewed as a command proceeding from a competent Authority and purporting to control the acts of persons in the community. [Under this head a precise meaning is attached to such terms as " person," " acts," " commands," " control," and " political community." It is noted that variations in the meanings of these terms are brought about in two ways : first, by a change, due to national development, in the facts denoted by them, to a general recognition of which change a public appeal is made ; secondly, by an arbitrary extension or restriction effected in the technical use of the term for merely logical purposes. Both these kinds of variations have a like effect on the operation of Law at the moment at which, in the course of actually adminis- tering it, the question arises whether an alleged command is or is not a true law.] (3.) The logical arrangement or classification of all the particular and accidental materials of which all possible Systems of Law are composed. [It has already been seen in what ways, among others, such a classification can be attempted. The founders of each System of Law, and each scientific Jurist, have hitherto contemplated a different arrangement. It has been suggested above that the most convenient mode to adopt is the one which serves the double purpose of starting directly from the complete definition of Law, and of keeping constantly in view the social purpose which all law-making, whether spontaneous or systematic, is intended to subserve. The immediate end of every ITS RELATION TO ALL OTHER SCIENCES. 29 law is to control the acts of persons ; hence no simpler or more natural mode of distributing the materials of all possible legal systems can be arrived at than that of in- vestigating the distinctive character of all the acts falling under the possible control of the Legislator. These acts — it has been seen — have generally a more direct bearing on some person or persons affected by them than on others. Furthermore, they affect the person who is the immediate object of them either with or without the inter- - position of a thing or detached portion of the material world. Hence the quality of the persons directly affected affords one basis of classification and the fact of the interposition or non-interposition of a thing between the agent and the person directly affected by the act affords another.] The true functions of the Jurist in relation to all Sciences whatever are now coming gradually into view. It is the elaboration of these three divisions, dealing as they do with the whole range of legal phenomena, which is his appropriate work ; and such elaboration implies the pre- cise recognition of large classes of Physical, Psychological, Ethical, and Political facts. Thus it is to Physical or to Psychological Science that the Jurist must recur when he is called upon to enumerate the characteristics of a " person," an " act," a " command," " will," and of the incidents implied in. these names, as " birth," " death," " intention," " muscular action," " lan- guage," " time," and " space." Ethical science, again, has a still profounder and less easily separable relation to the Science of Jurisprudence. The history of the growth of Law, and an account of its Sources, involve a recognition of some of the most embar- 30 THE SCIENCE OP JURISPRUDENCE. rassing facts in the moral world. The obscure mental states which, in a highly organised society, become clearly determined into a sharp perception of right and wrong, justice and injustice, good and evil, and of all their several intermediate grades, have given rise to the bitterest and most irreconcilable conflicts which the tear-bedewed history of speculation presents. Either of the two main theories which have risen up again and again, enriching itself at each fresh Avatar with the latest achievements of its adversary, can account plausibly for all the most start- ling phenomena of the moral world ; but neither of them alone, for all the more delicate ones, with such certitude as to merit the untarnished loyalty of speculative mankind. It unfortunately happens that it is just with the epoch of man's history at which moral life throws out its earliest shoots, that the Jurist has pre-eminently to do. He is met face to face with customs, traditions, aspira- tions, sentiments, solemnities, of every degree of ration- ality and irrationality, as well as with occasional sparks of conscious direction and scientific prevision. And he desires to ascertain how all this mass of elements crystal- lised, in certain directions, into hard and formal Law. He is constantly tempted to cut the knot by resolving early Law either into nothing else than a body of more or less ingenious maxims, suggested by a keen sense of social expediency, or into the arbitrary dictates of an irresistible and irresponsible human authority, or into the mysterious promptings of some supernatural agency, providentially interposing in the affairs of men. Any of these theories is plausible, and will account for most of the facts, while none of them alone will account for all the facts. Thus the Jurist must, at the very outset of his work, have ITS KELATI0N TO ALL OTHEE SCIENCES. 31 recourse to the teachings of a highly elaborated Ethical Science. It is this alone which can inform him what is the province of mere hope and fear as effective moral agents, how far the phenomena of Conscience are original or derivative, how far the education supplied by social intercourse, and by a growing experience of the order of the universe, creates faculties not existing before, or merely developes those already existing into their true and natural proportions by supplying them with their appro- priate nourishment and functional activity. The attention of the Jurist, thus directed to the facts implied in this primitive reaction between an individual and a social order, is not due merely to a frivolous spirit of historical curiosity or antiquarian research. The reaction itself, though changing its form, and ever growing less obscure and equivocal, is permanent and continuous through the whole history of a progressive national so- ciety. It is impossible to understand the intrinsic nature of Law, and to ascertain its relation to all other social facts, without having a firm hold on the main facts which it is the special province of the ethical enquirer to eluci- date. The recurrent phenomena designated under such expressions as " equity," " fictions," " laws of nature," " law the perfection of reason," " natural justice," and the like, are unmistakable tokens of the incessant operation of ethical facts upon systems of Positive Law, and of the universal recognition of the truth of such operation. Nor is it merely in the creation and amendment of formal Law that purely ethical facts tell so widely. No law can be administered in practice, even in a single case, unless the language of the law is at least believed to be clear, and the act forbidden by the law believed or alleged 32 THE SCIENCE OP JURISPRUDENCE. to have been done by the person who is on the point of being visited with the physical penalty. But in the inter- pretation of language all kinds of vague moral sentiments intrude themselves, which no amount of logical precau- tions suffice entirely to repel. It is only by estimating strictly the mode in which these sentiments produce their influence, whether through the minds of judges, jurymen, advocates, the public, or the Legislature, that language can be sufficiently fenced round by grammatical and other limitations in such a way as to reduce to the smallest possible amount variations in its meaning as it passes from the enacting to the administering body of persons. In the interpretation of men's acts, again, however clearly a forbidden act may be denoted by the language of a law, a great amount of vacillation is still inevitable. This is due, partly to the ethical predisposition of the persons administering the law, partly to the ethical com- plications and individuality of every special case in which an infringement of the law is alleged to have taken place. The offence of killing a man in order to become the owner of what belongs to him may be taken as a spe- cimen of acts forbidden by every system of Positive Law, and condemned by the moral sentiments of even the most rudimentary societies. But the strength of the indigna- tion felt at different epochs of the national life, and by different persons living at the same epoch, admits of con- siderable variation. This becomes plain if the facts be supposed to be of a slightly more complicated character, as, where the person killed is one who has already on a former occasion severely injured the person who kills him, or where the thing on account of which the offence is committed has been previously abstracted from the ITS RELATION TO ALL OTHER SCIENCES. 33 person who now seeks to repossess himself of it, or where the person killed is notoriously a worthless person of whom a society is well quit. In all these cases individual persons, in accordance with their whole moral proclivities, attempt to strain the interpretation of the actual facts one way or the other, so as to make them accord with or be discrepant from those contemplated by the law in question. But, apart from all accidental moral specialities in judges and jurymen and other persons concerned in ad- ministering the Law, the actual character of men's acts is oftentimes so composite and ambiguous in itself, or so open to misconstruction through the backwardness of the analytical branch of Ethical Science, or so difficult to be explained, that the same outward circumstances of one and the same complex act may involve an indefinite number of grades of legal liability. In other words, the act alleged to have been committed may be either an act forbidden by a law, or an indefinite number of other and like acts not so forbidden . This is manifest, for instance, in such transparent cases as those in which the state of the agent's mind in re- spect of Will and Intention calls for special discriminating power. Such are cases involving a consideration of the hypothetical presence of such circumstances as ignorance, negligence, accident, mistake, fraud, malice, infancy, and lunacy. In the investigation, on any particular occasion, of all the circumstances surrounding an act alleged to be one forbidden by Law, the facts of Ethical as well as of Physical and Psychological Science will all come on for recognition at once. The English law of murder, as laid down by all the judges in McNaughten's case, goes so far as to hold a man guilty of the crime of murder if it be D 34 THE SCIENCE OF JURISPRUDENCE. proved that he knew at the time of the act that he was doing something morally wrong, even though, owing to inordinate ignorance or mental derangement, he believed the act of murder not to be forbidden by Law. So, like- wise, the English Law shows peculiar favour to a Will made during a lucid interval by a person at other times seriously deranged in mind, if a recognition of the moral claims of relations or benefactors appear on the face of it. These are extreme instances of the general way in which the Administrators of Law, in order to discover whether or not an act is forbidden by Law, are compelled to enter upon grave ethical as well as physical and psycho- logical enquiries. It is thus that a very backward con- dition of Ethical Science, especially on its analytical side, or a great ignorance of the results really attained, or a habit of confusing ethical with all other phenomena, such as is universal in all very early societies, where the mental elements and accompaniments of a complete act are depressed into comparative insignificance, reacts most prejudicially on the effectual operation of Law in the attainment of its ends. There remains Political Science, in the largest sense of the expression, and as comprehending the Sciences of Social Ethics, Political Economy, Legislation, and Govern- ment in the narrower sense of the term. It is a merely arbitrary and unreal mode of division to separate the Sciences of Ethics and Social Ethics. No ethical phenomena whatever can be exhibited out of a social condition, and it is solely through the development and organisation of this condition that any degree of ethical perfection in individual persons is attainable. On the other hand, the purpose of social life must ultimately ITS RELATION TO ALL OTHER SCIENCES. 35 be nothing else than the highest degree of culture and moral dignity of the individual elements out of which a social community is constituted. Nevertheless there maybe a certain convenience in treating the two aspects of Ethics each independently of the other, according as attention is primarily fixed on the moral history, discipline, and attainments of the individual citizen, or upon those of the mass of individual citizens organised into a National Community. The latter branch of enquiry is the appro- priate topic of the Science of Social Ethics, which is the leading department of the general Science of Politics. It is impossible to exaggerate the claims that Social Ethics have on the attention of the Jurist. The rudimentary appearance of Law at the first in a primitive society, the true nature of Law as an engine and symptom of national progress, the history of Law in all its stages up to that of its complete and self-conscious separation from all alien matter, the true and sole subject-matter with which Law can effectually deal, the vicissitudes due to varying fashions of administering and interpreting laws, — these all demand for their investigation a theory of Society at once to precede, accompany, and direct the whole course of the enquiry. No one pretends to say, nowadays, that Law, in the shape of a body of commands, emanating from one class of persons however powerful, and addressed to other classes however weak, is the sole cause and creator of human Society. Scarcely anyone, again, is sanguine enough to believe that a time can ever come when the reserved physical force and expressed moral cogency of Law can be entirely dispensed with. Between the epoch at which there is little Law because men are so anarchical d2 36 THE SCIENCE OF JURISPRUDENCE. and the epoch when there is also little because men have become habituated to govern themselves, there is inces- santly going on an interaction between the moral exigen- cies and aspirations of men on the one hand and the positive laws which affect to control their acts on the other. The latter are naturally and necessarily the out- come of the former, or rather of some past, if not present, condition of the former, though these operate back again as most powerful reagents. It is a critical problem for every Community to determine how the battle at every moment shall be fought out, inasmuch as there are periods when Law is the main civilising influence, and others when it is solely a retarding and depressing one. A Politician is never more wisely occupied than when he is learning to master the conditions of the political problem as pre- sented in his own time, and to perceive whether, or at what points, the stringent force of Law needs to be tightened or relaxed. For the actual and reciprocal in- fluences on each other of legal and moral forces gene- rally, the Politician will be compelled to resort for aid to the Jurist, who, in turn, must have recourse to the teachings of the Science of Social Ethics. The Science of Political Economy is only so far of interest to the Jurist as it compendiously embraces a review of all the industrial and mechanical agencies for facilitating which, in any given society, laws may be said chiefly to exist. Laws of Ownership, of Contract, of Civil Injuries, and of Crimes, can hardly be so much as under- stood, unless the social facts on which they are built are first of all recognised and catalogued. If the Science of Social Ethics touches more nearly the facts upon which " Laws directly relating to the Constitution of the State," ITS RELATION TO ALL OTHER SCIENCES. 37 and those " affecting Special Classes of Persons," repose, so does the Science of Political Economy deal with the facts more particularly concerned in the other leading branches of every system of Positive Law. Inasmuch, then, as the classification of the subject-matter of all possible laws has been seen to be one main function of the Jurist, the true ground of classification must be sought here, as elsewhere, in the actual nature of the matter classified, and hence, more particularly in the special Science the sole purpose of which is to investigate it. The Science of Legislation, or, according to the meaning which will be here consistently adhered to, of the tech- nical and formal publication of Law with a view to its most effectively attaining its ends, has so close a relation to Jurisprudence proper that the two Sciences have been constantly confounded together. Bentham, who was at once practical Politician, Scientific Legislator, and Jurist, and kept perpetually shifting from one of these capacities to another, is accountable for the confusion which has beset all his followers. Even Mr. Austin is not always consistent with himself in distinguishing between the Science of Legislation in the above sense and that of general Politics. While, however, the Jurist maintains unimpaired the integrity of his own Science as dealing with nothing but what is permanent and universal in the facts making up the whole phenomenon of Law, he will recognise that, among such facts, those due to different modes of formally publishing Law are some of the most influential. He will be induced, then, to investigate, in unison with the scien- tific Legislator, what are the main possible modes of pub- lishing Law in such a way as to render it most secure of attaining its own appropriate ends. Judicial Legislation '38 THE SCIENCE OP JURISPRUDENCE. of all sorts, operating through the exposition of Unwritten rules, through the extensive or restrictive interpretation of Written rules, through Equity, legal Fictions, the adoption of Customs, the construction of rules of Practice, the natu- ralisation of Foreign Law, or the respect entertained for the opinion of the learned ; statutory Legislation ; systematic and comprehensive rebuilding of the whole legal system by what is called Codification, — all these modes of Legislation the Jurist will keenly scrutinise, in order to apprehend and estimate their several degrees of possible influence upon the attainment by Law of its appropriate ends. The Jurist will then be in a position to offer advice to the scientific Legislator how, in any given age or condition of Society, to clothe the policy resolved upon by the Statesman with that adequate legal dress which is most likely to secure for it practical sway throughout the length and breadth of the Community. Lastly, the Science of Government in the narrower sense of the method of consciously determining men, through the use of certain kinds of influence, to seek, everyone, his own proper good and the proper good of all, cannot be foreign to the mind of the Jurist. In estimating the true nature and purpose of " Laws of Procedure " and of that large class of laws which falls under the head of " Laws directly relating to the Constitution of the State," atten- tion must constantly be paid to the kinds of judicial and ministerial mechanism which the Science of Government treats of. The relative political value of what have been called the "litigious" and the "inquisitorial" modes of Procedure is not a question for the Jurist as such. But, in order to apprehend the true character of all the possible systems of Procedure which may chance to be the basis ITS RELATION TO ALL OTHER SCIENCES. 39 of laws of Procedure in different countries, an acute perception of the nature of those opposed modes, and of the other intermediate modes compounded of them in different measures, is indispensable. The same is the case with the possible functions of such officers of the Execu- tive as Magistrates, Secretaries of State, Military officers, Eevenue and Police officers, and other Government agents. A clear knowledge of the situation, responsibilities, and general political relations of all such persons is essential to the Jurist who would classify the laws directly implying a recognition of the existence of such persons, and who would note the amount of possible influence upon the operation of all Law whatever which is due to that existence. 40 CHAPTEE IV. MATERIALS OK CONTENTS OF THE SCIENCE OF JURISPKIJDENCE. The Science of Jurisprudence has for its purpose the investigation of all the possible modes in which the ope- ration of Law is qualified by the existence of all the other facts which belong to the material or the moral Universe. This general description of the territory occupied by the present Science was assumed in the last chapter with the view of enforcing the plenary recognition of all those facts before attempting to ascertain in detail their bearing upon the fact of Law. It was also desirable to warn the juridical student that the fact of Law is so intimately interwoven in the way of cause and effect with the most apparently alien regions of human life and interest, that nothing can save him from endless embarrassments and practical errors but a clear mapping out, at the very threshold of the enquiry, of the provinces of the several Sciences which border on the Science of Jurisprudence. It is not, indeed, all the facts comprehended in Physical, Psychological, Ethical, and Political science that bear upon the fact of Law, or, at least, that can be obviously and immediately shown to do so. But the facts of those Sciences which do so bear upon the fact of Law cannot be understood, or separated from that upon which they operate, without a mastery of the facts as forming parts of organic wholes. The purpose of the present chapter is to look at the ITS MATERIALS OR CONTENTS. 41 Science of Jurisprudence on the inside, as it were, rather than on the outside ; to see of what facts it takes cognisance, rather than to expel and keep at a distance those which do not concern it. Of course in doing the first part of the work, — that of pointing out how far all other Sciences are distinguishable from that of Juris- prudence, — the second part, treating of the facts which alone are relevant to that Science, has been implicitly involved. However, by way of introduction to the detailed analysis which will form the bulk of this treatise, what has been hitherto suggested only implicitly must now be described with all possible explicitness. There are two broad and universal aspects in which the fact of Law presents itself. There is, first, its historical gene- ration as a political or ethical phenomenon, so far as Law has grown up in the midst of a people as the formal expres- sion of the immutable order which invariably characterises a National Society in every one of its stages. There are, again, its formal modifications, whether as exhibited in the degrees of facility with which it attains its practical pur- pose, or in the several and different kinds of subject-matter with which it, from time to time, affects to deal. The actual System of Law, then, in any National Society whatever, must needs surrender itself to an analysis attempt- ing to distinguish these different features. In each such Society the fact of Law has originated in and through a distinct process of generation admitting of being brought to the light of day by historical, logical, psychological, or purely physical methods of investigation. In each such Society, again, and at any given epoch, the system of Positive Law then and there existing admits of more or less exact and elaborate distribution into compartments in 42 THE SCIENCE OF JURISPRUDENCE. view of the various purposes the System has to serve, that is, according to the various kinds of acts it affects to con- trol. The System, moreover, effects those purposes with different degrees of precision according to the special modes in which it happens to be published to the people, and to the logical instrumentality ready to the hands of those whose function it is to interpret and administer the System. Applying, then, this analytical process to any particular System of Law at any particular epoch, the results will fall under the following heads : — ( 1 . ) General account of the historical and logical genesis of the fact of Law as appearing in the midst of the National Society in question. (2.) A classified exhibition of all the actual laws com- posing the System ; such classification being instituted either on the basis of the varying nature of the acts the laws affect to control, or upon some other basis. (3.) An enumeration of the several material modes through which the whole System of Law is pub- lished to the people, and of tile logical provisions actually in use for the purpose of securing an accurate Interpretation of the Law. Now it is by lifting this process out of its narrow and partial application to a particular System of Law at a par- ticular epoch into its universal application to all Systems of Law whatsoever at all epochs that the work of the Jurist consists. It is by a process of rigid induction, founded on the particular examination of a variety of Legal Systems, as well as on the premises supplied by a number of related Sciences, that the Jurist finally obtains his great skeleton- ITS MATERIALS OR CONTENTS. 43 grammar of Law into which the flesh, blood, arteries, veins, and nerves of every fresh System of Law must necessarily adapt themselves. He will so have ready to his hand an universal standard by which to test the formal and mate- rial completeness, the efficiency and the "elegancy" of every System of Law which happens to come under his notice ; and, furthermore, to pave the way for that closer approxi- mation, in form at least, between the Legal Systems of different nations on which a more frequent social and commercial intercourse, as well as a greater intimacy in public relations between those nations, hangs suspended. The critical stage, then, in the construction of a Science of Jurisprudence is that of generalisation from the particular results obtained as above. Out of all the results which are presented by an indefinite number of particular systems and of particular epochs, those results have to be selected which are equally true for all systems and for all epochs. Thus the results selected will be more multifarious than those given by the examination of any one system by itself, but far less so and far simpler than the aggregate amount of the results obtainable by the examination of a number of systems in succession. The process of generalisation is especially simplified by a method similar to that in use in philo- logical studies ; that of evaluating separately the essentially fixed elements and the principles of variation in the num- ber and nature of those elements. In this way the whole process by which the materials of the Science of Jurispru- dence are finally brought into view may be regarded as of a two-fold nature, that is, at once statical and dynamical. The statical view determines what are the permanent and universal elements distributed as above, which characterise the fact of Law, wherever existing and at whatever time. 44 THE SCIENCE OF JURISPRUDENCE. The dynamical view determines the nature, direction, and rate of change introduced into those elements, both through the mere passage of Time and through an en- largement of the purely National Conception in respect of Space. Thus, on the completion both of the statical and the dynamical process, a true and finished system of Juris- prudence might be distributed into the following depart- ments : — I. A description of the original fact of Law in itself, an account of the historical and logical genesis of that fact, and an explanation of all the leading terms essentially involved in the meaning of the term " Law." IT. An investigation of all the possible Sources of Law (or immediate modes by which actual laws are or may be created), and of the process of Interpretation as severally modifying the operation and nature of Law. III. A classificatory arrangement of the contents of all possible systems of Positive Law, whether on the basis of — (1.) the social purposes Law is destined to serve; or (2.) the particular benefits to private persons it affects to com- municate ; or (3.) the acts of private persons it affects to control ; or upon some other basis. These several bases, namely, that according to the political object of laws, that according to Eights, and that according to Duties, may be combined in the same system of arrangement, one leading the way, and the remaining two subordinating themselves to the dominant one. IV. An investigation of theories of variation in the quality, number, and mutual relations of all the above ele- ments, whether such variation operates in time or in space. It need scarcely be noticed, that where such words as ITS MATERIALS OK CONTENTS. 45 " possible " or " possibility " are used, or permanence and universality are claimed for any juridical phenomenon, nothing of a more absolute nature is asserted in favour of the Science of Jurisprudence than belongs to all other Sciences. The materials of this Science are wholly relative to the nature of man and to the constitution of the universe of which he is a part, and only to the extent to which the facts of that nature and of that constitution have been hitherto apprehended can permanence and univer- sality be predicated of them. If these facts, in the march of ages, undergo any actual change, or if further experi- ence and observation discover them to be less permanent and universal, the conclusions deduced from them will have to undergo a proportionate correction and adaptation. In the meantime it is sufficient to notice that during the whole period over which the history of Law, as derived even from its most antique monuments, extends, the facts of the Sciences, Physical, Psychological, Ethical, and Political, on which the facts of Law hinge, have either remained identically the same, or have changed according to fixed and generally ascertained dynamical principles. The same is true as observation has extended over space, and takes in societies of every degree of development. It is true, nevertheless, that looking at the whole history of Law, there do appear to have been occasional breaks in the continuity of that history, which have been due to widely operating social causes of a nature more or less ap- parently spasmodic, and, owing to the brevity of the annals of human progress, tabulated in the form of rules. Instances of such startling social causes are the general abolition of Slavery and the growth of what is called ." International Law." The effect of the first of these facts has been to 46 THE SCIENCE OF JURISPRUDENCE. clear the conception of a legal Person as opposed to a Thing, from all the ambiguities which attached to that con- ception so long as human beings were, either for all legal purposes, or for many and for the most momentous purposes, treated exactly as portions of the material world. The modern notion of a Person, for all legal purposes whatso- ever, precisely coincides, both inclusively and exclusively, with that of a human being regarded as a subject-member of a Political Community. Again : the incessant intercourse between modern States and the growth of humane ideas in respect of warfare and of international competition, has slowly introduced, for the purpose of controlling the acts of national Govern- ments, an entirely novel Code of practical regulations closely analogous to a System of Positive Law. Some eminent writers, indeed, have rather insisted on the analogy of this Code to a body of mere moral prescrip- tions ; but this analogy is far less close and real than the other one, inasmuch as the moral duties of States towards each other reach infinitely further than can or ought to be attempted by the most beneficial International Code. Furthermore, the way in which such a Code has in fact grown up, the form in which it is couched, the methods of its Interpretation, and every other feature short of that of a Political Authority competent to enforce it, bear the closest possible resemblance to the phenomena of Positive Law. International " Persons," that is States, are a purely analogical development of the Persons known to systems of National or so-called Municipal Law. The Sources, however, from which maxims and institutions of International Law have emerged, are more vague, multi- farious, and due to the convergence of different series of ITS MATERIALS OE CONTENTS. 47 accidental, of moral, or of political sentiments and events than has generally been the case even with the Sources of National Law. The application of the Sanction, again, is uncertain, and proceeds from an Authority up to the present day in the highest degree indeterminate, and such as at all times will be something less precise than that which is denominated a "Supreme Political Authority." But all these varying and more complex circumstances indicate nothing else than a growth in the materials of Jurisprudence, proportionate in its suddenness or in its graduation to the nature of the facts attending the social development of civilised mankind. When once these circumstances have been clearly and finally apprehended, they admit of being as exactly cata- logued and classified, and as severely submitted to logical processes for practical use, as do all the simpler elements of systems of National Law. Whatever superior difficulties remain in the former case are due, not to the nature of the rules established or to any special perplexities in the way of their application, but to the doubt clinging to all Law in its earlier stages, as to whether, in any given case, there is any rule at all. Among other expedients for the removal of this class of difficulties, the most hopeful ones are to be sought in a multiplication of International Courts, each employing a similar Procedure, and each recognising the authority of all the rest ; and in a comprehensive Inter- national Code, deriving effective support from the joint and truly sympathetic efforts of all existing States. The abolition of Slavery and the growth of the senti- ments expressed in International Law have been selected as instances of wide-spreading social causes affecting the fortunes of Jurisprudence, which, through their exceptional 48 THE SCIENCE OF JURISPRUDENCE. nature and their momentous magnitude, have no exact parallel in the past, and scarcely admit of repetition in the future. They may be said to have produced, as they were themselves the more gradual product of, a reaction of men's social sentiments, which has manifested itself in an entirely reconstructed notion of legal Persons, Eights, and Duties as well as of Law in itself. The actual mode in which these isolated causes have severally operated, and must yet operate, comes under the last of the above departments, — that dealing with theories of variation in the elements of Juridical Science. Under the same head, also, come all the more orderly and gradually manifested causes of variation, such as the improvement in the arts of human life and the progress of inventions; the growth of commercial credit ; the increasing facilities and novel modes of locomotion by land and sea ; and an increasingly developed sagacity in constructing and direct- ing the mechanism of Government. It is under the first of the above-mentioned heads (I.) that are contained all such speculations as those which have been adumbrated in the last two chapters as having for their purpose the linking together of the social with an un- social state of humanity. The history of Primitive Law is the only unfailing key to the logical nature of Law in itself, and hence all enquiries into the historical and logical genesis of Law do in fact resolve themselves into one identical process. On the completion of this process the fact of Law will stand out as clearly distinguishable from all com- peting facts, and the token of the occupation of this dis- tinct standing-ground will be a list of Definitions of all the leading terms implicitly or explicitly involved in the use of the term Law. The terms defined will be such universal ones as Person, Thing, Fact, Act, Event, Inteii- ITS MATERIALS OR CONTENTS. 49 tion, Ignorance, Negligence, Accident, Fraud, Malice, and the like, some or all of which the conception of Law in its most rudimentary form carries with it, and the precise import of which no ulterior refinements in the form or material of Law can modify in the minutest degree. A sharp and clear intuition of the real meaning of terms of this nature is indispensable as an introduction to the treatment of all further juridical phenomena. Such an intuition, moreover, when transmuted into a sort of legal conscience, is the surest bulwark for the practitioner against fluctuations, as it is also a main and continuing help for all those who would systematise or codify a body of Law so as to preserve organic unity in the tumultuous press of the most heterogeneous details. Thus one leading topic of a systematic exhibition of the con- tents of the Science of Jurisprudence will appear under the head " Definition of Leading Terms." So soon as Law exists at all in a National Community, it instantly begins to undergo a series of changes determined by the special physical, psychological, ethical, and political circumstances, in the midst of which its race happens to be run. These changes, as has been already hinted, reflect themselves in the actual history and form of Law on three of its essential sides. These three essential sides or aspects of Law are — (1.) The immediate modes by which it travels out of obscurity into consciously recqgnised exT istence, that is, its so-called Sources. (2.) The processes by which the general language of Law is explained and limited, so as to make it correspond with and cover a particular set of facts, that is, Processes of Interpretation. And (3.) the material topics which any given body of Law affects to handle, that is, its Subject-matter or Purposes. E 50 CHAPTEE V. ON THE SOURCES OF LAW, AND THE INTERPRETATION OF LAW. There are many reasons why it is expedient to consider the Sources and the modes of Interpretation of Law to- gether instead of apart. The main difficulties of Interpre- tation owe their origin to the obscure and uncertain way in which the large bulk of every system of Law has come into being. It is mainly through an investigation of the historical genesis of particular laws that the meaning and purport of those laws must be sought. It is only through the practical necessity of Interpretation that it becomes of supreme importance to trace the early be- ginnings of particular laws. Thus any separation of one topic from the other is in the highest degree artificial and unnatural. By treating the two together, and thus making each throw light on the other, all confusion of the two topics will best be avoided, and the true place of each in the Science of Jurisprudence indisputably ascertained. The expression " Sources (Quellen, Fontes) of Law," though in habitual use, is founded on the loosest of metaphors, and is, in a high degree, equivocal and vague. The phrase may be applied to express the original ethical circumstances giving birth to certain classes of laws, as, for instance — (1.) an instinctive sense of national self- preservation; (2.) a moral aspiration after a loftier civic life and a reconciliation of the claims of freedom and progress with those of stability and order ; or (3.) a still THE SOUBCES AND INTERPRETATION OF LAW. 51 more advanced demand for a corporate or truly national life, in which, each individual citizen surrenders himself unreservedly to the service of the whole, and from the whole recovers his own individuality again infinitely enriched and intensified. These several and distinct mental conditions undoubtedly give rise in turn to different parts of every legal system, and so far might be correctly termed Sources of Law. But these operations are too obscure and commingled with each other, as well as with rival influences, to be used for scientific purposes with the precision such purposes require. Hence the only resource is to look for the more easily recognisable complex facts, or classes of complex facts, which become the proximate causes of different parts of the legal systeir. Such causes are — (1.) the spontaneous practice of certain habits of action towards each other on the part of some or all classes of the population ; (2,) legislation, more or less systematic, whether conscious or unconscious, whether written or oral, whether directly proceeding from the Supreme Political Authority or only indirectly so proceed- ing through the interposition of the Administrators of the Law, as these do their best to wrest its language and its forms to purposes conceived to be beneficial. But even this distribution of the Sources of Law into spontaneous and systematic is rough and unsatisfactory, inasmuch as the most systematic legislation is determined in the long run solely by the deep-laid, subtle, and innumerable ten- dencies of the whole population, both governing and governed ; and the most rational and universal customs can only attain to the cogent qualities of pure Law when the Supreme Political Authority has, by public recogni- tion, stamped them as universally binding. Thus, in order e2 52 THE SCIENCE OF JURISPRUDENCE. to attach any practical value to the use of the phrase " Sources of Law," the term " Source " must be taken to mean nothing more than the immediate group of circum- stances through which a legal rule acquires its essential character as such. All the possible Sources of Law, as understood in this last sense, may be distributed as follows : — I. Judicial legislation, conscious or unconscious, through (1.) Extensive or restrictive Interpretation of written monuments of Law, whether existing or obsolete. (2.) Equity, in the English and the Koman sense. (3.) The amendment of old Law through the device of Legal Fictions. , (4.) The recognition and adoption of Customs. (5.) The incorporation of portions or the whole of foreign systems of Law. (6.) The giving validity to a traditional and generally unpublished collection of unwritten usages as expressed in concrete institutions, popular maxims, and habits of legal thinking and of interpreting language (English Common Law). (7.) The framing of rules of Procedure. (8.) Deference to the formulated opinions of authori- tative jurisconsults, practitioners, text-book- writers, and commentators. (9.) The compression of a long train of isolated decisions on particular combinations of facts into the form of a universal rule of Law. (10.) Direct legislation, under the cloak of conforming, to a so-called "Law of Nature," "Natural Eeason," "Natural Justice," "Common Sense," or " General Utility." THE SOURCES AND INTERPRETATION OF LAW. 53 II. Statutory Legislation, or direct changes consciously introduced into the existing legal system by the Supreme Political Authority. III. Statutory Legislation through the medium of sub- ordinate Legislatures of all sorts. IV. Codification, or the conscious reconstruction of the whole existing legal system into a completely orga- nised body of written Law, statutory legislation coming in to fill up existing gaps, and all other generative Sources of Law being excluded from further operation. V. Scientific reflection on the Nature of Law. Before dwelling particularly on the nature of these several Sources of Law, it will be convenient to interpolate some remarks on the theory of Interpretation. It matters nothing whatever to the real validity of a legal rule itself where it is to be found, with what ease or difficulty a knowledge of it can be arrived at, or whether the language in which it is conveyed happens to be unmistakable or ambiguous. The force and nature of the rule itself are quite independent of all the obstacles that may stand in the way of its being clearly disclosed and enunciated. So soon as it is finally brought to light at stands forth as a clear command, addressed to one or more or all persons in the Community, and directing or forbidding them to do certain acts. Thus- the nature of the actual Source of the Law, to whichever of the above classes it properly belongs, in no way affects the quality or force of the Law when it has been determinately evolved for the purpose of immediate application. Nevertheless, inasmuch as be- tween the moment of a law having been determined upon by the Legislator and that other moment of its final public recognition by a competent Judicial Authority, the law 54 THE SCIENCE OF JURISPRUDENCE. must needs have passed through the transitional condition of being effectually published, the mode of that publication does in point of fact very much colour and infect the purity and integrity of the law as originally conceived. Thus it comes about that the imperfection of the existing means of expression and the rude modes of communication be- tween man and man as yet known to be possible, do by qualifying each law in itself and making it likely or cer- tain to undergo a more or less perceptible variation in the course of actually being applied in practice, become some of the chief facts which are the appropriate materials of the Science of Jurisprudence. Did legislators always interpret and apply their own laws in person, or were the executive judicial authorities they depute in perfect sympathy of mind and will with themselves or absolutely subservient to them, and were written or spoken language infinitely more potent, exact, and pliable than has ever yet been imagined, it is possible that Jurists might concern themselves little with the Sources of Law. But so far are legislators from inter- preting and applying their own laws, that the large bulk of these laws are made in one generation and applied in numberless succeeding ones. Immense masses of Law, too, in every country, have never been under the distinct contemplation of any legislators at all, but have owed their being to some one or more of the Sources above enumerated other than those of Statutory Legislation and Codification, being only fictitiously imputed to the legis- lator of the day because with him rests the power of changing, repealing, ignoring, or enforcing them. So far, again, are Judges from being at one in mind and will with Legislators, that nothing is more noticeable in the general THE SOURCES AND INTERPRETATION OF LAW. 55 history of Law than the constant political struggle going on between the Judge, who is brought into immediate contact with a law in its practical application to a real set of concrete facts, and the Legislator, who only contemplates the concurrence of such a set of facts as a distant proba- bility or possibility". Lastly, as to the infirmities attaching to all methods of oral or written communication, the commonest experience teaches that there is scarcely a single word, still less any assemblage of words, which conveys precisely the same meaning to one mind that it does to another. When to this are added the changing significance of words as a nation progresses, the differing meanings of the same word in different parts of a country and among different classes of persons, and the very general language in which a command intended to bear reference to a large number of diversified facts needs to be couched, it can be no matter of surprise that the inherent difficulties of language are among the most insuperable of the barriers in the way of the Legislator's securing for his laws an infallible interpretation on the part of the Judge. The occasion on which the importance and difficulty of legal interpreta- tion generally present themselves is that at which a Judge is called upon to pronounce whether or not an act, alleged to have been done by a determinate person, is or is not one of a class of acts forbidden by some rule of Law. Of course this enquiry may be anticipated by means of consultation with a private legal practitioner, who will have the question put before him in exactly similar terms, though it might be while the act was still undone. The simplest case is where there exists a distinct written rule forbidding in terms the particular act which is the subject of investigation. The next in simplicity is where 56 THE SCIENCE OF JURISPRUDENCE. there is a written rule forbidding all acts of the class or kind to which the present act belongs, — that is, all acts having certain common marks or signs which admit of their being included under a common name, and which marks or signs the present act has. To determine what are the true marks or signs which, in the mind of the Legislator, were really those forming the foundation for the common name for all those acts, and to discern whether these marks or signs are or are not to be discovered in the act under investigation, is the part of the Legal Interpreter, and may call for the highest exercise of logical skill. A corresponding sort and degree of logical skill is needed in the Legislator, to enable him to select, in the composition of his classes or general names, such marks and signs as shall best secure the inclusion of all acts he wishes to forbid and the exclusion of all he is willing to allow. Thus Written Laws depend for their special value, that is, for the possibility of their being exactly apprehended with the least shade of variation on different occasions, on the logical skill of the Judicial Interpreter and the Legislator together. In proportion to the excellent tech- nical construction of such laws does the Legislator con- trol and restrict the Judge, and repel to the uttermost all the influences of judicial eccentricity, passion, or caprice. The main dangers to be provided against, as has been already indicated, are those clue to the inevitable flux of meaning in single terms and to the ambiguities always likely to attach to composite sentences. Could the words of which every Written Law is composed acquire and retain a rigid fixity of meaning, so as not to admit a hair's breadth of change in passing from the Legislator to the Judge and from one Judge to another, and could THE SOURCES AND INTERPRETATION OF LAW. 57 written sentences be so constructed as to reproduce the exact intent of the Legislator without leaving any opening for a twofold interpretation, the characteristic advantages of Written Law would then be at their highest. It is possible, indeed, that at some future period legal terms may acquire something of this fixity of meaning, for the accomplishment of which end a highly educated and specially trained Bar and Bench are indispensable condi- tions. It is also possible that the art of precisely ex- pressing in written sentences, all and no more than all, of what is intended to be conveyed will hereafter reach a pitch of perfection which it certainly does not possess at present. This attainment of fixity of meaning in legal terms and a corresponding development of the art of accu- rate expression are presupposed in, as they would be spe- cially promoted by, all attempts to codify a body of Law. In the meantime it may be assumed that terms used by Lawgivers have at present, and at all former periods, little of the stability of meaning here supposed, and that the art of expression is in a very imperfect state. The next case, then, that presents itself, on enquiry being made by the Judge or the practitioner as to the conjectural existence of a rule of Law forbidding a given act, is the discovery of a practical persuasion on the part of compe- tent authorities that some such rule exists, though it has never been reduced to distinct outward form and shape. The exact terms and extent of the rule in question might in such a case have to be gathered, according to some recognised mode of Interpretation, out of a number of promiscuous but carefully defined sources. The evolu- tion of the rule would then demand two distinct opera- tions : first, the determination of the exact quarters in 58 THE SCIENCE OP JURISPRUDENCE. ■which it is to be looked for; and, secondly, the process of its extraction from the quarters prescribed. In England the two main Sources of so-called " Unwritten Law," have been — (1.) legal or logical maxims and canons handed down by word of mouth from one generation of lawyers to another; and (2.) past judicial decisions upon special matters of fact brought into controversy, and which de- cisions either expressly declare or manifestly imply the existence of some determinate legal rule. Law, extricated out of these decisions, becomes what is called in England " Case Law." It is obvious that in order to elucidate the lurking rule, if any, it may be necessary to investigate the history, not only of the decision made in one Action at Law, but of those made in many. For it can only be by determining how far a modification of the facts induced a corresponding alteration in the decision, that the real principle or ground (called the ratio decidendi), which presumedly underlies the whole line of decisions, can be arrived at. It might reasonably be supposed that if a sufficient number of cases involving very trifling variations of fact were examined and compared, and if they had each been properly decided in conformity with the true state of the Law, it would be possible thus to attain to a more ex- haustive and discriminating knowledge of the general rule expressing that state of the Law than even were the rule written formally in a Statute or a Code. This might be so on the supposition that the number of cases exemplifying the rule, with all its attending limitations, were sufficiently numerous and varied; that the reports of the cases were accurate, unbroken, and readily accessible; and that it were easy or possible to distinguish infallibly between a case rightly and one wrongly decided according to the THE SOURCES AND INTERPRETATION OF LAW. 59 true rule of Law, assuming such a Law to exist. By col- lating these remarks upon the mode of extracting a rule of Law from an unwritten Source with what was said above about the obstacles in the way of apprehending the fixed meaning of a rule of Law formally written in a Statute or a Code, the relative values of these two leading Sources of Law can be easily understood. These values will be seen to turn very much on — (1.) the actual condition of the repositories of Law and on the bulk of the Legal System, from whatever Sources it is drawn; (2.) the degree of capacity for precise, exhaustive, and elastic expression existing anywhere in the Community ; (3.) the state of Society, agricultural, industrial, or commercial, rendering the accessibility of a knowledge of Law an object of varying importance. What has been hitherto said upon the subject of Inter- pretation, has only been on that side of it which is con- cerned with the import of terms and of sentences. But the term Interpretation has, for judicial purposes, a larger meaning than this. It is used to express the whole men- tal process by which the Will of the Legislator is ascer- tained, whether words and sentences have been employed to indicate that Will or not. In order, in the course of any particular judicial investigation, to discover the com- plete Will of the Legislator, his whole mental attitude and circumstances must as far as possible be reproduced. It must be taken for granted, for this purpose, that the im- poser of a law had before his mind, when imposing it, the general habits, faculties, and nature of man, as well as the actual constitution of the outer world. Thus a Legislator may properly be supposed to anticipate an average amount of good sense, wisdom, honesty, carefulness, expertness, and respect for the claims of others, except in cases where 60 THE SCIENCE OF JURISPRUDENCE. the character of the Legislation distinctly supposes the opposite. In this way Lunacy, Infancy, Ignorance, Mis- take, Negligence, Fraud, Malice, severally come under the cognisance of the Jurist, as facts introducing anomalies into the normal action of men in their average condition, and so presumedly provided against by the Legislator. The physician and the psychologist will here have to lend their aid, and, so soon as the qualifying abnormal facts are distinctly recognised, it becomes a mere logical pro- cess, based upon experience, to determine how far a given act is qualified by such recognition. The general process is facilitated by an habitual logical separation of the normal or average from the abnormal or exceptional conditions of men's rninds and bodies, and by a classification of the latter conditions. This work belongs partly to the Jurist, and partly to the Psychologist, the Physiologist, and the Ethical Philosopher. In any case ready for Trial, the legal prac- titioner and the Judge are called upon to examine all the circumstances surrounding the act alleged to come within the purview of the Law, and to determine under what category the condition of the agent's mind as established by such circumstances properly falls. Thus, in relation to all the possible qualifications in human acts, as much as to all other matters of which it treats, the language of Law assumes a community of knowledge and sentiment on the part of the governors and the governed. Interpreta- tion, in all its forms, is the process by which — (1.) a real and existing standing-ground, afforded by this assumed community, is determinately ascertained ; and (2.) where accidentally no such community can be so much as even assumed, the most ready and practical devices for carry- ing out the general, social, and political purposes for which laws exist are provided. 61 CHAPTER VI. DISTRIBUTION OF THE MAIN DEPARTMENTS OF A LEGAL SYSTEM. It might be supposed that the social condition of nations differs so widely that no one universal mode of distribution could be adopted which could admit even the leading departments of all possible Legal Systems being fitted into it. The possibility of discovering such a mode is a ques- tion of historical fact and political observation. It is, of course, superficially true of the systems of Moses, of Menu, and of Justinian, that each contains large chapters wholly disparate from any portions of either of the others. English Common-Law, again, differs from all the European Systems founded on the System of Justinian by all the breadth between .the feudal and the family conception of the social unit. Laws of Procedure, again, always present an indefinite amount of variation and apparently capri- cious difference from one another. The notion of Crime and its separation from so-called Civil Injuries on the one hand, and from Sins or purely moral offences on the other, has a peculiarly sensitive dependence on the ethical cir- cumstances of a people at any given epoch. Thus in order to attempt the formation of any comprehensive skeleton of a Legal System which shall be large enough to embrace all possible Systems without being so vague and indeter- minate as to be valueless, certain leading principles, by way of concession, must be established at the outset. Some such principles are the following : — 62 THE SCIENCE OP JURISPRUDENCE. 1. For the purpose of framing, by a process of induction, an universal formal system of Law out of particular and actual systems, attention must be restricted to the charac- teristics of such Societies as have passed through a series of what may be called normal stages without permanent arrest, retrogression, or violent interruption. This rule will serve to include all National Societies whatever for the primitive stages of their growth, and to exclude all such as, in later stages, in place of a regular progress through an industrial and a commercial development up to the attainment of complete political and social freedom, have been fatally crushed by the weight of a priestly caste, of a despotic tyranny, or of a dissolute spirit of anarchy. 2. In contemplating the Societies to which attention is confined by the above rule, the history of each must be treated as an organic whole, and the determining facts of its civilisation, as they successively emerge, must be co-ordinated in every case with the similar facts occurring at a like stage in the evolution of all the others. It is believed that the result of these two principles, when fully carried out and based upon an historical ana- lysis which is the peculiar product of the present century, will be to give the following as the typical classes of facts or criteria of civilisation the history of which alone it is, for the present purpose, worth while taking into account : — (1.) Family Life. (2.) Ownership. (3.) Government. (4.) Contract. (5.) Crime and Civil Injuries. It will be at once seen that the order of this arrange- ment, while immediately suggested by historical consider- MAIN DEPARTMENTS OP A LEGAL SYSTEM. 63 ations, is in great degree misleading even from that point of view. The first three of the large classes of facts here mentioned present themselves in actual life not successively but simultaneously, and indeed obviously presuppose the existence of one another. The idea of Contract, again, though strictly a later development, even in its most embryonic form, is almost inherent in the idea of Owner- ship, inasmuch as both ideas equally imply an habitual moral reliance on the part of one person in respect of the future acts of others. Crime and Civil Injuries, again, have been placed in the last rank though they are in truth the background of all the other facts, and are involved in the very earliest consciousness of those facts. They presup- pose the presence of sentiments favourable to personal security, to inviolate Ownership, and to social order, while the penal laws to which they give birth do much to invigorate the strength of those sentiments. There is yet another difficulty, besides the chrono- logical one, in taking the above-mentioned classes of facts as signs of common stages of development discoverable in all progressive nations, for the purpose of demonstrat- ing the possibility of constructing an universal framework ready to hold all possible Systems of Positive Law. It is that each of these classes of facts is from the very first so closely implicated with the fact of Law itself, is to such an extent at once the child and the parent of Law, and so essentially dependent throughout its whole history upon the support of Law, that they are, one and all, exposed to the constant peril of being misrepresented as the mere pro- ducts of Law instead of independent moral growths coeval with the history of Law itself. It thus becomes intimated that all the most solemn and mysterious facts of human 64 THE SCIENCE OF JURISPBUDENCE. and social existence are purely artificial or adventitious creations brought about by a conscious and more or less enlightened regard for the public advantage expressing itself in Law. The consequence of this view would be that the permanence and universality of the above facts would be no further argument for an invariable course travelled by all progressive National Societies than so far as the existence of Law itself is such an argument. Any distribution of the subject-matter of all possible Legal Systems would only be a dreary and more comprehensive reiteration of an oft-told tale of legislative cunning, instead of a compendious statement of the best results obtainable by a critical investigation of the most obscure moral facts underlying the outer fortunes of all actual National Societies. Assuming, however, that the above considerations at least go so far as to point to the possibility of the con- struction of such an ideal framework for all Legal Systems, the same considerations at once suggest an answer to the second question, as to the basis on which such a frame- work would be best constructed. This basis is manifestly that of the social and political purposes for the accomplish- ment of which the different classes of laws composing a Legal System have come into being, and to subserve which they continue to exist, or are, from time to time, consci- ously amended. . It happens, indeed, that hitherto, owing to the prevalence, in the region of Jurisprudence, of technical and logical over ethical and political studies, this has, in no case, been the actual basis in use among those who have digested the most celebrated systems of Positive Law. The main divisions have proceeded, as, notoriously, with the great Eoman and English Institu- MAIN DEPARTMENTS OF A LEGAL SYSTEM. 65 tional writers, from a regard to the technical peculiari- ties which are chiefly the products of Law itself rather than from a regard to the ethical facts and social actions which it is the province of Law to regulate. All Laws whatever impose Duties, that is, they restrict the field of action of some person or persons in one direc- tion or another ; and most Laws, in addition, confer Eights, that is, they extend the field of action of some person or persons in one direction or another. Hence the contents of any Legal System are made up, in fact, of Eights and Duties, and upon the basis of these Eights and Duties, simply looked at in their technical aspect, it is possible to make a classificatory distribution of the whole system. By the expression " technical aspect " is here meant that these Eights and Duties are measured, not by their social bearings and purposes, but with regard to such coarser elements as — (1.) the description and number of the Acts to which they refer ; (2.) the classes of Persons upon whom these acts operate ; or (3.) the interposition or not of a material Thing between the acts and the Person or Persons upon whom they operate. It has been said that some Laws only impose Duties without conferring Eights. This may, in some points of view, be said to be the case with sanitary laws ; laws of treason ; laws regulating taxation ; laws forbidding cruelty to animals, and suicide ; laws regulating dress, food, expen- diture, amusements, and the like. Though, by the enact- ment of such laws as these, Eights of Action are conferred upon particular Persons, as on Government Inspectors, on Informers, on the police, and even on private members of the Community, yet such laws are imposed directly for the benefit, rightly or wrongly conceived, of the whole Com- F 66 THE SCIENCE OF JURISPRUDENCE. munity in its corporate capacity rather than, as in the case of all other laws, for the indirect benefit of the Community through the immediate advantage of particular Persons. Some writers, in a violent attempt to make their whole scheme of classification proceed upon a basis of " Eights," have had to resort to a desperate expedient. They have treated all laws of Civil Injuries, of Crimes, and of Pro- cedure, under the head of " Eights'arising from the viola- tion of a Eight," calling the class that of " secondary " or " sanctioning " Eights. This would be tolerably unobjec- tionable, did there not still remain unclassed the peculiar laws mentioned above. These must be either placed in a special group of Laws conferring Eights vesting in the whole Community as such, or else must be relegated to the group of Laws conferring " Sanctioning " Eights ; since, by an extension of language, it might be said that every member of the Community has an initial legal Eight, capable of practical enforcement in a Court of Justice, to every other member's respecting the order of Society, not removing himself voluntarily from the Society, and not grossly violating the dictates of the public conscience in his dealings with the inferior animals. The violation of this last sort of Eight might, in that case, be said to impart to every member of the Community a " secondary " or " sanctioning " Eight against the offender. By this strain- ing of technical language, the whole Legal System might conceivably be distributed under the head of Eights. Similarly it might be distributed under the head of Duties. But the inconvenience here would be even greater, since some of the most important classes of Eights, such as Eights of Ownership, Eights to personal Eeputation and to per- MAIN DEPARTMENTS OF A LEGAL SYSTEM. 67 sonal Security, are precise and distinct, while the Duties corresponding to them are multifarious, vague, and defiant of all attempts at accurate enumeration. All these considerations point to two conclusions ; (1.) that if, for the distribution of the subordinate parts of a Legal System, a technical basis be adopted, that basis must be neither one of Eights nor of Duties singly, but must consist of both conjointly, looked at in view of the obvious and immediate purpose for which the laws are imposed. Thus, in some departments of the system, Eights will take the lead, and in others, Duties ; the Eights always implying corresponding Duties, and the Duties generally (or, by an extensive use of language, always) implying corresponding Eights. (2.) For this very reason, as well as for other more potent ones, it appears that a social and political basis of distribution has for all purposes a transparent advantage over a technical one ; and that the soundest of all classificatory methods is that in which a social and political basis is the ground of the main divisions, and a technical basis, consisting of Eights and Duties conjointly, is the ground of all the subordinate ones. The different parts of the Legal System may then be exhibited under some such leading divisions as the fol- lowing : — I. Laws directly relating to the Constitution and Ad- ministration of the State. II. Laws of Ownership. III. Laws of Contract. IV. Laws of Civil Injuries and Crimes. V. Laws affecting Special Classes of Persons. VI. Laws of Procedure. f2 68 THE SCIENCE OF JURISPRUDENCE. Under each of these divisions the Eights and the Duties, which it is the immediate purpose of the Laws under consideration to confer or impose, will be treated under the heads of the several topics comprehended in the essential notion of such Eights and Duties. Before proceeding, however, to this detailed investiga- tion, it will be convenient to perform a task which has already been noted as a paramount object of a Jurist's labours, that of providing an Explanation of Leading Terms. 69 CHAPTEE VII. AN EXPLANATION OF LEADING TERMS. On the very earliest appearance, among a portion of the Human Family, of the facts of Law and Government, a number of terms and expressions present themselves which henceforth constantly recur in every legal or judicial enquiry, and which, however much they may be multiplied, are never wholly superseded. These leading terms are very far from being invented for the occasion, and rather, being already in familiar use among the people, have a strict and sharply determined meaning put upon them for the purposes of Law. It is true that the smallest degree of national morality, and therefore the very existence of moral terms, presupposes, at least in their embryonic shapes, the facts of Government and Law ; but these latter facts are unconsciously acquiesced in long before they are distinctly recognised and consciously reflected upon. In this sense only it may be said that all the most general Legal terms are nothing else than Moral terms created by the spontaneous sentiments and aspirations of the people. This is conspicuously true of such words as "right ""duty," '■'■person" "property" "pro- mise" "fraud" " malice" and the like. The fluctuating meaning, however, of all moral terms, which is due to the diversities of moral experience in individual persons, and to the peculiar susceptibility of such terms to the action of all kinds of varying influences — religious, social, and 70 THE SCIENCE OP JURISPRUDENCE. political, makes a precise terminology, as Moral become converted into Legal terms, a matter of the most stringent importance. An acquaintance with the meaning of some dominant Legal terms has, indeed, even in the preceding chapters, had to be presumed, and of others a brief defi- nition had to be interposed by anticipation. The word "Law," itself, is the best instance that could be taken of a thoroughly abused term, employed as it is in the Natural Sciences to express nothing else than an invariable sequence ; in Ethical Science to express a rule, howsoever derived, imperative on the human conscience ; and some- times, in common speech, by a closer analogy to its true Juridical meaning, to express a command published by some potent though not political Authority, as in the phrases "Law of God," " Natural Law," "Moral Law," " Law of Honour." Whether all these different meanings of the term "Law" were originally borrowed by way of metaphor or analogy from the severe Juridical meaning of that term, or whether the Juridical meaning is only a narrowly cir- cumscribed employment of a term already in familiar use, are problems touching upon a still more general historical enquiry as to the true mode in which a keen and conscious political sentiment severed itself from the vague moral sentiments current in primitive societies. It is sufficient for the present purpose to insist that, for the purposes of the Science of Jurisprudence, the term Law has a most precise and narrow meaning, the clear enunciation of which will shortly be proceeded with. In the present chapter the strict Juridical meaning of the following terms, with that of all their correlated expres- sions, will be investigated, and, as far as possible, definitely fixed. EXPLANATION OF LEADING TERMS. 71 (1.) State. (2.) Law. (3.) Eight. (4.) Duty. (5.) Person. (6.) Thing. (7.) A peculiar class of Terms respecting the possible qualifications of moral responsibility, as — Intention, Motive, Fraud, and the like. (8.) Act. (9.) Event. 1. — State. The use of the word State has suffered, in this country and in Germany, from two opposite sources of laxity and indefiniteness. It has been crippled as much by the rude handling of an evanescent school of popular politicians in one country as it has lost all practical value and use in the over-refined and sometimes mystical philo- sophy of the other. In order to preserve unimpaired all that is at once most common and most precious in the term under consideration, the following elements in the conception of a State must be distinctly kept in view : — (1.) A permanent Association of men, existing for defi- nite ends, and looked at from a particular, and, in some respects, idealistic point of view. (2.) Organisation ; that is, a reciprocity of function and a mutual relation of all the parts to each other and to the whole. (3.) A relation to Time — past, present, and future, indif- ferently ; that is, to no one period exclusively of the others. 72 THE SCIENCE OP JURISPRUDENCE. (4.) Eelation to Things ; especially to a definite portion of the earth's surface, named Territory. (5.) Self-sufficiency, or Independence in respect of other like corporate associations. (6.) Self-consciousness, as exhibited in such phenomena as patriotism, antiquarianism, conservatism, and in a general reverence for the past traditions of the Commu- nity as an organic whole, as well as in an onward looking towards the Future. (7.) Concrete Government, with all its essential depart- ments — legislative, executive, judicial, and the rest. It is not pretended that everybody using the term State is aware that all these elements are properly con- tained in it. On the contrary, most persons, especially in England, use the term in the loosest possible fashion, making it synonymous now with " the person or persons governing a National Community at a particular moment," now with " all the members of such a Community alive at a particular moment," now with " the same persons looked upon as an organic body, whether as being of one race, as speaking one language, or as having one and the same set of historical antecedents," now with " a National Society looked upon chiefly in reference to the Past," and not as being organised and governed at the present moment, still less as having relations of the most transcendent importance to the Future. From one or other of these shallow and mutilated conceptions flow some of the most mischievous political theories and consequences. Thus from one conception it is readily concluded that no moral duties are owing to Posterity ; from another, that no deference or veneration is due to the traditional unity of the Nation in the Past ; from another, that no living principle or sentiment welds the members of a Nation together other EXPLANATION OF LEADING TEEMS. 73 than the hope of material advantages to be reaped through the union ; from another, that Government is merely an accident, if not a superfluity, in a National Society, and may one day be dispensed with altogether. Having, then, enumerated all the elements that constitute the true conception of the State, it will serve to fix the strict use of the term for Juridical purposes to give that term the following definition, or rather compendious explanation : — A State is aj>ermanently organised aggregation of a por- tion of the Human Family, occupying a definite Territory, and qualified by its magnitude and by the fact of Govern- ment for the complete satisfaction of all the material and moral necessities of Human Nature. 2. — Law. A Law is a Command of the Supreme Political Authority of a State purporting to control the Acts of Persons in the Community. Cr^t^^^^^^yxx^ 'fa. ^U^kM^p^^e^^ o. The terms here used demand particular explanation. A Command always implies a strong expectation on the part of the person issuing it, that it will be unhesitatingly obeyed. In this it differs from a mere wish, request, suggestion, or permission. In the case of the kind of Command which is called a Law, the expectation of obe- dience is founded on an assumed knowledge of human nature. It is either believed by the Lawgiver that the persons to whom he addresses his laws are themselves anxious to conform to them, and therefore only need direction as to the form which their obedience must take; or else the Lawgiver believes that the penalties he is enabled to attach to disobedience will be more certainly 74 THE SCIENCE OF JURISPRUDENCE. avoided than the advantages conceivably resulting from disobedience would be pursued. Every Law, so far as it is really a Law, is intended to be obeyed. There are, of course, periods during which a Law is, as it were, strug- gling into being; and there are other periods during which its vitality is departing. In both such periods it is not practically expected that it will be obeyed, just be- cause it is not a true Law. It is said that the Command issues from the Supreme Political Authority of the State. It is sufficient at the present stage to explain the phrase " Supreme Political Authority " to mean, " the Person or Persons in a National Community who, at a given moment, have unlimited and irresponsible power to control the Acts of all Persons in the Community." It is of the very essence of a State that there should be, at every moment in its history, some Person or Persons in whom this prodigious power rests. Every Command issued in pursuance of this power is a true Law ; though it has been attempted in some quarters to limit the use of the term Law to such Commands as refer to a long series of acts, as extend over a longer or shorter period of time, or as affect a larger or smaller number of Persons. Such distinctions are wholly valueless and misleading. The most apparently isolated decree, if imperative and peremptory, is addressed to all the members of the Executive needed to carry it into effect, and to all Persons in the Commu- nity capable of interfering with its being carried into effect. Thus all distinction between some kinds of Com- mands and others, on the ground of generality, is as spurious as it is perplexing. It is said above that a Law purports to control acts. In this it is distinguishable from all modes of influence which either purport to affect the intellect, the feelings, EXPLANATION OF LEADING TEEMS. 75 or the conscience of men on the one hand, or, on the other, to exert purely mechanical pressure on parts of the physical universe. Thus Law differs as much from all modes of merely moral persuasion, in one direction, as from all modes of material restraint in another. It is true that in order to make a Law effective, that is, to secure that it be universally obeyed, the state of mind which precedes men's acts must always be matter of the most careful consideration by the Legislator. It is sufficient in this place, before the full definition of the term act be pro- ceeded with, to notice that every true act, that is, neither an event nor a mere thought or desire, is accompanied by certain mental or emotional states or operations, as Knowledge, Desire, energetic Kesolution, final Design,, or Acquiescence. The activity or strength of these various mental or emotional conditions will be determined by the kind of consequences, direct or indirect, of the act con- templated. The Lawgiver, by affixing a penalty to dis- obedience, gets certain of those consequences into his own power, and thereby reacts directly on the mental condition of all the Persons to whom his Laws are ad- dressed. It is in this way that the proposition that Laws never affect to control anything else than the acts of Persons is reconcilable with the familiar fact, that Courts of Justice have no more frequent occupation than a searching scrutiny into the most recondite and intricate labyrinths of the human mind. All judicial investigations of questions of Intention, Motive, Infancy, Insanity, Fraud, and Malice, are nothing more than scrupulous enquiries into the state of mind of an agent with reference to the probable consequences, direct or indirect, of his act. The success of such enquiries depends partly on the prevalent knowledge of human nature, partly on the actual evidence 76 THE SCIENCE OF JURISPRUDENCE. forthcoming in the particular case. The whole judicial process is, therefore, invariably of a twofold nature : (1.) the ascertaining of the exact kind and quality of the act forbidden by Law; (2.) the determining whether an act of this precise complexion has been really done by the par- ticular Person accused. It is customary to say, that the first part of the investigation is one of Law, and the second one of Fact. 3, 4 Eight and Duty. Every Law is addressed to all Persons in the Community, inasmuch as all are commanded to take notice of it, and to abstain from interfering with its due operation. Every Law is also especially addressed to the class of Persons forming a department of the Executive who are com- manded actively to carry out its provisions. But, further- more, most Laws are also especially addressed to limited classes of Persons, whose capacity of control over the Acts of other Persons, either in respect of personal security, of reputation, of Things capable of being Owned, or of services promised, these Laws affect to regulate and prescribe. In this way the realm of action of one set of Persons in the Community is enlarged in exactly the same measure and degree that that of another is re- stricted. Such a capacity of control over the acts of another Person, so given by Law, is said to be a Right. The corresponding liability of the other Person to have his acts so controlled is said to be a Duty. Thus every Eight presupposes a corresponding Duty. It has been questioned, however, whether every Duty presupposes a corresponding Eight ; in other words, whether there can be such a thing as an "Absolute Duty." Perhaps Laws EXPLANATION OF LEADING TERMS. 77 relating to offences against the Existence or Constitution of the State, to taxation, to national defence, and the like, might be held to impose Duties, upon some or all Persons without according corresponding Rights. The question is rather a technical and logical than a practical one, inasmuch as the whole Community has an interest in every Law being obeyed ; and the most familiar notion of a legal Eight is that of an advantage enjoyed by some Person or Persons more than by others, and capable of being made practically available by the Person interested through the use of special machinery publicly instituted for the purpose. In this stricter use of the term Right, it is evident that the Supreme Political Authority itself cannot enjoy Eights any more than it can be liable to Duties, though all the Persons who compose it, in their private capacity, can enjoy the one as they are liable to the other. Thus it is a mere courteous fiction to say that the English Monarch can do no wrong. It is merely a deferential form of imputing to him the attributes he had when he absorbed in himself the whole Supreme Political Authority, and now the antiquated phrase renders no other service than that of stamping the actual impotency of Courts of Law. There are no terms in the use of which the confusion of Legal and Moral notions is at once so common and so dangerous as in that of Right and Duty. The senti- ment of Eight, however grounded, is so deep and pene- trating, that it naturally imparts something of its own vivacity and mysterious significance even to the severely limited conception of a legal claim named after itself. This is only one instance out of many which shows that the real connection of Law and Morality is so intimate 78 THE SCIENCE OF JURISPRUDENCE. and profound that the only safeguard against endless per- plexities is to be sought in the most anxious and decisive discrimination. The school of Bentham has done as much harm in allowing but a hair's-breadth of separation between Morals and Law as certain of their more ignorant opponents did and are doing in their attempt to deluge Law with Morality. The ambiguous meaning of the word Eight was notably exemplified in the anti-slavery agitation, both in this country and in the United States. Most people are ready now to admit that there has been no time when a slave had not a moral Eight to his personal freedom. Yet, in Som- mersett's case, decided by the English Court of King's Bench in a.d. 1771, it took a lengthened argument to dis- cover whether, by the law of England, a Negro confined in irons, on board a ship lying in the Thames and bound for Jamaica, had, or had not, a legal Eight to his personal free- dom. As to his moral Eight, probably neither judges nor counsel had a shadow of doubt ; and Lord Mansfield him- self said that the state of slavery was so odious, that nothing could be " suffered to support it but Positive Law." How- ever iniquitous and impolitic a Law may be, a legal Eight enjoyed under it is just as perfect and available as if the Law were the product of the highest wisdom and benevo- lence. If a Law, in the face of every plea of moral justice, gives one Person the power of excluding another from the Ownership of land, ever so indisputably acquired, the Eight of the new comer to possession, and the Duty of the evicted Owner to cede possession, must and will be recognised in every Court of Justice in the land ; and all persons inter- fering with the due transfer of the property, or the full enjoyment of it, will render themselves liable to penalties, either criminal or civil. EXPLANATION OE LEADING TERMS. 79 Legal Eights and Duties, according to the explanation above given of them, are almost infinitely diversified and elastic in their character. They admit of classification with reference to — (1.) the Social Purposes which the acts affected to be controlled subserve, such as personal Eepu- tation, personal Security, Ownership, services of all sorts ; (2.) the Time during which the control is to be exercised ; (3.) the Modes of legal Procedure by which the power of control is to be made practically available. The following may be given as a formal explanation of the terms Right and Duty : — A Right is a measure of control delegated by the Supreme Political Authority of a State to a Person said to be thereby invested with a " Right " over the Acts of another Person or other Persons said to be thereby made liable to the perform- ance of a " Duty." Throughout this work the expression legal relations will always be used to imply an Aggregate of legal Rights and Duties. 5, 6. — Person and Thing. The terms Person and Thing as used in the Science of Jurisprudence, owing to the incessant colloquial use of the same terms with the most lax and vague signifi- cations, present difficulties of exactly the same kind and degree as the terms Right and Duty. The Moral dis- tinction has given rise to the Legal one, and, being much broader and deeper than the Legal one, always underlies it. Some writers have attempted to distinguish, for ju- ridical purposes, a Person from a Thing, by describing the former as in all cases an end for which Law exists, and the latter as never more than a means to another end outside 80 THE SCIENCE OF JURISPRUDENCE. itself. According to this view, when a human being is degraded to the depth of being only recognised as a pro- per object for protection by Law so far as the interests of others are concerned, which seems to have been the case with Slaves in a very early period of Konian Law, such a human being falls under the class of Things and not of Persons. Other writers, nearly akin to these, have rather spoken of the capacity to be invested with Eights as the mark of Legal Personality. Others, again, have spoken of the capacity to be invested with Eights and to be made liable to the performance of legal Duties as the testing characteristics. According to one or other of these views the Eoman Slave passed into the class of Persons so soon as he, or others on his behalf, could invoke the aid of any legal process against his Master or other Persons, or his Master or other Persons could invoke the like aid against him. Lastly, other writers have insisted solely on the criterion of what they call Moral Eesponsibility. All these views are plausible, if no one ,of them is exhaustive. They each testify to certain essential ele- ments in the conception of a legal Person as opposed to a Thing, and in a true definition no one of them can be entirely neglected. The following may serve as such a definition : — A Person is a Human Being looked upon as capable of being invested with Rights, or made liable to the per- formance of Duties. A Thing is a detached portion of the Material Universe, looked upon as an object mediate or immediate of the Acts of Persons. By making the term Persons coextensive in its. meaning with all Human Beings in the Community, all EXPLANATION OP LEADING TEEMS. 81 perplexing questions, arising in States which forbid by Law cruelty to animals, as to the quasi-Personality of animals, are avoided. The capacity of being invested with Eights or made liable to Duties sufficiently indicates the notion of Moral Responsibility, of which more will be said imme- diately, as inseparable from that of true legal Personality. The definitions above given of Person and Thing are, again, quite compatible with the two facts that — (1.) Human Beings are, sometimes, for special legal purposes, treated exactly as Things ; and that (2.) Things, or aggre- gate masses of Things, are, for other legal purposes, looked upon as in some way capable of being invested with Eights and made liable to Duties, that is, treated as Persons. Of the first of these facts, the case of a Master having a Eight of Action for an injury done to his Servant; a Husband, Father, or Guardian for an injury done to a Wife, Child, or Ward; Eelatives or Insurance Companies entitled to compensation for negligence in the carriage of passengers, resulting in death, are notorious instances. Of the other of these facts, the familiar habit in all systems of Law of creating what are called "fictitious" or "artificial" Persons, is the most significant example. The " Hereditas," the "Fiscus," or Imperial Treasury, "Collegia" and "Juris Uni- versitates " generally, in Eoman Law ; and Corporations, Sole or Aggregate, in English Law, are either assemblages of Things or of an indefinite number of Human Beings to which the Law attributes, for special purposes, a certain capacity of control over the Acts of Persons, or prescribes certain limitations in their proper or possible activity. They are, in other words, looked upon as capable of being invested with Eights, or made liable to the per- formance of Duties. 82 THE SCIENCE OF JURISPRUDENCE. 7. — A peculiar Class of Terms respecting the possible Qualifications of Moral Eesponsibility. For the purposes of the Jurist the use of the phrase "Moral Eesponsibility" must not be held to assume the truth of any Theory relating to the constitution of Man or to the government of the Universe. The phrase does nothing more than chronicle the products of experience with respect to the actual nature, habits, and faculties of Man. The possibility of Law wholly rests on the basis of this experience. If men's actions could only be deter- mined in every case by special mechanical pressure then and there brought to bear, all use of a general Eule would be excluded. It is known, on the contrary, whatever psychologists may assert as to the liberty or the bondage of Man's Will, that he is practically affected in his conduct by the nature of the consequences which he foresees will ensue from it. These consequences the Legislator endea- vours to control, and thereby he operates on that peculiar faculty of mental determination called the Will, which, in the absence of external control, is invariably followed by appropriate muscular motions. The juridical view, then, of Moral Eesponsibility involves the assumptions, — (1.) that average men have the capacity of forming an Intention, that is, of distinctly contemplating the immediate consequences of their own Acts, under the term Acts including all those muscular movements which, in default of external restraint or disease, are invariably followed by the sort of Desire denominated Will; (2.) that they have the capacity of Willing, that is, of conceiving the par- ticular sort of Desire which is invariably and necessarily followed by Action; (3.) that they have the capacity of EXPLANATION OF LEADING TERMS. 83 Acting, that is, of making the particular kind of muscular movements upon which the Will has resolved. Thus— fl. Forming an Intention,") must all enter into capacities I 2 Wi]]ing) I the idea of Moral 13. Acting, J Eesponsibility. Any one of these three capacities may be present with- out the other two. Thus a Person may form an Intention with respect to the Act he is at the point of determining upon, but, owing to some distraction or interruption, he never wills and never does the Act. Attempts to commit Crimes, and the English offence of "Compassing and Imagin- ing the death of the King," are illustrations of this inchoate responsibility. So, again, a person may have that peculiar sort of Desire which, in the absence of all external restraint, is invariably followed by certain muscular movements, yet, owing to the introduction of some such restraint as sudden paralysis, capture by the police, or mechanical pressure, after the Desire has been fully conceived, the Act is never performed. In the same way the Will to perform a certain muscular movement may be present, and yet the consequences of that movement, direct or indirect, may never be contemplated. This is the case in extreme Infancy, or in equivalent states of inexperience, for certain purposes, in such peculiar conditions as those of Idiocy, Insanity, and Intoxication. The Will is present, but no Intention is or can be formed. One large class of exculpatory facts is determined wholly by the Mode in which the capacity of the Person relieved from legal responsibility may be trifled with, thwarted, or perplexed. Fraud relieves the Person pleading it on the ground that he was deceived with respect to the immediate consequences of his Act. He g2 84 THE SCIENCE OF JUKISPEUDEKCE. intended to do an Act to be immediately followed by a certain set of consequences which he foresaw. The real consequences of the Act were craftily concealed from him, or, by a slight legerdemain, a novel set of consequences were substituted for those he desired. He signed a Pro- missory note payable at six months' date for fifty pounds ; by the Fraud of the Person to whom it is made payable, the sum is altered to five hundred pounds and the time to six days. Or a Person in a state of ill health signs what he believes to be a merely indifferent document, relating to one of the most every-day concerns. He has really signed his Will, by which all he owns will be trans- ferred at his death to the Person who has, by fraudulently substituting one document for the other, disguised the real consequences of the Act of Signature. For complete Legal Imputability the three distinct capa- cities — (1.) to form an Intention, (2.) to Will, and (3.) to Act, must all be present, in however slight a degree one or other of them may be manifested. In deciding upon the Moral Eesponsibility of a Person accused of disobeying a Law, the Judge is under the necessity of ascertaining the degree in which these several capacities are present, and of determining whether any facts are disclosed by which these capacities might be impaired. General Pacts limiting Moral Eesponsibility may be classified according as they are the pure expression of simple Physical or Ethical phe- nomena, or are the creations of Legal and Political institu- tions to which an artificial influence on Intention is, for purposes of public policy, and under the guidance of average experience, generally imputed by Law, The Facts properly held to impair or qualify Moral Eesponsibility may be arranged under the following divisions : — EXPLANATION OF LEADING TERMS. 85 (1.) Universal Facts, as Infancy, Old Age, and Difference of Sex. (2.) Occasional Facts, physical or ethical, as Idiocy, Insa- nity, Intemperance, Bodily disorder or casual In- firmity, Error or Mistake, Compulsion, and Fraud. (3.) Facts, physical or ethical, to which an artificial imputation is affixed by Law, as Marriage, Agency, Trust, and what is called, in English Law, " Constructive " Fraud. It is not necessary to examine in detail the Mode in which every one of the Facts here enumerated operate, or are properly held to operate, upon Moral Eesponsibility through their direct influence on the Intention of the Agent. The precise investigation of the Mode in which a few of them operate will supply the key to the mode of operation of all. As to the Universal Facts falling under the first division, they are manifestly bound up with the general condition of Humanity, and therefore are taken notice of with greater or less precision and felicity in every System of Law that has at all developed itself. For instance, very young children Will and Act as really as do their seniors, but, from utter inexperience or thoughtlessness as to the imme- diate consequences of many of their actions, they cannot, with respect to these actions, be said to form an Intention. Thus the habit of regarding young children as being, for legal purposes, Morally Irresponsible acquires fixity and permanence, and each particular Legal System has only to assign, in accordance with the national temperament, race, climate, and traditions, the Age at which this Irre- sponsibility shall wholly or partially end. The Age may differ for different legal purposes. It may be held that 86 THE SCIENCE OF JURISPRUDENCE. a child obtains a sufficient knowledge of the world in which he lives to guard hirn against certain Acts at an earlier Age than against others. On this principle, ac- cording to English Law, Criminal Liability commences long before Civil Liability ; and even at an Age long before Criminal Irresponsibility wholly ceases, the ordinary pre- sumption in favour of that Irresponsibility admits of being rebutted. Whether Difference of Sex is an essential and universal or only accidental and local ground for imputing dif- ferences of Moral Kesponsibility, is rather a psychological and political than a juridical problem. In attempting a practical solution of it each nation has differed from every other and each age from every previous age. Guidance has been sought rather from the dictates of inexplicable sentiments and firmly rooted institutions than either from facts or reasoning. The present vacillation both of thought and policy in England, in the United States, and in Continental countries with respect to the real nature and operation of Difference of Sex is far too great to admit of this fact being catalogued in a Systematic view of the Science of Jurisprudence as one of the permanent Facts influencing Moral Kesponsibility. As to the Occasional Facts mentioned in the second of the above divisions, they impair the faculty of forming an Intention by rendering the vision even of the imme- diate Future clouded, distorted, or obscured. Different Legal Systems recognise these Facts as operating in different degrees. In England, as with Infancy so with Insanity and Intemperance, a different sort of Presumption is raised in favour of Moral Irresponsibility as affecting some classes of Acts than as affecting other classes. The iden- EXPLANATION OF LEADING TERMS. 87 tical testimony of Insanity which might suffice to upset a Will or relieve the maker of a Bill of Exchange from all Liability upon it might not suffice to save the same person upon a charge of Wilful Murder committed at the moment of signing the Will or making the Bill of Exchange. On the other hand, a Person being supplied with necessaries of life during a fit of Intoxication might be liable upon a Contract made in the same condition of mind in which he is, for some Criminal purposes, held Morally Irre- sponsible. The rules providing for the case of an Agent's capacity of forming an Intention being impaired through the pre- sence of Fraud or through Ignorance or Inadvertence, resulting in what is technically called Error or Mistake, form a prominent part of every Legal System. In all these cases a misapprehension as to the immediate consequences of an Act is brought about in the Agent's mind. In some points of view the Agent may be held to be Morally Eesponsible for his mind's perverted condition. A small amount, an average amount, or a very great amount, of Care and Diligence may be properly demanded of him, and he has failed to exercise it. This may be a ground for reducing the compensation due to him for his own loss or for increasing the penalty for the loss he has occasioned to others. But whatever his Liability in this respect, the fact that his Moral Eesponsibility was impaired, through defect in the requisite Intention, cannot be evaded in a just System of Law. The rules relating to Fraud, Igno- rance, Error, and Mistake, have for their purpose to guide the minds of Judges with respect to the limits of allowance and indulgence which a defective Intention in an Agent may legally meet with. 88 THE SCIENCE OF JUK1SPEUDEKCE. The regulation of the legal consequences of Fraud and of the different forms of Ignorance is one of the most arduous problems before the Legislator, and the mode of solving it affords a delicate test of the degree of Moral discrimination characterising his age and country. The actual complexities that arise are of the following sort. A single fraudulent Act may give rise to a long line of transactions, all of them strictly honest, and in every one of which the Agents would be grievously injured were the whole line to be held vitiated through the discovery of a flaw affecting one of the earliest links. To meet this possible case were devised and elaborated the doctrines of " bona fides " in Eoman Law and of " notice " in English Law. A Person in the enjoyment of a Eight directly issuing from another Eight, the creation of which was due to a Fraud, may have been — (1.) cognisant of the Fraud from the first ; or (2.) informed of it after the Eight it created had become vested, and before his own Eight accrued or he had parted with it to another ; or (3.) not informed of it till after this last Eight had accrued or he had parted with it to another. Thus in the case of the fraudulent negotiation of a Bill of Exchange, a late Indorsee may have known of the original Fraud at the time the Bill was indorsed to himself; or he may not have known at that time, and may, in consequence, have given what is called " value " for it, but may have heard of the Fraud before he indorsed it to another and yet have none the less indorsed it to the other ; or, from first to last, he may never have heard of the Fraud at all. In the first of these cases he would in no country be held to be in bond fide. In the second case he might or might not, accord- ing to circumstances or the accidental national policy. EXPLANATION OF LEADING TEEMS. 89 In the third case he must, in every country, be held to be as much in bond fide as if the Fraud had never been committed. It is scarcely necessary to illustrate by familiar instances the modes in which Ignorance, whether as to the state of Facts or the state of the Law is, under one form or another, treated by the Law of all countries as affecting Moral Eesponsibility. It is held in most countries, as in England, to be the most convenient Presumption that everybody is acquainted with the state of the Law. The Presumption, in its strict meaning, implies an impossibility, or rather an absurdity. It is only more convenient than the oppo- site Presumption, inasmuch as it shuts out peremptorily the interminable excuses which would otherwise be founded on the Ignorance of Law. Even in countries where this Presumption is most severe, it is held capable of being rebutted where, through youth, idiocy, " rusticity," or other special circumstances, acquaintance with the state of the Law is next to impossible. Moral Eesponsibility, it has been indicated, may not be only held to be affected by the inexorable facts of Human Life, and the average vicissitudes of Human Nature, but also through the operation of a class of social or almost artificial Facts which are the creations of nothing else than Civil Society and of Law itself. Thus Marriage, as a legal Kelationship, presupposes the existence of Law, in however inchoate and embryonic a form. This Eelationship, in the form in which it has been hitherto exhibited in all nations, presents the "Wife as being in such a degree, whether greater or less, of sub- ordination to and dependence upon her Husband as obviously to hinder her freedom of action and therefore 90 THE SCIENCE OP JURISPRUDENCE. to limit her Moral Eesponsibility. The general possibility of such limitation is recognised in most Systems of Law, and it is enforced by national institutions which, for pur- poses of Ownership, Contract, and even Personal Liberty, place the Female sex at a standing disadvantage in com- parison with the Male. Another Fact, artificially created by Law, which, wher- ever it exists, is necessarily held to restrict Moral Eespon- sibility, is Agency. It was seen that the three elements essential to constitute Moral Eesponsibility are — (1.) a capacity to form an Intention ; (2.) a capacity to Will ; and (3.) a capacity to Act. In the course of Civilisation the convenience of Mankind has introduced the habit of separating, in a multitude of transactions, the Person who Intends and Wills from the Person who Acts, — that is, in the narrowest sense of the word " Acts," where it means simply " puts the necessary muscles in motion so as to produce the desired effect." In this case the whole Moral Eesponsibility is shared between the two persons engaged, the so-called " Principal " and the " Agent." The distri- bution of the exact share of Eesponsibility attributable to each is a matter of considerable moment both to them- selves and to third Persons affected by the complete transaction. It is customary in Legal Systems to make certain general rules, suggested by the nature and habits of Mankind, for determining where the Eesponsibility in such cases is presumed to lie. The Law directs the Judge to presume that Acts of a particular class are, for all purposes of legal Liability, the Agent's own and no- body else's ; that other Acts are imputable in the way of legal Liability to somebody else and not to the actual Agent ; that other Acts, again, are either imputable to the EXPLANATION OF LEADING TEEMS. 91 Agent or to somebody else, as special circumstances may suggest. The kind of Signs -which the Law will look to in order to affix Moral Eesponsibility will be such as the general or special relation existing between the Parties, the customary course of similar transactions, the know- ledge actually or presumptively possessed by a third Person affected of the representative or non-representative character of the Agent. Each Legal System will have its own rules, prescribing the use to be made of these and cognate Signs. Closely akin to Agency is the equally artificial legal phenomenon of Trust. This phenomenon is eminently a modern one, though the main idea of presuming, for. general purposes of public convenience, a Special Confi- dential Eelationship between two or more Persons figured largely in the Prsetorian department of Eoman Law, and must, indeed, enter more or less into all advanced Sys- tems of Jurisprudence. A Trustee is a Person regarded by Law as competent to form an Intention and to Act, but the region of whose Will is circumscribed by limits of all kinds invented and imposed by Law itself. Thus a Trustee is held responsible in the highest degree for every one of his Acts in the matter of his Trust, but his freedom of action is narrowed to certain very definite di- rections. It may be said that a Trustee derives his Eights or his capacity of controlling the Acts of others from one class of Laws, and his Duties or his liability to have his own Acts controlled from another. In respect of the former class, he is Morally Eesponsible to the extent that he is a free agent. In respect of the latter class, that Eesponsibility is severely limited to the extent that his course of action is restricted to the channels marked out 92 THE SCIENCE OF JURISPRUDENCE. by Law itself. Thus, so far as a Trustee confines his voluntary action to the limits prescribed by Law, his Moral Eesponsibility will be judicially tested in the same way as it would be were he physically incapable of Willing otherwise. The whole historical origin, meaning, and doctrine of Trusts will come under consideration later on, as one of the divisions of the head " Laws affecting Special Classes of Persons." Another artificial class of Facts, owing their origin to Law itself, and, by a presumed operation on the Intention of an Agent, held, in many Systems of Law, to qualify the Agent's Moral Eesponsibility, are those of the nature of what is called in England Constructive Fraud. This class of Facts is formed by an inductive process out of a series of observations of average human conduct. It is noticed that in the play of domestic relationships, of com- mercial transactions, and, more generally, of negotia- tions implying mutual fidelity, the weak, or the ignorant often come to be placed in a position very disadvantageous compared with that of those with whom they are dealing. There may be no imputations of selfish or unworthy conduct on the part of anyone, and yet the Lawgiver may think it well to determine that exceptional securities for fairness, impartiality, and diligence, ought to be given by the stronger to the weaker. To provide these secu- rities he creates a number of Eules controlling the conduct of the stronger, and raising an irresistible Presumption, in case of their breach, of a privation of Moral Eesponsibility on the part of the weaker. In such cases it is presumed irresistibly, that the Person in the less favourable situation was prevented, by him in the more favourable, from form- ing the Intention requisite to carry with it complete Moral EXPLANATION OF LEADING TEEMS. 93 Eesponsibility. He has, so to speak, been the victim of a Constructive Fraud. 8, 9.— Act and Event. Corresponding to the distinction between Person and Thing is the allied distinction between Act and Event. An Event is an actual change in the relative situation of Persons or Things, or of the composing elements of Things, such change being estimated quite apart from the consideration of any of the causes' that may have brought it about. An Act is a muscular motion regarded as following that peculiar kind of Desire (termed Will or Volition) which in a condition of health, and in the absence of all external restraint, is necessarily and invariably followed by such motion. The word Act is, in truth, often used in a narrower or lower sense than this. Any muscular motion, whether preceded or not by the phenomenon of Will, acquires the name of " Act." Thus, the muscular movements of the sleep-walker, the vibrations of the victim of St. Vitus' Dance, the frantic gestures of the delirious and the insane, are dignified with the same name as the orderly and normal movements of the healthy and ra- tional man. It is indeed one of the hardest problems for the judicial psychologist to distinguish, in some of these cases, between Voluntary and Involuntary motion, and to impute Moral Eesponsibility accordingly. But because Human Nature is mysterious and obscure in its more morbid and sinuous operations, and therefore Human Jus- tice will frequently be baffled, this is no reason for con- founding distinct ideas and their corresponding names. 94 THE SCIENCE OF JURISPRUDENCE. There are, in fact, many critical changes in the situa- tion of Persons or Things, or in the component elements of Things which admit now of being viewed merely as Events, now as Acts. The death of one Person at the hand of another is regarded as an Event so far as the Testamentary dispositions of the deceased thereupon come into force, the cause of the death being generally for that purpose irrele- vant ; but it is regarded as an Act when it is attempted by a Judicial process to impute Moral Eesponsibility to the Person bringing about the death. In the course of the Trial, it may be again sought, in favour of the prisoner, to establish his Insanity, his Passion, or the presence of what is called Chance or Accident, by way of forcing on the conclusion that, in respect to the Person charged, the alleged Crime can only be treated as an Event, and not an Act. Marriage, again, may be treated for some purposes as an Event, and for others as an Act. It is an Event so far as the sole matter of contemplation is its operation on the capacities of the Married Persons for Ownership and for making Contracts, or upon the Eights and Duties of other Persons in respect of them. It is an Act when looked upon in reference to the competency of Persons to enter upon the Marriage-state, to the solemnities which are held legally necessary to authenticate the fact of such entrance, and to the Moral Duties presumably undertaken by the married Persons, the neglect of which, in some systems of Law, are held to be grounds of legal Divorce, So Bankruptcy may be treated either as an Act or an Event, according as attention is fixed on the Voluntary agency and consequent Moral Eesponsibility of the Person who has brought himself into such a situation, or on the EXPLANATION OF LEADING TERMS. 95 bare consequences to himself and other Persons, which the fact of his Bankruptcy involves. It is needless to multiply illustrations which reach to every department of the Legal System. The term Motive is often introduced in judicial investigations, though it is never, in England, introduced into strictly legal documents, and scarcely claims a place among the terms proper to the Science of Jurisprudence. In order to ascertain an agent's " Intention " at the time of his doing an Act, it is sometimes essential to notice the attitude of his mind towards the remoter consequences of his Act. This attitude is expressed in saying he was determined by such and such a " Motive." The predicate "good" or "bad" is obviously irrelevant, and in fact means nothing more than that the consequences con- templated are thought desirable or the contrary by the speaker. 96 CHAPTER VIIL CLASSIFICATION OF LAWS. There are many different Modes of Arrangement which may be adopted for the purpose of exhibiting, in the most convenient and accessible form, the Laws existing in a National Community. These Laws may have arisen from different groups of Historical or Social Events, may be administered in Courts of Justice employing different Modes of Procedure, may affect different classes of Persons in the Community, or may relate to different kinds of Civil transactions or species of Wrong-doing. Each of these grounds of difference may be adopted, and in some one or other actual Institutional treatise or Legal System has, in fact, been adopted, as a basis for the logical dis- tribution of a nation's Laws. Thus differences of Historical Origin and of Procedure have led to the notable divisions in English and in Roman Law into " Equity " and " Com- mon Law," " Prsetorian Law " and " Civil Law." In like manner, a recollection of the different Classes of Persons directly affected by different parts of the Law suggested the venerable and still-subsisting separation of the " Law of Persons," meaning thereby the Laws applicable to particular Classes of Persons, by reason of some peculiar moral or legal situation which they occupied in respect of other Persons, and the " Law of Things," meaning thereby the Laws applicable to all Persons whatever without CLASSIFICATION OF LAWS. 97 distinction. The ground of distribution suggested by the varieties of civil transactions, or of species of wrong-doing, is exemplified in the other two great divisions of the Institutes of Eoman Law, the " Law of Obligations," and the " Law of Actions." Similarly in English Law, and in all modern Codes, the Law of Contract, or still more generally Mercantile Law, has always tended to with- draw itself, for the purpose of independent consider- ation, from the body of Laws concerned with every other topic. The Law of Crimes, again, and so-called " Constitutional Law " form, even in the least artificial Legal Systems, distinct chapters wholly separate from the rest. In no System or Institutional treatise, probably, has any one of these principles of division been rigidly ad- hered to. The most convenient is perhaps the last, that is the one based upon nothing else than the quality of the Acts which the Laws affect to control. The mode of Arrangement thence resulting has the advantage of being capable of easy adaptation to changes in the Legal System as they are naturally developed. The most primitive and essential laws will thus occupy the earliest place ; the more special, accidental, and refined modifications and additions being subsequently introduced from time to time, as fresh national facts give birth to them. Thus the notion of Government is contemporaneous in its origin with that of Law itself, thereby pointing to the advantage, or rather the- necessity, of handling first of all the topic of Constitutional Law, or those Laws directly relating to the Constitution and Administration of the State, which must have a place in the most elementary Legal System belonging to the most embryonic National Society. This body of Law is indeed the last to come H 98 THE SCIENCE OF JURISPRUDENCE. into complete consciousness and to attain exactness and precision in its lineaments and proportions. It is also more dependent than any other part of the Law upon casual political Events and even upon fleeting popular sensibilities. Nevertheless its true place is anterior to all the body of Law which constantly presupposes it. In some Systems it has been habitual to include Consti- tutional Law, strictly so called, together with the Laws relating to Procedure and Crimes, or to one or the other of these, under a general head of "Public Law" as opposed to all other Laws denominated " Private Law." This arrange- ment, it is conceived, is dictated by a perverse and fallacious instinct, that somehow the State is more prominently and immediately active in the punishment of Crimes and in the regulation of the machinery of Courts of Justice than in the mere process of creating Eights of Ownership or of determining the Eights and Duties of Persons who have entered into a legal Contract. Of course, the whole value of a Eight of Ownership or of a Eight under a Contract is due to nothing else than the direct authority and activity of the State. It is at once the effect and the cause of endless confusion to suppose that the Law of Ownership or of Contract, just because the prosecution of claims arising therefrom is usually left to be initiated by private Persons, has anything in it more private or less directly dependent upon the physical energy of the State than any other part of the Law. For all these reasons there is an obvious advantage in treating Constitutional Law, in the strict sense of " Laws directly relating to the Constitution and Administration of the State," apart from the rest of the Legal System, and in treating it first. The next place is indisputably claimed by Laws of CLASSIFICATION OF LAWS. 99 Ownership. All Civil Society presupposes the existence of the notion and fact of Ownership, in however rude, limited, and precarious a form. Thus distinct Laws of Ownership necessarily make their appearance sooner than any other kind of Laws. The supreme importance of reinforcing with the might of the whole State the weak- ness of private Families, and afterwards of isolated individual Persons, is the earliest necessity that presses upon the primitive Statesman ; and in every antique Code a certain sacredness is seen to attach to Duties in respect of Ownership which puts those Duties quite on a par with religious and moral Duties consecrated by the most binding sanctions. Then, again, Eights of Ownership, being Eights existing in a particular Person or in particular Persons against all other Persons, are the simplest and least com- plicated of all Eights. They are simpler, for instance, than Eights under a Contract, which cannot be treated without keeping in view at once the Wills and Acts of two Persons at least and all the circumstances by which the Moral Eesponsibility of either of the persons may be impaired. For similar reasons, that is, partly in deference to the fact of historical development and partly to that of progressive complexity, Laws of Contract will properly occupy the third place in a complete exhibition of the contents of a Legal System. Eoman lawyers, indeed, and modern Jurists who have constructed Codes on the basis of the Institutes of Eoman Law, though treating Laws regulating Contract after Laws regulating Ownership, have made the former subordinate to the latter by including Contract among the various ways in which the fact of Ownership may begin. There are many objections to this h2 100 THE SCIENCE OF JUBISPRUDENCE. course. Besides the fact that thereby the true moral situation of a Contractor as contrasted with that of an Owner is liable to be lost sight of or slurred over, there are many other purposes for which Contracts are made besides the acquisition of Eights of Ownership. Three main classes remain, — Laws affecting Special Classes of Persons, Laws of Civil Injuries and Crimes, and Laws of Procedure. The special situations of particular Persons in the Community relatively to others have attracted the attention of Jurists in all ages to such an extent as to give an almost undue prominence, on the face of most Legal Systems, to the Eights and Duties of such Persons. It was felt that the healthy action of Civil Society depended upon nothing more nearly than upon the proper fulfilment of the mutual Duties implied in the relations of Husband and Wife, and Parent and Child, and in the later and more artificial relations of Guardian and Ward, Attorney and Client, Trustee and Person for whom the Trust is held. The tendency was to place the consider- ation of the legal Eights and Duties which supported these relations in the fore-front of the whole legal system, under the head " Law of Persons," irrespective of the fact that, however momentous were these Eights and Duties, they were special, exceptional, and narrow in their character, and only affected limited classes of Persons in the whole Community. The same sense of convenience, however, which originally suggested their undue prominence still enforces their separate and distinct treatment. It is well that those classes of Persons who, in their relations with others, are vested with or made liable to assemblages of Eights and Duties together constituting what is called " Status," should know distinctly to what part of the Legal CLASSIFICATION OF LAWS. 101 System to have recourse for information upon what more immediately concerns themselves ; and it is also well that what concerns all Persons whatsoever should be treated independently, so as to dispense with the need of constant repetition. Thus the head " Laws affecting Special Classes of Persons" is properly placed in immediate succession to " Laws of Contract." At this point of the Legal System the principle of ar- rangement, were it determined by Eights or Duties singly instead of by the quality of the Acts affected to be con- trolled, would appear to undergo a change. Eights would no longer be pre-eminent, and Duties would take their place in leading the way. Civil Injuries and Crimes are objects of the Lawgiver's anxious care from the very foundation of the State, and Laws relating to them are implied in every other kind of Law. It will be seen here- after that the arbitrary division between Civil Injuries and Crimes is unknown to early Communities, that it is inva- riably exposed to the influences of confused moral senti- ments, as it has been conspicuously in the history of English Law, with its eccentric division of Misdemeanours and Felonies, and that it is in fact founded on no real and essential difference in the nature of things. There are some Acts which the State holds it to be desirableto pre- vent at all hazards and by the use of all the machinery of Government disposable for or essential to that purpose. These Acts are strictly Crimes, and no others are. Some other Acts it holds it to be desirable to prevent con- ditionally upon certain Persons co-operating with or specially inviting the instrumentality of the State. These are Civil Injuries, or in English Law " Torts." The pecu- liar and mixed process for prosecuting Crimes in England, 102 THE SCIENCE OF TORISPRUDENCE. has, among other causes, impeded the recognition of this real and sole distinction. " Laws of Procedure," including " Laws regulating the Admission of Evidence," naturally closes the whole sub- ject. These Laws prescribe the Eights and Duties of all members of the Executive directly concerned in carrying into effect all the Laws of the State by discovering the Persons who disobey those Laws, assigning and inflicting the punishments entailed by disobedience, and, in cases of doubt, determining the application of the general lan- guage of Law to the particular cases that present them- selves for decision. This class of Laws, again, is addressed not only to Judges, Magistrates, Sheriffs, Policemen, and Gaolers, but also to all Persons in the Community who, in the guise of Witnesses, Jurymen, or Professional or Scientific Counsellors, are invited or compelled to co- operate, from time to time, as occasion arises, with the Executive in the Administration of Justice. In accordance with the above mode of distributing all the possible Laws which constitute a complete Legal System, both for purposes of Codification and of Scientific instruc- tion, the whole subject will now arrange itself under the following heads, each of which will be treated in succes- sion : — I. Laws directly relating to the Constitution and Ad- ministration of the State. (Constitutional Law.) II. Laws of Ownership. JJI. Laws of Contract. IV. Laws affecting Special Classes of Persons. V. Laws relating to Civil Injuries and Crimes. VI. Laws of Procedure. 103 CHAPTER IX. LAWS DIRECTLY RELATING TO THE CONSTITUTION AND ADMINISTRATION OF THE STATE. (CONSTITUTIONAL LAW.) The materials of this chapter will naturally and most conveniently distribute themselves into the following departments : — A. Description of the general nature, province, and limits of this part of the Law. B. Meaning and scope of the phrase Supreme Political Authority. C. Legal relations to each other, and to all other Persons, of the Persons (if more than one) composing the Supreme Political Authority. D. Modes in which changes are brought about in the class of Persons composing the SupremePolitical Authority, or in the relations of such Persons to each other and to all other Persons. E. Meaning of the phrase Executive Authority, — Legal relations to each other and to all other Persons of the Persons composing that Authority, and Modes in which changes are brought about in those relations. A. — Description of the general nature, province, and LIMITS OP THIS PART OP THE LAW. If it be true that all Law consists of Commands addressed by a body of Persons in the Community to all the rest, 104 THE SCIENCE OF JURISPRUDENCE. it may well be asked whether this body of Persons them- selves are, in their corporate capacity, subject to any Law whatever. It is a fact that in all settled Communities this body is practically coerced on every side. The penalties of unpopularity, of imperfect obedience, or expulsion, are ever hanging over its head. It may make certain Laws, but it will in vain attempt to make others. It may modify its own Constitution, but only within very definite limits. It may amplify or restrict its own numbers, but it cannot commit suicide. The collection of Eules which circum- scribe the action of a Supreme Government are only unlike true Laws in that they are neither devised nor can be readily altered by that Government. In some countries, as in the United States, these Eules were once and for ever constituted at the foundation of the National Polity, and it demands a most circuitous process in order to obtain the assent of every State of the Union in order to introduce the minutest change. In other countries, as in England, there is no so-called " Paper " Constitution, but the rules prescribing the general bounds and character of the Government are none the less deeply fixed in the senti- ments of the people, and are even reduced to the technical form necessary when employed as a basis for argument in Courts of Law. These Eules, resting as they do on a more adamantine foundation than the passing caprice of the Government of the hour, which, indeed, to them owes its very existence and authority, have been called by some writers " Constitutional Morality," to distinguish them from the other rules directly relating to the Constitution and Administration of the State, which, owing their creation and force to nothing else than the will of the Governing Authority (hereafter called the Supreme Political Autho- CONSTITUTIONAL LAW. 105 rity), are to all intents and purposes properly called Laws. As a matter of ethical or historical research, the use of the word " morality" is here neither inappropriate nor unin- teresting, but, just as in the parallel case of International Law, the rules in question are as unlike as possible to moral principles and maxims, and are as like as possible to genuine Laws. . They are inextricably implicated with all the other Laws pertaining to this part of the subject, and when once their true qualitative difference has been, as above, fixed and recorded, they may properly, both in a Code and an Institutional treatise, be indistinguishably blended with the general Laws relating to the Constitution and Administration of the State. The main purpose of these Laws is to mark the classes of Persons who shall be empowered, through the assent of the rest of the Community, to make Laws for the whole; to determine the usages which shall be observed in the processes of making and publishing these laws ; and to mark out the class of Persons whose special function it shall be to enforce obedience to Law with a due regard to the protection of every individual citizen against tyrannical abuses. There is no distinction of more common acceptance than that between what are called the " Legislative " Authority and the "Executive" Authority. The former is said to represent the Persons who devise and enact Laws ; the latter those whose province it is to enforce them. It has been doubted by some writers, and notably by Bentham,whether this distinction serves any other purpose than that of the loosest popular classification. The persons who are said to constitute the. Executive Authority are necessarily endowed with a very extensive power of subordinate 106 THE SCIENCE OF JURISPRUDENCE. Legislation. It is they who devise rules for the regulation of the army and navy, for the collection of the revenue, for the accomplishment of postal, locomotive, sanitary, and possibly commercial and moral purposes, and espe- cially for the preservation of peace and the detailed ad- ministration of Public Justice. Each subordinate of the Executive, again, in his turn has to make fresh general rules for the carrying out of his special work. The so- called Legislative Authority, on the other hand, in the very process of enacting a Law, must provide by antici- pation for every stage in the course of its effectual enforcement. The true distinction is not between a Legislative and an Executive Authority, but between a Supreme Govern- ing Authority, on the one hand, and all the Persons whose services it employs for the purpose of giving effect to its commands, on the other. A convenient name, indeed, for all this assemblage of functionaries is " the Executive Authority." It stands opposed to the Supreme Autho- rity from whom alone it derives all its powers. The head of the Executive Authority in European countries is in- variably the Person who in Feudal times absorbed in him- self the whole Governing Authority of the State. He still retains his station as a constituent portion of the Supreme Political Authority. It is the province of the Laws that relate to the Constitution and Administration of the State, after marking the classes of Persons com- posing the Supreme Political Authority and providing for their change, to determine the classes of Persons who shall constitute the Executive Authority, to assign their several functions, and to protect individual citizens against every form of tyrannical abuse. CONSTITUTIONAL LAW. 107 B. — Meaning and Scope op the phease "Supreme Political Authority." It has been seen, in the course of denning the term State, that in the use of that term there is predicated of a nation a certain organised life and essential unity which is independent of the accidental modes of Government which from time to time may prevail, of the mere lapse of Time, of the life and death of successive generations, and of historical vicissitudes of all sorts. At any epoch in the existence of a State there is to be found in it a Person or assemblage of Persons who, for the time being, have the irresponsible and effectual power of controlling the Acts of all Persons in the Community, or at least to whose commands the bulk of the Community exhibit an habitual obedience. It has already been seen that this sovereign, or so-called " Supreme Political," Authority, even in its most absolute and irresponsible form, has its capacity of command ever hedged round by certain inde- terminate instincts and sentiments prevalent among the people. Therefore all that can be asserted of any such Authority is that, within these limits, its power is despotic, that these limits are only very obscurely and indefinitely marked, and that in the whole Community there is no Person or number of Persons who can at the moment successfully compete with itself for the actual submis- sion and loyalty of the citizens. The practical difficulty in giving a precise meaning to the phrase " Supreme Political Authority," as applicable to the facts presented in European States, is mainly due to historical causes. By a certain national courtesy or reverence for venerable traditions, the King, the Queen, the Emperor, is invariably invested with all the dignities 108 THE SCIENCE OF JURISPRUDENCE. and honourable appendages anciently and still familiarly- associated with the possession of Absolute Power. In truth, however, there is no State in which the whole Legislative functions any longer centre in the person of the Monarch. Usually these functions in fact, or at any rate in form, are distributed among three Orders of Persons selected out of the Community, and who, there- fore, together constitute the true Supreme Political Authority. One Order, whether the most influential, as in some countries, or the least so, as in many, represents the old Feudal Sovereign chosen by reference to an inflexible rule of hereditary succession. Another Order, chosen also by reference to birth in some countries, but also by reference to wealth or even to merit and services in others, constitutes a select and aristocratic Chamber re- producing the Barons of Feudal and the Senators of Koman times. A third Order, again, gradually forcing its way forward and tending to absorb, or even now actually absorbing, all the rest, represents directly the claims, the sentiments, the aspirations, or, it may be, the prejudices and the political incompetence of the general body of the people. Such is the universal picture presented by almost all States in the Old and even in the New World. For even the most republican nations have, wisely or not, con- structed their Constitutions on the model supplied by European facts, and the Constitutions awarded to English Colonies are fashioned after the same identical type. A President or a Lieutenant-Governor may take the place of a King or Queen. The Elect of a State Legislature or a grazier qualified by wealth may stand for a Baron or a Duke. The Elect of the most democratic of Constituencies, holding his precarious seat for a couple of years at" the most, may CONSTITUTIONAL LAW. 10 3 recall the English County Member, with his seven years' tenure. Whatever the particular rules for describing the classes out of which the several Orders shall be constituted, the phenomena are everywhere much the same. The Supreme Political Authority in any country consists of all the Persons forming the aggregate of these Orders. It belongs to this part of the Law to determine the Persons who shall compose these several Orders, and to prescribe the legal relations of the several Orders to each other. It is sufficient just to allude to one abnormal and erratic form of the Supreme Political Authority which is occasionally presented through a concurrence of his- torical causes. It is that in which there are two or more independent bodies, each enacting effectual Laws at the same time. This phenomenon was exemplified during nearly the whole period of the Eoman Eepublic, when Assemblies representing severally the Aristocratic, the Popular, the Plutocratic, and the professionally Political forces of the country each made Laws, whether named " leges" " plebiscita," or " senatus-consulta" binding on the other Assemblies and on the whole Community. In truth, one or other of these Assemblies was generally predominant at a particular moment or else took cogni- sance of a particular class of affairs. Any way, the true Supreme Political Authority included all the Persons making up all these Assemblies, the mode of distributing the Legislative functions among them being matters of further limitation. The matters falling under this first department of the branch of Law now being dealt with may be compen- diously summarised in the following way, which will also serve as a type for the codifier to keep in view. 110 THE SCIENCE OP JURISPRUDENCE. I. Brief description of what is meant by the expression " Supreme Political Authority " generally. II. Description of the general Mode in which such Autho- rity is constituted in a given Community, (whether consisting of one or more Persons, sitting in one or more Chambers, with joint or independent Legislative functions.) III. Precise determination of the Modes in which the Person or all the Persons constituting the Supreme Political Authority are nominated. (Whether, for example, by birth, wealth, popular election, or public services.) C. — Legal relations to each other and to all other PERSONS, OP THE PERSONS (iP MORE THAN ONE) COM- POSING the Supreme Political Authority. Assuming that this Supreme Political Authority is once constituted and all its component portions accurately described, the Persons of whom it consists are necessarily invested with certain Eights and made liable to certain Duties for the purpose of the more effectual accomplish- ment of their Legislative functions. Some of these Eights and Duties will be in reference to each other, to the cor- porate portion of the whole Supreme Political Authority which they help to make up, or to the other corporate portions of the same Authority. Others of these Eights and Duties will be in reference to private members of the general Community. A large part of the branch of Law now under consideration is concerned with determining these two divisions of Eights and Duties. It is true that many of these Eights and Duties will have gradually emerged through a series of accidental historical combi- CONSTITUTIONAL LAW. Ill nations, will bear the marks of antiquated party feuds and long-forgotten jealousies, and will be sustained rather for their associations with the venerable past than for their intrinsic usefulness in the present or the future. Never- theless they have all the force and vitality of Eights and Duties dictated by the most novel sense of political expe- diency, and therefore demand the clearest description and limitation in this part of the Code. What is called " the Prerogative " of the English Monarch partly consists of Executive functions tradi- tionally entrusted to him, partly of Eights of the nature just described, whether in reference to other component members of the whole Supreme Political Authority or in reference to the general Community. Of those Eights not arising out of strictly Executive functions instances are supplied by the Eight of convoking, proroguing, and dissolving Parliament, of withholding assent from any of its Measures (a Eight, by the way, severely restricted in the case of the President of the United States), and of being exempt from Civil or Criminal Process in a Court of Law at the suit of any Person whatever in the Com- munity. Again, what are called " the Privileges " of members of the two Houses of the English Parliament, as well as the joint Eights, which each Assembly enjoys in its corporate capacity against the other and against the Crown, are Eights created by the Laws now under consideration. The familiar " Privileges " of members of the Houses of Parliament are those by which a member of the House of Commons is exempted from liability to arrest on Civil Process during the Session and for a short period before its commencement and after its conclusion; by which a member of the House of Lords is similarly ex- 112 THE SCIENCE OP JURISPRUDENCE. empted at all times ; by which the latter, furthermore, has a right to an interview at all times with the Monarch ; in a case of alleged treason, " misprision of treason," or felony, to be tried by his fellow-peers ; and in a Court of Justice to depose on his " honour " instead of upon his oath. As to the Eights of the several corporate Assemblies which together constitute the whole Supreme Political Authority, in respect of each other and of the rest of the Community, conceded to them for the better discharge of their public functions, instances are supplied by the singular functions claimed by the House of Commons with respect to Bills involving taxation at every one of their stages ; by the same House with respect to all measures for the reform of its own Constitution ; by the House of Lords with respect to questions of pedigree, legitimacy, succession, or to any historical event touching its own members ; and, lastly, by the peculiar jurisdiction enjoyed by the English Houses of Parliament over their own members and over all mem- bers of the Executive with the exception of the Monarch. Such a jurisdiction is exercised when the Speaker of the House of Commons avails himself of the instrumentality of the Serjeant-at-Arms to compel an absent member to appear in his place, or imprisons a member of the House during the Session for breach of its rules, or, after formal trial at its bar, punishes by a like imprisonment or by fine any member of the Community who has invaded its " Pri- vileges." The process of impeachment Of public servants by the Commons at the bar of the Lords is an exercise of a like Eight of Jurisdiction. Possibly also the Appellate Jurisdiction of the House of Lords, though now recalling little of its original Constitutional character, ought strictly to be included among the Eights conceded to a portion CONSTITUTIONAL LAW. 113 of the Supreme Political Authority for the purpose of more effectual co-operation in the work of the whole. This part of the Law would be properly codified in the following form : — 1. Eights of each constituent portion of the Supreme Political Authority as against the rest in its cor- porate capacity. 2. Eights of eac"h constituent portion in its corporate capacity as against the individual members com- posing it, and as against all other Persons in the Community. 3. Eights of individual members of each such con- stituent portion — (1.) against all other members; (2.) against all other Persons in the Community. D — Modes in which changes are brought about in the class of Persons composing the Supreme Political Authority, or in the Eelations of such Persons to each other and to all other persons. There are two leading forms which an attempt at alter- ing the constitution of the Supreme Political Authority may take according as the attempt is originated outside or within the limits of that Authority itself. In the former case the attempt is made by violent insurrection, by forcible substitution of a new set of Governors for the existing ones, or by such a long course of habitual disobedience and disloyalty as renders, sooner or later, the tenure of its office by the existing Political Autho- rity impossible. In the latter case, the change is carried out by the regular operation of general rules providing beforehand that, in certain cases, at certain times, or on the declaration of the will of certain Persons, changes i 114 THE SCIENCE OF JURISPRUDENCE. may hereafter be introduced into the constitution of the Supreme Political Authority. Or else it may be carried out by a simple discretional power committed, within certain limits, to the Supreme Political Authority to recon- struct itself when and as occasion shall demand. -Between these two Modes of provisional change it is not always easy to draw the line, and it is the less so as in most States both Modes are found to exist side by side, though one may be more prominent here, and another more prominent there. There is a certain nervous appre- hension always attending the very idea of modifying the structure of what seems the very pillar of national order and the heart of national life, which, in itself, leads nations rather to leave the introduction of necessary changes to the dictation of pressing emergencies than to provide for them by formal anticipative measures. Of all progressive Communities Great Britain and the United States afford the best instances of reconstructing in an orderly fashion the Supreme Political Authority. Great Britain, indeed, affords a most remarkable specimen of a State ever shrinking from all contemplated change as a possibility, and yet providing, within well-defined limits, the most elastic machinery for promoting every variety of change. The Constitution of the United States distinctly and in terms foresees the need for its own amendment, and describes with punctilious accuracy the Mode in which reference is to be made to the Legislatures of the several States with a view to obtaining the common assent to such an amendment. There have been hitherto seventeen Amendments made to the Constitution of the United States, and divers English Acts of Parliament have been passed for the Eeform of CONSTITUTIONAL LAW. 11 6 the House of Commons, that is, for marking a new and different class of Persons as admissible to be electors or can- didates. Other Acts have been passed for regulating the succession to the Crown, for appointing a Eegent, and even, as in the- case of some of the clauses of the Bill of Rights and of the Act of Settlement, for seriously restricting (though mainly in its traditional Executive aspects) the Prerogative of the Crown. Were an Act of Parliament passed, as has been already attempted, for the institution of Life-Peerages, such an Act would be another instance of a reconstitution of the Supreme Political Authority through the agency of that Authority itself. Such Laws, when made, are, like all other Laws, addressed to all Per- sons in the Community, the effect of them being to release those Persons from their legal duty of loyalty and sub- mission to the existing Political Authority, and to sub- stitute an Authority in its place consisting of a set of Persons differently described or having different relations to each other from those constituting the Authority now dethroned. Such are the more formal modes by which a Supreme Political Authority may have its Constitution changed. But the more effectual and important changes are often brought about by silent causes which wholly elude obser- vation at the time. In England, the competition and idiosyncrasy of eminent individual Persons ; the relative weight, incessantly changing, of wealth, birth, and merit ; the force of religious enthusiasm, or the vehemence of partisan antipathies ; the outward events reacting at every point on Home, Foreign, and Colonial policy ; the shock of national calamities and the passing predominance of a philosophical Theory — all these causes, and a thousand i 2 116 THE SCIENCE OF JURISPRUDENCE. still more delicate and hidden, keep playing at every moment on the constitution of all the parts of the Supreme Political Authority, and ever afresh adjusting and readjusting the balance of real influence. It has been now the Upper House, now the Crown, now the Lower House, now the Upper House again, now the Crown again, and finally the Lower House which has in turn drawn to itself the whole practical government of the nation. In. the United States, again, no question is more debateable than whether the House of Eepresentatives is a tyrannical Oligarchy or an impotent rabble, and whether the President is a cipher or a despot. No doubt one of these alternatives is true at one time and another at another. It is a weakness in the Political Constitution of a State to afford the possibility of these alternatives too rapidly and constantly following upon each other. It is evident that, though it is important for the Jurist to notice how inaccurate a representation of the real consti- tution of the Supreme Political Authority is the technical description of it, yet it is with this technical description of it and of the formal Modes of altering it that he must content himself. The following is the form in which this part of the Law will present itself in a classificatory arrangement: — 1. Limits within which the constitution of the Supreme Political Authority admits of change whether in respect of — (1.) the description of the Persons who compose the several parts of it, or (2.) the Eights of the several parts of such Authority in their corporate capacity, as against each other. 2. Description of the formal machinery by which changes within the above limits have to be effected. CONSTITUTIONAL LAW. 117 E. — Meaning of the phrase " Executive Authority : " Legal Eelations to each other, and to all other Persons, of the Persons composing that Authority, and the Modes in which changes are brought about in those Eelations. It has already been observed that there is no strict opposition between the functions of the Legislative Autho- rity and of the Executive Authority. The Supreme Political Authority, in every Law it makes, foresees from first to last the whole process of its execution, and provides the whole instrumentality necessary for preventing any failure in that execution. It nominates, either directly or indirectly, Ministers of State, Judges, Magistrates, Sheriffs, Police, and invests them severally with the powers needed for the work committed to them. The same Authority, fur- thermore, calls into being a great hierarchy of other func- tionaries entrusted with the execution of those special laws which are made for the protection of the national safety and honour against enemies at home and abroad, for the collection of the revenue, for the promotion of easy transit and communication between different parts of the national territory, and for the general further- ance of the sanitary, commercial, moral, and religious welfare of the whole people. The Person or Persons to whom the regulation of this hierarchy is entrusted, who may be called the Head of the Executive, may be either the identical individual Persons who compose the Supreme Political Authority itself, or may be a select number of the Persons composing that Authority, or may be some other Persons outside the body of Persons composing that Au- thority. The first of these cases, except in the most primi- tive state of Society, will always be found extremely rare. 118 THE SCIENCE OF JURISPRUDENCE. Experience is not long in teaching that a different class and number of Persons and different qualifications are needed for the task of determining upon the probable expediency of a suggested Law from what are wanted for the purpose of punishing those who disobey it when once it is made. The recognised value of a Division of Labour drives home the lesson, which, again, derives constant support from actual competitive Institutions growing up side by side with each other, such as a Priesthood, a Military Class, Administrators of the National Exchequer, and Judicial Magnates, all tracing back their independent functions to an obscure antiquity. The most frequent form, then, in which the Head of the Executive presents itself is that of a Person or Per- sons detached from the general body of the Supreme Political Authority with which they maintain intimate and incessant communication, from which directly they derive all their Eights, and to which they are responsible for the performance of their Duties. The reality of this situation may, through historical causes, be accidentally disguised, as in the case of the English Monarch. The courteous shelter which is accorded to the English King or Queen against every form of legal responsibility is exactly co-extensive with the personal impotence for Exe- cutive purposes which is its necessary correlative. If the King or Queen can do no wrong, neither can he or she do right. The Supreme Political Authority in England delegates, in fact, its Executive functions to certain mem- bers of its own body, as from time to time they happen personally to command its confidence. Against them it possesses a formidable machinery for securing diligence and faithfulness in doing their work. The Laws describing and regulating this machinery, by which all members of the Executive are made directly responsible to the CONSTITUTIONAL LAW. 119 Supreme Political Authority, form one great division of this part of the Law. Another great division consists of the Laws which en- sure to all Persons in the Community, even to the most obscure and the least influential, effectual protection against the ignorance, indolence, corruption, maliciousness, or despotism of every member of the Executive from the highest to the lowest. The elaboration of this part of the Law, its establishment on an immovable basis, and its assiduous defence against everlasting assaults from ever fresh and unsuspected quarters, is the hardest and most critical struggle which a progressive nation has to engage in. To the fact that England has fought this fight well in the Past, her Magna Charta and its successive confirmations ; her Trial by Jury ; the Habeas Corpus Act, the Petition of Eight, the Bill of Eights, the Act of Settlement and the inde- pendence of her Judges as against the Crown thereby secured ; the effectual resistance to General Warrants ; and Fox's Libel Act ; — all these monuments bear unmistakable witness. Whether England will fight the battle equally well in the Future against the natural encroachments of every Executive Authority not severely chained may well be a matter of anxious doubt. As the Supreme Political Au- thority becomes indefinitely popularised, the Executive appears in a more amiable guise, as the natural friend, rather than the natural enemy, of the people. Suspicion is lulled to sleep, Constitutional energy becomes para- lysed, and a degree of unlimited jurisdiction is com- mitted to the local magistrate and to the police, with a view to carry out the last scientific conjecture or moral or economical panacea with a fatal facility, at which the founders of English Constitutional Liberty would have flinched and shuddered. It is said that in the United States the political danger 120 THE SCIENCE OF JURISPRUDENCE. is at present to be looked for in the opposite direction, and that in many States of the Union, through the direct influence of the people brought to bear at the constantly recurring elections of Judges, Magistrates, Eevenue Offi- cers, and others, an amount of wide-spread corruption and abuse prevails, against which no efficacious remedy has yet been propounded. The constant policy of the Union has been to counteract the disintegrating popular forces by strengthening the Executive. The Supreme Court of the United States, independent as the members of it are, both as respects salary and time of service, is always regarded as one of the most precious and healthy Institutions of the country. Whether, however, immediate danger is to be apprehended in any country from a too much relaxed or a too overbearing Executive, among the " Laws directly re- lating to the Constitution and Administration of the State" will be found two great classes : the one having for its purpose the precise description of the Eights and Duties of every member of the Executive from the highest to the lowest ; the other having for its purpose the providing for the individual citizen a peculiar set of guarantees or securities against usurpation of Eights or the neglect of Duties on the part of any of those members. Under the first head come the Laws prescribing the Modes of appointment of subordinate members of the Executive by the higher. To the same head belong Laws prescribing the functions of Persons belonging to the Army and Navy, as the English Mutiny Act and the Articles of War embodied in it. Under the same head might be included Laws regulating the conduct of Ecclesiastical and Municipal officials, did not this last class of Laws more con- veniently fall, as will be hereafter explained, under the title " Laws affecting Special Classes of Persons." Laws of Pro- CONSTITUTIONAL LAW. 121 cedure also might be suitably treated here, were not their claims greater, on the score of convenience, to be placed in a separate compartment by themselves. So far as they are not included in Laws of Procedure, to this place of course belong the Laws fixing the Eights and Duties of Magistrates, Police, Sheriffs, Gaolers, and the like. Under the second head of " Laws providing for the special Defence of the individual Citizen against illegal acts of the Executive," come the important classes of Laws forbidding the demand of excessive Bail, for securing the speedy trial of accused Persons, for describing and fencing round the right of Trial by Jury, for protecting private resi- dences against unreasonable invasions by public officers, and generally for providing Eights of Action or Eights of putting in motion the summary or extraordinary jurisdiction of a superior Court of Justice for the punishment or reparation of delay, misconduct, or malicious perversion of justice on the part of Persons invested with a judicial or quasi- judicial authority. The following is the form in which this part of the Law would be properly codified : — ■ 1. Precise meaning of the term Executive Authority. 2. Modes in which the Head or the subordinate mem- bers of that Authority are properly constituted, suspended, or removed. 3. Eights and Duties of all classes of members of the Executive Authority severally. 4. Special securities accorded to individual Citizens for their protection against the usurpation of Eight, the neglect of Duty, or general malversation on the part of any member of the Executive. 122 CHAPTEE X. LAWS OF OWNERSHIP. It is scarcely possible to picture a condition of Human Life in which the fact of Ownership is not even dimly and imperfectly recognised. In the most barbarous condition it seems to be essential to the possibility of preserving Human Life that there should be found a prevalent acknow- ledgment of the claims of individual Persons to enjoy the undisturbed use of the materials they need for their support, of the weapons wanted for defence against beasts of prey, and of the instruments required for providing these ma- terials and weapons. It is true also that this dawning fact of Ownership expresses something more than a mere con- dition precedent to material progress, though the fact owes its most conspicuous development to the obvious conve- nience of enforcing and extending proprietary claims in such a way as to encourage Agriculture, by cherishing a habit of reliance on the future fruits of present labour ; to favour the Division of Labour ; and to promote the practices of self-restraint, of saving, and of continuous accumu- lation, apart from which Industry and Commerce could never advance beyond an embryonic stage. The fact of Ownership, however, beyond all this has its exact corre- lative in the dignity and the independence of the Human spirit itself. It represents and enforces, by an objective symbolism in the world without, the true relation in which man ever stands to his fellows. At every moment of his LAWS OF OWNERSHIP. 123 career, he is called upon to abstain from intruding upon the realm of unfettered action within which each one of his fellows moves at large. Each of these, also, is called by an equally peremptory mandate to display the like abstinence in respect of him. The physical objects around, the soil, the streams, the products of the mines, the beasts of the field, and especially all things wrought or changed by Human hands, present the earliest and, at one epoch, the only materials on behalf of which the competitive and end- less spiritual struggle ceaselessly rages. It is only at the last climax of Civilisation that the truth begins to be appre- hended that the only justification of proprietary claim is a special call to a more devoted and concentrated service on behalf of those who do not share in it. Between this last and the primitive epoch, mankind passes, with respect to the fact of Ownership, through all the vicissitudes of — (1.) simple Occupation; (2.) rude Eivalry; (3.) tolerated Privi- lege; (4.) selfish Absorption ; (5.) sharp legal Distribution ; (6.) revolutionary Communism, terminating finally in the last stage of (7.) Appropriation recognised solely as a Trust for Humanity. In this view of the subject the fact of Ownership, though of transcendent importance as an instrument, is, after all, nothing more than an instrument in perfecting the relations of mankind with one another. It operates through the cultivation of their faculties, through the con- centration of their efforts, through the connection of the Past and the Future thereby represented and fostered, and, above all, through the mutual dependence it cherishes of every member of the Society upon the exertions and services of all the rest. The interesting investigations conducted by such writers as Professor Maine and Sir John Lubbock with respect to 124 THE SCIENCE OF JURISPRUDENCE. certain transitory phases in the history of the fact of Owner- ship as exhibited in certain special Communities, point toth( fact that the actual form that Ownership takes in primitive times admits of endless varieties, according to the habits of the people, whether migratory or stationary, agricultural or predatory ; to the nature of the Things accidentally in request; and especially to the peculiar Patriarchal, Tribal, or National Institutions which, from a number of inde- pendent causes, may happen to prevail. The last and, for European and other Aryan Societies, the most momen- tous form of Ownership, which immediately preceded that now universally existing under different modifications, is what Professor Maine has signalised as the Joint Ownership, firstly, of the Family ; secondly, of the Village ; thirdly,of the Tribe. So far as early Law is concerned, it is needless to go back further than the first of these stages, and it is equally needless to take into account the Communities in which none of these stages have been found to exist at all. The general Fact of Ownership, so far as it is the foundation of and distinguished from a Law of Owner- ship, having now been cursorily described, the true mean- ing and compass of the whole Fact will gradually discover themselves as progress is made with treating Laws of Ownership under the following divisions : — A. General character and purpose of Laws of Owner- ship. B. Things Owned. C. Persons who Own. D. Eights of Ownership. E. Acts or Events which determine the accruing of a Eight of Ownership. (Title.) F. Modes of protecting Eights of Ownership. LAWS OF OWNERSHIP. 125 A. — General character and purpose of , Laws of Ownership. The general purpose of a Law of Ownership is to give stability and distinctness to a claim, inherent as it would seem in the very constitution of Social Life, on the part of individual Persons to keep for their own use objects belonging to the material world, to the exclusion of all other Persons. The Law takes the form of a command, addressed to all Persons in the Community, forbidding all Persons other than the Owner, who is specifically marked out and distinguished by the terms of the Law, to inter- fere with the Owner's full enjoyment and use of the object to the extent the terms of the Law permit. Thus every Law of Ownership, when looked at in its entirety, will be found to consist of several parts. It determines, firstly — (1.) that a particular object or class of objects belonging to the material world may be appropriated for the use of some definite Person or number of Persons less than all the Persons in the Community ; that, secondly (2.) the Person or Persons so entitled to appropriate the object or class of objects are characterised by such and such authentic signs ; that, thirdly (3.) the object or class of objects, on appro- priation, must be used only in such and such ways ; that, fourthly (4.) the fact of appropriation is determined by the performance or occurrence of such and such Acts or Events ; and that, fifthly (5.) on such appropriation within the defined limits being interfered with, such and such protective remedies are available on behalf of the Person interested in having recourse to them. In constituting Laws of Ownership as a distinct depart- ment both of a Code and of an Institutional Treatise, it is impossible not to recur to the position which the same 126 ' THE SCIENCE OP JURISPRUDENCE. topic has occupied from the most ancient times in similar compositions. The Jus Rerum as opposed to the Jus Personarum and to the Jus Actionum, and more specially the Law regulating Jura in Rem or in Re, as opposed to the Law regulating Jura in Personam in Roman and Mediaeval legal systems, and in all the modern Codes that have been based upon them, as well as Blackstone's Rights of Property as opposed to so-called Personal Rights on the one hand and to so-called Rights in Private Relations on the other, — each and all point to an instinctive sense of the necessity of isolating Laws regulating Ownership or Ownership and Contract together from all other parts of a Law, though in no one of these instances has the ground of the distinction been clearly ascertained nor the distinc- tion itself carried out to all its legitimate consequences. As to the opposition of Jus Rerum to Jus Personarum, which has been adopted by Sir Matthew Hale, it no doubt proceeded upon an indistinct apprehension that in one large branch of the Law the different qualities, situations, and mutual connections of Human Beings or Persons were the prominent matter of attention, and in the other and far larger branch of Law those of material Things. The mental distortion thereby produced blinded men to the fact that all Laws whatsoever are addressed to Persons, and have for their purpose nothing else than to control the Acts of Persons. Some of these Acts, so affected to be controlled, relate immediately to the objects of the material Universe, and some do not. Of the Acts relating immediately to Things, some are concerned with nothing else than the hypothetical interference of Persons with the appropriation, to some extent or another, by other Persons of definite Things. It is with these Acts alone that, according to the distribution here adopted, Laws of LAWS OF OWNERSHIP. 127 Ownership have to do. The Jus Rerum of the Bom an Lawyers and of Sir Matthew Hale extended nearly to every part of the Law which was not concerned with a few definite private or public relations in which men might stand towards each other. The Jus in Rem, again, of the Roman and the Mediaeval Jurists was a true Eight of Ownership, corresponding with a special department of the Law defining and enforcing that class of Eights. But in opposing it exclusively to Jus in Persmam by ex- plaining that the one Eight availed against all Persons generally and the other only against Persons determinately described, a misconception was encouraged to the effect that Eights of Ownership (Jura in Rem) were the only Eights availing equally against all Persons whatever. Thus Eights " to Eeputation, Monopolies, Franchises and Dignities were wholly left out of account. Perhaps Blackstone's Mode of distribution is the most unobjectionable of all, did he not fall into the all but universal error, which will be more fully exposed later on, of treating Laws of Contract under the head of Laws relating to Eights of Property, thereby implying that the sole purpose and meaning of Contract is that of conveying a title to Ownership. However, as has been already indicated, the above distinctions, Eoman, Mediaeval, and Modern, inaccurate and imperfect as they are, point to really useful Modes of separating different matters which, when properly under- stood and guarded against logical and ethical misconcep- tions, may be made of very considerable use. In the present distribution of all the topics of a Legal System, Laws of Ownership are kept entirely distinct from Laws of Contract on the one hand, and from Laws affecting Special Classes of Persons on the other. There are also grounds, which will hereafter be more fully explained, for treating 128 THE SCIENCE OF JURISPRUDENCE. Rights of Ownership, the subject of this part of the Law, apart from the protective Eemedies accorded by Law to Persons in whom such Eights vest. Furthermore, it is only in connection with these Eemedies that the true extent of most Eights of Ownership can be apprehended at all. Thus, while there is on the one hand a con- venience, more or less obvious, in treating the topic " Modes of protecting Eights of Ownership " under the special department of " Laws of Civil Injuries and Crimes," on the other hand the mutual relation of the two depart- ments is as close as can well be imagined. B. — Things Owned. The kind of physical appropriation of which a Thing is susceptible depends on the constitution and qualities of the Thing itself. Things differ from each other in size, durability, mobility, chemical and mechanical structure, as well as in the amount of demand for them arising from the greater or less quantity of them that is present or from their greater or less serviceableness for the purposes of Human Life. For the Jurist a method of distribution of Things is needed which is neither so grossly practical as to be use- less for all finer applications nor so severely logical as not to satisfy the wants suggested by actual Judicial business. Keeping clear, then, both of too loose and vague a division of Things on the one hand and of too exhaustive, subtle, or curious a division on the other, the following different modes of dividing the objects belonging to the material Universe severally need independent consideration as being authorised by the methods pursued in celebrated Codes, by the practice of eminent Jurists, ancient and modern, or by the intrinsic value and expediency of the classification itself: — LAWS OF OWNERSHIP. 129 1. " Natural " agents as opposed to all other Things. 2. Things set apart for the general purposes of the State, as opposed to all other Things. 3. Things Movable and Immovable. 4. Res fungibiles and non-fungibiles. 5. Things " Corporeal " and " Incorporeal." 6. Singulce Res and Universitas Rerum. 7. Sundry other oppositions, as between Things Divisible and Indivisible, Principal and Acces- sory, Existing and About-to-exist. 1. — "Natural " agents as opposed to all other Things. As Ownership implies the use of some Things by one or more Persons to the exclusion of all other Persons, where a Thing habitually exists in such superabundant quantity as to satisfy the utmost possible demands of every Person in the Community, there is, in the case of that Thing, no occasion for Ownership. Thus it is cus- tomary to say that air, light, and the water of the sea are generally not capable of being Owned. Particular circumstances, however, may limit the abundance and the unlimited supply of any of these Things, and the dense and struggling life of modern cities or the artificial relations of modern States notoriously impart to every- one of them in some of their forms a capacity of being Owned. For instance, air combined with combustible compounds, taking the form of what is called gas ; air and light, regarded as essentials to the complete enjoy- ment of other Things, and capable of being obstructed by the interposition of other Things ; waters of the sea mainly enclosed by the territory of a State, or within a definite distance of the shore bordering such territory, — all give ] 30 THE SCIENCE OF JURISPRUDENCE. rise to Eights, Duties, and Eemedies, of exactly the same nature as do Things indisputably capable of strict legal appropriation. The true mode of distinguishing Things capable of Ownership from all other Things is to ascer- tain whether or not any benefit can be conferred by Law upon individual Persons employing them for some purpose or other, by protecting them against the interference of other Persons. It is of no consequence to the Jurist what the purpose is, however relevant this may be to the Legis- lator as a guide to the kind of Laws he shall make. It is of no consequence what are the kinds of Eemedies which the Legislator shall invent in order to guard the free and undisturbed employment of these Things. Accident, no doubt, will from time to time, as in the case of certain animals, of mineral products, and of other heterogeneous classes of objects, capriciously determine their capability of appropriation, but the above principle will always re- assert itself, and this is the only principle which it is possible here to accept as a permanent and efficacious test. 2. — Things set apart for the general purposes of the State, as opposed to all other Things. In every State there are to be found large masses of Things which are either permanently or temporarily held to be incapable of appropriation on account of what may be called reasons suggested by public policy or based on general expediency. Some classes of these things, as ira- drained marshes, waste lands, newly colonised or conquered territory, are often for a long period protected by the State against indiscriminate competition for Eights of Ownership in them, and during such periods there is, LAWS OF OWNERSHIP. 131 strictly speaking, no Owner at all. It is only by a popular abuse of language that the State itself can be called an-Owner, inasmuch as all legal Eights of Ownership owe their existence to nothing else but the creative and sustaining energy of the State itself. A similar kind of pro- tection is thrown round other large classes of Things, and even provisional and limited Eights of Ownership are conceded to assemblages of Persons for the purpose of enabling them to effect important or sentimentally precious public ends. Such Things are ecclesiastical structures, burial-grounds, the land and buildings appertaining to schools and public Universities, public offices, dockyards, arsenals, lighthouses, fortresses, materials for equipping the Army, Navy, and subordinate functionaries of the Executive, public repositories for the cultivation of Science and Art, the sea-shore, and the banks of navigable rivers. In the case of all these Things, though certain restricted Eights of Ownership are conceded to definite classes of Persons, yet the possibility of Ownership of any of them to the full extent to which they might otherwise be appropriated is wholly and permanently excluded. There can neither be Dominium in the Eoman, nor a Fee-simple Estate in the English sense. 3. — Things Movable and Immovable. The very earliest Things Owned must have been Things that could easily be carried from place to place : such as food, arms, dress, ornaments, and rough implements of husbandry. It would appear, however, that in the chief Communities to which research has hitherto extended, the first existence of true Laws of Ownership is associated with what may be called the systematisation of Family K 2 132 THE SCIENCE OF JURISPRUDENCE Life and with the stability of an Agricultural state of Society. It is only at a far later stage that the Individual citizen disengages himself from the Family group and becomes, for the purpose of being invested with and protected in the enjoyment of Eights of Ownership, as well as for other purposes, the immediate object of the attention of the Legislator. Thus in primitive times, how- ever much the restless incidents of a feudal, military, or predatory condition may distract the notion, Ownership and physical immovability are closely bound up with each other. Apart from all consideration of the actual value of the soil, the wells, the pasture-ground, there seems hardly occasion worthy of the Legislator's interference in the case of any other objects but these. Other things come and go, are born and die, change and pass, many times during the life of a single man ; but these last through many lives or through the whole life-time of the State itself, and are ceaselessly inviting the Legislator to prevent a distress- ing struggle for their possession. The very conception of Ownership includes the elements of stability and perma- nence, and so the most stable and permanent of all Things will rivet that conception the most firmly and will even threaten entirely to absorb it. Such an absorption, how- ever, is practically impossible, and, progressively, all the materials of Agriculture, as well as all the human beings associated with the Father of the Family in his daily toil, are embraced by the dominant conception. The Eoman Pater-familias in the earliest times held by a complete legal title his land, his slaves, and his cattle, and over them all, as well as over his wife and his children, he exercised the most unrestricted Eights of Ownership, all distinction between these Eights, founded on any difference of quality LAWS OP OWNERSHIP. 133 or constitution in the Things Owned, being entirely lost sight of. In early England, again, the large mass of the Law is concerned with Eights of Ownership in Land and with injuries to the Person. Thefts of, and damages to, Movable Things seem only to have presented themselves as deserv- ing public attention because of the personal violence with which they were generally accompanied. But, as a nation progresses (and this is conspicuously illustrated in the history of modern England), two series of phenomena relating to the distribution of Things Owned present themselves. On the one hand, industry, commerce, social and international intercourse, are constantly calling into being new classes of material objects capable of the readiest possible transfer from place to place. It is out of these objects, in their different forms and combinations, that the main elements of national wealth are constructed. Mediums of Exchange are invented, themselves the most plastic and mobile possible, for facilitating negotiations of all sorts. In fine, the prosperity and the economical life of the people turn upon nothing more certainly than upon the rapid multiplication and the commodious transfer of por- table Things. This series of phenomena results in Mov- able Things gradually acquiring an importance wholly unknown in a primitive Age. But, on the other hand, a dif- ferent series of phenomena keeps imparting to land, houses, and Immovable Things generally, a fresh and hitherto unrecognised value. They are limited in quantity, and become more and more obviously disproportioned to the demands of the whole population. They gather round them a congeries of peculiar sentiments and traditional memories which, linking one generation on to another, 1 34 THE SCIENCE OF JURISPRUDENCE. cannot be always safely violated by Legislative sacrilege. They are ever furnishing a true though unspoken political education to the whole people by teaching them the debt of gratitude they owe to labourers and to frugal capitalists in the Past, and what is their own weight of moral obliga- tion to the yet unborn inheritors of the national soil. In this way, side by side with the growing dignity of Things Movable, a politically conscious Age is reviving on quite an original foundation the antique supremacy, as a topic of political attention, of Land. What is Immovable is generally less destructible than other Things, and this attribute of indestructibility again calls for special legisla- tion. So, gradually, the notion becomes prevalent that the Things which can never be taken out of the guardianship of the State, which do not admit of annihilation nor of change, and which may be usefully employed for the service of all, may be put into a class of Things regulated by Laws of Ownership different from those regulating all other Things. The history of the English distinctions between "Real" and "Personal" property may be taken as illustrating, in however zig-zag and amorphous a fashion, an invari- able and necessary progress of ideas. In the first stage, " Eeal Property " or " Realty," which was originally exactly coextensive with the field of Immovable Things, absorbed the main attention of the legal practitioner, the Judge, and the Legislator. In the next stage the class of Im- movables, under the title of " Personal Property " or " Personalty," gradually comes into prominence, and while dividing with its venerable competitor the attention of the legal Profession, reacts beneficially on the whole Law of Ownership by suggesting the general use of more expe- LAWS OF OWNERSHIP. 135 ditious and unceremonious modes of Conveyance and of Testamentary disposition. At this point, however, began a struggle, which is still continuing, between a logical and an historical Mode of distributing Things Owned. The rules found convenient for regulating the Eights of Ownership in what was called "Personal Property" could not be boldly extended to Eights of Ownership in " Eeal Property " simply on the ground of the expe- diency of those rules. It was necessary to effect this by the timid device of classing certain Immovable Things, when owned for a period less than the duration of a life-time, as, for all purposes, " Personal Property," and then of subjecting these to all the rules of Conveyance, of Testamentary disposition, and of Inheritance appropriated to Things originally falling under this class. As a kind of counterpoise, the true distinction was further confused by classing certain obviously Movable Things, as Eent, Heir- looms, and what are called " Fixtures," under the head of " Eeal Property," and making the proper legal con- sequences follow accordingly. In this way the actually existing distinction between "Eeal" and "Personal" Property in England, though mostly resting upon, is by no means identical with, . that between Immovable and Movable Things. The historical and the logical method have blended with and confused each other. The Eoman Law and the modern Systems founded upon it, have maintained with great precision the distinction between Immovable and Movable Things. Though the antiquarian opposition of Res mancipi (including Land in Italy, Cattle, and Slaves), and Res nee mancipi was fostered by historical circumstances, yet this distinction operated over a comparatively narrow area, and in no 136 THE SCIENCE OF JURISPRUDENCE. way confused or obliterated the more dominant division of things into Movable and Immovable. Even if the distinction of things into Movable and Im- movable be ever so rigidly adopted, there must be an intermediate class, either created apart or provisionally' sorted with one of the others, of Things which are for a time Immovable, but afterwards, with or without change of nature, cease to be so. To this class belong the Things, in modern times becoming of inordinate importance, denominated " Fixtures." Modern inventions and general mechanical and agricul- tural improvements, as well as the constantly widening extent of manufacturing, mining, and railway enterprises, have raised this class of Things to special importance, and call for special Legislation or legal decisions to determine into which class under different circumstances and for different purposes Fixtures shall be made to fall. Two main questions are involved. One is as to the amount of damage caused to one Thing by the severance from it of another Thing to which it has been long closely attached. This question opens out a minute series of investigations as to the closeness of the juncture between the two Things, the usefulness of either apart from the other, and the amount of destruction effected by the mere process of separation. The other question relates to the legal character of the Persons between whom at any moment the doubt as to Ownership arises. Thus English Law, while for purposes of public policy it is always more favourable to the removal of Fixtures set up for some classes of purposes than for others, nevertheless has different rules according as the claimant of the Fixture is an heir, an executor, or a tenant. It may be said, in fine, LAWS OF OWNERSHIP. 137 that the history of modern Law applicable to this subject is that of continuous limitation of the maxim, " Quidqaid plantatur solo, solo cedit," such limitation, however, being applied in every class of cases only so far as the natural expectation of Parties^ whether based on custom or other circumstances, and public policy allow. Things may pass from the condition of Immovability to Movability not only, as in the case of Fixtures, without change of nature, but also through what must be taken to be, for legal purposes at least, a change of nature. The incessant operations of Nature supply multiform instances of this passage from stagnation to habitual motion and from habitual motion to stagnation. The Koman lawyers occupied themselves much with determining the " apices Juris " applicable to Things either in a state of transition between these two conditions or during a certain interval immediately succeeding that transition. The most obvious instances of such phenomena are the changes brought about in the surface of the earth through the action of the sea or of rivers resulting in alluvial deposits, in the gradual formation of islands, in the excavation of new channels for streams and in the desertion of old ones, and in the altera- tion of the line of the sea-coast. In these cases land becomes in fact a movable Thing, though only actually changing its place at long intervals of time. In spite, however, of the usually slow gradation of these transitions, it becomes from time to time necessary to determine whether the soil so submerged, elevated, or transferred, is regulated by the rules of Ownership applicable to Movable or to Immovable property. It is said that much of the Koman and the modern Law applicable to alluvial deposits owes its existence to litigation brought about through the 138 THE SCIENCE OF JURISPRUDENCE. disturbance of Eights of Ownership effected by the incal- culable vagaries of the Po and the Mississippi. Eonian and American law-books devote far more attention to this topic than do those of any other nation. One more class of Things passing from Mobility to comparative Immobility is instanced by the case of wild and domestic animals. Both Eoman and English Law have determined with considerable precision the marks by which certain animals are recognised — (1.) as capable of appro- priation at all ; (2.) as, for all purposes of Ownership, Im- movables, being as it were fused with the land upon which they are found ; (3.) as simply Movables, and for all pur- poses subject to the ordinary Law regulating Things. It may be interesting, before leaving this topic, to append the passage from the Code Napoleon which introduces the subject of Immovable Things : " Les Mens sont immeubles, ou par leur nature, ou par leur destination, ou par I'objet auquel Us s'appliquent." 4.—" Res Fungibiles " and " non-Fungibiles." A celebrated division of Things admitting of Ownership is grounded on the fact that some Things admit of being replaced by others in no way and for no purposes distin- guished from them, while other Things have an individu- ality of their own which admits of no substitution. Of the former class of Things it is said, by rather a lax use of language, that they have to be furnished in genere ; and of the latter that they have to be furnished in specie. An instance of the former kind of Things is supplied by such aggregate masses of Things as a bushel of corn, a pipe of wine, a ton of hay, as to which the only point to be insisted upon is that the quality and the value be such as LAWS OF OWNERSHIP. 139 is described, and no attention is directed to the identity of the component elements. This distinction is, however, far more arbitrary than real; because the nature of the contract may be such that the transfer of the particular bottles of wine indicated, the very grains of corn, the identical particles of hay, be distinctly contemplated and the contract be fulfilled in no other way than by such a transfer being actually carried out. In fact, though undoubtedly some Things are more usually treated as constituting a mere mass and others more usually described individually, " whether a Thing is due in genere or in specie depends, in each case, on the will of the transacting parties ; so that Things of the same description must in one case be furnished in genere and in another in specie." If a picture of Eaphael is to be de- livered, a defendant cannot discharge himself by furnishing a picture by another Master. If one picture by Eaphael have to be delivered, it will not suffice to deliver another. If a bottle of wine of the vintage of 1834, now standing in my cellar, has to be delivered, it will not be enough to deliver a bottle of the same vintage standing elsewhere. The expression of this division of Things, as Res Fungibiles and Res non-Fungibiles, is founded on the language of the Digest when speaking of Things which " in genere suo magis recipiuntfunctionem per solutionem quam specie.'" 5. — Things Corporeal and (so-called) Incorporeal. The very essence of a Thing, for legal purposes, is that it belongs to the material Universe, that is, that it has a body, or is corporeal. Hence, strictly speaking, an Incor- poreal Thing is a contradiction in terms. Nevertheless it has come about, in the course of the evolution of 140 THE SCIENCE OF JURISPRUDENCE. juridical ideas, that certain Eights in Things have acquired the name, pomp, and circumstance of Things themselves. The Eomans, indeed, not only included among incorporeal Things " servitules" " hcereditas," and " obligationes" but (according to the best authorities) Eights and Duties of whatever description, and even Acts and Events. Among " incorporalia " are included " omnia quce in jure con- sistent." The English Law has been more parsimonious and precise in its use of the word Incorporeal. Among Incorporeal Things are mainly included certain narrow classes of Eights in Things closely bound up with fixed National institutions, and the enjoyment of which Eights is made the subject-matter of a fresh class of Eights accompanied with all the incidents of ordinary Eights of Ownership whether in Eeal or Personal property. Such Incorporeal Things are Advowsons, Tithes, Commons, Offices, Dignities, Franchises, Annuities, and Eent- Charges. The Eights to these Eights are, for all pur- poses, the same as Eights of Ownership in Eeal-estate. They admit of the same modes of transfer ; they descend in the same way on the death of each Owner ; they admit of being parcelled out into the same kinds of limited and partial Eights. To the Class of Incorporeal Things giving rise to Eights of Ownership attended with all the legal incidents of Eights of Ownership in personal property, belong those peculiar and indeterminate advantages which are the subject-matter of what are called " Copy-right " and " Patent-Eight." The truth is, that in this last case, as in some of the instances given in the last paragraph, there- are no actual Things which are the bases of Ownership at all. Nothing is gained by speaking of " property in ideas " any more than by supposing that a Franchise or p LAWS OF OWNERSHIP. 141 Dignity has any direct or necessary relation to Land. It is convenient, for purposes of public policy, to make certain classes of Eights follow in all respects the analogy of certain classes of Eights of Ownership. In order to satisfy the popular demand for logical consistency, the supposition is favoured that some Thing or other Owned must be at the bottom of both classes of Eights. The Thing Owned not being visible, tangible, audible, or apprehensible by any of the senses, that is, not existing at all, is by a sort of humorous honesty denominated an Incorporeal Thing. If the word Thing is to be of any real service either in Legal education or in the construc- tion of a Legal System, the use of it must be severely limited to objects belonging to the material universe, capable of being apprehended by the senses, and every other sentimental, analogical, or metaphorical abuse of the term must be rigidly excluded. It is well just to note that the peculiar Eights desig- nated as " Copy-right " and " Patent-right," need not be treated as Eights of Ownership at all. They may be treated as merely personal Eights conceded by Law on grounds of public policy, having corresponding Duties, which are imposed upon Persons in the Community generally. These duties are such as to abstain within a limited time from publishing copies of a literary work, from making and selling certain manufactured articles, from using certain trade-marks, and the like. The truest analogy to these Eights is to be found in Eights to Per- sonal Security, and to Personal Eeputation, though the object of the Eight be rather the enjoyment of wealth than of a secure and undisturbed existence. On this account there would be good reason for treating such Eights rather under the head of Laws relating to Civil 142 THE SCIENCE OF JURISPRUDENCE. Injuries and Crimes than under the present head. It happens, however, that the Modes in which these Eights are created, are transferred, descend, and are protected according to most systems of Law, bring them so close to Eights of Ownership, properly so called, that they are universally treated side by side with these. The nearest analogy to them is that supplied by the sort of Eight styled a " Monopoly." 6. — " Singulce Res " and "Universitas Rerum." It sometimes happens that certain agglomerate masses of really distinct Things are so constantly regarded as indivisible wholes, that for all legal purposes they are treated severally as single Things and not as many. This habitual agglomeration may be either the result of natural facts or of artificial institutions. To the former class of cases belong a flock of sheep, a draught of fishes, a swarm of bees, a ship, a bale of goods. To the latter class of cases belong the multitudinous articles which, under the name " hcereditas" passed by Eoman Law to the heir on the death of his ancestor ; the imperial privy- purse, or "fiscus" which in another aspect was also regarded as a " persona ; " a " Eeal estate " in Land according to English Law, with all the appurtenances in the way of forests, streams, buildings, game, and minerals, which in the generality of cases accompany its legal vicissitudes, in block. In fine, the distinction between "Singulce Res" and " Universitas Rerum" is only worthy of notice on the grounds of the occasional abbreviation in expression which it provides, and of the actual political Institutions, past or present, which it records or substantiates. \f LAWS OP OWNERSHIP. 143 7. — Sundry other oppositions, as between Things Divisible and Indivisible ; Principal and Accessory ; Existing and About-to-exist. The above have been historically, and are practically, the most notable Modes of classifying Things Owned. The process might be continued indefinitely; but no greater advantage would be reaped than that of gratifying an overstrained logical instinct or a curious ingenuity. Suffice it to say, that in treating of Things, — that is, of fragments of the material Universe, — the invariable order of that Universe is everywhere presupposed. The facts of time, space, and matter imply sequence, division, or pos- sible separation. Hence Jurists have gone on to create great bifurcate Divisions between " Things Existing " and " Things likely to exist shortly ; " between " Things ad- mitting of Division without Change of Nature and Things not so admitting ; " between Things Principal and Things Accessory. It often happens that, for particular purposes and in certain departments of a Legal system, such Modes of distribution must be kept carefully in mind ; but they are at once too vague and too precise, too sweeping and too microscopic, to be the basis of leading divisions of Things Owned. C. — Persons Who Own. A Person in a modern State has already been explained to be a Human Being looked upon as capable of being invested with Eights, or made liable to the performance of Duties. The facts of Human Nature, however, and the circumstances, natural or artificial, of Civil Society introduce a graduated scale of qualifications in the Per- sons, who are members of the State, for the discharge of 144 THE SCIENCE OF JURISPRUDENCE. the moral functions which such legal Eights or Duties involve. Infancy, Puberty, Idiocy, Insanity, Marriage, and such more artificial incidents as Bankruptcy, operate generally, and some of them universally, upon the ca- pacity to "Will, to Act, and to form an Intention. The partial incapacity thereby brought about excites the anxious solicitude of the Legislator, and, guarding against introducing a general sense of insecurity in Owner- ship, he betakes himself to protecting the infirm or the imbecile Owner against the consequences of his own ill-advised acts, and all other Persons against them like- wise. This process of protection is effected in two ways : firstly, by not allowing the incapacitated Person to be invested with a Eight ; and, secondly, by forcibly re- stricting his power of exercising it though he is invested with it. Strictly speaking, according to the definition of a Eight which has here been given, it is not possible to distin- guish between a Eight and the exercise of it. A Eight was defined as a " measure of control over the Acts of Persons." Where the possibility of this control is not present there is no Eight at all. However, it has become such a fixed habit with Jurists to make the distinction in question that it is useless to attempt to discard it. Hence instead of saying, as would be rigidly correct, that a Minor or a Lunatic has, in a large class of cases, no Eights of Ownership at all, it is customary to say that the Eights of Ownership are in no way impaired by the facts of Minority and Lunacy, though the exercise of those Eights is hemmed in on every side. The true meaning of this is that whereas the Eights of Ownership proper to a healthy adult are, to a certain extent, annulled in the case of a LAWS OP OWNERSHIP. 145 Minor or a Lunatic, yet they are kept, as it were, in sus- pense, ready from moment to moment to revive in full force as soon as ever the invalidating facts of Minority or Lunacy cease to be present. During this period, for which the Eight is partially withdrawn, or (to use the popular language) its exercise is restricted, it is customary in all States to interpose some competent adult for the purpose of being invested with the Eight to its fullest extent, which Eight he is called upon to exercise solely for the benefit of the incom- petent Person whose place he fills. In this way Eoman Law provided for the interests of "Infants," Minors, Lunatics, and reckless Spendthrifts by the institution of the " Patria Auctoritas " supported as it was by those of the " Tutela " and the " Curatela." English Law similarly guards the interests of" Infants," Orphans, and Lunatics, by the general recognition of the principles of Trusts and Trustees, and of the special form of Trust designated "Guardianship," as well as by the peculiar protective jurisdiction vested in the Lord Chancellor. The prin- ciples of Trusteeship will come on for consideration under the subsequent head of Laws affecting Special Classes of Persons. It may here, however, be noted that the conflicting views taken by an English Court of Common Law and by an English Court of Equity with respect to the question as to where the true Eight of Ownership lies in the case of a Trust, exactly represent the distinction above dwelt upon between the view that a Eight can be distinguished from the capacity of exercising it, and the opposed view that a dormant or suspended Eight is no Eight at all. The situation of a Married Woman in the Eoman and 146 THE SCIENCE OF JURISPRUDENCE. in almost all modern Systems of Law, and that of a Person adjudged guilty of Felony or proclaimed an Out- law, present almost unique instances (with the exception, perhaps, of the consequences of a diminutio capitis in Eoman Law) of an entire incapacity of Owning brought about by causes wholly personal to the particular Owner. The legal position of a Married Woman will come on for particular consideration under the subsequent head just alluded to of Laws affecting Special Classes of Persons. The topic affords an instance of the difficulty of treating any part of a Legal System independently of every other part. Marriage cannot be handled completely apart from Ownership, nor Ownership apart from Marriage. And one of these topics must, from the nature of the case, be treated before the other. In a Code the most convenient method to adopt would be in this place briefly to sum- marise the Laws regulating the Eights of Ownership of Married Women, and under the later head, treating of Married Persons generally, to develope these Laws in full. It is necessary to notice that in Eoman Law, and in many modern Systems of Law, Women are through their whole life treated as being in a state of perpetual Mi- nority. This cannot be looked upon as other than a temporary though very protracted phenomenon. Aliens, again, and Persons only admitted to incomplete Eights of Citizenship are, in most States, subjected, for purposes of public policy, to special incapacities with respect to Ownership ; as, for instance, in the matter of shipping, land, factories, buildings in towns, and various other things. Speaking generally, the classes of Persons -whose capacity of Owning is either temporarily or permanently annulled or restricted by the policy of modern States are the following : — LAWS OF OWNERSHIP. 147 1 . Infants and Minors. 2. Idiots and Lunatics. 3. Felons and Outlaws. 4. Aliens. 5. Married Women. To this list there might be added the class of what are called " Fictitious Persons " or Corporations, but the whole Law relating to them is so peculiar that it is more conveniently treated, without anticipation, in its entirety under the subsequent head of Laws affecting special Classes of Persons. D. — Eights of Ownership. A Eight oj^w^ie^hijnsa measure of_control delegated i by the State, having_ for_its_purpose_ the exclusion of all ! Persons other than the Person invested with the Eight from interfering with his use of a definite Thing in certain- definite or in a number of indefinite wayj. The largest' Eight of Ownership is where the Thing Owned is movable and destructible. Such a Eight, by involving the power of destroying the Thing (facultas abutendi), carries with it the power of excluding all possible Persons other than the present Owner from ever using it in any way what- ever. In the case of an immovable and therefore, for the most part, an indestructible Thing, the largest Eight of Ownership is that which implies the liberty of using the Thing in the greatest number of Modes, for the longest duration of Time, and with the greatest possible facilities for Alienation either during the life-time or upon the death of the Owner. The policy of every known civilised State has always led to the restriction, in certain directions, of even the largest Eights of Ownership. Such a restriction L 2 148 THE SCIENCE OF JURISPRUDENCE. has been dictated by regard to the interests of future Owners, to general economical or political views in respect of the cultivation and proprietorship of land, or to the urgency of State necessities in the way of locomotion, com- merce, national health, and defence. Hence, as Mr. Austin has explained, the largest Eight of Ownership in land known to Eoman Law, Dominium, and its English equi- valent in a Fee-simple Estate, are rather marked off from every lesser Eight of Ownership by their indefiniteness in respect of limitation than by their actual freedom from all limitation. Negative terms suit the definition of such Eights better than positive ones. " The idea of absolute property," says Mr. Austin, " is a Eight indefinite in point of User, unlimited in extent of Duration, and alienable by the actual Owner from every successor who, in default of alienation by him, might take the Subject of it." This definition points at once to the natural mode of classifying all lesser Eights of Ownership. These may owe their in- feriority of value to — (1.) The Mode of User being definitely described. (2.) The Time during which they last being strictly limited. (3.) Eestrictions imposed upon the actual Owner in the matter of Alienation. Now it will generally happen that any Eight of Owner- ship inferior to the highest will exhibit that inferiority in all these points at once ; and in fact, this follows almost as of course, inasmuch as the identical policy which dic- tates that an Owner should be severely hemmed in with respect to the kind of uses to which he may turn the Thing Owned, also suggests that the time during which his Eight lasts should be sharply limited, and that in the LAWS OF OWNERSHIP. 149 matter of alienation the interests of the Public, present and future, should be watched with quite as much anxiety as the interests of the existing Owner himself. Hence arise two great leading divisions of Eights of Ownership, which, between them, comprehend all con- ceivable Eights of Ownership. I. Dominium, or Absolute Ownership, in which the Mode of User, Duration of the Eight, and facilities of Alienation are unlimited or indefinite. II. All lesser Eights, including Estates for Life, for years, or upon condition ; Copyhold Estates, and Estates Tail in English Law; Emphyteusis, Metayer- tenancies, and Usufructuary Estates generally ; Servitudes or Ease- ments, and generally all Jura in Re according to the largest intent of the classical Jurists, including the Eights of Carriers, of Depositaries, of Pledgees, and of the merest " Possessors." All the Eights belonging to the second class are strictly limited on many sides ; and a classification of them may rest upon the differences in the Mode of User allowed, in the Duration of the Eight, or in the facilities for its trans- mission from hand to hand. It is necessary, in fact, to combine the different bases of classification, and first to make one lead the way and then the other. In the fol- lowing arrangement the first three classes are determined by reference to Time of enjoyment, the other three by cir- cumstances in the Mode of User. Classification of Rights of Ownership less than the most unrestricted ones. 1. Eights of Ownership for a period determinate though uncertain, as a Life Estate, an Estate liable to come to an end on the performance of a condition or on the 150 THE SCIENCE OF JUKISPKUDENCE. happening of an event which must be performed or must happen at some time or other, or on the non-performance of a continuing condition as the Eoman Estate called Emphyteusis and an English Copyhold Estate. 2. Eights of Ownership enjoyable for a period deter- minate and certain, as for years or for a period less than a year. This class includes the briefest tenancy, as from week to week, it being noted that the briefer the tenancy the more severely limited is the Mode of User. For the protection of future tenants it is customary, especially in agricultural leases, to introduce, either by judicial Inter- pretation or by special Covenants, particular restrictions on the Owner's powers as the time during which the Eight lasts draws to a close. Local and general customs, recognised in Courts of Law, define in these cases the Mode of User, respect being had not only to the interest of the immediate incoming tenant, but to that of all future Owners, as well as to the concern of the whole Community in the productiveness of the ground and in the progress of Agriculture. 3. Eights of Ownership enjoyable for a period indeter- minate and uncertain, as Estates at Will and Estates held upon a Condition which may never be performed. 4. Eights of Ownership enjoyable for a period longer or shorter, determinate or indeterminate, certain or un- certain, and which are distinguished by the narrow and simple Modifications of Use which they suppose. Such are Easements or Servitudes, which may be regarded as limited and special Eights parsimoniously carved out of indefinite and general ones. Such are the more familiar Eights of Way and of Common, Eights to Tithes, to Light, to Air, to Eunning Water, to the benefit of a supporting LAWS OF OWNERSHIP. 151 Wall ; the less familiar Eights, in Boman Law, of Stillici- dium, or the Eight of leading off the water from one's own house to the house or ground of one's neighbour, and Fumi immittendi, or the Eight of leading off heavy smoke or other unpleasant vapour through the chimney or over the ground of one's neighbour. In addition to such Eights, the term Servitus in Eoman Law occasionally included other classes of Eights, or Personal as opposed to Real or Praidial Servitudes. Such were usus, usufructus, habitatio, the peculiarities of which need not be here described. To the same head also belong the Eights of working a mine or a quarry, of fishing in a stream, of hunting or shooting over land. All these Eights have this in common, that they deprive him who has the Dominium, or complete Owner- ship, of some but not of all the practical advantages he was able to draw from it. On the other hand, a Letting (locatio, conductio), or a Pledge accompanied with Possession (pig- nus), deprived for a time the Dominus of all practical advantages he was able to draw from the Thing let or pledged. Eights of this class imply indefinite degrees of variation according to — (1.) the Mode of User and of responsibility for abuse; (2.) the Time during which they last ; (3) the facility of transmission by Deed, Will or a mere Event, such as change of habitation and the like. 5. The transitory Eights of Ownership coming under the English head of Bailments, such as the Eights of Carriers, Mandatories (in the Eoman sense), Depositaries (in the same sense), Mortgagees in possession in English Equity, and Pawnbrokers or Pledgees generally. It is manifest that Eights of this class, though importing the unfettered use of Things for certain purposes, are strictly limited as to the Mode of that use, as to the Time during 152 THE SCIENCE OF JUEISPRUDENCE which it is permitted, and as to the degree of facility with which the so-called " special " Owner can part with his Eight to another. Thus by English and by most systems of European Law a ship-master is entitled, " when the whole adventure is in jeopardy," to levy a contribution from the cargo for the purpose of lightening the ship. Eailway Companies receiving live animals for the purpose of con- veying them from place to place are required to give them proper food and to bestow upon them sufficient care, and, in the event of their not being claimed, are entitled to sell them for the purpose of paying the expense of their keep. So a gratuitous Depositary is universally held liable for " crassa negligentia" that is, an extravagant amount of negligence, and for that only ; in other words, only a very small degree of diligence is demanded of him. The Eights and Duties of the Pledgee or Mortgagee in possession are described with great exacti- tude in every System of Law, and will come under more particular consideration when the subject is specifically handled under the subsequent division of " Laws of Contract." In this place it is sufficient to note that the Pledgee or Mortgagee in possession has conceded to him by Law special opportunities for making his security valid without impairing the just claims of the true Owner. Such opportunities with their attendant precautions are provided by at once extending and defining his Power of Sale, by ensuring the payment of his Interest out of the rent or the employment of the Thing pledged, and by guarding against illegitimate abuse of the confidence reposed in him through an unwarrantable parting with the possession of the Thing to another. It is only by a technical and antiquarian distinction that English Common Law treats the Mortgagee as the true Owner, and English Equity the LAWS OF OWNERSHIP. 153 Mortgagor, In both Systems the Mortgagee and Mort- gagor are true Owners for certain purposes though their Eights of Ownership are different in nature and extent. 6. The last class of Eights of Ownership is the most evanescent and ephemeral of all. It includes all the Eights which arise from nothing else than from the mere fact of Possession. In all systems of Law, for the sake of the public peace, the mere fact of a Person's exercising Eights of Ownership, that is, acting as a true Owner in respect of using the Thing Owned, has been held to impart to such Person provisionally some of the legal capacities of the true Owner. The Person actually per- sonating, as it were, the Owner may be in the several situations of the Thief, the Finder, or the Person whose legal claims to Ownership are incomplete, but whose moral claims are greater than those of anybody else. In English Law, according to a celebrated case, the finder of a jewel is entitled to bring an action for detainer of it against everybody but the true Owner. In Eoman Law the Possessory Interdicts of the Praetor had the greatest possible validity for all purposes of guarding even the most transitory and casual claims of an actual Possessor, and, under certain circumstances, of enabling such claims to ripen into substantial Eights of Ownership. There was the naturalis possessio, which implied mere Physical contact with a Thing apart from all attempted exercise of Eights with respect to it. Such a Possession indeed carried no Eights of any kind with it. But where such Physical con- tact was accompanied with the fact of Intentional and con- scious exercise of Eights of Ownership (juridical Possession, possessio ad interdicta), there the Interdict of the Praetor was available to reinstate the Possessor provisionally even if ousted by the true Owner. Where such a Possession as this 154 THE SCIENCE OF JURISPRUDENCE. last was further accompanied by a bona fide belief in the validity of the Possessor's claims and by the presence of some legally recognised Mode in which the Thing came into the Possessor's hands (justa causa), after the lapse of a certain definitely fixed period of time, such merely Pos- sessory claim (j>ossessio civilis, possessio ad usucapionem) ripened into the fullest right of Ownership above described as Dominium. The legal aspects of Possession in Koman Law are so characteristic of the System, and so illustrative of the meaning of a Eight of Ownership in its most incipient and embryonic form, as well as of its transitional stages from that of a mere protected claim to retain from moment to moment, through that of a Eight against all Persons except one, up to that of a Eight against all Persons whatever, that it has been thought worth while to exhibit briefly the Eoman doctrine of Possession with more particularity than is usually required by the abstract mode of treatment here pursued. E. — Facts (Acts or Events) which determine the ACCRUING OF A ElGHT OF OWNERSHIP. In according Eights of Ownership to Persons in a Community, it is not only necessary that the . Nature, Extent, and Duration of the Eight accorded in each particular case should be described by the terms of the Law, but that the Persons who are to enjoy the Eight should be marked out by determinate and unmistakable Signs. This may be accomplished in several ways ; as — (1.) by mentioning individually by name the Persons to be made Owners ; (2.) by describing them generically as belonging to certain well-known classes (as members of Corporate Bodies, for instance, or as born in a particular LAWS OF OWNERSHIP. 155 locality, or as professing a particular religious creed, or as holding certain public offices) ; or (3.) by selecting certain general and familiar Facts, whether Acts of Persons or Events, which may serve as convenient marks of the Persons to whom Eights of Ownership are to be accorded. Of the first of these Modes of attributing Eights of Ownership specimens are presented in the Monopolies con- ceded to their favourites by the Tudor Princes, and in the estates, pensions, or heirlooms still granted from time to time to distinguished citizens by special Acts of Parliament. Of the second Mode (that by generic description) instances are at hand in the Eoman Law of Intestacy, where the sui heredes, the heredes sui et necessarii, the agnati, the cognati, and the gentiles, were severally large classes of Persons, the individual members of which in turn, accord- ing to the Law of Succession prevailing at different periods of the Eepublic or of the Empire, were called to inherit the Eights of deceased Owners. So, in English Law, the Endowments of ecclesiastical, educational, charitable, and municipal Institutions are successively owned by a series of Persons marked out as time goes on, as satisfying the requirements essential to bring them under the class of Persons intended to be benefited by the Founder, or under such a similar class of Persons as the State may, at its dis- cretion, and for purposes of its own, from time to time sub- stitute for the class originally contemplated . The Fact upon which the accruing of the Eight of Ownership in these last cases is made by Law to depend is the complex assemblage of all simple facts which together result in a Person's becoming a member of the class indicated. Thus the enjoyment of a Eight of Ownership in respect of the income attached to a College Fellowship in an English University depends 156 THE SCIENCE OF JURISPRUDENCE. upon the combination of all the single circumstances which go to make an individual Person a Fellow of his College. These are such facts as Matriculation, the passing certain University Examinations, Election by the existing Fellows of the College, and (it may be) an oath or declaration of political opinion or of religious belief. These facts having all met in the case of any given Person, a Eight of Owner- ship in respect to a certain proportion of the income of the College vests at fixed intervals of time in such Person absolutely in such a way as to impart to him a Eight of Action against all Persons attempting to interfere with the full fruition of his Eight. It is a like assemblage of simple facts which vests in an inhabitant of a particular Parish a Eight of Common, a Eight of Way to Church, a Eight of Fishing, or other Eights exclusively confined to the inhabitants of that Parish, — or vests in the residents of a particular Town exclusive Eights to share in the contingent privileges of a School Foundation or of a University Scholarship. Far the most ordinary Facts, however, upon the occur- rence of which the State determines the accruing of Eights of Ownership are first introduced by the spontaneous habits of mankind and then stamped and authorised by the State on grounds of political expediency. The mere prevention of disputes by choosing some Person as Owner rather than leaving the question of Ownership a matter of incessant con- tention, the encouragement of industry and Agriculture, the facilitation of Commerce, the satisfaction of humane, benevolent, and affectionate sentiments, the satisfaction of fairly-grounded expectations, are a series of causes which, in their different degrees, have first suggested and then controlled the action of the State in the process of select- LAWS OF OWNERSHIP. 157 ing the Facts which shall determine the accruing of Eights of Ownership. The familiar forms in which these Facts have classed themselves in the best organised systems of Law are the following : — 1. Occupancy. 2. Specification. 3. Accession. 4. Invention. 5. Prescription. 6. Alienation in Life. 7. Alienation on Death. 8. Adjudication. 9. Forfeiture. This arrangement is very arbitrary in its character, and, indeed, perhaps, under any arrangement, the several groups of Facts do not admit of being kept quite distinct. Some of these distinctions, indeed, may seem to rest upon too refined considerations to be fitted for the somewhat coarse Procedure of a Court of Justice. Nor in fact do any two Jurists or Systems of Law present exactly the same list. The above list, however, has been compounded rather with a view of neglecting no one of the principles upon which such Facts have been classified than with that of dogmatically overriding Modes of classification in use else- where. For the purpose of insisting on the true reasons for adopting these leading Facts as the criteria for the accruing of Eights of Ownership, they must each be submitted to a more particular examination. 1. — Occupancy. The Fact of being the first Finder, Discoverer, or Pos- 158 THE SCIENCE OF JURISPRUDENCE. sessor of a Thing has invariably enforced in favour of such a Person the claim, in the sentiments of mankind, to actual proprietorship. This claim rests on a multitude of considerations, distinct and indistinct, important and worthless. Among these are that, historically speaking, all Eights of Ownership must have grown up in this way, the first Possessor being the first Owner ; that no Person has a better claim ; and that every Thing ought to have some Owner ; that he who finds a Thing will have his expec- tation disappointed by non-acknowledgment of his claim, while no one's expectation is disappointed by acknowledg- ment of it ; , that it is to the advantage of the State to recognise rather than to disturb actual Possession ; and that it is a further advantage to the State to stimulate the activity of all Persons in reducing Things not hitherto Owned into a condition serviceable to mankind. Whatever be the grounds for recognising Occupancy as one of the Facts serving as the occasion for the accruing of Rights of Ownership, in all Systems of Law it is recognised as such to some extent, and in no System of Law to an unlimited extent. Thus in Eoman Law the claims of a Finder of treasure were limited by reference to the place of finding and to the intentional or accidental nature of the discovery. In English Law the Finder of buried gold and silver, even in his own land, has no Eights whatever against the Crown. The English Game Laws, again, severely restrict the Eights which might otherwise be held likely to arise from the first occupancy of animals without an Owner. The Eoman Lawyers drew fine dis- tinctions in the case of Bees or animals ferae natures capable of being tamed, and determined what sort of Occu- pancy did, and what did not, impart Eights of Ownership. laws of ownership. 159 2 . — Specification. When one Person works up the materials belonging to another into something which must be taken to be a new substance, which is the fact to which the Eomans gave the name of Specificatio, the Legislator may be called upon to settle the rival claims of the Owner of the materials and the manufacturer of the new substance. The Eoman Lawyers defined with well-known precision the respective claims of the two Persons in different cases. The grounds for apportioning Eights of Ownership to one or the other are such as — (1.) The bona or mala fides of one or the other person concerned, or more generally the Intention of the parties ; (2.) the impossibility or difficulty of undoing the work and rescuing the materials in their original form ; (3.) the amount of labour bestowed and the proportionate value of the work as compared with that of the materials ; and (4.) lastly, the interest of the State in encouraging manufactures, in rewarding the manufacturer, and in pre- serving the fabric unmutilated. 3. — Accession. A good deal of argument has arisen in modern times as respects the mode in which the fact of what is called Accession results in the accruing of Eights of Ownership. The Accessio of Eoman Law w as the Thing which, either through some silent and subtle operation of Nature, or through the almost involuntary or at least uninten- tional action of Man, became attached to a Thing already owned. This sort of annexation is illustrated in the product of fruit-trees and of corn-fields, in the birth of animals, in alluvial deposits, in theformation of islands, in the mixture 160 THE SCIENCE OF JURISPEUDENCE. {commivtio) of solid substances and of fluids (confusio), and in the attachment of beams or other movable Things to immovables (adjunctio). The main source of controversy as to the way in which the Owner of one Thing acquires, through the mere fact of Accession, a Eight of Ownership in another Thing turns upon whether this fact of Accession brings about the Eight through the primary Occupation which it supposes, or whether it has some novel operation peculiar to itself. The truth is, that the ground upon which Accession is universally recognised as one of the Facts giving rise to Eights of Ownership is the same as that upon which Occupation itself and the other Facts in the same catalogue are so recognised. The ordinary habits and expectations of mankind are first respected and deferred to by the Law- giver. The resulting rules are either gradually extended or restricted according as public policy undeviatingly points in one or the other direction. Thus in the case of Accession the industry and attention of the Husbandman is most stimulated by enforcing his claims to the products of his labour. The claims of rival Proprietors on the banks of a stream, in the case of the emerging of an island or of the deposit of an alluvial bed, will need to be adjusted with reference to their own natural and gra- dually formed expectations and to the inconvenience of encouraging universal competition from without. The well-known instance of the painter decorating the canvas of another with a priceless picture calls to mind the interest that the State may have in enforcing claims founded on nothing but Accession rather than risk the destruction of an object which can never be made good again. The policy which regulates the modern Law of LAWS OP OWNERSHIP. 161 Fixtures, and which was dwelt upon above, presents the State in its most dignified attitude of doing as little vio- lence as possible to the common practices and familiar expectations of its individual citizens, while for the public interests of Art, Agriculture, and Manufacturing enter- prise, it does not hesitate to repudiate Accession as one of the Facts on the occurrence of which Eights of Ownership accrue, 4. — Lyvention. For the encouragement of artistic or manufacturing ingenuity, it is the policy of most modern States to give certain Bights of the nature of Eights of Ownership to the Inventors of new processes for the fabrication of Things useful to the Community. The same sort of favour, and for the same reasons, is habitually shown to the Writers of literary Works. These Eights, in either case, are so peculiar in their kind that it is doubtful whether their consideration more properly falls under the present head or under that of Laws relating to Civil Injuries and Crimes. The peculiarity of the Eights accruing upon the Fact of Invention or of first Publication is, that there are no specific Things to which the Eight has reference. It is a Jus in Rem in the largest sense, that is, a Eight against all Persons whatever ; but, instead of these Persons being forbidden to interfere with the free use of a Thing Owned, they are simply forbidden to sell duplicates or copies of a Thing. The beneficial result to the Inventor or the first Publisher is similar to that attached to a strict Eight of Ownership, inasmuch as the market value of the process, the fabric, or the Work, is indefinitely enhanced through the Monopoly. M 162 the science of jurisprudence. 5. — Prescription. Under the general term Prescription are gathered together all those Facts which result in Eights of Owner- ship being accorded simply on the ground that they have, during a certain space of time, been actually exercised. The way in which the complex Fact " Prescription " is made to operate is different in different States and at dif- ferent epochs. The most complete and efficient mode of operation is presented in the Judicial or Statutory rules regulating usucapio in Eoman Law, and the Acquisition of Easements in English Law. In these cases it is the actual exercise of Eights of Ownership during a period of Time strictly defined, coupled with more or fewer other circumstances with respect to bona fides and to the Mode in which Possession began, which serves to impart an indefeasible Eight of Ownership as against the true Owner and against every other Person. Another form in which the same Fact of Prescription is made to operate to a more partial extent is by simply denying Eights of Action to those who have forborne to exercise their Eighty during a certain space of time. The Eight of Ownership acquired in this last case may for many pur- poses be as large as one acquired in the more positive way just described, but it sometimes happens that a Person, who Owns simply because nobody can legally dispute his Eight, has only imperfect powers of positively protecting his Eight as against thieves, trespassers, and fraudulent or malevolent detainers. The period and general conditions of acquiring a Eight of Ownership by Prescription must naturally vary from State to State and in respect of different sorts of LAWS OF OWNERSHIP. 163 Things. The actual habits of mankind and the pro- babilities which these habits raise will cause a very dif- ferent Presumption to be made as to the true Owner of certain Things at one epoch, and as to that of the same Things or of other Things at a different epoch. Nothing could be more opposed than the habits, social condition, tastes, industrial occupations, propensities to travel and to general absence from home at the era of the Twelve Tables and at that of Justinian, — except perhaps the same cha- racteristics at the era of Justinian, and in England during the reign of William IV. The general policy of attaching Eights of Owner- ship to the actual exercise of such Eights during a definite time rests upon several considerations. Among these are — (1.) the expediency of encouraging Owners to protect their own interests by due personal vigilance rather than by litigation ; (2.) the practical difficulty of ascertaining the true Owner when the actual Eights of Ownership have been long and uninterruptedly exercised by one whose claims are only at the last moment brought into dispute; and lastly (3.) the political convenience of treating the Person actually in possession as the respon- sible and beneficial Owner for all purposes whatsoever. 6. — Alienation in Life. Under the Modes of Acquisition described generally as Alienation, are properly included every kind of Inten- tional Transfer of Eights of Ownership by one Person to another, which is duly authenticated by the conspicuous Acts which the State insists upon as sufficient and neces- sary Signs of such Transfer. The actual grounds or occasions of such Transfer are the social, industrial, and 11 2 164 THE SCIENCE OF JURISPRUDENCE. mercantile operations of common life, such as gift, ex- change, sale, pledge, loan, carriage, " mandate " in the Eoman sense, deposit, and the like. The kinds of con- spicuous Acts which in different nations, at different periods, and for different purposes, have been selected as authentic Signs of Transfer are, — tradition,that is, the actual handing over of a Movable Thing ; symbolic forms of the same, as the manripatio at Eome and a deposit of title-deeds, or a.feoffment, in England ; simple writing, or formal writing certified by witnesses and accompanied by technical marks and solemn words or gestures, as in the English Deed; or the entry of the transaction in some public Eegister, as in the case of mortgaging land in Scotland, or conveying a Copyhold Estate in England. The policy of insisting on such definite Acts as Signs of the intentional Transfer of Eights is determined with a view, partly, to the facilitation of Procedure through the presentation of clear, notorious Evidence ; partly, to the protection of third Parties whose Eights might other- wise be tampered with, as in the case of successive Mort- gages of the same thing by the Owner ; partly to vin- dicating the concern the State has in knowing who is the true Owner of Things, especially Immovable ones, for the enforcement of its own Constitutional claims in the way of Taxation, and of general guardianship of all Things and Persons in the Community, Most of the Acts above exemplified, and the kinds of Intentional Transfer they represent, follow upon previous mutual promises and arrangements between the old and the new Owner. This has led to an erroneous notion which has deeply coloured the history of Eoman Law in the Middle Ages, and which reappears in most European Codes, LAWS OF OWNERSHIP. 165 to the effect that all Eights of Ownership whatever are of necessity preceded by a Contract, or at least an " Obliga- tion " arising out of a Contract or a delict, and that a Contract has for its main, if not its only, purpose the bringing about the Acquisition of Eights of Ownership. The falsity and mischievousness of this notion has been exhibited in great detail and with much assiduity by Mr. Austin. It is sufficient here to summarise the argument by noticing — (1.) that where a legally effectual Transfer of Eights of Ownership is brought about by Gift, Prescription, Inheritance, or Occupancy of Things having no known Owner, no Contract or Jus ad Bern precedes the Act signifying the Transfer ; and further (2.) that some of the most important of all Contracts have no reference whatever to any prospective Transfer of Eights of Owner- ship, but simply contemplate the control of the Promissor's future ActSj as in the case of Contracts of Apprenticeship, Contracts for Marriage, Contracts " in partial restraint of Trade," and generally the large class of Contracts falling under the head " Facio ut facias." The consequence of this erroneous notion has been that in all European Codes the artificial and accidental divisions of the Institutes of Gaius and Justinian have been servilely reproduced, and the large topic of Contract, of course far less promi- nent in Eoman than in modern times, has been simply treated under the general head of " Modes of Acquiring Property." It is fair to say, that the New York Code, which is not exempt from special vices of its own, treats Contracts, or rather " Obligations," as a distinct head co- ordinate with those of Persons and Property. It will have been seen from the above analysis, that by " Mode of Acquisition " is here meant nothing else 166 THE SCIENCE OP JUKISPRUDENCE. than the notorious Act which the State insists upon as a necessary and sufficient Sign of an Intentional Transfer of Eights of Ownership. There are cases, however, in which the same Act may operate as a Contract as well as a Conveyance. An ordinary English " Deed of Grant," a Mortgage, or even the common Act of Pledging, and every Lease, written or unwritten, has this effect. Over and above the Transfer of Eights of Ownership, a Court of Justice attaches by implication to every such Act certain promises about the future, such as, to give all assurance which may be required to make the Transfer effectual, to indemnify against previous charges subsequently dis- covered, to repair, to ensure, or possibly to reconvey the premises. Thus the same Act gives rise to two classes of consequences, the one being the Transfer of a Jus in Rem or Eight of Ownership, the other the creation of more or fewer Jura in Personam or Personal Obligations. 7. — Alienation on Death. It has already been noticed, that, among prevalent methods of generically designating Persons who shall be invested with Eights of Ownership, that of selecting cer- tain members of a present Owner's Family, whether natu- rally or artificially composed, has always been and still is the most conspicuous. The rules in early Eoman Law, by which the Agnati, the Cognati, and the Gentiles, in a dif- ferent order at different epochs, were called to enter upon a vacant inheritance, form one of the most illustrious and significant branches of the Eoman System. The parallel phenomena in England attending the distribution of Eeal and Personal Property, either under the general rules of the Common Law or by force of special Statutes, are LAWS OF OWNERSHIP. 167 further illustrations of the generical mode of describing Persons in whom shall vest Eights of Ownership on the death of an Owner. In all these cases the policy of the State is to prevent disputes, to satisfy natural expectations, to carry out the probable wishes of the deceased Owner, to favour as far as possible a spirit of accumulation and frugality, or, more specially, to 'effect distinct national objects connected with the distribution of the national soil as in Modern France and Eepublican Eome, and, to a growing extent, even in England. But a far more momentous and interesting method of determining the Persons in whom shall vest Eights of Ownership on the death of an Owner is that of giving validity to the expressed wishes of the deceased Owner. This method combines the advantages of being historically and morally natural, and politically expedient. It has exhibited itself from the earliest rise of civilised nations in a variety of forms. The public sale in the life-time of the Owner in early Eoman times ; the donatio mortis causa, or gift in prospect of death, made only available in case of death, in Eoman and English Law ; the nuncupa- tory Wills of soldiers or sailors, recognised both in ancient and in most modern Systems of Law as conveying Eights of Ownership on death by no more formal method than a mere verbal declaration; the strict and formal written Testaments in Eome and England, from which none of the essential solemnities could safely be absent ; the fid'ei commissa and codicilli, invented by way of equitable relaxation in early Imperial Eome ; — these and all the more eccentric and possible varieties of Testamentary disposition which exist in Eastern Countries, such as public registration, superstitious ceremonies, and the like, are all 168 THE SCIENCE OF JUEISPRUDENCE. nothing more than diverse fruits of the general principle that the deceased Owner has a more or less limited claim to dictate who shall succeed to his Eights of Ownership, but that the State has a counter-claim to dictate the Method and Form by which he shall make known his determination. As confidence in the stability of Political Institutions has increased, and the Things capable of indefinite varia- tions of Ownership have multiplied, — ^as, for instance, money secured by Life*Assurances, shares in Joint-Stock- Companies, money secured by Mortgages of every sort, the proceeds due to a Copy-right or a Patent-right, the damages payable under modern Legislation for injuries to life, limb, and property,— the desire of Owners to enforce their claims after their deaths becomes inordinate on the one hand, and, on the other, the public necessity of making the Process by which these claims are to be enforced as stringent and definite as possible. Hence follows such Legislation as that which in England prescribes an inexor- able Mode of Making and Authenticating a Will, whether dealing with Peal or Personal Property. The directions these essential formalities take, of which part have to be ob- served by the Testators and part by the Survivors, are in— (1.) the expressions by which their Authentication is to be signified, and the Mode of noting the connection of the Testator with the transaction, as by Signing, Sealing, and the like ; (2.) the Number, Age, and Competency of Witnesses ; (3.) the Deposit of the document in a public office ; and (4.) the Acceptance and final Eegistration of the document by the proper officer. To these formalities may be added, as a sine qua non of the efficacy of the document, the payment of such Taxes in the way of LAWS OF OWNERSHIP. 169 " legacy," " probate," or " succession duty," as the State may think fit to impose. Over and above what may be called the general and essential formalities which a State imposes for the protec- tion against abuse of so momentous a Eight as that of Testamentary disposition, a number of subordinate, though important, restrictions are invariably applied for the same general purpose, These restrictions have reference to the Age, Mental Capacity, or possibly the legal Situation of the would-be Testator ; to the use of special Terms to which Courts of Justice are bound to attach a technical Interpre- tation ; and to the Time from which the operation of the Will is to date, whether from the moment at which it is made, from the moment of death, or from some later moment. 8.— Adjudication. The mode of acquisition styled "Adjudication" consists of the assemblage of Events or of Acts of Persons of which the outward expression is a formal sentence of a compe- tent Court of Justice. The ancient Eoman Conveyance by the fictitious process of a cessio in jure, and the correspond- ing devices in English Law of " Fines " and " Eecoveries," are instances of Modes for vesting Eights of Ownership ' which are likely to characterise the less self-conscious and less resolute eras of every Legal System. In more modern times Bankruptcy, followed by the definite appointment of Assignees ; actual Execution, following upon a Judg- ment and Verdict for Damages ; a Distress for Eent followed by Sale of the articles distrained upon ; the pay- ment of a public Fine judicially imposed, or the liquidation of the penalty incurred by " estreated " recognisances, — are further instances of the most familiar and modem descrip- 170 THE SCIENCE OF JURISPRUDENCE. tion of the Mode in which Adjudication, actual or presumed, operates as a Mode of Transferring Eights of Ownership. 9. -^Forfeiture. The operation of Forfeiture, that is, of some Act or Event arbitrarily selected by the State as a mark of the surrender of Eights of Ownership by one Person to another, is rather of political and historical than of juridical interest* It is purely a creation of Positive Law, inasmuch as its existence in particular Legal Systems has been far more due to what is peculiar in the circumstances of each Community than to those common exigencies and conditions of Humanity which prescribe the adoption of the other Modes of Acquisition hitherto passed in review. Under the term Forfeiture is included every Act or Event on the occurrence of which the State determines that some or all of a certain Person's Eights of Ownership shall summarily pass over to another- Person strictly denned ; such Act or Event hot falling under any of the Classes above described generally as Alienation. Instances of the recognition of Forfeiture are supplied by certain consequences of the diminutio capitis in Eoman Law, whether as affecting Liberty, Citizenship, or Family Eelationship ; by the Feudal doctrine of '■'■Escheat" to the Lord of the Feud, for want of heirs, or for the attempted creation by the tenant of an " Estate larger than his own ; " by the deprivation, in favour of the Crown, of Eights of Ownership in Goods, and even to some extent in Land,following, according to English Law, on "conviction" and " attainder" for a Felony ; and by the legal effects of the antiquated process of Outlawry. Some discussion has arisen among Jurists about the LAWS OF OWNEKSHIP. 171 propriety of giving the name "Title" to such Acts or Events as have been above enumerated as marks adopted by the State of the effectual acquisition of a Eight of Ownership. The word " Title " has the disadvantage that at least three classes of meanings are attached to it. There is — (1.) the strict use of the word in Eoman Law, according to which it signifies a definite portion of the whole formal process necessary for the effectual Transfer of Eights of Ownership, and in this sense was contradis- tinguished especially to the other portion of the same process denominated " modus acquirendi ;" (2.) the loose popular meaning prevalent among English Lawyers and in most English Text-books, according to which the word signifies not a specific Act or Event upon which a Eight of Ownership is held by Law to accrue, but, sometimes, nothing else than the Documentary Proofs of such an Act having been performed or of such an Event having hap- pened ; at other times, the legal attitude of a Person in- vested with Eights of Ownership as a consequence of some such Act or Event, as in the loose expressions " Title by Contract," " by Gift," " by Invention," " by Prescription," " by Forfeiture " and the like; there is lastly (3.) the severe meaning which Mr. Austin aspires to attach to the word, according to which, in audacious violation of popular habits of speech, he would speak of a Title to Duties as well as to Eights, thereby using the word " Title" as expressing every Act or Event upon which Eights or Duties arise or terminate owing to Legislative provision, but as distinguishable from the Law itself. Mr. Bentham's "Investitive" and "Divestitive" Facts are useful expressions, and might be brought into legal circulation with advantage. 172 THE SCIENCE OP JURISPRUDENCE. In view of this diversity of nomenclature, the purpose of the scientific Jurist must be to avoid all risk of ambiguity without attempting any too rash innovation. This purpose may be secured by designating all the com- plex Facts, whether Acts or Events, upon which Eights of Ownership accrue, as Titles. In this sense a Title is an arbitrary and visible Sign selected by the State, partly in deference to the general habits of mankind, partly with a view to political expediency, for the purpose of ascer- taining the Persons in whom Eights of Ownership shall vest. The Mode of attributing Eights of Ownership through the use of Titles is then readily co-ordinated with the other Modes of attaining the same end, namely, that of describing the Person who shall Own individually by name,, or that of describing him generically as belonging to some existing Class of Persons in the Community. A few remarks must be made, lastly, on the expression " Vested and Contingent Eights." It has been seen that the Acquisition of a Eight of Ownership is legally marked in one of three different kinds of fashions : either the new Owner is individually described by name ; or he is pointed out generically by describing the Class of Persons to which he belongs and the place he holds in that Class ; or certain complex Pacts are selected as definite tokens that' Eights of Ownership have passed over from one Person to another. In all these cases a number of separate and distinct conditions have to combine in order to vest a Eight of Ownership in a particular Person. Some of these conditions may be fulfilled at one time, and the essential complementary ones may not be fulfilled till a later time, or may never be fulfilled at all. So soon as a Sufficient number of the conditions are fulfilled to ensure that LAWS OF OWNERSHIP. 173 a particular Person or his Eepresentatives or Assigns shall succeed to a Eight of Ownership either immediately or at some future time, the Eight is said to be a Vested one. Nothing is wanting to the complete Acquisition of the Eight by the Owner but the happening of certain Events which are certain to happen, or the lapse of a certain space of Time definitely fixed. But after some of the conditions for the complete Acquisition of a Eight of Ownership have been fulfilled as above, it may be that it is uncertain whether the remaining indispensable condi- tions ever will be fulfilled. The Persons described by the Testator or Settlor may never come into being; the Persons whose existing Eights of Ownership it is purported to deal with, on their surrender of them by death or otherwise, may not have surrendered them at the Tims contemplated ; the Things to which the Eights have reference may perish or undergo a substantial change ; certain other Persons may do or not do Acts with respect to which no certain provision can be made by the Person affecting to direct the succession to the Eights of Owner- ship. In all these cases, inasmuch as from one point of view it is a matter of mere chance whether an effectual Eight of Ownership is really transferred to the Person ' indicated, the Eight has been called a Contingent Eight. The expressions Vested and Contingent are, as Mr. Austin has pointed out, when applied to Eights, awk- ward and misleading. In either case the Eight trans- ferred may be identical in all respects, and the only dif- ference is as to the time or the chance of the Eight being acquired. It becomes a question in particular countries whether this sort of claim or expectation, which is founded on the prospect, more or less certain or definite, of a 174 THE SCIENCE OF JURISPRUDENCE. future Eight of Ownership, is itself a sort of Eight capable of being dealt with by transmission like any other Eight ; the decision is one of mere positive Institution, and different principles as respects the conveyance of what is called a " possibility" have been held at different periods of English Law. F. — Modes op protecting Eights or Ownership. As a mere question of Classification it may be doubted whether the topic of the legal expedients for making Eights of Ownership effectual properly belongs to the general head of Laws of Ownership or to that of Laws of Procedure. It belongs in truth to both heads : to the former, so far as the general classes of expedients available for protecting the Eights here concerned admit of being broadly distinguished ; to the latter, so far as the detailed Processes by which these expedients are made operative by Courts of Justice have to be precisely investigated. The general Modes by which the State gives security to Owners may be arranged as follows : — 1. A Process of the most Summary description, of the nature of the Eoman Interdict and of the English Injunction, by which an immediate Eemedy is granted upon a primcL facie alle- gation of the actual or probable disturbance of the Owner in the actual exercise of his Eight in its fullest comprehension. This Interdict, Injunction, or Summary Process may have in view either the forcible Expulsion of an Intruder and the Eestitution of the Owner, or the Eestoration, in kind, of Things wrongfully re- moved or detained, or the Arrest of the alleged wrong-doer in his conduct, either peremptorily, laws or OWNERSHIP. 175 or subject to the conflicting Eights of the Parties being hereafter formally ascertained in a Judicial Proceeding. 2. An ordinary Action or Suit having in view the Compensation of an Owner for Injuries received of the nature of wrongful removal or detainer of his goods ; as for Trespass in the largest sense of this large term, and for interference of every sort with the freest and fullest enjoyment by the Owner of his Eights. 3. An Action or Suit, having in view not Compensation so much as actual Eestoration and Eestitution. 4. A Criminal Proceeding, by which the invader of a Eight of Ownership is treated as a public enemy, is prosecuted at the public cost, and is punished in a definite Mode, over the quality, extent, duration, and necessity of which the Owner immediately injured has no manner of control. The Injury punished may be either a Direct Injury, taking such forms as those of Theft, Eobbery, Embezzlement, Eeceipt of Stolen Goods, or Malicious Injuries to Property (as in the quasi Criminal proceedings under the Lex Aquilia), or an Indirect Injury, as " Slander of Title " and the Injuries implied in the invasion of Eights essentially appendant to Eights of Ownership, such as Eights to Transfer those Eights. Under this last head come Forgery, the Suppression and Mutilation of Wills and of other Documents of like import, and certain Prauds by Trustees and by Bankrupts, or committed upon Public Securities. 176 CHAPTER XI. LAWS OF CONTEACT. The possibility of a prevalent national habit of relying upon Promises depends on the presence of several classes of Facts which, in spite of numerous celebrated but now exploded Theories to the contrary, are in early- times in a very rudimentary state of development. Such a habit implies — (1.) an imaginative and dominant Con- ception of a Future Time as likely to become Present ; (2.) a Belief in the probability of perfecting in the Future apian of action sketched out in the Present; and (3.) such a knowledge of and confidence in Mankind as to be a ground for the Belief that another can and will control his own actions in the Future in the way he engages to do in the Present. To all these conditions must be added the one of the occurrence of a sufficient number of occasions in daily life for cultivating and maturing the Conceptions and Beliefs implied. According as these con- ditions present themselves more and more frequently and decisively, owing to the increase of social intercourse, of co-operative industrial effort, and of acquaintance with the constitution of Nature and of Man, — the whole intensified, it may be, by a progressive apprehension on the part of all Men of their real destination as Social Beings, — the fact of what is called Contract becomes a conspicuous element in National Life. Professor Maine has pointed out with LAWS OF C0NTEACT. 177 what difficulty the idea is at first elaborated ; how cum- brous the detailed ceremonial with which every compact between Family and Family is associated, and how slowly the mental elements of a mutual Promise disengage them- selves from all that is formal, material, or merely eviden- tiary. The phenomenon of Contract as a social character- istic implies that men have found out that they can rely not only on their own conduct in the future, but on that of each other, and that they can safely guide their present conduct, under the assurance that others will do or not do hereafter certain acts specifically described. In this way, as the German Jurists say, man's empire is extended over the wills of other Persons by Contract as it was extended over the natural world by Ownership, and over his own will by the primitive recognition of social order and liberty. He who relies on the Promise of another as respects the conduct of that other in the future has reduced so much of the fluctuating and incalculable chaos, constituting the realm of chance and accident, within the confines of what is clear, definite, and reliable. It is this habitual and growing human confidence which is even supposed in the very fact of Ownership itself and appears in new and larger manifestations as (according to the hypothesis of Professor Maine) the mancipium be- comes severed from the neocum, and the nexum becomes the obligatio. Formal Exchange and Sale, — a Sale in which the purchase-money remains unpaid, — and a Sale in which neither is the purchase-money paid nor delivery made at the time, — is doubtless a true historical series of epochs in the development of Contract as a social Fact ; though with economical occasions like these there would be keeping a constantly accelerated pace the more domestic transactions N 178 THE SCIENCE OP JURISPRUDENCE. of hiring for service, carriage of goods, and the general employment of labour in the simplest pastoral, agri- cultural, or even predatory and military pursuits. It is upon the prevalent tendency to make Contracts that a Law of Contract is grounded. Like all other Laws, this class of Laws arises out of the constitution of Society and reacts back upon that constitution by way of defining and maintaining it. These Laws have for their purpose the guiding of those who on the whole desire to submit themselves to such direction, and the punishing of the few refractory Persons who, being out of harmony with the current disposition of the whole Society, would otherwise hamper the progressive movement of the whole. The more special end of Laws of Contract is to facilitate the work- ing of the social forces of the nation in respect of that mode of co-operative action by which the wills of two or more Persons are economically disposed towards certain harmonious courses of action. Where these courses of action are not of a kind that the State holds to be obvi- ously prejudicial to the general life of the nation, and where the Persons interested have, by some unmistakable Act, signified their desire of controlling their own future actions severally, the State is ready to stand by on behalf of each as against the other, and threatens to punish the one who disappoints the expectations that have been formed. Such is the general purpose and policy of what are called Laws of Contract, and it will be manifest that where a State thus specially intervenes in the private negotiations of its citizens, there is needed a special amount of determinateness as to the occasions upon which it will take upon itself so to interfere, and the LAWS OF CONTRACT. 179 most anxious solicitude to prevent its hampering the easy- play or degrading the free spirit of that very life which it affects to quicken and regulate. Thus the consideration of Laws of Contract involves a careful scrutiny into all the parts of which every such Law is necessarily composed, as well as into the unbending natural facts, or common artificial precautions which control the operation of all such Laws. Such a scrutiny will best be performed by treating the subject in accordance with the following arrangement : — A. Explanation of the legal term Contract. B. Persons who make Contracts. C. Authentic Signs by which the making or dissolving of a Contract is notified. D. Eights accruing through the making of a Contract. E. Classification of Contracts. A. — Explanation of the legal term Contract. In attempting a definition of the legal term Contract, the modern Jurist is at once met by the difficulty he has to encounter at every point arising from the fact that the use of juridical terms has undergone an indefinite amount of vacillation according as they have been em- ployed by the Eoman and Middle- Age Jurists, by modern speculative theorists, or by the authors of practical treatises on branches of Positive Law. In view of the perplexity so arising, the best he can do is to find a definition which shall cover the most numerous and important uses of the term to be defined, and shall do as little violence as possible to popular usage. In order to frame such a definition of the word Contract, it must be n2 180 THE SCIENCE OF JUEISPKUDENCE. recognised that the essential notion of a legal Contract contains the following ingredients : — 1. There is a complete and Joint Act of two or more Persons, from which Act Eights and Duties take their rise. 2. Some of the Duties so arising relate to the future (and not the present) Acts of one, some, or all of the Parties to the said Joint Act. 3. The said Joint Act may either be held by the State as alone sufficient Evidence of such Act itself having been performed, or else other and different Acts maybe required to be performed by way of providing Evidence of the due performance of the Joint Act, and from which Joint Act the evidentiary Acts are more or less clearly distinguishable. The recognition of these principles justifies the follow- ing definition of a Contract : — A Contract is such a Joint Act of two or more Persons as is held sufficient in Law to determine the present and future Bights and present and future Duties of one, or some, or all of such Persons; of which Act specific Evidence is required by Law. It might be said that the last part of this definition is only descriptive, and therefore superfluous. It is, how- ever, important, on every occasion of using the term Contract, to distinguish clearly between the Act of efficient consent between the Parties and the Evidence of the Act required by Law. This Evidence, indeed, may be of the most varied and even artificial kind. It may be, on the other hand, only the accumulation of circumstances or Events, or subsequent Acts of the Parties, or the Acts of other Persons which tend to render it probable that the Act of efficient Consent was really performed. LAWS OF CONTRACT.' 181 Iri the above definition, the word future has been care- fully introduced. This serves to distinguish the present definition from the celebrated one given by Savigny, which, from its extreme comprehensiveness, becomes almost valueless. His definition of a Contract is " an Union of two or more Persons resulting in an Accordant Declaration of Will, whereby their Legal Eelations are determined." The omission of the word future here results in the inclusion of a number of Joint or accordant Acts which no known Legal System and no popular dialect have ever associated with the notion of a Contract. He admits, indeed, that the kinds of Contract which give rise to Obligations are the most important and frequent, but that simple Tradition or delivery of a Thing is a true Contract. It is here asserted, on the contrary, that Tradition, like Exchange or a Sale for ready money, are nothing more than simple Acts by which, with or without other sur- rounding circumstances, rights of Ownership are acquired. The essence of a Contract is the reliance on the Promise of another as to his Acts in the future ; and it is in recog- nising the growing disposition on the part of its citizens to entertain such reliance that the State evolves the strict legal notion of a Contract, and constructs a Law of Contract. B. — Persons who make Contracts. While every legal Person, that is, in modern States, every member of the Community, is presumed to be possessed of a certain degree of Moral Eesponsibility, in default of evidence to the contrary, for some purposes a higher degree or different kind of Moral Eesponsibility is demanded than for other purposes. Thus in respect of 182 THE SCIENCE OF JUKISPRUDENCE. the ordinary Duties attaching to every citizen as such, (in view of which he is compelled to abstain from troubling the general peace of the Community, from plot- ting against its Government, or from violently invading the simplest private Eights of personal Security and of Ownership,) the presumption, not rebutted, of some degree — however minute — of Moral Eesponsibility, will render an offender liable to Punishment. In other words, it is held, with good reason, in all Systems of Law, that even a very infirm capacity of voluntary action and a peculiarly restricted experience of the ordinary conse- quences of Acts and of sequences of Events will suffice to enable any citizen to do his negative part as an inoffen- sive member of the Community, even if they do not entitle him, with due regard to the safety of himself and others, to engage in the more complex and artificial sort of intercourse which is implied (for instance) in making a Will, in endorsing a Bill of Exchange, in bringing an Action at Law, and, more generally, in co-operating with others in the more complicated negotiations of commercial life. Thus it comes about that, though the general marks or signs of a legal Person have been already described under the head of the Explanation of Legal Terms, yet in the treatment of each department successively of a complete System of Law, the matter comes on afresh for considera- tion, accordiag as the Eights and Duties assigned under that department, and the Acts from which those Eights and Duties take their rise, necessarily presuppose varying measures of capacity, and varying amounts of knowledge, in the Persons to whom the Law is immediately addressed. The explanation given above of the notion expressed by the term Contract suggests at once that, for the purpose LAWS OF CONTRACT. 183 of engaging in the Joint Act described, a superior degree of capacity of voluntary action and an amount of know- ledge reaching to a point beyond the immediate conse- quences of Acts is imperatively required. In order for Persons honourably and discreetly to undertake such Duties in the future as they do when, with the sanction of Law, they recognise Eights in another as controlling their own future Acts, they must be able in some measure to anticipate future Time, and to foresee how far they can themselves rely upon their own actual performance of what they Promise. The moral aspects, as well as the commercial expediency, of the engagement will depend upon the accuracy of this prevision, though it would be vain for Law in its formal shape, or through the process of its Administration, to attempt to secure a completely honest moral attitude in all Persons making Contracts. Never- theless, Legislators in all countries ever show an increasing tendency to favour by their support most- of all, if not exclusively, the classes of Promises in which the foresight and wisdom of the Promisors are most conspicuously present, and to abstain altogether from countenancing Promises as to which it may reasonably be inferred that the Promisors had not the capacity of knowing what was the nature of the future Duties to the performance of which they were binding themselves. But furthermore, — inasmuch as the Law always de- mands certain strict Evidence of the fact of a Contract having been made, whether that Evidence be the mere Act of consenting itself, or it be some Supplementary Act, or it be implied from certain surrounding circumstances, —the Evidentiary Act, (where one is required) being of a strictly formal and solemn, even if not generally now 184 THE SCIENCE OF JURISPRUDENCE. of a cumbrous nature, demands a peculiar amount of capacity for voluntary action. It has been pointed out by Professor Maine, how the formal part of a Contract is at first the only essential part, and the part upon which public attention is exclusively concentrated. In the Eoman Con- tract by Stipulatio a capacity of articulating the formal words in the proper language or languages and sequence was, at all periods, held essential to the validity of the Engagement. So even in modern times, where, as under the Statute of Frauds, the only admissible Evidence of certain Contracts is a Deed, the entire amount of capacity necessary for executing a Deed is presupposed. These considerations, whether grounded on the nature of a Con- tract in itself or of the Evidence of it insisted upon by Law, are sufficient to explain why, in all countries, all or some of the following Classes of Persons are, for some purposes or other, under special disabilities in the matter of making Contracts : — 1. Infants. 2. Lunatics and the like, including Drunkards. 3. Persons under Duress of all kinds, physical, moral, or legal. 4. Married Women. 5. Agents. 6. Outlaws, if such exist. 7. Aliens. 1. — Infants. Infancy, or that condition of mind and body in which the faculties have not obtained the average pitch of de- velopment which characterises the most important years of Human Life, must necessarily be recognised in all LAWS OF CONTRACT. 185 Systems of Law except the most immature, and in every department of each Legal System. It is not necessary here to distinguish between the popular and the legal use of the term Infancy, nor to note that the Eoman use of the term Infans rather corresponded with the popular English use,- while the English law-term Infant rather corresponds with the Eoman term impubes. A very slight experience of worldly affairs may be supposed to teach a young man, after he has passed the years of childhood, the purposes of and the liabilities attached to some of the simpler classes of Contracts, — as those of Sale, Loan, Hiring, and Carriage. There are, however, other classes of Contracts which, concerned as they are with the most complex transactions of mercantile life, demand a very considerable experience of those transac- tions in order to enable anyone fairly and discreetly to enter upon them. Of this latter class are those which result from "stating an account," accepting or indorsing a Bill of Exchange, trading generally, insuring goods, en- gaging in a Partnership, and referring a disputed claim to Arbitration. It is the anxious endeavour of all advanced Legal Systems to protect Minors and the Community generally against the pernicious consequences likely to arise from the premature handling of such matters as these by those whose youth raises an irresistible Pre- sumption of inexperience. In Eoman Law the whole Institution of the Patria auctoritas and the tutela, as well as special Legislation such as the Senatus-consultum Macedonianum for the protection of Heirs against the exactions of Usurers, were ever ready for the deliverance of the young from the consequences of inexperience in the matter of Contracting. The Law of England is 186 THE SCIENCE OF JURISPRUDENCE. equally solicitous in pursuit of the same ends, though by a less circuitous path. By this- Law no action for Breach of Contract can be sustained except for what has been called and interpreted to be the " necessaries of life," if the Defendant was below the Age of twenty-one years at the time of making the Contract, and has not confirmed the Contract after attaining that Age. By the doctrine of a " natural obligation " the Boman lawyers contrived to parry, to a certain extent, the practical injustice and even Fraud which might occasionally result from the severe application of their own protective Bules. The precise Age, of course, at which the capacity for Contracting is attained, and the kind of Contracts, if any, permissible even under that Age, will differ from country to country. The leading idea which underlies the preva- lent exclusion of the young from the power of Contracting is contained in the following assumptions : — (1.) That the Law generally protects, by anticipation, its citizens against probable fraudulent Acts on the part of one another and against the possible consequences of inexpedient Acts of their own to the performance of which they were induced by inevitable causes, such as, in this case, the deficient understanding incident to Youth : (2.) That in under- taking any Duties in the future a larger amount of know- ledge and self-possession is needed than in doing present Acts of which the consequences are at once apparent : (3.) That a special knowledge of mankind is needed to enable a Contractor to ascertain the integrity and general competency of the other PersoDS joining in the Act in which the Contract results. laws op contract. 187 2. — Lunatics and the like, including Drunkards. Another class of Persons whose ability to make a Contract is restricted in all mature Systems of Law consists of those who, through congenital malformation or accidental afflic- tion, temporary or permanent, or even as the consequence of voluntary action, are under a special incapacity either to Act freely or to understand the consequences of their Acts. The habit of Contracting is so far artificial and is a result of such subtle grounds of mutual confidence be- tween man and man, that a very small degree of mental aberration is universally held to suffice for the purpose of disabling a would-be Contractor. In constructing the rules for the regulation of this class of disabilities there are certain competing considerations which cannot be left out of sight. In the first place, the same difficulty is encountered here as in all other matters relating to purely mental conditions, which is due to the practical impossi- bility of discriminating precisely between the different degrees of Moral Responsibility. In the second place, the very attempt to apply refined distinctions in matters of this nature must lead to the aggravation of the protective characteristics of this part of the Law, must promote an excessive interference in the ordinary industrial concerns of Mankind, and indeed must tend to generate the very evil it is designed to prevent, that is, the multiplication of Frauds. But again, in the third place, if the doctrine as to the complete inability to Contract in the cases now under contemplation were pressed to its full logical extent, all Persons labouring even under trivial forms of mental disease might experience a difficulty in procuring the necessaries of life, or even the proper services of others, and the requisite medical attention. 188 THE SCIENCE OF JURISPRUDENCE. The different considerations here alluded to have led to proportionate modifications in the most celebrated Systems of Law with respect to the Contractual disabilities of Persons in the position of Lunatics. The Eoman Institution of the curatela, and the corresponding English institution of Guardianship in Lunacy; the cautiously applied Eule of English Law that where a reasonable Contract has been made by a Lunatic with a Person not aware of the patient's condition, and the Contract has been so far performed that the Parties cannot be restored to their original position, the Contract will be held valid ; the equally beneficial rule, that a Contract made by a Lu- natic during a lucid interval, (where no advantage has been taken of the patient,) and also one made at any time for necessaries, will also be held valid ; and the inverse rule, that a Contract made during a fit of drunkenness, and instantly repudiated on the return of sobriety, will not be supported, — these Institutions and Eules are instances at once of the general incapacity of those in the position of Lunatics to Contract, and of the special methods in use for the correction and qualification of this incapacity. 3. Persons under Duress of all kinds, physical, moral, or legal. The ground of incapacity resulting from what is called Duress, — that is, a condition of real or apprehended physical restraint, — is of a twofold nature. In the first place, the would-be Contractor who is under Duress is assumed to be, to a greater or less extent, unable to perform the formal and material Acts, whether Constitu- tive or Evidentiary, implied in a Contract, with that absolute freedom from impediment from without which LAWS OF CONTRACT. 189 a true act presupposes. In the second place, it is assumed that to a Person under Duress certain inducements are likely to be presented which render him to a greater or less extent incapable of estimating properly his own true in- terests. Thus, a Contract made with him under such circum- stances is, for the other Party, tainted with Fraud. Some Systems of Law, as the English, go even to the extent in some cases of not allowing this Presumption to be rebutted, even where the term Duress is extended to that sort of legitimate influence which is exercisable by Trustees, Guardians, and professional legal advisers. The English doctrine of " Constructive Fraud," as applied by Courts of Equity to large classes of Contracts, however honestly made in fact, between Persons in the relation of confidence to each other, over whom the Law assumes a special protectorate, is in fact nothing more than an extension of the principle of disability now under consideration. The position of convicted Criminals suffering legal punishment is so exceptional and peculiar that it throws little light on the general doctrine of Contractual dis- ability. What has been said as to the reasons for dis- ability found in ordinary Duress is applicable in a far higher degree to that limited class of Persons to whom the smallest amount of freedom of action is permitted, and whose inducements to barter for insignificant present objects their own future welfare and that of their Fami- lies are likely to be in many cases inordinate. It is an anomaly in the Law of England, that felons are liable upon the Contracts made by them while under sentence, though incapable of ever taking advantage of them. This is, in fact, a circuitous and irrational mode of merely increasing the punishment. 190 the science of jurisprudence. 4. — Married Women. The remaining classes of Persons whose incapacity of Contracting is generally announced by Law are in a dif- ferent position from most of those hitherto mentioned, inasmuch as here the Incapacity is not due to natural facts or misfortunes with which the Law endeavours to grapple, but to Institutions owing their birth and exist- ence to Law itself. Thus it is nothing more than mere arbitrary Legislation (whether wise or unwise) which, in all countries, ancient and modern, has placed and still places a Married Woman in such a state of physical and civil subordination to her Husband that her Eights of Ownership are severely restricted on all sides and even her rights of Personal Security restricted as against her own Husband. This artificial state in which a Married Woman is placed naturally carries with it for many purposes the Presump- tion of incapacity for voluntary action, and also of a want of such an acquaintance with the affairs of the world as is needed for prudently engaging in the more complicated transactions of life. In such a case the main conditions for making a valid Contract are presumed to be absent or in abeyance, and the legal conclusion is expressed in the general incapacity on the part of Married Women to Con- tract, as recognised by all known Systems of Law. This incapacity extended under the Eoman Law to all Women whatever, who accordingly, under that Law, were through- out their lives in a like condition of pupilage and Civil dependence as are Married Women in modern Europe. The successive invasions that have been made by the system of " Communaute " abroad, and by the doctrine of the " Wife's Separate Estate " in English Equity, upon the LAWS OF CO'JSTKACT. 191 general legal relationships of Married Persons, have carried with them proportionate modifications in the Eules appli- cable to the Contracts of Married Women. The older ex- ceptions introduced by the Law of England for the case of a Woman trading under the " Custom of London," and of a Woman whose Husband is, through a sentence of transpor- tation Civilly dead, recognise and illustrate the general principles on which the ordinary Eule is founded. 5 Agents. The fact of Agency may be treated from two distinct points of view, according as it is regarded as furnishing the basis for a distinct and peculiar kind of Contract or as qualifying the capacity of Persons in the course of making other Contracts. Por purposes of convenient reference, which is the main object in the construction of a Code, all the aspects of Agency will best be treated together under one head. In a logical exhibition of the contents of a Legal System, on the other hand, the dis- abling effects of Agency should be treated apart from the general description of the Contract of Agency in order to lay those effects side by side with the effects of similar disabling conditions. Suffice it, then, in this place, to notice that for the con- venience of practical, and especially of commercial, life, the complete series of Personal qualities essential to charac- terise a Contractor are, under the doctrine of Agency, regarded as being distributed between two Persons, called the Principal and the Agent, sometimes in one proportion and sometimes in another. The Principal is in all cases the Person who, — supposing a Contract with third Persons to have been effectually made, — is treated by Law as one 192 THE SCIENCE OF JURISPRUDENCE. of the Persons who joined to make it. It may happen that, through absence, through special ignorance of certain facts, or through indisposition personally to interfere, the Princi- pal may prefer, in conformity with legal permission, to delegate to another Person, called his Agent, his own proper functions, whether of engaging in the Joint Act or of merely or also performing the Supplemental and Evidentiary Act, if such there be, which is required by Law. Of course, for the other Persons engaging in the Contract, it becomes a matter of the greatest importance, and one upon which it is often very difficult to obtain satisfactory Evidence, how many and which of his own appropriate functions an absent Principal has delegated to the Person who actually interposes in the transaction. Two distinct questions here present themselves : the one, as to the validity of the Con- tract, supposing the Agent to have been acting in excess of or without authority ; the other, as to the distribution of liability between the Principal and the alleged Agent, supposing the Contract to be valid. The answer to these two questions involves an enquiry, first, into the private dealings between the Principal and the Agent; and, secondly, into the public dealings between the Agent and the other Contractors. As to the private dealings between the Principal and the Agent, the doctrine of Eatification, by which the Principal is able to adopt his Agent's con- duct and to incur as much responsibility for it as if he had authorised it, often tends to supersede an investigation which must in many cases be hopeless. Apart from a publicly announced Authorisation of an Agent, from the Eatification just alluded to, and from the operation of certain fixed Presumptions based on the general course of trade or on the nature of official or domestic relationships, LAWS OF CONTRACT. ' 193 the Law can only resort, in order to ensure the safety of Contractors, to certain arbitrary and loose Presumptions having the effect of fixing with liability the Agent, the Principal, or neither of them, according to the peculiar facts of the special case. It has been necessary here, in introducing the topic of Agents for the first time, to anticipate a general descrip- tion of the matters which, in a Systematic exhibition of a body of Law, like a Code, will only be explained and worked out in detail under the head "Agency" as a department of a classified enumeration of the different kinds of Contracts. With respect to the distribution of personal capacity between the Principal and the Agent, it is important to notice, that where an Agent has only to perform a supple- mental Evidentiary Act, only so much knowledge and capacity of voluntary action may be required from him as is needed for that. Thus, in Eoman Law, a Slave or a " Pupil" could perform all the essential ceremonies of a stipulatio, though the dominus or the tutor, representing the " pupil's " estate and general interests, would be the Principal on behalf of whom the Contract was made. In English Law it is laid down broadly by Sir E. Coke, that " Infants, Married Women, Persons attainted, outlawed, or excommunicated, and other Persons labouring under disabilities, may be Agents." This language would seem large enough to cover all functions of Agents whatsoever. 6. — The topic of Outlaws is covered by the observations in the last paragraph. 7. — Aliens. An Alien, or citizen of a Eoreign State residing in the o 194 THE SCIENCE OF JURISPRUDENCE. country, suffers, under most Systems of Law, from special disabilities in respect of Contracting, which differ according as their own State is or is not at war with that within the Territory of which they are resident. It is not necessary here to detail the character of these disabilities. They are not brought about as of necessity by any of those widely prevalent facts of which Jurisprudence must take notice. They are only relics of past jealousies and a spirit of national isolation. In a later chapter on Private International Law, it will be seen that the more advanced States of modern Europe have almost vied with each other in counteracting this selfish propensity to confine the benefits of a Law of Contract to their own citizens. C. — Acts by which the making op a Contract is SIGNIFIED. A Contract has been above called an Act. The mere simultaneous acquiescence of two Persons' minds with a view to one or the other independently undertaking a future liability is of itself never invested by Law with the character of a Contract, that is, it never is held sufficient to determine future legal Eights and Duties. This mental acquiescence or assent on the part of each Person pro- fessing to make a Contract must be accompanied by a communication of the fact of the existence of such a mental state to each of the others, whether the communi- cation be effected, directly, by speech, writing, gestures, or signs having in view nothing else than, or nothing beyond, the fact of the negotiation in question, or, indirectly, by like methods having directly in view some other or ulterior purposes. It is at least essential that at the precise moment at which the Contract is professedly LAWS OF CONTRACT. 195 made the mental state of each of the Contractors, as im- plying assent to the whole arrangement in contemplation, should either be then and there communicated to all the rest, or be already known to all the rest owing to some previous Act of communication. From what has been already said as to the true nature of a legal Contract, it is obvious that the critical Joint Act which really constitutes it may be analysed into certain Mental and Physical elements which may be described in the following way : — 1. A Mental State, on the part of each of the Persons professing to Contract, implying acquiescence in one and the same contemplated course of action as indicated by the purpose or object of the Contract ; such course of action to be pursued either solely by one of the Contractors, or, partly, by one and, partly, by the other or others. 2. An Actual and Physical Communication, having reference to the above-mentioned Mental State, through the only possible media for communi- cating a knowledge of states of mind. Such Communication may either be made at the same instant by all the Contractors or at different in- tervals of Time, in which last case the whole Act is not complete till, and is complete when, the last Person communicating has made his Com- munication. Such, then, is the generic nature of the Joint Act de- nominated a Contract, and the conditions of its validity just explained must be invariably present. It happens, however, that experience of the ways of mankind has enforced the expediency of adding to these conditions o2 196 THE SCIENCE OF JURISPRUDENCE. certain other arbitrary and artificial ones, partly in order to secure due deliberation of mind in Persons wishing to Contract, partly to obviate Frauds, partly to provide satis- factory Evidence of the essential conditions of the Contract being fulfilled. Thus in every Contract a distinction has to be made between the necessary and universal condi- tions of its validity and what may be called the variable and artificial ones introduced from time to time by dif- ferent Legal Systems. The history of the Law of Contract is that of the gradual adaptation, in the most expedient modes, of the latter set of conditions to the former ; in other words, it is a history of the struggle of the human mind to reconcile the Moral notion of Contract with such a Legal one as admits of being immediately applied to the rough and multifarious intercourse of daily life. If, on the one hand, the Mental and Moral elements were subjected to an over-keen analytical scrutiny on every occasion of a disputed Engagement, the dealings of the market and of the Exchange would become impeded and clogged, as well as a large opening afforded to hypocrisy and Fraud not discoverable by the rude instruments of Judicial Procedure. If, on the other hand, the Formal and Physical elements were lifted into undue prominence, practical justice must constantly be denied, a large mass of business, for the rapid discharge and easy flow of which there is neither time nor disposition to provide incessant formal solemnities, must be excluded from the cognisance of Law, and the feelings of mankind must undergo a con- stant succession of shocks through the public enforcement of claims against Persons who never really intended to subject themselves thereto. Professor Maine has portrayed the historical phases of LAWS OF CONTEACT. 197 this struggle as it accidentally evolved itself in Ancient Law, and the story is much the same for Modern Law, except so far as the issue of the struggle has been decided by a more self-conscious spirit animating those on whom the scientific development of Law has depended, and by a more precise knowledge abroad of the true ends of Legis- lation. In some respects it may be said that in modern times a reaction has set in in the direction of insisting upon the formal elements in a Contract. The policy of the English Statute of Frauds and Lord Tenterden's Act, requiring certain Contracts to be evidenced by Writing accompanied with the Signature of the " Parties to be charged therewith " and other Contracts to be evidenced by Deed, as well as the general Commercial policy of Europe in respect of the essential and sufficient forms of a Bill of Exchange, afford specimens of a novel view of Contracts, differing at once from the superstitious reverence paid to the outward solemnities of a stipulatio, and from the loosely liberal policy which was constantly multiplying the kinds of binding Contracts classed under the general head of consensu. The following may be summarily stated as the main grounds upon which a supplemental Act may be specially insisted upon by Law over and above the performance of the Joint Act in which the Contract essentially consists : — 1. The check that is supposed to be thereby provided upon inconsiderate engagements likely to be entered upon at a momentary exigency, and affording a perilous scope to the assiduity of Fraudulent speculators. 2. Provision for the facility of the Administration of the Law by procuring, as by anticipation, clear 198 THE SCIENCE OF JURISPRUDENCE. and satisfactory Evidence belonging to a class of a fixed character, and the treatment of which is regulated by well-known and determinate Eules. 3. Aid to the natural infirmities of memory expe- rienced in the course of conducting multiform transactions extending over a great length of Time. 4. The general prevention of Frauds in cases not coming under the previous heads. Over and above these supplementary legal Eules by which the whole character of modern Contract Law is largely qualified, many other practical modifications have been gradually brought about even in applying the most widely-recognised and necessary principles. Thus all Legal Systems have gradually recognised that the Acts of communicating mutual assent must in some cases be pre- sumed to have been performed where any other hypothesis, or the making of no hypothesis at all, would apparently lead to gross practical injustice. In some cases even this Presumption is made where not only the Act of com- munication, but even the assent itself, is, from the nature of the case, impossible. Thus, when one Person lends a Thing to another, the ordinary habits and constitution of Mankind justify the Presumption that at the time of making the loan they both knew well the Eights and Duties in the future which there- upon took their rise. So the conduct of Persons engaging side by side in a series of transactions with others may reasonably afford ground for presuming a Contract of Partnership even where, in fact, no such Contract was ever made. Again, the fact of professing to do Acts in LAWS OF CONTEACT. 199 another Person's name, and of subsequent adoption by that other of the Acts done, may fairly be taken as a Presump- tion that a Contract of Agency was really made. It is obvious that Presumptions of this class rest rather on grounds of general utility than upon any conjectural estimate of what were the facts actually present. The case of Contracts quasi ex contractu, and, in England, of money had and received for a Person's use, is an anomalous extension of this class of Presumptions. In these cases not only is the assent and mutual notification of assent presumed, but no such assent and notification can, by the very hypothesis, have existed. Strictly speaking, the topics placed under this branch of the Law ought to fall under the division of Laws relating to Civil Injuries, and, in that branch, under the special title of Injuries to Eights of Ownership. The Law here interferes to redress some disturbance in Eights of Ownership brought about not through the force, Praud, or inadvertence of the Defendant, but through the one- sided voluntary action of the Plaintiff, moved solely, it may be, by benevolent, or at any rate by perfectly harm- less, impulses. He pays to the Defendant what was not due to him, or more than was due to him ; or he incurs expenses to which the Defendant is properly liable ; or he makes a payment under a legal compulsion as Security for the Defendant ; or, in the absence of the Defendant, he manages his affairs on his behalf; or as his Guardian he pays money out of his own pocket for the education and maintenance of the Defendant as his Ward. The liability to repayment on the part of the Defendant is often, in English Law, said, in these cases, to arise upon an " Implied Contract." There is an ambiguity in the use of 200 THE SCIENCE OF JURISPRUDENCE. this phrase, because there is here in very truth no Contract at all ; only it is convenient for purposes of general ex- pediency to estimate the Eights and Duties of the Parties by the same modes and measures as if a true Contract had preceded. Another use of the phrase " Implied Contract " is where, to all intents and purposes, a true Contract was made, though the Evidence for the Constitu- tive Act was to be gathered from the surrounding circum- stances, and not from the Act itself, nor from any one supplemental Act required by Law. It was in Eoman Law an interesting recognition of the purely Moral aspects of a Contract, and one which still survives for some purposes in the Law of England, that certain Contracts which were legally defective, through the absence of the solemnities required by Law, or through the Incapacity of the Parties, were yet available for defence by way of plea. In such cases what was called a "Natural," though not a " Civil," " Obligation" was said to arise, though the occasions for such a construction were strictly denned, and the legal consequences precisely ascertained and restricted. Among these consequences were that money paid in pursuance of a Natural Obligation, — as, in English Law, money paid in discharge of a debt barred by a Statute of Limitations,— could not be recovered back. Similarly, a Natural Obligation might serve as a ground of " Set-off," and as a legal basis for the personal Security given by a third Person, or for a valid Pledge or Mortgage. This doctrine of a Natural Obligation well illustrates the distinction between the Formal and the Material sides of a true Contract, as well as the fixity with which the Law clings to the notion of a Moral Engagement, even when most decisively impairing its general validity. LAWS OF CONTRACT. 201 D. — Eights accruing through the Making of a Contract. When once a Contract has been made, one or more Parties to it have become liable to the performance of Duties, and have become invested with Eights. A con- sideration of all the Eights possibly accruing will involve the consideration of the corresponding Duties. In fact, the Eights can only be expressed in the terms of those Duties. The possible Eights accruing through the making of a Contract may be arranged under the following heads : — 1. Eights to Performance of all the Acts promised to be performed, and in the Mode, Measure, and Time promised. 2. Eights, in the event of a Non-performance of the Acts promised seeming at any time probable, to do such Acts as may minimise loss. 3. Eights to Compel Performance, by process of Law, or to obtain Compensation for losses sus- tained through the Non-performance, of the Acts promised. [These Eights might also come under another head.] 4. Eights to a Dissolution of the Contract on clearly ascertained conditions. Each of these heads demands a particular examination. 1. Eights to a Performance of all the Acts promised to be performed, and in the Mode, Measure, and Time pro- mised. As to the first class of Eights, a main difficulty is due to the want of explicitness, which is the peculiar character- istic of the most familiar Contracts of daily life. Such 202 THE SCIENCE OF JURISPRUDENCE. are Contracts of Hiring, Carriage, Loan, Pledge, Agency, Guaranty, and even of Sale and of Exchange. The facile intercourse of civilised Mankind depends upon mutual engagements of this nature being readily undertaken without too frequently pausing to ascertain their precise extent, or to preserve elaborate Evidence of their details. Hence, in all such Contracts the ordinary usages, expecta- tions, and faculties of Mankind come into direct considera- tion so often as the question arises as to the limitation of the Duties undertaken by the Contractor. A great burden is thus laid upon the Judicial Administrator of the Law, and (apart from distinct Legislative provisions) he must depend upon the Jurist to tell him what the essential nature of any particular kind of Contract is, and what sort of Mental elements are required for a due fulfilment of it, and upon the experienced man of the world to tell him what amount of those Mental elements would probably have been contemplated by the Parties at the time of making the Contract. The Contract of Bailment in English Law affords a good instance of the general mode of ascertaining the Eights arising under one of the most familiar, and therefore indeterminate or loosely constructed, Engagements. The Contract of Bailment is one, according to Sir William Jones, where " a delivery of goods takes place on a con- dition, expressed or implied, that they shall be restored by the Bailee to the Bailor, or according to his directions, as soon as the purpose for which they were Bailed shall be answered." Thus a Contract of Bailment is admitted to have been as effectually made when one Person does no more than move the casks of another from cellar to cellar, as when a Eailway Company carries goods for hundreds of miles. On the necessity arising for determining the precise LAWS OF CONTRACT. 203 mode of Performance to which the Bailee has bound him- self under such a Contract, the services of the Jurist are invoked to declare the general nature of the Contract, and to point out that the Person moving the casks, or the Eailway Company carrying the goods, will be held liable to display different degrees of Diligence according to what may be considered to be the reasonable expecta- tions of the Parties at the time of making the Contract. At this point the man of the world steps in and says that, where nothing is paid for the work, only a very small amount of Diligence could have been expected to be given by the Person doing the work, though some small amount of Diligence must have been looked for or the goods would never have been entrusted to the hands of such Person. If, again, a reasonable compensation has been agreed upon for the labour to be performed with respect to the goods entrusted, a considerable amount of Diligence and Care in protecting them from injury is reasonably looked for. If, lastly, the goods are committed to the hands of the Bailee solely at his request and for his benefit, rather than for that of the Bailor, the largest amount of Diligence and Care in their guardianship is part of the natural price to be paid for so receiving them. It has been endeavoured in the most celebrated Systems of Law to reduce to a theoretical mould the varying shades of liability in the matter of Diligence according to the subject-matter of the Contract. According to one form of this mould, a sharp distinction is made between culpa lata, or the want of such Diligence as even a Bailee receiving goods wholly for his own benefit ought to show, the culpa levis, or the want of that Diligence which a Bailee under a Contract equally beneficial to both Parties ought to show, and the culpa levissima, or the want of 204 THE SCIENCE OF JURISPRUDENCE. that amount of Diligence which a gratuitous Depositary, receiving goods wholly for the benefit of the Person depositing them, ought to show. Another, and the most approved, form of this theoretic mould is that of distinguishing between (1.) Fraud, (2.) Negligence in abstracto, (3.) Negligence in concreto. Negligence in abstracto is said to be the want of that amount of Diligence which an average householder ordinarily bestows upon his private affairs. Negligence in concreto is the want of that amount of Diligence which the Person whose liability is under consideration himself habitually bestows on his private affairs. These distinctions are so celebrated, and are made so much account of by the most authoritative juridical writers, that it has been necessary to explain them in this place. They are, however, in themselves, nothing more than serviceable generalisations from the current habits and expectations of Mankind. Their real value, either in the construction of a Code or in deciding on a case of disputed liability, can only be very small. For in a matter such as that of Contract, where everything turns upon the moral attitude of the Parties to each other, and upon the expectations arising out of that attitude, the slightest variation in the circumstances will introduce a propor- tionate modification in the definition of Negligence for the purposes of the case in hand. Negligence, in fact, is always the absence of that amount of alacrity or advertence of mind which a Person's Legal Duty in the special circumstances demands. One more instance of the sort of indefiniteness in the Eights accruing from one of the most familiar forms of Contract may be taken from the circumstances attending the Hiring of a horse for a limited time. The question LAWS OF CONTRACT. 205 often arises as to what is the kind and measure of the responsibility attaching to the hirer in the event of the horse being damaged when not in the course of being used in the exact way and for the exact purpose con- tracted for. Here again the solution is to be sought by estimating the probable expectations of both Parties at the time of Hiring ; consideration being given to the habits of the class of Persons concerned, the custom of the country, the previous dealings of the Parties, and the special circumstances surrounding the fact of Hiring. In endeavouring to ascertain the true expectation of the Parties with respect to the Eights and Duties involved, a difficulty may arise through one Party having attached one meaning to his words or gestures, and the other Party having attached a different meaning to the same. It has been said by Paley that the true sense is to be taken to be the one in which the Promisor believed that the Promisee accepted the Promise. Mr. Austin substi- tutes for this, " the sense in which it is to be inferred from the words used, or from the transaction or from both, that the one Party gave, and that the other Party received, the Promise," in other words, "the understanding - of both Parties." This does not wholly clear up the difficulty ; because where there is no writing, and even no words pass, the only mode left for conjecturing what was that to which both Parties really assented may be by falling back on the ordinary usages of mankind, on the general moral requirements of the case, or on the accidental circumstances of the Parties. The true explanation of the dilemma is that when, in some points of view, the transaction was in a high degree precise and explicit, the obvious fact of a real misapprehension, in other points, by one or other of the Parties lets in, by way of Presumption, 206 THE SCIENCE OP JURISPRUDENCE. a mode of arbitrarily interpreting the extent and nature of the Promise, as understood by both Parties alike, founded on an entirely new class of considerations, such as the common usages of Mankind or Public Policy. Even in the case of Mercantile Contracts and Contracts usually made with the greatest amount of explicitness and precision, it is impossible to get rid altogether of indefiniteness in the points now under consideration. For instance, in the case of a Contract founded on a Bill of Exchange, upon its being dishonoured by the Acceptor, the Indorsee is required by Law, in order to enforce his Eights under the Contract, to give Immediate Notice to the Maker, and to all the Indorsers of the Bill whom he intends to sue. The question arises as to what is Immediate Notice, and whether the delay of a single day's post will relieve a Defendant who would otherwise be liable, or whether inevitable accident will be held sufficient to excuse the Plaintiff for a day's delay. The topic, indeed, more properly belongs to the Law of Procedure than to the Law of Contract. But it is convenient to allude to it here as affording an apposite illustration of the mode in which the reasonable expectation of Parties is inferred by Courts of Justice from a number of general circumstances and fixed rules of universal application elaborated and adhered to. Other instances might be taken from Con- tracts of Insurance ; as Marine Insurance, where multi- farious grounds of exemption from liability are included in the terms of the written Contract ; or Life Insurance, where a number of implied conditions are held to be in- cluded as to the non-concealment of facts impairing the value of the Insurer's life, and the non-exposure of the Insurer's life to exceptional risks as by travelling far from home ; or Fire Insurance, where fine questions come up as LAWS OF CONTRACT. 207 to the liability of a Company in consequence of a fire brought about by the Insurer's own Negligence, even where such Negligence lays him under no suspicion of intentionally seeking to defraud the Company. Other questions as to the nature and extent of the Eights accruing upon the making of a Contract are pre- sented when (1.) the Acts promised are, in their nature, or become through other circumstances, immoral, illegal, grossly unreasonable, or impossible ; (2.) in the case of money to be paid or services to be rendered, at a given date, or at a series of given dates, if the Promisor is behindhand in paying the money or rendering the service, whether the Contract is to be looked upon as simply broken, or, the Contract still subsisting, an accession of liability is incurred by way of Penalty, such as to pay simple or compound Interest, to be charged with increased responsi- bility for loss or damage, or to pay a liquidated compensa- tion. In all such cases Courts of J ustice will have general rules at hand, founded on the current practices and ex- pectations of mankind, but admitting of the most plastic adaptation to the special circumstances in each particular case. 2. Eights, in the event of a non-performance of the Acts promised seeming probable, to do such Acts as may minimise loss. The Eights falling under this head are of a strictly positive character, though they are found, in some form or other, to be recognised by all mature Systems of Law. Taking the English Law as a specimen of such Systems, these Eights may be classified under the heads of the processes by which they are enforced : as, Lien, Stoppage in transitu, Bankruptcy, and the Writ of Ne exeat regno. Each of these processes supposes that a Person who has 208 THE SCIENCE OF JURISPRUDENCE. promised to do an Act under a Contract will probably not do it, and, in consequence, the other Party to the Contract has a Eight to minimise his loss at once without waiting till the time at which the Contract ought to be performed shall have elapsed. This description, on the face of it, discloses the indefinite- ness of the conditions upon which the processes are avail- able. They cannot be available before a certain moment,, and this moment is only fixed by an apparent Improbability of a Person being able to do something he has promised to do. In order to determine the question of impro- bability, the Law may either throw the responsibility on the Judge, who is called upon to decide upon the validity of the process, or may assist him by furnishing him with fixed rules of Presumption based on the ordinary habits of Mankind. The case of Lien is peculiar inasmuch as, in those cases in which the Eight of Lien is conceded (in English Law a very limited class), a Creditor has in his own hands, from the very first, the means of minimising his loss, and it is generally only by actually paying the debt or by obtaining Possession of *the goods that a Debtor can establish the probability of his keeping his Contract for the purpose of defeating the Creditor's Eight. The question of Improbability is most difficult to answer in cases arising in the course of applying the doctrine of Stoppage in transitu. The Eight of Stoppage in transitu is that of arresting the delivery of goods in the course of. their transit, upon receiving information of the probable insolvency of the Contractor to whom they are being arried. The line is drawn with far greater precision in the case LAWS OF CONTRACT. 209 of Bankrupt Laws, in which a number of unmistakable Acts are usually named as creating an irresistible Presump- tion that a Debtor will be unable to satisfy the claims of all his Creditors. Such Acts, in English Bankrupt Laws, are " departing the realm," " departing from his dwelling- house, or otherwise absenting himself," " beginning to keep his house," " suffering himself to be arrested or taken in Execution for any debt not due," " making Fraudulent grants," and the like. Upon the performance of any such Acts, the whole process of Bankruptcy is permitted to operate in favour of the Creditors so as to secure an impartial distribution of the existing assets, and in favour of the Debtor so as to provide to a greater or less extent for the protection of his person, for his maintenance, and, possibly, against a revival of his • Creditors' claims as against subsequently acquired property. It is necessary, in speaking of Bankruptcy, to notice that, like many other complex juridical facts, it has several aspects, bringing it under different departments of a Legal System. It is eminently, as here, a mode of protecting Creditors against an exaggeration of loss, that is, it is one of the Bights conferred, in certain events, in order to minimise loss. It is, again, an important Mode of ac- quiring Bights of Ownership, falling under the general head of Adjudication. It involves, lastly, a peculiar and technical Procedure, by which Persons having Bights are enabled to make them available ; this brings it under the general division of Laws of Procedure. 3. Ptights to compel Performance by process of Law, or. similarly, to obtain Compensation for losses sustained through Non-performance of Acts promised. The Bights falling under this head are, of course, im- p 210 THE SCIENCE OP JURISPRUDENCE. plied in the existence of the Eights already mentioned under the first head. If a Person has a Eight to have an Act performed in a Mode, Measure, and Time, promised, he must, by the very meaning of a Right, have Auxiliary — or, as they have been called, Secondary — Eights accorded to him, by which, on Breach of the Contract, he may obtain Compensation. This Compensation may take the form of a compulsory power, lent by the State, to exact a precise Performance of the Acts promised, though such a Mode of Compensation can only be applicable to certain classes of Contracts ; as, to convey Land, to transfer Stock, or do some other definite Act which, under the circum- stances, still admits of being done. The course implied in this doctrine of " Specific Performance " is obviously inapplicable where the subject-matter of the Contract has perished, or where peculiar Moral Eelationships, as those of Agency, Partnership, or Marriage, are at stake. Again, the Compensation may be obtained, as is usually the case, through the payment of a sum of money, sup- posed to be an equivalent for the advantage the Plaintiff would have obtained had the Contract been fulfilled. Interesting questions here arise as to whether the loss is to be estimated by the current prices at the time and place of making the Contract, or by those at the time and place for performing the Contract, or at some higher price which may make up for the inconvenience caused through the disappointment in the Plaintiff's en- gagements. These questions, like other similar ones, must be referred to the principle of satisfying the expectations of the Parties, while, in cases of doubt, interpreting those expectations in the light of the com- mon course of business and in that of the particular LAWS OF CONTRACT. 211 circumstances of the Parties. The question of Interest here again is introduced, the payment or non-payment of it being determined in some cases by express Legislation, in others by mercantile Usage adopted as Law by Courts of Justice, in others by distinct stipulation of the Parties through a kind of supplementary Contract. Lastly, the Compensation for Breach of Contract may be considerably in excess of the real loss incurred, that is, it may be of the nature of what is called a Penalty. This Penalty may be either agreed upon by the Parties before- hand, or may be assigned by operation , of Law. An instance of this latter course is supplied by the kind of Penalty which the Law of England permits Juries to affix for Breach of a Contract to Marry, in the shape of what are called " Vindictive Damages." The case of the opera- tion of a Bond in English Common Law, as contrasted with its operation in Equity, is an instance of a liquidated sum, far in excess of what would represent the money loss incurred, being agreed upon beforehand by the Parties as Compensation for that loss. 4. Eights to a Dissolution of the Contract on clearly ascertained conditions. It has generally been customary in theoretical and prac- tical works on Law to make a distinct division with refer- ence to the Modes in which Contracts are dissolved. It is conceived that such a distribution of the subject is misleading, inasmuch as if the Eights under a Contract are thoroughly understood and exhausted, there is no place left for the topic in question. A Contract can only be dissolved because, at a certain moment, no one of the Parties to it has any longer a claim to control the Acts of any of the others. Obviously 212 THE SCIENCE OF JURISPRUDENCE. this is brought about either through the original Eights of all having come to their natural close, or through some new or additional Eights having come in to supersede the former ones. These new or additional Eights may either be created by the Parties or may be conceded by Law independently of any Act of theirs. In the former case the new Eights may have been created at the time of making the Contract, to come into operation conditionally upon certain Events subsequently happening; such as, the Non-performance or imperfect Performance of the Con- tract, the Deaths of any of the Parties, the attainment of Majority by other Persons, or the mere accident of change of mind by the Parties. Or, again, these new Eights may be created, at any time subsequently to the making of the Contract, through a fresh Contract, the purport of which may be the simple Dissolution of the old Con- tract, or the substitution of a new one for it (novatio), or mere modification of some of its terms. The case of the Law introducing new Eights modifying or annulling the Eights of Parties under a Contract is illustrated by the Mode in which it arbitrarily determines what Eights and Duties shall descend on the Death of one of the Parties to what are called his Successors or Legal Eepresentatives. Different rules are laid down in these cases for different sorts of Contracts and the expressed Intention of the original Parties is not always allowed to conflict with their operation. This is the meaning of the expression that certain Contracts are presumed to " run with the land ; " that is, the liability upon them passes, as of necessity, to every Person who, by Succession or by one or more Assignments, stands in the position, solely with respect to the subject-matter of the Contract, of an original Contractor. LAWS OF CONTKACT. 213 A familiar instance, from Eoman Law, of an arbitrary legal interference with the consequences of an existing Contract is supplied by the restitutio in integrum, by which a Person under the age of twenty-five could, in certain cases, where it was otherwise possible, be relieved from the disastrous effects of an unwise Contract by the resto- ration of the Parties to their original position. Similarly in English Equity, by an inverse process, a Contract, otherwise informal and therefore invalid, is, in certain cases, made efficient if it has been partially performed, and the Parties cannot be restored to their original position. Thus, if it be borne in mind that every Contract is dissolved because the Eights created by it have reached their natural term and no longer exist ; or, because some conditions have been fulfilled whereupon new Eights, previously created, come into force and override the old ones ; or because a new Contract is made, having the effect of annulling the old one ; or because the Law arbitrarily interferes and destroys an existing Contract by substituting new Contracting Parties for the old ones, or by other methods ; there is no further place for treating the subject of the Modes of Dissolving Contracts. E Classification of Contracts. The number of kinds of Contracts that are daily being made in all civil Commuuities being coextensive with the needs of Social, Industrial, and Commercial intercourse, and having developed themselves in each Community as those needs gradually discovered themselves, there are more bases than one for a Classification of all the possible forms of Legal Contract to be looked for in a highly organised 214 THE SCIENCE OP JURISPRUDENCE. Community. There is (1.) the Historical basis, which was the one mainly adopted by the Eoman lawyers and their modern followers. The nature of this basis has been fully expounded by Professor Maine, and is well-known to consist in the gradual evolution of the Mental and Moral aspects of Contract from the Formal and Mechanical ele- ments which, in the earliest times, essentially characterised it. There is (2.) the basis indicated by the varieties of the Formal Acts by which the making of a Contract may be legally authenticated. This is the Mode which has been most popular among English text-book writers, who usually start their investigations into the Law of Contract by distributing all Contracts into " Contracts under Seal " and " Contracts not under Seal." There is (3.) the basis furnished by the Material Contents of the Contract, that is, by the Social or other purpose which the Contract has to serve. It is obvious that an arrangement of all possible Con- tracts upon any one of these bases is very likely to coin- cide, for a large part of it, with an arrangement upon any other basis. Historical progress implies a constantly increasing quantity and variety of social co-operation, and it is the necessities incident to this co-operation which dictate the characteristic Acts selected as Legal Evidence that Contracts of different sorts have been made. Probably the best mode of division can only be determined by reference to the general purpose of the division. Thus it may be different for a Code, for a Scientific Treatise, and for an educational Text-book. For the purposes of the present Work, which in some way aims at all these objects at once, it will be expedient to combine the first and the third of the above-mentioned LAWS OP CONTKACT. 215 bases in such a way as to present at one glance the his- torical and scientific harmony which actually prevails in this part of the Law. The following Mode of distributing the leading Classes of Contracts for an advanced Modern State is suggested as an universal framework, though the lines separating the leading compartments are necessarily drawn after rather an arbitrary fashion. I. Contracts in aid of the Essential Eelationships of Society: as 1. Contracts having in view future Marriage. 2. Contracts made either at the time of the Marriage or afterwards, for the purpose of modifying the legal Status of Married Persons towards each other. 3. Contracts made before, at, or after Marriage, for the purpose of modifying the Eights of Owner- ship of Married Persons as existing by the ordinary Law. 4. Contracts made before, at, or after Marriage, having reference to the conflicting Eights of the Married Persons in respect to Children of the Marriage. II. Contracts in aid of Co-operation for Social and Industrial purposes : — 1. Sale, including Exchange. 2. Letting and Hiring. 3. Bailments, including all that comes under that head in English Law. 4. Loan and Deposit. 5. Pledge, including Mortgage Securities of all sorts. 6. Agency. 7. Apprenticeship. 216 THE SCIENCE OF JUBISPKUDENCE. III. Contracts in aid of Co-operation for more or less artificial and complicated Commercial purposes : — 1. Partnership. 2. Assurance (of all kinds). 3. Guaranty. 4. Affreightment. 5. Negotiable Securities. 6. Indemnity. In this enumeration of all the more important Classes of Contracts there are some general observations to be made on the different groups, as wholes, and some particular observations on the several Classes of Contracts comprised in these groups. As to the first (I.) group, it is conspicuous that all the Classes of Contracts composing the group revolve round the Institution of Marriage. It is customary in English Law-books to treat Marriage as constituting a Contract itself, on the 1 hypothesis that the Eights and Duties of the Husband and Wife with respect to each other are of exactly the same kind and flow from exactly the same Source as those created by, (say), a Contract of Mercantile Partnership. This view is at once juridically misleading and morally false. Marriage, when once properly consti- tuted by such ascertained consent of the Parties as the Legislator shall require, carries with it its own peculiar Legal Eights and Duties, which can be modified only to the very slightest extent by the Will of the Parties, and which, unlike all Eights and Duties created by Contract, can neither be suspended nor annulled by the operation of that Will. Even under the most amply conceived Law of Divorce that ever suggested itself to the brain of the political speculator, some consideration at least for the interests of the State — if only for the purpose of securing LAWS OF CONTRACT. 217 publicity, and of guarding the Vested Eights of third Persons — has invariably been insisted on. Marriage, in truth, when once the Act of Marriage is complete, is a Natural and Moral Eelationship out of which spring a vast and indefinite assortment of moral Eights and Duties. Just as the State imparts definiteness and fixed- ness to the Moral Eelations existing between the People and the Supreme Political Authority, and to the Moral Eelations existing between a Parent and Child : so does the State select some of the Moral Eights and Duties by which Married Persons are related to each other, gives them formal shape and definiteness, and in fact converts them into true Legal Eights and Duties. In some Systems of Law, indeed, the determination of the extent of these Eights and Duties may, within very narrow limits, be left to the Will of the Parties, as was the case in early Eome under the doctrine by which a Wife might or might not, according to private arrangements, come under the patria auctoritas of her Husband. Contracts modifying in this way the ordinary Eights and Duties of Husbands and Wives are placed in the second rank of the group now under consideration. The above remarks in no way conflict with the fact that Contracts can be made, as those of the first rank in the present group, having direct reference to the Act of Marriage — that is, the Act of entering upon the Marriage- state — just as a Contract may be made for the Perform- ance of any other Act. From the nature of the present group, the Contracts belonging to it can only be very few. The essential Eelationships of Society which afford the basis of the group little need the support of voluntary Promises to give them reality or permanence. Did they need such 218 THE SCIENCE OF JURISPRUDENCE. support, Society would be far advanced in the direction of decay. It is thus, perhaps, by a genuine instinct, though by a juridical accident, that the Institutes of Gaius and Justinian commence with an elaborate account of the essential Eelationships of Society, or of those which seemed essential to the Eoman world. This part of their work, which, in the present treatise, is represented by the department entitled Laws affecting Special Classes of Persons, was, in Eoman times, through the simplicity of Commerce and the depression of Industry, of paramount, and almost of absorbing, interest — to the Jurist as much as to the Moralist and the Politician. In modern Europe Family Life and Eelationships are more and more escaping the interference and introspection of the Lawgiver ; while Ownership, and that sphere of voluntary or spontaneous Legislation called Contract, are gradually covering almost the whole field of Law. Thus it comes about that the only Contracts properly belonging to this group are those having for their objects the Act of Marriage ; certain minute variations in the fixed Eights and Duties of the Married Persons towards each other in respect of liberty of action ; their respective Eights of Ownership, under existing or hypothetical cir- cumstances, in Things belonging to either of them at the time of the Marriage, or to be acquired by them at any future time, as in the Marriage Settlements customary in England, and in the Contracts of communaute on the Continent; or their respective Eights of Control over the Education of Children, and, in case of their living apart, their respective Eights to retain the Children in their several households, and their respective Duties to contribute severally to the Children's Maintenance. Passing on to the second (II.) group, it is necessary again LAWS OF CONTRACT. -219 to avoid a confusion similar to that which has pervaded the treatment of the Legal aspects of Marriage, through a prevalent want of clearness in distinguishing between the Contract and the situation of the Parties brought about by a Contract when it is fulfilled or even partially fulfilled. The first class of Contracts in this group, those having for their object a Sale, is illustrative in many points of view, and especially in that of the confusion here noticed. A complete Sale may include a number of Acts jointly resulting in the Transfer of Eights of Ownership. Generally a Contract precedes these Acts or rather consti- tutes one of them. Professor Maine has given a more than plausible theory to the effect that, historically speaking, Contract-Law owed its first establishment to the gradually- formed habit of not paying for things purchased at the moment of the purchase. Thus the nexum, which was originally nothing more than the rnancipium or formal Conveyance, became specialised to mean " an incomplete Conveyance," and finally a true Contract. Now if all pur- chases were for ready money, as they seem to have been at the first, there would be a Sale, but there would be no Contract. A Contract of Sale is made at the moment one Person binds himself to deliver to another, at some future time, Possession of a certain Thing or of certain Things, the other Person either transferring at the time a Eight of Ownership in something else, or binding himself to make such a transfer at a future time. The confusion arises from the fact that, with respect to many Things which are the subject of Sale, Eights of Ownership are effectually trans- ferred without Possession being given, or, as it is called, " without Delivery being made." Hence a kind of misty notion prevails that, because, something yet remains to be 220 THE SCIENCE OF JUBISPEUDENCE. done after the true Sale is complete, therefore the whole transaction, from first to last, is a Contract and nothing more. In many cases, indeed, it is true that Possession of the Thing sold is retained by the Vendor for a certain time in consequence of an implied or express subsidiary Contract to that effect. In other cases, however, Possession is retained for a certain time in obedience to local or Commercial usage, or even in reliance on the distinct provisions of Positive Law. In some cases, indeed, Pos- session may be retained, as has already been explained under a former head, by way of Lien, or in pursuance of an entirely fresh Contract of Deposit, Loan, or Agency. In watching the execution of every Contract having for its object a Sale, the moments at which the Eights of Ownership are severally transferred by the two Parties have to be marked with especial care. From those moments, respectively, the Transferees are Owners and no longer Contractors. If they accidentally retain Possession, they are liable, like some other Possessors, to a greater or less extent, for inj ury to the Things in their Possession, or to render account of Profits and Fruits which may have accrued to it by way of Accession. The true nature of Sale, and of the Contract having for its object a Sale, has thus been clearly expounded. But another difficult question is here presented, to which different Systems of Law may give very different answers : What are the Acts which indicate that the Sale is com- plete — that is, that the Eights of Ownership on both sides, or even on one side, have been effectually transferred ? According to some Legal Systems, as the French, a Con- tract for the Sale of an Immovable operates, itself, as a Conveyance ; the Agreement to Sell is registered ; and the Eights of Ownership at once pass to the Purchaser. The LAWS OF CONTRACT. 221 same principle is recognised in English Equity. In Eng- lish Common Law, on the other hand, and in Eoman Law the Sale is not complete — that is, the Eights of Ownership are not transferred till Delivery is made or a formal Conveyance executed. In the former case — that is, when the same Act is said to operate as a Contract and a Conveyance — the only object of the Contract is the Delivery or the Possession of the Thing or subject-matter of the Contract. Thus in countries where [Registration is sufficient to complete a Sale, there is either an implied Subsidiary Contract or a positive rule of Law, operating in default of an express Contract to the contrary, that Possession shall be conceded at a certain Time or under certain Conditions. It is of the greatest importance to distinguish clearly between (1.) the Contract having for its object a future Sale; (2.) the Sale itself; and (3.) Subsidiary Contracts, express, implied, or, under certain circumstances, imputed by Law with reference to the surrender of Possession. It is scarcely necessary to do more than allude to the other Subsidiary Contracts which often attend a Contract of Sale. Such are Contracts having in view the Indemni- fication of a Purchaser in case he be evicted through some Person having a Eight superior to that of the Vendor ; Contracts of Warranty ; Contracts to Indemnify the Pur- chaser in case the subject-matter of the Contract has been previously burdened with Mortgages ; Contracts to give " Further Assurance," — that is, to do all such future Acts as may be found necessary completely to vest the Eights of Ownership in the Purchaser. Such Contracts may be either express or implied by the special circumstances of the case or by the conduct of the Parties, or may arise, as it is said, by " Implication of Law." 222 THE SCIENCE OF JURISPKUDENCE. Passing on to the other Contracts in the second (II.) group, it is obvious that the notion of Sale underlies most or all of them. The subject-matter, indeed, of the transaction contemplated by the Contract is no longer the Transfer of Eights of Ownership (at least of the most unrestricted sort), but either Services to be Conditionally rendered, or restricted, Eights of Ownership to be Conditionally trans- ferred. The Conditional and Eestricted character of the objects of such Contracts as those of Letting and Hiring, Bailment (including Carriage), Loan, and Pledge, leave, for their determination, a field for the operation of the mere arbitrary will of the Contractors which is wholly wanting in the case of a true Sale. In the case of a Sale the Con- tract, if there is one, is finally performed by the comple- tion of all the essential Acts, — the jura ad rem become converted into jura in rem, and the Law of Ownership, and not the Law of Contract, henceforth determines the Eights and Duties of the Parties. But in the case of the Contracts now under considera- tion, they are continuously being performed and, up to a definite point of time, they have yet to be performed. The exact nature and amount of the Services to be ren- dered in pursuance of the several Contracts ; the Times of rendering them; the Conditions under which Perform- ance of the Contract may be suspended or dispensed with, ■ — may, according to circumstances, be dependent entirely on the terms agreed upon by the Parties or be qualified by the general Legal Eules applicable to each particular class of Contracts. Furthermore, the general grounds of excuse for Non-performance or for Imperfect Performance, and the general kind of responsibility imposed by Law as to Diligence, as to the avoidance of Delays, and as to Good Faith, are subject to the operation of the still more LAWS OF CONTRACT. 223 general Legal Eules indicated under the previous title of Eights accruing through the making of a Contract. The Contract of Pledge is especially assimilated to that having in view a Sale. Indeed, it is sometimes repre- sented as a Sale under Conditions, and the usages of some Legal Systems, as that of the English Common Law, favours this view. But the accidents of Legal History must not confound the distinctions drawn by Juridical Science. In all the forms of the Contract of Pledge, whether the Possession of the Thing pledged be retained by the Borrower or parted with conditionally to the Lender, or whether (as in some cases of Mortgage of Immovables) these Modes are compounded, the Borrower retaining Possession and the Lender receiving the rents, — the Contract, by its very nature, has in view the conces- sion of Eestricted and Conditional Eights and not the Un- restricted Eights resulting from a Sale. The consent of the Parties as to a right of Sale under certain Conditions forms, indeed, an implied or expressed Subsidiary Contract which almost universally attends the main Contract of Pledge. The remaining Contracts of the second (II.) group, Agency and Apprenticeship, are placed in this group because of their appearance at a very early and simple stage of Social Life. Otherwise, from the enhanced delicacy of the services contemplated by those Contracts, and their increased remoteness from the Contract having in view a simple Sale, they are more conveniently con- sidered, as they will be here, side by side with the Con- tracts falling under the third (III.) group. As to Contracts under this last (III.) group as well as Agency and Apprenticeship, it is to be noticed that the very possibility of their existence depends on the presence of a high degree of Social and Commercial Credit, and an 224 THE SCIENCE OP JURISPRUDENCE. advanced range of Economical enterprise. The notion of Agency, especially of the most extended kind, implies a habit of reliance by one man on the Good Faith of another with respect, it may be, to the most serious and critical transactions of Human Life. The results of a Contract of Agency, or of an allegation of a Contract of Agency, on the Contractual capacity of the alleged Agent in rela- tion to third Persons has already been considered under the head of " Persons who make Contracts." The Con- tract of Agency itself, as made between the Principal and the Agent, properly belongs to this place. The elementary conception of the Contract of Agency, as one the object of which is certain Services to be ren- dered by way of Impersonation, within more or less . strictly defined limits, of the Principal, is in itself simple and intelligible enough. A practical difficulty, however, in determining liability under this Contract arises from two causes: (1.) the extreme variety of the transactions to which the Contract is applicable, which may reach from paying a simple and ascertained Debt on the part of another to engaging in a complicated Process for the pur- pose of settling a Lawsuit before an Arbitrator : (2.) the fineness and the variety of the grounds upon which the Contract in question may arise by implication. The Eoman lawyers elaborated the doctrine of wandatum with great care and acuteness, and deduced the Eights and Duties of the Agent according to the varying circum- stances — allowed to qualify even an express Contract — of the direct purpose of the Contract being the advantage of the Principal alone, of the Principal and the Agent together, of a third Person alone, of the Principal and a third Person, of the Agent and a third Person. LAWS OP CONTRACT. 225 It is more than doubtful here, as in other cases pre- viously alluded to, whether, in the practical Administration of Law, such sharp distinctions are of much service. However, they are of use by way of enforcing general principles which may guide the Judge. Obviously it is the interest of the State, in its work of protecting all its citizens, to control the power of Impersonation so far as is consistent with the real necessities of industrial and com- mercial life and with the general claims to liberty of Con- tract. On this account there exist in all Systems, certain arbitrary rules of Law regulating the formal Mode of appointing Agents for some purposes and also sharply defining the limits within which an Agent can act as such. Of the last kind of rules the maxim Delegatus non potest delegare is a specimen. The principles underlying the Doctrine of Agency are of the greatest importance in consequence of the fact that some Systems of Law, as the English, base their Modes of Interpreting the Eights and Duties arising under other leading classes of Contracts upon analogies drawn from this doctrine. Thus in matters affecting Eights of Owner- ship, Husband and Wife are in England generally pre- sumed to be Agents for each other in dealings with third Persons, the Presumption, however, admitting of being rebutted through the presence of special circumstances. In interpreting the Eights and Duties arising from a Con- tract of Partnership, again, it is said that each Partner is an Agent of all the rest. The Contract of Apprenticeship is, perhaps, peculiar, in the amount of what may be called Moral services, which form its subject matter. It is this indefiniteness which Q 226 THE SCIENCE OF JURISPRUDENCE. necessarily clings to the Legal Eights and Duties which are based on the Moral ones, and in fact here are almost coextensive with thern, which is the infirm side of this species of Contract, and in practice is known in some Countries to afford an opening to a plausible method of furtively reintroducing Slavery. The Contract of Partnership already alluded to, though referable for some purposes to that of Agency, never- theless has a distinct standing-ground of its own. The complexity, magnitude, and obscurity of many of the transactions for which Contracts of Partnership are capable of being made demand at the hands of the State a peculiar exercise of supervision and vigilance in order to protect the interests of third Persons, and even of each of the Partners themselves against the Fraud or Culpable Negligence of the rest. For these purposes Positive Law usually determines (1.) the class of matters which may form the object of a Partnership-contract ; (2.) the Modes in which the existence of such a Contract shall be Publicly Authenticated ; (3.) the extent of the mutual Liability of the Partners towards each other, and of the Eesponsibility of each of them for dealings of any of the others with third Persons; (4.) the Mode of Authenti- cating the fact that the Partnership no longer exists. The Contracts of Assurance, of Guaranty, and of Indem- nity, though resting on complicated economical conditions, and being, for that reason, of an extremely artificial sort, present, on these very accounts, fewer purely juridical difficulties. The perplexity rather is in applying the Law than in ascertaining it. The application of the Law demands a knowledge of two complex sets of circum- LAWS OF CONTRACT. 227 stances, — the one, the Eights and Duties actually contem- plated by the Parties to the Contract, which, in these classes of Contracts, are generally of the most multiform description and are beset with innumerable Conditions ; the other, the actual concrete Facts as to an alleged Breach of the Contract upon which a judicial decision is sought to be obtained. The general principles already examined under the head " Eights accruing from the making of a Contract," taken with the prescriptions of Positive Law in relation to these Contracts, are sufficient to render tole- rably simple and straightforward all questions of pure Law. The same remarks are applicable to the case of the two last remaining classes of Contracts, the importance of which, for modern States, can hardly be over-estimated ; that is, Affreightment and Negotiable Securities. The Law with respect to these topics is no doubt in all coun- tries, by the necessity of the case, voluminous, involved, and artificial, or even capricious. But for this very reason the Jurist is relieved of much of his toil. The less there is left to mere Logic, to pure Morality, and to such universal assumptions as are gathered up in the term Common-sense, the less space or need there is for his characteristic work. With respect to Bills of Exchange, it is to be remem- bered that the question in all cases is on what Conditions and by the use of what Formalities a Creditor shall be entitled by Law to transfer to another his own existing or future Eights of Action against his Debtor. The whole Law of Negotiable Securities turns on the possibility of this being accomplished, with due regard to the protection «2 228 THE SCIENCE OF JURISPRUDENCE. of innocent Persons, through the machinery of simply handing over a piece of written paper properly signed. The Formalities that have to be gone through in order to the new Creditor enforcing his Eights against the Debtor or against the old Creditor belong more properly to the Law of Procedure than to the Law of Contracts. In classifying Contracts in the manner above adopted, it is to be remembered that a State may recognise the Contracts of its citizens by the assumption of two different principles. It may either Presume that every object for which its citizens may make a Contract is a justifiable one, and may only except a few distinct classes of objects expressly named, on the ground of their immorality, their uncertainty, or their supposed inconsistency with the well-being of the State. It is on this principle that modern States mostly proceed, and that the Law of England attaches varying degrees of Invalidity to Contracts made in contemplation of a future Breach of Conjugal Duty, of a Breach of the Criminal Law, or of Fraudulent Evasion of other parts of the Law ; of perplexing or perverting the process of Administering the Law ; of the uncertain issue, as by way of Assurance, of certain Sports and Games of skill ; of the fluctuations of the Stock Exchange ; and all the class of Contracts said to be " in Kestraint of Trade." The other principle, which is more prevalent in primi- tive Law, — as in that of Eome in earlier times, — is that by which the State only recognises certain distinct objects as justifiable bases for Contracts. Such objects are those only which present themselves in the simplest stage of Social Life, and which a wide experience proves to be compatible, as matters of Contract, with the general LAWS OF CONTRACT. 229 interest of all members of the State. The transition from this principle to the one previously mentioned is marked in Eoman Law by the growing favour shown to merely Consensual Contracts, and to the indefinite multiplica- tion of classes of true Legal Contracts under the title " Innominate." The increasing honour shown to mere Pacts, under the Prastorian jurisdiction, was a tendency in the same direction. On concluding the topic of Laws of Contract, it may be noticed that no division has been introduced formally corresponding with the head entitled " Modes of Protect- ing Eights of Ownership " in the treatment of Laws of Ownership. The truth is that the Eights and Duties arising upon even a probable Breach of a Contract are (as has been already seen) so important, so various, and so closely allied to all the other Eights and Duties arising out of a Contract, that it has been here held to be more convenient to treat the Eights directly connected with the Judicial Enforcement of a Contract under the general head of "Eights accruing through the Making of a Contract." 280 CHAPTEE XII. LAWS AFFECTING SPECIAL CLASSES OF PERSONS. A displacement of the ancient title " Law of Persons " from its prominent situation on the very threshold of an Institutional Treatise or a Code is an innovation so bold and startling that nothing but the most cogent conside- rations of Logic and expediency could justify it. Such considerations, however, both are in themselves of the most obvious character, and derive weight from the authority of one and another leading modern Jurist, though no modern Codifiers, it is believed, have yet had the resolution to adopt the conclusion in practice. It has been pointed out, for instance, by Savigny, that it was by a mere accident, as it may be called, that Gaius led the way in commencing the Systematic treatment of a body of Laws with the title " Law of Persons." In one work of his, the " Ees Quotidiana?," he seems to have adopted a different mode of distribution. Other Jurists, again, — and pre-eminently Mr. Austin, — have pointed out that the expression " Law of Persons " is in every way mis- leading, while its usual position offends against the cardinal rule of all correct Classification — that the General should precede the Special. All Law is addressed to Persons, and is solely con- cerned with the Acts of Persons. This is quite as true with respect to Laws of Ownership and of Contract as to LAWS AFFECTING SPECIAL CLASSES OF PERSONS. 231 those of Marriage and of Guardianship. The Laws which have been usually treated under the head " Law of Persons " are, on the other hand, addressed more par- ticularly to certain exceptional Classes of Person who, because of a peculiar Moral Kelationship in which they stand towards others, or because of the peculiar Functions they discharge in the Public Economy of the State, are invested with special Eights and made liable to special Duties over and above the general Eights and Duties they share equally with all other members of the Community, Such special Eights and Duties, when contemplated in a mass as distinguishing the Person to whom they belong, constitute (according to Mr. Austin's acute and exhaustive analysis) that Person's Status. Some such term as this is highly convenient, though the use of this particular term has by no means been steady and uniform. In fact, a kind of imaginative colouring has floated round the word status so that the actual Eights and Duties alone really signified have either been lost sight of or mixed up with idealistic images which have nothing to do with them. In the last Chapter it was intimated that an excuse is afforded to Eoman Lawyers for the prominence they gave to what may be called Domestic Law by the fact of the practical subordination in Eome, as compared with modern Europe, of the facts of Industrial, Commercial, and Political Enterprise to the facts attending the complex relationships of Private Life. A further and not wholly dissimilar excuse is to be discovered in the strictly Educational character of the Commentaries of Gaius and of the Institutes of Justinian. For the instruction of the youthful Student the conception of a State as such, and of 232 THE SCIENCE OP JURISPRUDENCE. the elements of a State as supplied by the primary Relation- ships of Family Life, is essential as an introduction to the study of Law. It was pre-eminently so at Rome, where the innumerable legal ties of the Paterfamilias to the Wife, to the Children, — Natural, Adopted, and Emancipated, — to the Slaves, to the Freedmen, and to kindred Families, so markedly qualified the actual Prescriptions and the prac- tical operation of every other part of the Law. Even in the Middle Ages, — when Slavery as a Legal Institution had become obsolete, and the Father's Power existed rather in name than in fact, — the secondary influences of Roman Law, conjoined with the direct influences of the Canon Law framed after the model of the older Imperial System, still had the effect of favouring a constitution of Society in which Family or Ecclesiastical Relationships obscured, throughout the whole field of Law, the notion of the simpler Relationship between the Individual Person and the State. Here, then, again, the position of the Law of Persons truly expressed its preponderant importance. The actual result survives in every modern Continental Code ] For a variety of reasons, English Law has pursued a more independent course, and in that System the clear idea of the Rights and Duties of every individual Citizen in respect of every other has been less hampered than else- where by considerations of Family or Ecclesiastical ties. Feudal ties, indeed, struggled vigorously for Legal recog- nition in the earlier days of English History, and, in respect to the Ownership of Land at least, not unsuccess- fully. But a host of other influences, social, political, and religious, told in a directly opposite way. The result was, in respect of the Ownership of Land, a severe LAWS AFFECTING SPECIAL CLASSES OF PERSONS. 233 circumscription of Feudal Eights and Duties, followed by their eventual Commutation for mere pecuniary liabilities ; in respect of Contract, the entire abandonment of any conception conflicting with the widest possible latitude of action for every individual citizen in his relations with others. From this time any attempt to preface the treatment of the aggregate body of English or of Abstract Law with an investigation of the Special Relationships of, particular Persons in the Community becomes in the highest degree misleading and embarrassing. It is true that the existence of certain of these Eelationships, — as that of Marriage, — must be assumed in treating most other Branches of the Law. But such prcecognoscenda will be found existing under every possible Method of Distribu- tion. All that can be done is to choose the Method which shall make such prcecognoscenda as few and as immaterial as possible, and to avoid, as far as it can be done, the treat- ment of the same matter more than once. Assuming then that in Modern Systems of Law the treatment of Laws regulating Status, — in other words Laws affecting Special Classes of Persons, — ought to follow and not to precede that of the main bulk of the Law, the question arises as to what is its true place, keeping in view both general Convenience and a Natural Order of Classification. Some writers (as Mr. Austin) have pro- posed to treat under the Law of Persons the whole body of Constitutional Law, taking successively the several Persons who are directly the Objects of that Law, or who are concerned in Administering it. This might be logically justified by an appropriate extension of the signification of Status; but there are two potent objections to any such extension. First, the proposed extension wars 234 THE SCIENCE OP JURISPRUDENCE. against common language and sentiment. Secondly, the arrangement proposed to be based upon such extension is practically inconvenient and confusing in the highest degree. The conception of Status, whatever other vacil- lations have attended the use of the term, has always circled round the Eights and Duties arising out of either purely Moral Eelationships or out of such Voluntary Con- nections as, for public purposes, are specially countenanced by the State. The conception has never been extended to the Eights and Duties of P.ersons essentially concerned in the Administration of the State, — that is as so concerned, — nor to Persons who, apart from all voluntary Acts of their own, are simply invested with Eights or made liable to Duties for the sake of carrying on subordinate Functions of Government. Thus the proposed extension of the meaning of the term Status involves a change in a uni- versally popular conception, of such a violent nature as could only be properly purchased at a highly remune- rative price. But the extension itself is worthless, even if purchased at so great a price. The convenience of discussing and arranging apart by themselves all the Laws directly relating to the Constitution and Administration of the State (which is the method employed in this Treatise) is transparent. Because it happens that the Duties of a Father to his Child and of a Custom House Officer to the Chancellor of the Exchequer are equally unlike the Duties of a Tenant to his Landlord and of a Eailway Company to a Traveller on its line, there is no sufficient reason why the Duties of a Father and of a Custom House Officer should be classed together, to the endless embarrassment of students, practising lawyers, Judges, Legislators, and LAWS AFFECTING SPECIAL CLASSES OF PERSONS. 235 the general Public. The following conclusions may be stated to be the result of the above criticisms, or may be independently established. 1. In every body of Law Systematically arranged, Laws affecting Special Classes of Persons, often called " Laws regulating Status" ought to be distinctly separated from Laws directly relating to the Constitution and Admin- istration of the State, and may usefully be also separated, in order to prevent repetition, and to facilitate reference, from the rest of the body of Laws. 2. If such separation be made, the true place of the department of the Laws in question is after, and not before, the rest of the body of Laws ; and, more particularly, must find its place between Laws of Contract and Laws of Civil Injuries and Crimes. 3. The several Assemblages of Eights and Duties falling under the present head owe their existence to one or the other of the following complex Facts ; either (1.) original Moral or quasi-moral Eelationship, as Marriage, Parentage, Adoption, Guardianship, and the like ; or (2.), the forma- tion of certain classes of Voluntary Connections specially countenanced by the State as conducive to the furtherance of important Public ends. Thus the main divisions of this department for a modern State will be as follows : — A. Husband and Wife ; Father and Child. B. Guardian and Ward. C. Trustees, Executors, and Administrators. D. Barristers, Advocates, Solicitors, Attorneys, Proc- tors, Writers to the Signet, Notaries Public, and the like. 236 THE SCIENCE OF JURISPRUDENCE. E. Public Corporations, whether existing for Munici- pal, Educational, Ecclesiastical, or certain other purposes. A. Husband and Wife: Parent and Child. The Juridical aspects of the Law relating to this topic will most conveniently be considered under the following heads : — I. General description of the Moral and Legal Eelation- ship. II. Authentic Signs that the Legal Kelationship has been Created. III. Eights and Duties accruing (1.) as between the Parties, (2.) as between the Parties on the one hand and each of them and the Children of the Marriage on the other, (3.) as between the 'Parties and all other Persons. IV. Authentic Signs that the Legal Eelationship has been Terminated. I. General description of the Moral and Legal Eelationship. The Eelationship of Husband and Wife is on one side a Moral and on the other side a Legal one, — that is, the Eights and Duties to which that Eelationship gives rise and in which it really consists are some of them Moral and some Legal, the two kinds co-existing together. The Moral Eights and Duties flowing from the fact of Marriage might be conceived of as existing previously to and inde- pendently of the formation of a State ; though, in fact, such a conception is false and misleading because (such is the reciprocal reaction of Positive Law and of Moral Senti- LAWS AFFECTING SPECIAL CLASSES OF PERSONS. 237 ment upon one another) it is only through the presence of Law that the idea of Marriage acquires reality and fixity ; while, oil the other hand, it is only through the Institution of the Family, resting as that does on Mar- riage, that the State developes its own true and proper life. Nevertheless it is possible to distinguish clearly the Eights and Duties which the Legislator may take, and in fact does take, under his protection from those other innumerable and commanding Moral claims which lay a far stronger hold on the innermost Conscience of the Parties, and which are directed to emotions and to infini- tesimal minutias of daily conduct of which no Court of Justice could ever take cognisance. The essential ingredients of the Moral relationship are (1.) a peculiar and life-long Association of one Man with one Woman originating in a Joint Voluntary Act, (2.) the contemplation of the Birth, Nurture, and Education of Children, (3.) the exercise of mutual affections and the tendering of mutual offices of Sympathy, Companionship and Solace reaching to the supremest needs and the loftiest aspirations of Human Life.. This description may be taken as a type of the true Moral relationship denominated Marriage. It may take many ages in any country for this type to be approximately even so much as conceived. In different Countries and different Ages all kinds of variations from this type have been manifested or experimentally attempted. Such eccentric variations are Polygamous Marriage ; " Temporary Marriage," or Concubinage ; " Spiritual Marriage," where the Birth of Children is essentially absent from the conditions contemplated ; and all Marriages which profess to rest upon any other basis than the satisfaction of the characteristic •238 THE SCIENCE OF JURISPRUDE^"CE. instincts of Humanity to which deference is paid in Marriage according to the true type. Now though Legislators have at all times erred both in excess and defect in respect of enforcing the true Moral aims of Marriage by direct Legislation, the importance of legally ascertaining the epoch at which a new Family takes its rise, and of protecting the Personal Eights and the Eights of Ownership accruing to both the present and future members of the Family, at once casts upon the Legislator the responsibility of taking public cognisance of the Fact of Marriage, even were the integrity of Family Life not in itself, so far as it can be guarded by Law, of the most intimate concern to the Statesman and the Lawgiver. But the importance of accurately fixing the Fact of Marriage in a mode cognisable by a Judicial Tribunal is in nowise limited to such elementary considerations as these. The necessity is presented at every turn of determining the Family which is responsible for the Maintenance and Guardianship of Children ; of distributing on just principles Things left by a deceased and Intestate Owner among those for whom he is morally bound to provide, or of carrying out a Testamentary Disposition ; of discovering the Persons on whom Taxation for special purposes pro- perly falls ; and, lastly, of solving the problems presented by the Doctrine of " Domicile," and by that of " Settlement " for the purpose of administering a Poor-law. In order, then, for the above reasons, to give the greatest possible precision to the Fact of Marriage so far as it is one of direct interest to the Legislator, a certain class of Laws is demanded having this special object in view. By these Laws are defined the Competency of the Persons entering into the Marriage-state, the Authentic LAWS AFFECTING SPECIAL CLASSES OF PERSONS. 239 Signs which shall notify, — for legal purposes, — that a Marriage has taken place (or, in cases in which such a course is permitted, where it has been Dissolved during the life-time of the Parties) ; and the Legal Eights and Duties of the Married Persons in respect of each other, of the Children, and of other Persons. The Competency of the Persons is eminently a matter of purely Positive Prescription, and will differ for every country according to local Usages generally prevalent, to Eeligious beliefs or traditions, to the prejudices of Pace, to the exigencies of Chmate, and to accidental Political con- venience. The most peculiar class of difficulties which this part of the Law opens up are those connected with Marriages of Affinity or Consanguinity. But it is not necessary here to linger over these difficulties, • as they appertain rather to the Statesman and to the Moralist than to the Jurist, the practical Lawyer, or the Judge. II. Authentic Signs that the Legal Relationship has been Created. It has already been noted that the Moral side of Mar- riage far exceeds in importance and interest the Legal side, and the recognition of this fact is conveyed in the notorious circumstance that in all Communities, and eminently in Primitive ones, Marriage is bound up with the Eeligious Life of the People, and all that con- cerns it is draped in the garments of a ceremonious Eitual. Thus it often comes about that the Authorities whose special charge it is to guard and cultivate the direct Moral life of the people widely differ from the State Authorities as to the Modes of regulating the formal Conditions of Marriage. The one set of Authorities will 240 THE SCIENCE OP JUJRISPRUDENCE. demand one kind of Authentic Signs of Marriage, the other another kind ; the one will recognise and provide for Divorce, the other will discountenance and reject it, or, — both allowing it, — one will allow it on one class of grounds, and the other set only on another ; one set, again, will regard certain Persons as Competent to marry, the other will regard the same as Incompetent. The amount of divergencies of this kind will be different at different epochs, and, of course, in different countries. The true principle undoubtedly is that, inasmuch as the State, on its Legal side, affects only to interfere in the matter of Marriage for certain very definite purposes, and is wholly unqualified to engage in such processes of Moral discrimi- nation as an omniscient Spiritual Authority could alone properly conduct, — the State, in making its Law of Mar- riage, must restrict itself severely to carrying out such objects of simple Expediency and Justice as the rude machinery in its hands enables it to compass. This principle will dictate that, in fixing the Authentic Signs of a Marriage, the Signs selected be notorious, simple, non-inquisitorial, and such as may fully suffice to ascertain that the Persons marrying are within the class of Persons held by the State not Incompetent to marry either by rea- son of Age or of Consanguinity, and that no Fraud is being practised, by the Persons marrying, upon each other or upon other Persons. The State, in order to secure these ends, may either invent Authentic Signs of its own by appointing special Officers to Kegister Marriages, and by declaring the Solemnities or Forms to be observed by the Parties ; or else may adopt the Authentic Signs already in use among any particular Religious body or bodies ; or may allow an alternative use of one class of Signs or the other. LAWS AFFECTING SPECIAL CLASSES OF PERSONS. 241 Under this head of Law, in accordance with the above considerations, will be subdivided the following topics : — 1. Persons who are or who are not competent to marry- by reason of Age ; of Consent or want of Consent of Parents, Eelations, Guardians, or other Persons ; of peculiar conditions of Citizenship ; of Affinity; of mental and physical health ; or of other circum- stances. 2. Eights and Duties of Officials and other Persons entitled by Law to witness or assist in performing the Act of Marriage. 3. Forms and Solemnities to be observed by the Persons marrying, or by other Persons, before and at the time of Marriage. 4. Subsidiary or accessory Solemnities with a view to Eegistration, Publication, and the like. 1. As to questions of Competency, it is obvious that some of the causes of legal disqualification to marry are based on purely Physical conditions, whether temporary or permanent, and whether affecting the body or the mind. Such are physical immaturity, malformation, or even special disease, as Lunacy, or complaints producing mental imbecility. Others are based on supposed Moral considerations, as the general protection of Family Life in its integrity and immaculate simplicity, or the preven- tion of fraudulent intrigues : such is the absence of the Consent, formally expressed, or else implied, of certain Persons — generally the nearest relatives. The tendency of modern Legislation is to dispense with the necessity for such Consent, except in the case of Minors. Other causes of the same nature are those implied in blood-relationship E 242 THE SCIENCE OF JURISPRUDENCE. and in the more artificial relationships growing out of Mar- riage itself, that is, in " Consanguinity " and " Affinity." The former of these may be held to be connected with purely Physical reasons ; but the defence of the moral and inviolate unity of the Family is a sufficient, and probably a main inspiring, ground of this class of Legislation. Again, other causes of legal disqualification are based on purely Political considerations. To this class belong the ancient obstacles at Eome to Marriages between Plebeians and Patricians, or between Eoman Citizens and Latini or Peregrini ; the later obstacles in Imperial Eome to Marriages with Heretics ; and the modern legal obstacles, existing to so large an extent in Switzerland, for the prevention of inter- marriages between Persons belonging to different Cantons. 2, 3, 4. As to the Eights and Duties of Officials con- cerned in the celebration of a Marriage, and the forms and solemnities legally prescribed as essential to its due celebration, the following various predicaments are presented : — (1.) Either a due performance of the Duties imposed on- the Officials is essential to the validity of the Marriage, or it is not. (2.) A neglect of such due performance may either impair the validity of the Marriage, and thereby may or may not entail Penal consequences to the delinquent Official ; or, without impairing the validity of the Marriage, may entail such consequences. (3.) The due observance of all or of some of the Forms and Ceremonies prescribed by Law either . may be an essential ingredient in the vali- dity of the Marriage, or the omission of them LAWS AFFECTING SPECIAL CLASSES OF PERSONS. 243 may simply afford ground for obstruction and postponement to be encountered at the hands of anyone who chooses to take advantage of it. Over and above the protection afforded to the integrity of Family Life, and the security provided against fraudu- lent impositions, by Legislative precautions in the matter of " Consanguinity" and in that of publicity and regu- larity in the celebration of Marriage, it is not infrequent to seek to attain the same ends by an adaptation of the Criminal Law. From this policy flow such Laws as those forbidding, under severe Penal Sanctions, the offences of Abduction, Bigamy, and Incest. III. Rights and Duties accruing : 1. As between the Parties ; 2. As between the Parties on the one hand, and each of them, and the Children of the Marriage on the other; 3. As between the Parties and all other Persons. In respect of the first of these divisions, that compre- hending the Eights and Duties of Married Persons towards each other, the main question is as to the actual degree in which the Laws of civilised States do in fact attempt to reinforce Moral Duties by rendering the Husband and Wife severally amenable to Courts of Justice for Breach of any of these Duties. It is notorious that the largest possible diversity of practice exists, and has always existed, with respect to Legislation in this matter. In some States, especially in primitive ones, the Legal and the Moral Eights and Duties are co-extensive with, and, indeed, scarcely distinguishable from each other. In others the Legal Eights and Duties are reduced to the E 2 244 THE SCIENCE OF JURISPRUDENCE. smallest possible amount; while in others again— as in most European States, including England— the Legal Eights and Duties affect to cover a large portion of the same ground as the Moral, but of course not the whole, nor even the more important part, of that ground. The Jurist, then, has to discover a Mode of Classification, which, by the use of the most general formulae, will adapt itself to all these different cases. The Eights and Duties of Husband and Wife with respect to each other are either (1.) In respect of the person of each other, or (2.) In respect of Tilings owned by one or the other. (1.) Under the first of these heads will be included all the Laws regulating the Claims of one of the Parties to the Society of the other (so far as the Law affects to guarantee it) ; to physical Submission (so long as Law continues in the barbarous condition in which it attempts to enforce or promote such submission) ; and to Main- tenance and Support of either of the Parties at the hands of the other. The exact amount and kind of Society, Submission, and Maintenance which the Law attempts to secure will be described in this place, and will be expressed under the form of Eeciprocal Eights and Duties. The Modes of enforcing the several Duties may be by destroying or qualifying the Marriage Eelationship, by providing Pecuniary Compensation to be paid to the in- jured Party, or by enforcing, through any available means, the actual performance in specie of the Duties imposed. It is important to notice that some of the Laws belong- LAWS AFFECTING SPECIAL CLASSES OF PEKSONS. 245 ing to this head have respect to what may be called purely negative Duties; that is, Duties to abstain from forming connections of a well-defined kind with other Persons. (2.) Under the second head will be included the Laws regulating the changes effected in the Eights of Owner- ship of the Parties severally by the Act of Marriage, and the Laws determining the claims of the Parties severally in respect of Tilings acquired by either of them during the continuance of the Marriage. This part of the Law might either come in this place or, under the head of Laws of Ownership, among the " Modes of acquiring Eights of Ownership." It happens, however, that the Laws of Ownership affecting Married Persons have generally formed so conspicuous and compact a System by them- selves, that they more conveniently fall under the present head than under the former one. There are three distinct methods which Laws regulating the Eights of Ownership of Married Persons in respect to each other may pursue. (1.) The Married Persons may, after the Marriage, retain for all purposes the same Eights of Ownership and the same capacities for acquiring Eights of Ownership, whether in respect of each other or of other Persons, which they had before, their several Duties in respect of contributing, both during life and afterwards, to the ex- penses of the household and to the Children's main- tenance being legally assigned on some broadly recognised principle. This seems to be the method to which the best European Legislation is gradually tending, and which has nearly been completely developed in some of the States of America. 24G THE SCIENCE OF JURISPRUDENCE (2.) According to a second method some artificial Belationship between the Husband and Wife with respect to their Eights of Ownership is instantly created by the Marriage. This Belationship, in the countries where it exists, has been based upon largely prevalent traditional maxims or beliefs, though it owes its actual shape to certain precise legal assumptions or moral theories as to some immutable attitude of Husbands and Wives to each other. The best and readiest instance of Legislation, proceeding by the method now under consideration, is supplied by the English Common-Law doctrine by which, with respect to all available Bights of Ownership, a Woman's personality, by the very act of Marriage, in- stantly merges in that of her Husband. The injurious and often the cruel consequences of Laws of this species have been often pointed out, and, indeed, have been recently confessed by the English Legislature, which has already taken a timid and furtive step in the opposite direction. In criticising Laws regulating the Bights of Ownership of Husband and Wife in respect of each other, it is too frequently forgotten that the value of all such Laws is only tested when the moral Duties of the Parties to one another, or of one to the other, begin to fail. So long as they are keenly felt and adequately discharged, Laws of all sorts for this purpose are of equal value or valuelessness. But it is when inconsiderateness, with all its attendant and growing spectres of selfishness, cruelty, and tyranny, disturbs the home, that the good- ness of a Law is tested for the protection of the barest moral claims of each, and especially of the one who is physically (and perhaps, through a crowd of social in- fluences, even mentally) the least capable of resistance. LAWS AFFECTING SPECIAL CLASSES OF PERSONS. 247 It is impossible to stigmatise in too severe terms a Law which, worthless in moments of tranquillity and confidence, so soon as these are broken instantly starts forward and sides in every possible case with the man against the woman. The iniquity is all the more flagrant in a countiy where all the resources of judicial machinery have been strained to the uttermost to wrench the Law in the direction of justice to Women in any class of Society which is able to pay for this protection. (3.) A third method of legislating with respect to the Eights of Ownership of Married Persons is, strictly speaking, a combination of the two other methods. It starts with presuming a certain artificial legal Eelation- ship as to Ownership to be created by the Marriage, but leaves to the Parties themselves a considerable latitude of discretion for the purpose of qualifying the nature of this Eelationship. The English rules as applied by the Court of Chancery, recognising a Wife's " Separate Estate," and an almost unlimited power of pre-nuptial Settlement ; the various systems of the " Regime dotal" and of " Communaute" prevailing on the Continent, are sufficient illustrations of this last method. 2. As to the Eights and Duties of the Married Persons as respects their Children, they concern : (1.) The Guardianship of the Children's persons. (2.) The Maintenance, Nurture, and Education of the Children. (3.) The Eights of Ownership of the Children. (1.) The Eights of Guardianship over the persons of Children as held by one of the Parents correspond with Duties imposed on the other Parent, on the 248 THE SCIENCE OF JURISPRUDENCE. Children themselves, or on third Persons. The only case in which competing Eights of this sort can come into question as between the Parents themselves is upon the Parents living apart from each other without dissolution of the Marriage, and in the absence of special regulations decreed by a competent Court of Justice. The modifi- cations introduced may depend upon the Age or the Sex of the Children, or — after a certain Age — upon the will of the Children themselves, or even upon special terms of the arrangement entered into between the Husband and Wife. Laws, again, regulate in many countries the amount of castigation which the Parent in charge of the Child is justified in inflicting upon the Child who resists what is regarded as his legitimate authority. As respects the Duties of third Persons, Eemedies either Criminal or Civil are usually provided for the use of the Parent in order either to rescue a Child wrongfully detained, to obtain Compensation for injuries done to the Child, or to inflict Penalties on offenders in these respects, in order to deter others from the commission of like offences. (2.) As to the Maintenance, Nurture, and Education of Children, much will be made to depend during the life- time of the Parents on the fact of Guardianship. Never- theless the pecuniary responsibility of providing for the expenses of the Maintenance, Nurture, and Education of Children may be made to fall upon one Parent, while the Guardianship or even the choice of the method of Nurture and Education may be left to the other. The Law regu- lating the pecuniary responsibility of the Married Persons severally will of course be qualified by the general Law of Ownership as- peculiarly affecting Married Persons. LAWS AFFECTING SPECIAL CLASSES OF PERSONS. 249 With respect to the other circumstances, the possibly different Eeligious Faith of the two Parents introduces a difficult and almost insoluble problem. This problem may be roughly solved for practical purposes, either by (under the circumstances presupposed) making an irresistible legal Presumption in favour of some specified Faith, as, for example, that generally upheld by the State Authorities ; or by conclusively determining in favour either of the Father or of the Mother or of the actual Guardian of the Child, if the Parents are living apart ; or by one or other of these methods for the first few years of Infancy, the Child being allowed, so soon as these years have expired, to elect for itself. Obviously this problem presents the greatest difficulty when one of the Parents is dead, and the responsibility is cast on the Court of determining the Duties to which the surviving Parent is liable. In such a case the Court can only act by very general rules, and it seems almost impossible to avoid the perpetration, even under the best considered rules, of frequent injustice and cruelty. There is a class of Laws which might with almost equal propriety be placed here or under either of the heads of Laws relating to the Constitution and Administration of the State, or of Laws of Civil Injuries and Crimes. These are the Laws which impose special Duties on Parents with respect to their Children for the sake of comprehensive public ends as well as of the private advantage of the Children. Such are Laws commanding, under assigned Penalties, the Vaccination of infant Children, and the Education, according to certain approved methods, of all Children up to a certain Age. Such also are Laws of the nature of the Factory Acts, and like Laws regulating the employment of Children. Such again are Laws intro- 250 THE SCIENCE OP JURISPRUDENCE. duced, in connection with a general System of Poor- Laws, for the punishment of Parents deserting their Children and so casting the responsibility of maintaining them upon the State. (3.) As to the legal relations of Parents to their Children in respect of Ownership, the ordinary modern Law, in the event of Children acquiring Eights of Ownership otherwise than through their Parents, treats the Parents as mere Guardians or Trustees on behalf of their Children till they become of Age. In Eoman Law, where the Patria auctoritas drove its roots so deeply into the whole Legal System, it was only under very special Legislation that a Child of any Age could have any Eights of Ownership as against its Father. The constant inroads made on this doctrine by the castrense peculium and the quasi castrense peculium are known to all students of Eoman Law. On the other hand, the necessity under which a Father lay to provide for his Children at his death is testified to by the equally well-known querela de inofficioso testamento. In modern France the relics of this last Institution survive in the restrictions in favour of a man's Family imposed on his power of Testamentary disposition. In Ancient Eome, in Scotland, and in many countries on the continent of Europe, there is permitted what is called a legitimatio per subsequens matrimonium, or the possibility of rendering Illegitimate Children Legitimate by the Marriage of their Parents subsequent to their birth. The main objection to a Law having this effect exists in the case of there being Legitimate Children (that is, Children born after the Marriage), as well as the LAWS AFFECTING SPECIAL CLASSES OF PERSONS. 251 others. In this case it is alleged with reason that Eights of Ownership as acquired through the Will of the Parents or by Intestate Succession from them may often be indefinitely in suspense, it being always open to the chance that Children alleged to have been born before the Marriage, or the descendants of such Children, may appear to put in their rival claims even at a period of time indefinitely remote. Possibly by providing for due publication of the Marriage and by fixing a limit of Time within which such Children must appear, the claims of humanity and morality might be reconciled with those of practical justice. 3. As to the Eights and Duties of the Married Persons in respect of Other Persons, they concern : (1.) Personal Injuries inflicted by third Persons on one of the Parties to the Marriage. (2.) Liability of either of the Parties for Contracts made with or Injuries inflicted upon third Persons by the other Party either before or during the Marriage. (3.) Certain peculiar Legal results of the assumed intimacy of the association between the Parties, as exemplified in the English rules regulating the Admission of the Evidence of Married Persons for or against each other and the amount of Eesponsibilityincurred by one of the Parties committing a Crime in the presence of the other. The first of these divisions covers the whole subject of Compensation in the way of Pecuniary Damages for adultery, abduction, detention, defamation of character, and assaults of all sorts proceeding from third Persons. 252 THE SCIENCE OF JURISPRUDENCE. The second division is concerned with the effect of the Contracts made and the Civil Injuries committed by either Party ; with the doctrines, familiar to English Law, of the Wife's presumed Agency on behalf of her Husband, and of the possible liability of her Separate Estate to answer for her Husband's partnership or other debts ; with some of the consequences of the French separation des Mens ; and with the consequences of the Wife's being or not being in manu viri in Roman Law. The doctrine of the Roman dos, in some of its aspects, and of the English " para- phernalia " and " pin-money " will also find a place here. The third division in its terms speaks for itself, and, unless relegated to the department dealing with Laws of Precedure, will take its place here, solely for convenience of reference. It will probably be characterised by more that is irrational and accidental than other branches of this part of the Law, and will contain very different matter in different countries and at different epochs. IV. Authentic Signs that the Legal Relationship has been Terminated. In the description of theMarriage Relationship itwas said to be essentially life-long, — that is, enduring for the joint life-time of the Parties. Looked at from the moral standing-point, any contemplated termination of the Relationship to be brought about by Acts or Events less inevitable or momentous than the close of Human Life would wholly alter the character of Marriage in respect of the total self-surrender which it demands as well as of the reality, the strength, and the unchangeableness of the bonds which it presupposes. Thus, in treating of Marriage even from the juridical point of view which can only be LAWS AFFECTING SPECIAL CLASSES OF PEESONS. 253 based on the moral one, the sole authentic Sign which, in a typical constitution of Society, can be selected as indicating the termination of the Marriage Eelationship is the Death of either of the Parties. It happens, however, that the actual problem proposed to Legislators, so far from being of this simple nature, is one of the highest degree of complexity, and has led to the greatest possible variety of handling in Ancient and in Modern States. Owing to the imperfect development of general Human Nature hitherto ; to the distorted and abortive products of individual growth ; to the vicious educational and political systems which have everywhere prevailed ; to the unhappy historical antecedents which have damped the energies of even the most aspiring nations ; and to a number of other more indefinite causes, it is only very rarely, both in national habits and in in- dividual instances, that the Marriage Eelationship attains to a standard at all resembling that of its typical perfec- tion. Short of attaining this standard, it admits of ex- hibiting an indefinite number of gradations down to a vanishing-point, at which it can be said to exist in no sense whatever, except in name. At some points on the scale of progressive degradation it retains a considerable semblance to, or reminiscence of, the true type. A limited number of the affections and of the intellectual faculties are called into play, and a tolerably sincere, though by no means complete and unreserved, self-surrender (espe- cially on the physically weaker side) is accomplished. The fruits reaped are those of a more or less agreeable partnership, mutual solace of a more or less serviceable kind, and in the average of cases a courteous compromise of individual and opposed claims. Far removed as such 254 THE SCIENCE OF JURISPRUDENCE. a state of things is from the true Marriage, in which every particular and most characteristic emotion, faculty, and function of either Party has its own individuality in- tensified to the uttermost through baptism in the font of self-sacrifice, still it is not incompatible with domestic repose, and with a life neither unhappy nor unprofitable. Unfortunately, however, the outward form and legal in- cidents of the Marriage Kelationship are not seldom present when even this imperfect amount of union is dis- covered to be wanting. The sad story of such cases need not be told here. The actual legal bond is found to be too fragile to resist the strain of temptation, or the attrac- tion of what is only too readily accepted as a possibly higher and fuller life. The old tie is rudely severed, and new ones of every shade of moral value are entered upon with more or less of rashness or awe-stricken hesitation. The result is the creation of a number of newly-competing blood-relationships preferring claims of different kinds to the solicitude of Parents, to the protection of Laws, and to the indulgence of Society. The question, then, before the Lawgiver is as to whether in any case whatever he shall recognise, and, as it were, condescend to this imperfect and lamentable state of things. So far as he does, he may undoubtedly be said to incline to the support of it, and — to that extent — to debase the ideal conception of Marriage. If he do not, he allows misery and confusion to be the lot of a number of innocent Persons, who thus become destitute of many just claims as against the Society which has given them birth, and more especially as against their natural Parents who are jointly responsible for all that befalls them. It is not necessary to do more here than thus briefly to LAWS AFFECTING SPECIAL CLASSES OF PERSONS. 255 indicate the nature of the problem which lies before the Lawgiver. It has been practically solved in all countries, both of the ancient and of the modern world (subject to certain temporary exceptions due to the supremacy, in the field of Law, of the Ecclesiastical Authority), by the creation of Laws of Divorce. The general effect of -such Laws is to recognise certain facts, other than the death of either of the Parties, on the occurrence of which, — as properly established before a Judicial Authority, — the Marriage Eelationship is legally terminated. The selec- tion of such facts, and of the kind of Evidence necessary to establish them, are matters at once of the highest im- portance and of the greatest difficulty. The infidelity of one of the Parties would of itself be an obvious ground for the release of the other ; but the application of this test demands the most keen judicial acumen, inasmuch as a wide opportunity is opened for the promotion of con- spiracies between the Husband and Wife, of a nature fatal to the public support of the Institution of Marriage. Furthermore, questions of Conjugal Infidelity are danger- ously favourable to the propagation of a system of espionage subversive of the best tendencies and habits of domestic life, and generally detrimental to Social con- fidence. Whatever facts are selected as grounds of Divorce, it is indispensable to the support of Marriage in its essential moral integrity that the tests should be equally applicable in all possible respects to both Sexes without distinc- tion. There are, indeed, two distinct, and in some measure opposed, grounds upon which Divorce may be granted, according as the purpose is to afford relief to either Party 256 THE SCIENCE OF JURISPRUDENCE. suffering from the Infidelity of the other, or to afford a general relief to both Parties on the ground that the Marriage is proved to be infelicitous, and its continuance detrimental to the interests of the Parties themselves or of Society at large. If Legislators generally hesitate to apply, otherwise than on the most cautious principles and after the strictest investigation, the Eemedy of Divorce on the first of these grounds, it is with still greater reluctance that (if at all) they apply the same Eemedy on the latter class of grounds. Indeed it is customary in most modern States to stop short of applying the full Kemedy in any case other than where one of the Parties, being trans- parently innocent, has been grossly injured by the other Party in a matter inseparably bound up with the bare existence of the Marriage Eelationship in its moral aspects. In cases not falling under this head, as in those involving cruelty, recklessness, negligence, desertion, and what may be called moral tyranny, modern Laws usually supply (but in this case with a parsimony and a timidity which is much to be deprecated) the sort of Eemedy which is implied, not in dissolving the Marriage, but in modifying and restricting certain of its general Eights and Duties. Some Systems of Law, indeed, favour Modifications of this sort when brought about by common consent. The English Judicial Separation and the French separation des biens are notable instances of Special Legislation, in- troduced in order to carry out, in different ways, the last class of objects. Assuming that it has been determined by a competent Court of Justice that either the Legal Eelations of Marriage shall be dissolved, or its ordinary Eights and Duties qualified, a difficult problem is yet presented as to. LAWS AFFECTING SPECIAL CLASSES OF PERSONS. 257 the consequent alterations in the Bights and Duties of a variety of Persons whom the change of circumstances affects. The Persons whose interests are most nearly at stake are necessarily the Children of the Marriage. Special provision will have to be made by the Court, subject to general Kules of Law, as to (1.) the Guardian- ship of the Children ; (2.) the expenses of their Main- tenance and Education, and the character of the latter ; (3.) as to opportunities of more or less frequent inter- course with the Children on the part of the Parent who is not recognised as their Guardian. It is obvious that the Eights of Ownership of the two Parents severally will have to be judicially readjusted in accordance with the novel state of circumstances. In some cases, also, a Law of Divorce may provide for Pecuniary Compensation being obtained from a third Person, through whose Acts the occasion of the Divorce has been brought about. In the above general review of Laws regulating the peculiar Eights and Duties of Husbands and Wives, and of Parents and Children, it has been necessary to assume provisionally either that a true Marriage exists, or that it does not exist, and to take no account of the unhappy, though too frequent, cases in which, even in highly advanced countries, the relation of Parent and Child is a reality, but that of Husband and Wife — in any legal sense at least — is not. Many of the same considerations which may be urged for supporting, through the medium of Law, the Institution of Marriage might also be urged for giving some passing validity, even to those fleeting and insecure Connections which at least have this momentous result in common with Marriage, — that from them Children derive their birth. s 258 THE SCIENCE OF JURISPRUDENCE. No doubt in cases of this sort the Legislator is sur- rounded with perplexity. He will hesitate to recognise various grades of Marriage, and thereby incidentally to promote their formation ; and he will equally hesitate to deny the moral claims which Children have upon their natural Parents, and which each Parent has upon the other to contribution for the proper Maintenance, Nurture, and Education of Children. For Juridical purposes it is sufficient to notice the nature of the problem in order to explain the Legal theory of Marriage, and to point out how far some of the Eights and Duties involved in it may not be confined to it, but may, under a just System of Law, be attached to Connections upon which the States- man and the Moralist properly frown. The details of the part of the Law here alluded to will probably fall under Laws relating to the Belief of the Poor, and thereby under the general head of Laws relating to the Con- stitution and Administration of the State. B. Guardian and Ward. It has been customary in most organised Systems of Law and Institutional Treatises to handle under a separate heading of its own the topic of Parent and Child. This topic has here been included under the general heading of Husband and Wife, or rather the two topics have been treated as scarcely distinguishable from each other. The grounds for this redistribution will be easily apprehended by those who recognise that the best system of classifi- cation is that which is at once most natural and most convenient. Now, it is impossible to treat of the relation of Husband and Wife without adverting to their joint, or, it maybe, their conflicting, Eights and Duties- with respect LAWS AFFECTING SPECIAL CLASSES OF PERSONS. 259 to their Children, far more decisively than to their Eights and Duties with respect to any other Persons. It is, then, better to treat in one and the same place the class of Eights and Duties of Parents in relation to their Children, and that of the two Parents in relation to each other. Indeed it cannot but lead either to much repetition or to needless confusion to endeavour to break up the subject into two parts. No such reasoning applies to the heading of Guar- dian and Ward. It is a purely artificial and independent Eelationship, created by nothing else than Positive Law, though in compliance, like most other legal creations, with the demands of sentiments having a purely moral origin. The obvious possibility of both Parents dying before the Child or Children of the Marriage shall have attained to an Age at which they may be presumed com- petent to avail themselves of the Eights or to perform the Duties cast upon them suggests the necessity of substi- tuting, for these purposes, some Person or'Persons in the place of the natural protectors of whom they are bereft. A like necessity may be held to arise when accidental Events, other than the Death of both Parents, seem likely to prejudice the legal interests of the Children themselves, or of other Persons liable to be affected by their legal Incompetency. Such Events are the Death of one of the Parents, coupled with the Insanity, Imprisonment, Absence, or re-Marriage of the other, or the happening of any one of these Events to one of the Parents and of some other of them to the other, or, — when possible, — of the same Event to both. In such cases all civilised States have provided for the appointment of competent Persons to watch over the interests of Children, to maintain their s2 260 THE SCIENCE OF JURISPRUDENCE. Eights, and to perform, as far as may be, the Duties to which the Children might, otherwise, be held liable. It is, indeed, not only in cases of Infancy that Guardians for the above general purposes are needed. The Koman Curator was appointed to guard the interests of the Young in the matter of Ownership after the true Guardian- ship of the Tutor had ceased, and yet it was not held expedient to trust the Minor, — owing to his presumed inexperience of the world, — under the Age of twenty-five entirely to himself. Similarly the condition of the Lunatic presents, for many purposes, the same claims upon the pro- tective care of the State as does that of the Infant. The main differences between the regulations as to Guardianship in the two cases are introduced by the universality, certainty, and definiteness of the physical and mental circumstances of Infants, as contrasted with the numberless vicissitudes and individual idiosyncracies which characterise a condition of Lunacy. The possible suspension of that state during what is called a lucid interval demands, again, fresh modifications. The policy of protecting dissolute or pro- fligate Persons against the consequences of their own acts, as recognised by the Koman Institution of the curatela prodigi, is one that commends itself little to modern States, though, where the direct legal interests of other Persons are involved, Courts of Justice, such as the English Court of Chancery, will sometimes interfere by the momentary assumption of the Duties of a Guardian, and will protect the Eights at stake. The Mode of Appointment of a Guardian for any of the above or other purposes is naturally a matter of great anxiety to the Legislator or the Judge, and admits of the application of different or divergent rules for different LAWS AFFECTING SPECIAL CLASSES OF PERSONS. 261 states of Society according as the moral claims or particular interests of the Person protected, of the Persons related to and connected with such,Person, and of the State itself, are held to be of paramount consideration. The modern tendency is to recognise as far as possible the usual dictates of natural feeling or National custom without sacrificing the claims of certainty, or of efficiency, and with- out disregarding the proper responsibility of all Parties concerned. In the case of the Guardianship of Infants, it is an obvious course to permit to Parents the greatest latitude in the way of appointing Guardians to their Children by Will, and the Law must declare whether the Will of the Father or that of the Mother is to prevail, in the case of discrepancy between them ; whether the surviving Parent can be excluded from being a Guardian, or can be asso- ciated with another Guardian, by the Will of the deceased Parent ; and what rule shall prevail in the case of one or both Parents dying Intestate or making no provision for the case. Under the last-mentioned circumstances, and also in cases of Lunacy and the like, the Law may either provide for certain Persons, generically described, beiDg nominated as Guardians, in default, perhaps, of objections formally established, or else it may provide that every case be considered by itself and brought under the jurisdiction of a special set of officers, as — for instance — of the Praetor at Kome or of the Chancellor or of the Commissioners in Lunacy in England. The duration of Guardianship, the mode of investigating and redressing Injuries committed by Guardians, the mode of changing or of supplementing Guardians, and the Eights and Duties of Wards in respect of their Guardians, will form the topics of other parts of this branch of a complete Code. 262 THE SCIENCE OF JURISPRUDENCE. Thus the whole scheme of this head of the subject will be as follows : — I. General description of the Legal Kelationship of Guardian and Ward. II. Events of different sorts on the happening of which the Kelationship is demanded. III. Mode of Appointment of Guardians for different purposes. IV. Kights and Duties of Guardians and Wards respectively : 1. In respect of the Personal Kights of the Wards, — that is, of Maintenance, Nurture, Education, Protection, and Good Fame. 2. In respect of the Kights of Ownership, or of the Kights under a Contract, of Wards. 3. In respect of Duties to be performed by Wards. 4. In respect of Kights and Duties of Guardian and Ward reciprocally. V. Duration of Guardianship and Modes of changing and supplementing Guardians. VI. Modes of investigating and redressing Injuries committed by Guardians. G. Trustees, Executors, and Administrators. There are at least two distinct Modes in which the, * notion of a legal " Trust " may be regarded. It may be regarded from an historical point of view, as a device spontaneously invented by the Administrators of Law for the purpose of redressing the moral unfairness which accidentally becomes prevalent through the rigid stiffness of antiquated Law. Or the notion of a Trust may be LAWS AFFECTING SPECIAL CLASSES OF PERSONS. '263 regarded as bound up with the very existence of every Legal System, however refined and developed, and as likely to become more and more prominent with; every forward step in Civilisation. Both of these conceptions are in fact at once true. The early notion of a Legal Trust was un- doubtedly due to the conflicting claims of a reverence for the formal side' of Existing Laws, and for 1 the demands of Moral Justice or of Social Expediency. On the other hand, so soon as ever the notion of a Legal Trust was adequately evolved, the possibility of creating, under the name of Trusts, enormous classes of novel Eights and Duties, needed by the expansion of National life, progressively discovered itself. The history of Fideicommissa at Eome and of many of the leading Equitable doctrines of the Courts of Chancery in England, are only specimens of a natural process which might reproduce itself any number of times. Whatever may be the case on the first budding of the conception, it is to be remembered that the creation or recognition of a legal Trust does not in itself imply any attempt to make coextensive the provinces of Legal and of Moral Eight and Duty. All it implies is the attempt to mark out with a fresh subtlety of description and of limitation a newly introduced class of strictly Legal Eights and Duties, and so far to innovate upon all existing Eules of Interpretation and of Procedure as is needed in order to make those Eights and Duties effective. Thus the leading elements in the conception of a Trust are : (1) a special description and limitation of a newly intro- duced class of Eights and Duties, the general character- istic of such class being that of an increased plasticity, exactness, and adaptability to special circumstances, as compared with the Eights and Duties under the older 264 THE SCIENCE OF JURISPRUDENCE. Law ; (2) a suspension or abrogation of all existing Legal Eules, to the extent necessary to give complete effect to the supplementary or substituted Eights and Duties thus newly introduced ; and ( 3) a special System of Procedure for the purpose of supporting such Eights and enforcing such Duties. But a radical element in every Trust has not yet been stated. It is true, on one side of it, that a Trust implies nothing more than the recognition of certain novel Eights and Duties over and above those recognised by the general body of the existing Legal System. On the other side, a Trust is at once the effect and the cause of a real increase of moral sensitiveness in a Nation. It becomes more and more cogently felt that in spite of the rigorous univer- sality of Legal Eules and of the general expediency of respect being paid to that universality, nevertheless it is too great an outrage on public feeling to permit persons to use the very machinery of Justice as a means of doing unjust Acts ; to become, through the help of the Law, enriched by their own wrong-doing; and to counten- ance Persons in a Court of Justice in not being open, honest, fair, and even-handed in all their dealings. Such sentiments become more and more incorporated in the very structure of Legal Systems. The doctrine of bona fides, as entertained by the Eoman Prator, and that of " Conscience " or " Equity " in the English Court of Chan- cery, are illustrious instances of such Juridical progress. Still more interesting is the growing extension of Equitable Procedure to English Common Law Courts, and the recent " fusion" of Common Law and Equity in the Legal Systems of some of the American States. In this way, where conscientious action is clearly absent, Courts of LAWS AFFECTING SPECIAL CLASSES OF PERSONS. 265 Law not only resent the strain of all Legal Eules, trans- muting, as in the crucible of the Alchemist, a Eight in respect of one Person into a Duty in respect of another, but, furthermore, they encourage the multiplication of transactions between Persons where the only basis of reliance is the Good Faith of the Parties. In this way a larger incubus of responsibility is thrown upon the Judi- cial Authority, and it may be open to doubt whether the interference of Law in such fine matters of Moral con- scientiousness is, in the long run, favourable or otherwise to National Morality. However this may be, the depart- ment of Law which deals with Trusteeship, which defines its nature, which describes the Eights and Duties implied in it, and which determines the Modes in which it takes its rise, is one of the most momentous sections of modern Legal Systems. It is here coupled with the part of the Law which deals with Executors and Administrators, inasmuch as these latter are only Trustees of a particular sort, though from their importance they deserve to be especially named. It is obvious that Trustees eminently fulfil the conditions required to be satisfied by the Special Classes of Persons forming the subject-matter of the present chapter. In one aspect, their Eights and Duties have solely reference to the interests of Private Persons within the narrow circle of Domestic or of limited Social Life. In another aspect, they are State Officials, whose conduct is a matter of incessant concern to the Authorities of the State, and whose Acts are controlled, supervised, and directed from first to last by a Court of competent jurisdiction. , One large class of Duties appertaining to Trustees is that of doing Acts on behalf of Persons invested 266 THE SCIENCE OF JURISPRUDENCE. with Eights or made liable to the performance of Duties, •who by reason of special Incapacities of body, mind, or situation, whether permanent, temporary, or occasional, are unable themselves to do the Acts those Eights and Duties presuppose in order that the benefits of the one may be reaped, and the liabilities of the other be discharged. Another class of Duties appertaining to Trustees pre- supposes no Incapacity in any other Person, but is imposed either by the mere will of Private Persons, as enforced by the State, with or without the consent of the Trustee, — as in the case of fideicommissa at Eome, and of all that large class of things which, under the technical System of English Law, are capable of being left by Will or of being conveyed to one Person " to the use of," as it is said, or " in Trust for " another. A third class of Duties appertaining to Trustees is imposed upon them by the State, wholly independently of their own will, and, possibly, of the intention of other Persons, solely for the purpose of preventing Frauds, of satisfying natural expectations, and of carrying out ends generally recognised as of public importance. To this class belong many of the Duties arising out of what are called in England " Constructive Trusts." Thus where a Person employs another Person's property in any trade or speculation there is, under certain circumstances, a " Constructive Trust " as to the property so acquired or the profits so made for the benefit of the Principal, Owner, or other Person whose property has been involved in the transaction. The following may be taken as a sketch of the natural method according to which this part of the Law may be distributed : — . LAWS AFFECTING SPECIAL CLASSES OF PERSONS. 267 I. Description of the general Legal Kelations implied in the fact of Trusteeship. II. Modes in which the Eelationship takes its rise. 1. Existing Legal or Moral Eelationships giving rise, under special circumstances, to a legal Pre- sumption of Trusteeship. 2. Acts of Private Persons. 3. Acts of Judicial Officers. 4. Acts of Persons who become Trustees. III. Eights and Duties of Trustees. IV. Modes of enforcing the Duties of Trustees. /. Description of the general Legal Relations implied in the fact of Trusteeship. Where two or more Persons are so related to each other that, independently of the operation of the general Law of Ownership, of Contract, of Civil Injuries, or of Crimes, one of those Persons is held liable by the State to the performance of certain Duties in respect of the other or others on the ground of a presumed Moral Confidence existing between them, the Person so held liable is said to be a Trustee for the other or others. In England the Person, on behalf of whom the Duty, or the so-called " Trust," is to be discharged, is called, from the Norman- French, the cestui-gue trust. In Eome he was called the fidei-commissarius, and the Trustee the fiduciarius. The object of the Trust may be the Personal Security, the Moral Welfare, — (as the Education), — or the general Main- tenance of the Person on behalf of whom the Trust is held ; or it may be the exercise of Eights of Ownership, or the performance of Duties arising either out of Ownership 268 THE SCIENCE OF JURISPRUDENCE. or out of Contract, or it may be the bringing or defending Actions at Law. II. Modes in which the Relationship takes its rise. 1. The most ordinary cause, historically, of the develop- ment of the idea of Trusteeship has been a tendency on the part of Law to convert a widely recognised Moral Eelationship into a Eelationship strictly Legal. This may be done either by transforming a purely Moral Duty into a Legal one, or by expanding the confines of a Legal Duty and increasing its stringency. The early history of the Jurisdiction of the English Court of Chancery in the matter of Lands, settled on Persons generally capable by the ordinary Law of holding them but so settled with the Intention, more or less avowed, of benefiting Eeligious Corporations, or of benefiting a variety of more or less de- serving Persons incapable, by the same Law, of holding the Lands, — or at least of taking them under the circumstances of the case, — affords an instance of the Mode in which a Court may attempt to create Trusts in the face of the letter of the Law, simply for the purpose of satisfying expectations grounded on a sort of Moral Eelationship. In the instance here selected it is true that two kinds of policy, — that of discouraging " Gifts in Mortmain " (or gifts of land to a certain class of permanent Corporations), and that of carry- ing out the Intentions of Donors or Settlors, — came into conflict with one another, the Courts of Chancery and the Legislature severally personating the rival political conceptions. Nevertheless, in all matters in which the Mortmain Laws have not been involved, the principles of the Court of Chancery have triumphed, and the largest branch of its Jurisdiction is that of supporting Eights of LAWS AFFECTING SPECIAL CLASSES OF PERSONS. 269 Ownership growing out of the expressed words or the implied Intention of Settlors, which Eights are not only wholly ignored in Courts of Common Law, but are there held to be wholly superseded by Eights existing in the Trustee which these Courts recognise as efficient for every possible purpose. Another instance supplied by English Law may be taken from the case of an ordinary Sale of Land, where the Purchase is partially completed. A Court of Common Law, representing the severity of the ancient doctrine, can do no more than decide by the roughest and -most materialistic of tests whether the Vendor or the Purchaser is, at a given moment, the technical Owner of the Land. In such a case the Court of Chancery will usefully interfere and determine, after investigating all the minute facts of the case, whether the Vendor is Trustee of the Land for the Purchaser, or the Purchaser Trustee of the Purchase- money for the Vendor. So in the case of part of the Things Owned by a deceased Person descending to the legal " heir," and part to other Persons, either by Will or by Intestate Succession, and of a claim being enforced against the whole Estate by third Persons, the Court will determine how far the Persons exempted from contribution in a Court of Common Law shall, nevertheless, be held liable to it in Equity, — that is, how far they shall be treated as Trustees of what by Common Law they owned, for the Persons actually compelled to contribute. The respective claims of Mortgagor and Mortgagee in Courts of Common Law and of Equity afford one notable instance of the rise of a Trust through the mere existence of another Legal Eelationship. In a Court of Common Law, a Mortgage is an ordinary Conveyance following 270 THE SCIENCE OF JURISPRUDENCE. upon, a Contract for a Sale or for a Lease. The Mortgagee takes the place of the Mortgagor as Owner of the Land, and the Mortgagor that of the Mortgagee as Owner of the Money borrowed, the subsequent repayment of the Money and reconveyance of the Land being regulated by what is in fact nothing else than a Subsidiary Contract. In a Court of Equity, the Mortgagee is recognised as" having nothing more than the sort of Security for his debt which is provided by a conditional Power of Sale, and, whether he be in possession of the Land or not, is treated as the mere Trustee of the Land for the benefit of the Mortgagor and his Heir. The Money lent descends, on the death of either of the Parties, as a debt due from the one, or his Executors, to the other, or his Executors. 2. Instances of the Eelation of Trusteeship created by the Acts of Private Persons are those of Executors, of Trustees of Marriage Settlements, of a fiduciarius in Eoman Law (created by such words as "Jideicommitto, peto, volo dari" and the like), of the unpaid Treasurers of private Societies, and of Guardians of all sorts appointed by Private Persons and not by Public Authority. When Persons have been appointed Trustees in this way, and where they have, by the due method prescribed, assented to such Appointment (as at Eome by accepting the Inheritance charged with a jideicommissum, in England by taking out Probate of a Will or by acting in a Trust created by a Marriage Settlement), the condition of Trusteeship, with all the Eights and Duties appertaining to it, is as completely created as when created by the direct operation of Law in the cases already considered. 3. A Trust may, again, be created by the arbitrary interposition of a Court of Justice. According to a well- LAWS AFFECTING SPECIAL CLASSES OF PERSONS. 271 known maxim of English Equity, a Trust is never allowed to fail for want of a Trustee. Thus when the Public advantage needs the performance of Duties in respect of Private Persons, and no Person is generically determined by Law as liable to perform those Duties, the Court will sometimes appoint an ' Officer of its own to undertake the responsibility, — as for instance by vesting the Eunds of Suitors in the Accountant-General, or by appointing temporary Guardians of Children, of Luna- tics, or of others under the special protection of the Court. Again, when Private Persons have, by their express lan- guage, or by the implied meaning of their Settlements or Wills, intimated, a wish to create a Trust, but have omitted to designate Trustees, or the Trustees designated have failed through Death, through refusal to Act, or through Personal Incapacity, the Court of Chancery, — and in some cases the Court of Probate, — will step in and nominate some Person, either individually or generically determined, to act as Trustee with or without the concurrence of third Persons. The most signal instance of this Mode of Appointing Trustees is supplied by the practice of the English Court of Probate, (inheriting the functions of the Ecclesiastical Courts), with respect to the appointment of Administrators for the management of the Estate, for the performance of the Duties, and for the enforcement of the Eights, appertaining to the Legal Successors of a Person dying without having made a Will. 4. A Person is generally recognised as constituting himself a Trustee by his own Act in the case of his trading with Funds of other Persons, accidentally in his hands ; of his assuming, without authority, the Duties of Guardian to an Infant or other Incapacitated Person; of his 272 THE SCIENCE OF JURISPRUDENCE. interfering with the Estate of a Deceased Person without being appointed Executor or Administrator; and generally of his inducing other Persons, whether fraudu- lently or not, to believe that he is a Trustee and that he is not acting for his own advantage. In all these cases it is a matter of public policy to interpret the Duties of Persons in circumstances of peculiar temptation, and peculiarly exposed to suspicion, according to the most exact and severe standard. III. Rights and Duties of Trustees. The Eights conceded to Trustees have one of two objects in view ; either the Security and Indemnification of the Trustee in the discharge of his proper functions, — that is, the direct benefit of the Trustee himself; or the en- largement of his Capacity, for the sole purpose of his doing Acts in the discharge of the Trust. To the former class of Eights belong the generally recognised claims of Trustees to be reimbursed all necessary expenses incurred by them in the matter of the Trust, as for purposes of Travel, of reasonable Litigation, of conducting protracted Negotia- tions by correspondence, and, in some cases, of advancing needful Funds. In estimating the limit of these Eights, rigid accuracy and particularity in matters of Account will be insisted upon throughout, and bona fides of the highest possible order will be demanded as a condition precedent to the effectual support of any such claims. The other class of Eights, — those conceded in order to facilitate the discharge of the Trust, — are Eights to do Acts the due performance of which implies : (1.) a capa- city to acquire or to exercise Eights of Ownership vested in other Persons (that is, in those on behalf of whom the LAWS AFFECTING SPECIAL CLASSES OF PERSONS. 273 Trust is held); (2.) a Capacity to make effectual and binding Contracts on behalf of such Persons ; (3.) a Capacity to stand in the place of such Persons for the pur- pose of bringing Actions at Law or of defending Actions brought by others on behalf of those who are objects of the Trust. These Eights, being of the highest importance, are, of course, strictly limited by the purposes of the Trust ; by the situation of the Persons on behalf of whom it is held ; and, — if there be an express Instrument creating the Trust, — by the terms of that Instrument strictly inter- preted. In doing all the Acts comprehended in the Eights now under consideration, the English Court of Chancery exacts from a Trustee a far higher degree of circumspection, diligence, and prudence than an ordinary man would be expected to show about his own private affairs. As to the Duties imposed upon Trustees, their direct objects are, either (1.) the efficient performance of the purposes of the Trust, or (2.) the general protection of the Public against the possibly injurious or fraudulent results of the divided responsibility which the fact of Trusteeship implies. In pursuance of the first object, the Eights to do all the Acts above described as possible to be performed by a Trustee are converted into legal Duties to perform them. A Trustee is thus legally com- pellable to acquire or to exercise Eights of Ownership, to make Contracts, to bring or to defend Actions; for which purposes the Law imparts to him a peculiar and idiosyncratic competency. The Law furthermore defines with the utmost possible precision the Mode, the Time, the latitude of Discretion, the quality of the Diligence, appertaining to the Duties incident to each particular kind T 274 THE SCIENCE OF JURISPRUDENCE. of Trust, according to its general nature or to the special circumstances of its creation. It is also customary to invent a class of Eules, founded on the teachings of ex- perience, for the more minute direction of Trustees, and for the general protection of the Public. These Eules, being of a more or less arbitrary character, embrace the second general object to which the Duties imposed upon Trustees point, though in truth the two objects, — that is, the interests of the Persons for whom the Trust is held, and the interests of the Public, — are, for the most part, forwarded by identical means. It is in view of both classes of objects that the English Court of Chancery exercises a most jealous watchfulness over the habits of Trustees in the matter of their mixing up the Trust-funds in their hands with their own Private funds, and, generally, of their confounding their characters as Trustees and as Persons interested on their own behalf. So, likewise, the Court views with suspicion all dealings, not Judicially authorised, in the way of Sales, Mortgages, Guaranties, and the like, of which the subject-matter is Trust-funds. The adequacy of the price, the sufficiency of the " notice," the commercial value of a fresh investment, and the con- spicuous honesty of the whole transaction are regarded, in negotiations of this sort, as elements of the most serious concern. Sometimes these elements have a still higher adventitious interest imparted to them by the existing Moral Eelations (as by Guardianship, or by confidence between Lawyer and Client) between the Parties. It is by way of applying the severest possible test to transactions which, from their very nature, lay the way open to deceit, to overreaching, or, at the least, to unfair pressure, that the English Court of Chancery has developed the large LAWS AFFECTING SPECIAL CLASSES OF PERSONS. 275 branch of its Jurisdiction previously alluded to, which is implied in the doctrine of " Constructive Fraud." The Eoman Lawyers, in their ample and plastic use of the doctrine of Bona Fides, recognised an equally wide and beneficial Jurisdiction in their Courts, though in many respects the English doctrine has been generally expressed in a more artificial and stringently limited guise. As with Eights under a Contract, so, in the present case, it is not necessary to have a separate heading for the Modes in which Trusteeship comes to an end. The full description of the Eights and Duties of a Trustee carries with it that of their Modes of Limitation through the efflux of Time, through the happening of Conditional Events, or through the Acts of Persons. Of some of these Modes of Limitation instances are supplied by the Deaths of either of the Parties ; by a repudiation of the Trust sanc- tioned by the Court ; by a formal Eelease executed by the Parties on the purposes of the Trust being satisfied ; and by a revocation or qualification of the Trust through the direct action of the proper Court. In the case of one of two or more Trustees dying, special Eules will be needed as to the responsibility of the Survivor or Survivors in the matter of continuing the Trust. IV. — Modes of enforcing the Duties of Trustees. The Duties of Trustees may be enforced directly, by a compulsory process issuing from a Court of Justice, com- manding the Trustees who shall have omitted to perform the Duties imposed upon them, then and there to proceed to their Performance. Thus they may be compelled under threat of special Penalties, — as of Imprisonment, — to pay over or to invest Trust-funds in their hands, to sign or t2 276 THE SCIENCE OF JURISPRUDENCE. "execute " Deeds or solemn Documents of public signifi- cance, to surrender the Possession of Things under their control, and to prosecute or to defend Actions at Law. Or these Duties maybe enforced indirectly, by expelling from the Trust Trustees found to have omitted or negligently performed their Duties, and by substituting fresh Trustees ; or, again, by exacting Compensation for the consequences of the omission from the delinquent Trustee, or by punishing him for his default or Fraud by proper Pro- ceedings in a Criminal Court. Eecent Acts of the English Legislature have facilitated the last-mentioned resource, while, under the Roman Law, the punishment of Infamia, carrying with it the loss of certain Political Eights, and following (among other causes) upon a condemnation in an Action Bonce Fidei, is a notable example of the same Mode of enforcing this class of Duties. D. Barristers, Advocates, Solicitors, Attorneys, Proctors, Writers to the Signet, Notaries Public, and the like. Among the Special Classes of Persons whose Eights and Duties are most conveniently considered and tabulated in a department by themselves, the class of Professional Lawyers has many peculiar claims to be included. In any highly-organised Community the study of the Law always has a tendency to become an absorbing pursuit, demanding the devotion of a lifetime, and taxing the energies and zeal of the student to an extent which leaves only a small amount of leisure for other occupations. On the other hand, the generally recognised claims of the private Litigant to protection against Fraud and Culpable Negligence in the conduct of his Suit, as well as the LAWS AFFECTING SPECIAL CLASSES OF PEKSONS. 277' necessity of expediting the course of public business, have led to the universal recognition of a class of Persons officially authorised to assist Suitors in prosecuting their Eights. This assistance is conferred either by acquainting suitors, on consultation, with the nature and extent of their Eights and of the Mode of Eemedy provided, or by actually helping them in the conduct of portions of the Judicial Process, and even by advocating their claims before the Judicial Tribunal. The capacity to do this work implies a tolerably minute and exact knowledge of the contents of the existing Legal System, and a special familiarity with the processes of Courts of Justice, that is, with the part of the Law which falls under the head of Laws of Procedure. In nominating a class of Persons of the sort now indicated, the State will generally take, or profess to take, suitable means to ensure the presence of a sufficiency of this kind of knowledge. It is an important feature in the history of Social Life, both Ancient and Modern, that the whole class of Pro- fessional Students of Law has generally undergone a bifurcation into two divisions, of which the one is con- cerned more especially with the study of the general Legal System, and with giving, or learning how to give, in some- what of an abstract form, opinions on particular questions submitted to their consideration; the other professes or learns to instruct the private Litigant in the formal Mode of prosecuting a subsisting Legal Claim, and to represent and personate the Litigant at every stage of the Proceeding within and without the walls of a Court of Justice. Other peculiar Functions have, in course of time, and in accord- ance with special National customs, gathered round and modified the tasks of these opposed classes of Professional 278 THE SCIENCE OF JUKISPRUDENCE. Lawyers severally. The former class has in England, for instance, largely encroached, even to the extent of entire usurpation, on the proper Executive work of the latter, especially in the matters of Public Advocacy, of what is called " Pleading " (or the preparation of systematically regulated counter-statements made outside the Court by the opposed Parties), and of " Conveyancing " (or the Draw- ing of some of the more solemn Written Instruments known to the Law). The latter class, again, have shared largely with the former in giving " Eesponses " or general or special advice on the Eights, Duties, and Eemedies appertaining to particular states of circumstances. Nevertheless in Eng- land, at least, there is one main Sign which distinguishes the two classes of Professional Lawyers one from another. Of the one class, — that of Barristers or Advocates, — the Eights and Duties are held, for the most part, if not wholly, (as is generally alleged) to be of a Moral nature, and so far not capable of enforcement for any purpose whatever in a Court of Justice. Of the other large and important class, — comprehending all the various Functionaries known as Solicitors, Attorneys, Proctors, Writers to the Signet, Notaries Public, and the like, — the Eights and Duties are not only Moral, but are universally recognised as strictly Legal. In this last aspect they find their appropriate place under the present Section. This is not the place to discuss the expediency of this division of labour and variety of Legal Eesponsibility, nor to examine the degree in which a number of Social causes seem to be tending in this country, as in the United States, to bring about radical changes in the organisation of the Legal Profession. It seems scarcely deniable, on the one hand, that there are true and LAWS AFFECTING SPECIAL CLASSES OF PERSONS. 279 lasting differences between the distinct functions of (1) con- ducting personal intercourse with Clients for the purpose of ascertaining, out of a vast assemblage of complicated Facts in their possession, what are those essential to the Judicial Process impending ; of (2) mastering the general body of the Legal System to the extent needed in order to give a reliable Opinion on the Eights and Duties involved in any Case presented ; and of (3) presenting to a Tribunal, more or less skilled and qualified, the actual Facts of the Case and the Principles of Law applicable to them, in such a way as best to ensure a true and logical conclusion being inevitably reached. In spite, however, of these varieties of function, it may be very inexpedient for the State to place any impediments in the way of Persons, otherwise competent, exercising more than one or all of the functions at once. It must be still more detri- mental to the interests of Clients, and of the general Public, to prevent the passage from the professed exercise of one set of functions to another set being as facile as possible. It is worse than detrimental, — it is destructive, — to the morality and to the honest aspirations of a great Profession, for the State to apportion a different meed of Social dignity and appreciation to Functionaries of one class from what it apportions to those of another. The following is the general form under which the Laws creating and regulating the Eights' and Duties now under consideration will be represented : — I. Complete and generally descriptive list of the Classes of Persons specially authorised to assist Private Persons in the following respects : — 1. Informing them as to the exact nature and extent of their Legal Eights and Duties, or of the nature and 280 THE SCIENCE OP JURISPRUDENCE. Mode of using the Eemedial Processes provided by Law for their enforcement. 2. In case of impending Litigation, preparing the Sub- ject-matter of dispute for Judicial investigation (as by searching out and examining Witnesses, by con- ducting the formal and Judicial correspondence essential to bring into relief the real question at issue, and generally by saving the Litigant the labour, time, and mistakes his inexperience would cost him). 3. Eepresenting Litigants in a Court of Justice. 4. Performing Public and Solemn Acts demanded either by the Practice of Courts of Justice in the course of Litigation, or by Mercantile or other Customs Judicially recognised (as by receiving the " Pro- test " of Bills of Exchange, witnessing Oaths, Sig- natures, and the like). II. Qualifications and Modes of Appointment through which Persons become members of the Classes now under consideration. III. Eights and Duties of such Classes of Persons seve- rally in respect of each of the kinds of functions enume- rated under the first (I.) head. IV. Modes of enforcing such Eights and Duties, whether by the ordinary or extraordinary Processes of a Court of Justice. V. Special and arbitrary provisions in contemplation of the possible Events of sudden Change, Eemoval, Inca- pacity, or Death of such Persons in the midst of perform- ing their appropriate Punctions. LAWS AFFECTING SPECIAL CLASSES OF PERSONS. 281 E. Corporate Bodies, whether instituted for Muni- cipal, Ecclesiastical, Educational, or Eleemosynary Purposes. Corporations of the character here described might appear rather to be claimed by the chapter dealing with Laws directly relating to the Constitution and Adminis- tration of the State, if not by that dealing with Laws of Contract. The Corporate Bodies, however, here under contemplation differ at once from purely Governmental Institutions and from Industrial or Mercantile Associations. They combine, in a manner peculiar to themselves, a Pub- lic and a Private character. They may have originated in special Historical circumstances, or even in the more or less eccentric exercise of Individual wills. But, starting from these beginnings, they have progressively allied themselves with the general objects of National Policy. The Persons who administer them are treated as Public Officials rather than as Private Trustees ; they are often- times directly appointed, changed, and controlled by the Executive Authority, while their Eights and Duties are interpreted and enforced far rather in view of the general interests of the whole Community than of any particular body of Persons, however immediately concerned. It is, of course, not possible to predicate all this as being exactly true of any particular body belonging to the class. The actual variations from this type, brought about by long ages of corruption, selfishnesss, and illiberality, which great Public Institutions often notoriously present, afford one of the largest and most useful fields for the modem Political Re- former. Nevertheless, for . purposes of Classification, the type remains distinct enough to determine the Class to 282 THE SCIENCE OF JUEISPEUDENCE. which the Corporation belongs, and the Place it occupies in an organised System of Law. The Systematic arrangement of this part of the Law may be represented in the following manner : — I. General description of Public and Corporate Bodies properly falling under the present head, with a discrimi- nation of their several Objects. II. Particular description of each Class of such Bodies in succession. III. Enumeration, for each such Body in succession, of:— 1. Its Officers. 2. Modes of their Appointment. 3. Their Eights and Duties. 4. Modes in which their Punctions terminate, or in which their Eights and Duties may be suspended or qualified. 5. Modes of Enforcing such Eights and Duties. IV. Eights and Duties of each class of Corporate Bodies in their Corporate Capacity, with the Pormahties indispensable to a proper performance of the Acts implied in such Eights and Duties. V. Modes of enforcing such Eights and Duties or of qualifying or suspending the same. VI. Modes of suppressing or modifying each Class of such Corporate Bodies, as provided by anticipation. 283 CHAPTEE XIH. LAWS OF CIYIL INJURIES AND CRIMES. Inasmuch as the full description of a Eight involves, of necessity, an equally full description of the corresponding Duty, it might seem to be in the highest degree arbitrary and unsymmetrical to discuss the topic of Eights in one part of a Legal Treatise and that of Duties in another. A latent sense of the inharmoniousness of this method, and yet withal a clinging desire to conform to Schemes largely recognised have led Jurists to adopt various logical devices by way of disembarrassing themselves of the difficulty. Sir W. Blackstone seems to have taken shelter under the ambiguity lurking in the word " Eight," and, as the basis of his Classification, to have opposed " Eights " to " Wrongs," treating under the latter head ' not only Laws of Civil Injuries and Crimes, but also Laws of Civil and Criminal Procedure. Mr. Bentham opposed " Substantive Law," as distributed into Civil and Penal, to " Adjective Law," or Laws of Procedure, including the Administration of Justice generally. Mr. Austin, again, insisting on building up his Classification of the topics of a Legal System on the severe conception of Eights only, distinguishes between " Primary Eights " and " Secondary, or Sanctioning, Eights " — the latter phrase implying those Eights which are conceded by the State solely for the purpose of reinforcing the former after these shall have been invaded. 284 THE SCIENCE OF JUEISPEUDENCE. Mr. Mill has pointed out that this division is valuable, as far as it goes, but that it fails altogether to include." Abso- lute Duties," or Duties corresponding with no " Primary- Eights " at all. Mr. Mill himself suggests, as a principle of division, the main and immediate Purpose of the Law, according as that Purpose is the Creation or Extension of a Eight, — that is, the Benefit of a Private Person, — or the achievement of some Public end through the imposition of a Duty implying the immediate Disadvantage of a Private Person. These two classes of Laws, and the Eights and Duties to which they give rise, may be, Mr. Mill submits, treated apart from each other with logical correctness and without doing unnecessary violence to current habits of Classification. The method pursued by the Eoman Lawyers in treating .the Jus Privatum was to relegate to the one general head of " actiones," all the matter that became of interest upon any actual or apprehended Breach of the Law, — that is, most of the matter here arranged under the several heads of Laws of Civil Injuries and Crimes, and of Laws of Procedure. There is, no doubt, a real difficulty in the way, which accounts for these numerous and heroic attempts at a solution. The familiar oppositions in English Law between a " Tort " and a Breach of Contract, and between a Civil Injury, — whether arising through " Tort " or through Breach of Contract, — and a Crime, will afford some key to the way in which the difficulty has been brought about. These two series of oppositions are really due, partly, to Historical differences of Procedure, and, partly, to a want of clear perception that a " Tort," a Breach of Contract, and a Crime, all (with a very few ex- ceptions) suppose that a Eight of some sort, if only a LAWS OP CIVIL INJURIES AND CRIMES. 285 Moral one, has been invaded, and that a strictly Legal Duty- has been omitted or wrongly performed. Owing, how- ever, to the fact that the popular imagination has a more firm and ready hold on some classes of Eights than on others, as, for instance, on Eights to Personal Security and to Good Fame than on Eights of Ownership, and on Eights of Ownership than on Eights arising under a Contract, invasions of the one class of Eights are popularly treated as due to greater viciousness and perverseness in the Offenders, and as deserving of more stringent repression than invasions of the other. Hence, with respect to Eights under Contracts and Eights of Ownership, attention has been more steadily fixed on the Nature and Limits of the complicated advantages enjoyed by the Persons invested with the Eights than upon the pro- bability, or the conceivable Modes, of infringing those Eights. With respect to the other classes of Eights, their Nature and Limits have been taken as a matter of course, and attention has been mainly arrested by the Modes of their Infringement, and by the Penalty such Infringement -ought to bring with it. Perhaps the only safe, though courageous^ solution of the difficulties attending this part of the subject is to be found in first denominating a Violation of any Eight what- soever as either a Civil Injury or a Crime, or as both ; and, .secondly, in recognising it to be possible, as all past ex- perience proves it to be commodious, to give superior prominence in one part of the Legal System to Eights as contrasted with Violations of Eights, and in another part to give superior prominence to Violations of Eights as con- trasted with Eights. Thus the natural Mode of Distribut- ing the topic of Laws of Civil Injuries and Crimes is 286 THE SCIENCE OP JURISPKUDENCE. already provided by anticipation through the distribution of the previous topics of this Work. This is the place to insist on a clear conception being attained of what is meant by a Legal Crime. The word has been so much used and abused in the dialect of the people, and so heterogeneously combined with Moral and Eeligious sentiments, that it is especially hard to rescue it for the purpose of purely Juridical employment. In the face of these obstacles, however, a Crime may be provision- ally defined to be " an Act which the State absolutely Pro- hibits, or a Forbearance from an AGt which the State abso- lutely Commands to be done, the State making use of such a kind and measure of Punishment as may seem needed to render such Prohibition or Command effectual." Thus it is not of the essence of a Legal Crime that it should be peculiarly abominable in the eyes of all men. The non- repair of a Public highway or of a bridge is often treated. by English Law for all purposes as a Crime. On the other hand, many flagitious acts of Fraud and of Violation to Eights of Ownership may be treated as no more than Civil Injuries, the application of the Eemedy being practically left to the discretion of the injured Person. Theft and Frauds of the grossest sorts were treated by Eoman Law as Civil Injuries rather than as Crimes. Again, the form of Procedure in Criminal Actions may perchance closely resemble that in Civil ones, and a varying degree of discretion may be left in the hands of private Prosecutors. Wherever this exists it points to a certain indistinctness of view and antiquarian retentiveness of the familiar and the past, but in no waj' confounds the radical distinction between the two classes of Acts. As to the Breach of the Law in the one case, the State LAWS OF CIVIL INJURIES AND CRIMES. 287 actively interferes to prevent or to punish it by the use of all the resources within its control. As to that in the other, it simply engages to co-operate with Private Persons who are interested in preventing or punishing it. Again, a Crime may be committed where a Civil Injury could not be, inasmuch as a Civil Injury always pre- supposes the Infringement of a Legal Eight, and a Crime, only the Non-compliance with a Legal Duty which may be " absolute " and corresponding with no Legal Eights in others. Thus Treason, Coining, Breaches of the Ee- venue Laws and of many Police regulations, are abso- lutely prohibited, and yet there may be no Person, single or corporate, whose legal Eights are immediately abridged or threatened by the Acts forbidden. On all these grounds, and on others which have scarcely been alluded to, it will be expedient to adhere to the generally recognised practice of treating Laws relating to Crimes apart from, though in close connection with, Laws relating to Civil Injuries. Laws relating to Civil Injuries. It has been seen that many of the Eights, the violation of which is a Civil Injury or a Crime, or both, have already come under review, whether under the heads of Eights of Ownership, of Eights under a Contract, or of -Eights appertaining to Special Classes of Persons. There are, however, other Eights, the violation of which is a Civil Injury, or a Crime, but which only come under notice for the first time in this place. The Eights of this class are so universally diffused, so simple and distinct in the advantages they confer, that it is only through the violent rupture of them by mischievous members of the 288 THE SCIENCE OP JURISPRUDENCE. Community that they attract attention to themselves. Such Eights are those to Personal Security, to General Freedom of action and of locomotion, to the enjoyment of the necessary Conditions of Health, and to what is called a Good Eeputation. These Eights are in them- selves of a vague and indeterminate kind, and, unlike most Eights of Ownership and all Eights under Contracts, they only become defined in the progress of time through repeated and multifarious Violations of them. In this way it comes about that it is under the head of Laws of Civil Injuries and Crimes that such Eights are heard of for the first time. It is necessary to make this explana- tion, because loose notions prevail to the effect either that no such Eights exist, or that, if they do, some mysterious and incommunicable character belongs to them which, separating them from all other classes of Eights, makes them peculiarly the subjects of this part of the Law. If, then, it be definitely determined that the Modes of Injury to Eights ought to follow the method of Classifica- tion pursued in arranging the Eights themselves, subject to the fact just mentioned that certain Eights appear in this place for the first time, the following will be the natural order in which the present part of the subject will be generally presented : — A. Injuries to Eights to (1) Personal Security ; (2) Free. Locomotion ; (3) Conditions of Health ; (4) Eepu- tation. B. Injuries to Eights of Ownership. C. Injuries to Eights under Contracts. D. Injuries to Eights appertaining to Special Classes of Persons. LAWS OF CIVIL INJURIES AND CRIMES. 2.89; The secondary and subordinate. Mode; of Distribution: will be determined in any particular System of Law by the most familiar and accidental forms of violating recog- nised Eights. The conception of a Eight is a very abstract one, and only gradually grows up among the people or even in the minds of Lawyers, out of a lopg series of concrete manifestations of particular mischievous Acts. It is historically true that Actions at Law are conceded by Courts of Justice for the Eemedy or for the Punishment of injurious Acts long before a scientific grasp is obtained, of the real nature and extent of the Eight invaded by those Acts. Hence, the specific Legal Eemedy obtainable is seldom quite co-extensive with the Eight practically enjoyed, though, as time goes on and changes in the Law are less dreaded, the Eemedy is constantly in the way of being made more comprehensive, immediate, and effica- cious. An illustration of this progress may be found in the gradual expansion of the ancient Action of Trespass in English Law to meet the Violation of a variety of Eights of Ownership and of Personal Security not originally com- prehended in it. The distinct steps in this progress are marked by the introduction of the Action on the " Case," — applicable to circumstances where the damage inflicted is only circuitous and indirect, — and of the more recently admitted option of Suing either " in Tort," or " in Con- tract," without naming the form of the Action. In Eoman Law a parallel line of advance is exhibited in the gradual substitution, for the " formulary" process, of that denoted by the extraordinarice actiones, whereby the Suitor was relieved from the burden of formulating his Facts in view of an anticipated Eemedy, and a single Magistrate was entitled to take cognisance of the whole matter from u 290 THE SCIENCE OF JURISPRUDENCE. first to last, in' respect to questions both of Law and of Fact. Keeping in view, then, the necessity, — for purposes of Classification, — of accepting, (at any particular epoch in the development of a Legal System,) as the sole available index to the Civil Injuries recognised, the Judicial Actions practically allowed, and adopting the convenient expres- sion " Secondary Eights," to denominate Eights arising out of the Breach of other, or " Primary," Eights, — the Law of Civil Injuries may be compendiously presented in the following summary form ; the English Law, as it is at the present day, being taken as a readily available type of all particular Systems of Law : — Primary Eights. I. — Eights to— 1. Personal Security. 2. Free Locomotion. 3. Conditions of Health. 4. Eeputation. II.-— Eights of Ownership. Secondary Eights. Eights of Action for — Assault, Battery, and Tres- pass to the Person; Death caused by Negli- gence (Action brought by survivingEelatives) ; Nui- sances or Injuries to Health and Comfort ; False Imprisonment ; Malicious Arrest and Pro- secution ; Slander and Libel. Eights of Action for — Trespass ; Malicious In- jury to Property (Lex Aquilia) ; Detinue ; Con- version or Trover; Nui- sance (by way of Obstruc- tion or otherwise); Waste*, LAWS OF CIVIL INJURIES AND CRIMES. 291 Piracy of Copyright ; In- fringement of Patent- right ; Slander of Title. III. — Eights under a Contract. Eights of Action for — Breach or Approximate Breach of Contract. IV. — Eights of Special Classes Eights of Action for Injuries to of Persons. Husband or Wife ; to Child or Ward ; to Servants or Apprentices. Eights of Action for Injurie6 committed hy — Trustees ; Executors ; Soli- citors ; Municipal and Ecclesiastical Authorities. There is one anomalous class of Civil Injuries, omitted from the above list, which in some respects are allied to Crimes, inasmuch as they imply absolute Duties without reference to corresponding Eights ; and yet, as a matter of Procedure, they are treated rather in accordance with the analogy supplied by ordinary Civil Injuries. This Class of Civil Injuries is that implied in the Eights of Action vested in certain Executive Functionaries for un- paid Customs or Taxes, or for Public Indemnities, Guarantees, Bail-bonds, and the like. It has been seen that a Civil Injury is always the Violation of a Eight, and is therefore naturally measured by the extent of the Eight, though, through historical accidents, the Eight itself may be practically larger than the Eemedy actually provided. In estimating, then, the quality and extent of a Civil Injury, the Limits of a Eight must be clearly ascertained. The Eight implies that some Act or Other has to be done or to be refrained from by TJ 2 292 THE SCIENCE OP JURISPRUDENCE. some Person or Persons other than the Person vested with the Eight. It is obvious from the nature of an Act (which always implies a willing Agent), that no Person is responsible for that which he has involuntarily done or omitted. The apparent Act or Omission is nothing more than an Event for which nobody is responsible ; though, by a special form of Contract, by way of Insurance, the sufferer may be absolutely indemnified against loss. Nevertheless, in Judicially applying the test of volun- tariness, Courts of Justice are in this matter obliged to resort to large and general Presumptions. These Pre- sumptions must be based upon the records of experience as deduced from a'wide observation of Human Nature. They will vary with the quality of the matter in respect Of which they are resorted to ; according as, for instance, the Person, whose conduct is the subject of enquiry, is accused of a grave Moral delinquency, (such as are most Crimes ;) of a Breach of Mercantile and Social Confidence ; or of a mere wayward Neglect of the general Mora. Claims of all Persons whatsoever. In casting the eye over the list of Civil Injuries above enumerated, it will be seen that very different Mental states must, from the nature of the case, go to constitute the essential element of Culpability. In some instances, — as in Trespass, in Nuisance, in Detinue, and in Breaches of Contract, — the bare Consciousness, which is just sufficient to indicate the presence of Will, is all that is needed to create Liability. In other cases, — as in Libel, in False Imprisonment, in Injuries to Children or to Apprentices, — Intention, (that is, a special attitude of the mind towards the immediate Consequences of the Act,) is often made an in- dispensable ingredient. This Intention may take all the LAWS OF CIVIL INJURIES AND CRIMES. 293 forms, positive and negative, of Cruelty, Negligence, Eeck- lessness, Heedlessness, and Fraud. Lastly, with respect to some of the Civil Injuries above denoted, — such as Malicious Arrest and Prosecution, Slander, and Malicious Injuries to Property, — an aggravated kind of Intention, implying either a vehement Desire or a peculiarly clear apprehension of a particular and probable Consequence, is often held essential to constitute the imputed Liability. From the extreme vagueness or rather indefmiteness and variability of many of the Primary Eights the Violation of which constitutes a Civil Injury, it happens that the function of the Judge in any given case is quite as arduous with respect to determining what is the precise Duty of the alleged Offender as with respect to investi- gating whether, in fact, he committed the alleged Offence. Instances are supplied by the case of Injuries to Eeputa- tion and to Personal Security. A notoriously bad man has not a legal Eight to be as respectfully described, in speech or in writing, as a good man has. A man doing an important Public Act or addressing a literary Treatise to his fellow-countrymen has no Eight entitling him to shut the mouths even of harsh and severe critics, even though their general Intention be unkindly but not accompanied by that vehement Desire or distinct Consciousness of doing evil which alone the Law denounces. For general Public rea- sons it may be that no man has a Eight entitling him to close the mouths of even the severest critics of his con- duct in the course of the Administration of Public Justice ; in that of the Deliberations of the Legis- lative Assembly ; or in certain other more private cir- cumstances, as in the course of tendering confidential advice with respect to trustworthiness, for important employments. 294 THE SCIENCE OE JURISPRUDENCE. This topic of so-called " Privilege " may be approached from two sides, according as it is looked upon as limiting the Eight of a Plaintiff, or as extending the Eight of a Defendant. It is more coherent -with the universal doc- trine, that everyone has certain Eights to Eeputation, to make "these Eights, — as has been done above,— the starting point, and to take into" consideration, in -each particular Class of Cases, what is the exact nature and comprehensiveness of the Eight. A parallel set of ques- tions is suggested in the case of many alleged Injuries to Personal Security. In all cases the exact measure of the Eight lias to be estimated in view of all the surrounding circumstances. Thus it may be that the Young, the Sick, the Aged, and those who are taking an ordinary amount of care to protect themselves have a Eight to a greater immunity from peril at the hands of others, — that is, in fact, to a larger amount of such Care and Diligence as may prevent the peril, — than those who, from whatever circumstances, are thoroughly competent, and who do not use all available means, to protect themselves. Again, assuming the Eights to Personal Security to be the same, the Duty as to the amount of Diligence and Care may be different in a country lane from what it is in a crowded thoroughfare. The former Class of Cases may involve questions of what is called " Contributory Negligence ; " the latter, the investigation into the requirements and into the actual presence of fine shades of Diligence and Care. Inasmuch as a Civil Injury is in all cases an Act or a conscious Abstinence from an Act, the ordinary Personal incapacities which restrict the faculty of Acting must, by converting Acts into Events, to a greater or less extent relieve certain Classes of Persons from Culpability. Such LAWS OF CIVIL INJURIES AND CRIMES. 295 Persons are Infants, Idiots, Lunatics, Drunkards, and Persons under special Duress. The order of CiviL Society is so deeply concerned in Civil Injuries being as in- frequent as possible that- even these Classes of Persons must be severally laid under the strictest amount of Eesponsibility which is compatible with Moral Justice. The exact amount of Eesponsibility must vary (1.) with the quality of the Duty, whether implying or not implying a considerable amount of worldly discretion, as in the case of many Contracts and of certain kinds of Fraud ; (2.) with the general nature of the Incompetence in question, being different in the case of a Child, of a young man nearly approaching the age of Manhood, of a Lunatic during a partially lucid interval, and of a Drunkard Who has consciously brought himself into a condition of In- capacity ; (3.) with the actual and special circumstances of the individual case. The rules applicable in these eases will be supplied partly by the general Law, partly by ordinary Legal Presumptions more or less capable of being rebutted, and partly by special conclusions' drawn by the Judge in the exercise of such discretionary power as may be vested in him. It is, perhaps, scarcely necessary to notice the ancient class of quasi-delicts which Mr. Austin and others have clearly shown either to have no resemblance to the opposed class of Civil Injuries denominated delicts, or else in no way to differ from them. .... A Paterfamiliqs was thus held liable, as on a quasi-delict, /for a damage sustained through Things being thrown out of a window of his house by somebody else. So the Innkeeper Or the Ship-owner was liable for Thefts committed in an inn or on board a ship by a Servant or Sailor. These cases 296 ' THE SCIENCE OP JURISPRUDENCE are simple cases of Civil Injuries, the culpability being due to a general want of Diligence in taking due pre- ■ cautions, — as by providing fit Servants, — to prevent the mischief. Another case of quasi-delict, — that of a Judge giving a Judgment contrary to Law, from Corruption or from Ignorance, — has this peculiarity, indeed, that he neglects a Public Duty and in consequence is liable to a Private Action. The same principle is recognised in English Law, and is certainly anomalous even though it be beneficial. The Modes of obtaining Compensation for Civil Injuries belong partly to this place and partly to that of Laws of Procedure. They belong to this place so far as the Method of estimating the Compensation and the Porm of that Compensation is concerned. They belong to the other, so far as the actual Mode of setting the necessary machinery to work, in order to secure that the Compensation be made, is concerned. The object of the Compensation is the complete Eestora- tion of the Person Injured to the favourable position he would have occupied but for the Injury, together with such additional satisfaction as may be needed, both amply to make up for the inconvenience and pain he may have been subjected to and indirectly to operate as a check on the recurrence of such interruptions to Public Order. The last-mentioned purpose was especially aimed at in many celebrated Eoman Laws for the prevention of Civil Injuries, but is generally discountenanced in Modern Law, as confusing the realms of Civil and of Criminal Juris- diction. The actual Form the Compensation takes must generally be Money, as being the only universal, — though, of course, LAWS OF CIVIL INJURIES AND CRIMES. -297 often an absurdly disproportionate, or irrelevant, — measure -of loss. In some cases, — as in that of the Breach of certain - Contracts, — the measure of the loss admits of being calcu- lated with considerable precision, the circumstances and prospects of the Parties, the state and fluctuations of Trade between the Time of making the Contract and that at which it ought to have been fulfilled, being taken into account. In some few cases, indeed, the loss admits of Compensation in kind by the return of a Thing detained, or by a public Apology for a Slander or Libel. The Eoman noxalis actio, by which a Theft or Outrage, committed by a Son or by a Slave, might be compensated for on the part of the Father or the Master by surrendering the Delinquent to the injured Person, affords an instance of a Mode of Compensation at once erratic and unparallelled. Laws - relating to Crimes. Like Laws relating to Civil Injuries, Laws relating to Crimes are concerned- directly with Duties rather than .with Eights. Indeed the notion of Private Eights, though presupposed in the vast majority of Crimes, is subor- dinated entirely to considerations of Public Order, of Economy, or of Security. It has already been seen, under the last head, what is the strict nature of a Legal Crime. The essence of it has been described to be that the State, endeavouring to operate on the fears of Mankind, organises a Method of absolutely repressing or of absolutely commanding certain classes of Acts. In order to make such a device successful, many conditions must be com- bined. There must be devised and adjusted a wise •Scheme of Punishments. There, must be an effective 298 THE SCIENCE OF JURISPRUDENCE. Police, and a well-regulated Keformatory System. There must be, lastly, a skilful Classification of Crimes, and well- constructed and ably administered Judicial Institutions. "Some of these requisites depend upon nothing, else . than the genius and activity of the Executive Authority. Others depend on Laws of Procedure, which form the subject of the following chapter. The only requisites that belong to this place are those implied in the Classi- fication of Crimes and in a Scheme of Punishments. In order to attain to such a Classification of Crimes, with the Punishments appertaining to them, as may carry out the object in view, the Essential ingredients of a Crime must be first more precisely investigated. A Criminal Act, like any other Act, has two aspects, a Mental and a Physical one. Also, like other Acts, it has Consequences, some of them Direct or immediate, and others of them Indirect and subsequent. The distinctive Criminal character of an Act, or that element which bears culpability in its very bosom, is the attitude of the Agent's mind, at the time of doing the Act, towards its immediate Consequences, — in other words his Intention. This Intention may take a variety of forms, some Posi- tive, some Negative. It may be nothing more than the barest Consciousness. It may be (negatively) the Absence of a Thought which ought to have been there. It may be the Knowledge of Evil, with or without the Desire of it. It may be the intensest Desire of Evil, either for its own sake, or as an intermediate means to some ulterior end. But there are other more prominent and more easily decipherable elements of a Crime than Intention. There is the Act, including the joint elements of Will and Muscular LAWS OF CIVIL INJURIES AND CRIMES. 299 Motion. To constitute Criminality, the Will must be present and normally ' active, and the proper Muscular Motions must obsequiously comply with its dictates. If, either through disease or through external impediment, either the Will or the proper Muscular Motions are impaired in their harmonious activity, there is no true Act and there' can be no Crime. These considerations introduce the following Systematic View of a Scheme of Criminal taw. A. General Description of a Crime. B. Essential constituent Elements of a Crime. I. The Act (including Will and Muscular Motion). II. The Intention, under forms of 1. Negligence; 2. Knowledge of Consequences ; 3. Desire of Consequences. III. Grounds of Exculpation, (general or special). As to I. (Act.) Disease ; Chance ; Physical Eestraint or Constraint. As to II. (Intention.) Ignorance, Infancy, Insanity, Drunkenness ; Strong Moral Pressure or Physical Alarm ; that the Act was done in pursuance of Legal Duty [Arrest of Criminal, Execution of a Sentence] ; that the Act was done in pursuance of Legal Eight [Self-defence or Defence of Family]. Special Personal Exemptions, as in case of King, Ambassadors, Foreigners. IV. Distinction between Consummate Crimes and Crimes consisting in Attempts to commit Crimes ; [Where the Crime admits of being analysed into a continuous series or a complex assemblage of distinct Acts, the Performance 300 THE SCIENCE OF JURISPRUDENCE. of any one of them, accompanied by an Intention to perform the whole of them, is an Attempt] V. Principles and Accessories, (Indian Penal Code, Ch. 5. " Of Abetment.") VI. Classification of Crimes. 1. Acts Directly menacing the Constitution and Administration of the State, as : (1.) Acts Directly Injurious to the Supreme Political Authority as a Corporate Whole, or to one or another of the Persons 1 constituting it, in his or their character as constituting it ; [Treason, Constructive Treason and Misprision of Treason.] (2.) Acts Directly Injurious to the Head or to the Subordinate Officers of the Executive ; [Treason and Contempt of the Lawful Authority of Public Servants.] (3.) Acts Indirectly Injurious to the whole Community, though possibly not Directly Injurious to some Persons more than to others ; [Perjury and Offences against Public Justice, Blasphemy, Indecent Libels, Coining, and Suicide.] (4.) Acts Indirectly Injurious to the whole Community, though Directly Injurious to some Persons more than to others ; [Public Nuisances, Adulteration of Drugs and of Food, Frauds by False Weights and Measures.] 2. Acts Directly Violating the Eights of Private Persons, as : (1.) Acts Violating general Eights of all Persons in respect of Personal Security, of the necessary Conditions of Health, of LAWS OF "CIVIL INJUEIES AND CRIMES. 301 Freedom of Locomotion, arid of Eeputation ; [Murder, Manslaughter, Kidnapping, Eape, Injuries to Unborn Children, Assaults, Nuisance, Malicious Libels.] (2.) Acts Violating Eights of Ownership ; [Burglary, Jobbery, Theft, Extortion, Forgery, Fraudu- , lent Bankruptcy, and Offences relating to Trade or Property -marks.] .3. Acts Violating Eights of Special Classes of Persons, as : (1.) Offences relating to Marriage ; [Bigamy, Incest, certain forms of Adultery, Fraudulent Evasion of Marriage Laws.] (2.) Offences committed by or against Trustees, Executors, Guardians, and Solicitors ; [Suppression or Mutilation of Wills or other Documents.] VII. Enumeration and Classification of Punishments. 1. Enumeration of possible Punishments, refe- rence having been made to them severally by anticipation, in the description of each class of Crimes, under head III. 2. Eules for the Application of Punishment, with respect to Quantity of Punishment or ■ to Accumulation of two or more kinds of Punishment, according to the special cir- cumstances, — as for instance a Eepeated Con- viction for the same Offence, — or in the case of Concurrent Crimes. 3. Grounds of Extinction of Liability to Punish- ment, as by Previous Acquittal, by Limitation of Time, or by Public Pardon. The Classification of Crimes is likely to proceed, in all 302 THE SCIENCE OF JURISPRUDENCE. countries in which Systematic Codification has not been yet attempted, after a more arbitrary and capricious fashion than that of any other part of the law. An instance near at hand is supplied by the notorious English distinction between "Felonies" and " Misdemeanors," which has played such a curious part in the Judicial, and even in the Political History of this country. The pro- minence of this celebrated distinction at once affords a signal proof of the immature conceptions, at a certain stage of Society, of the limits marking the appropriate regions of Law and of Morality, and is a standing tribute to the value of the Science of Jurisprudence in clearing up this dangerous confusion. In modern English Legis- lation any affected demarcation of Crimes by the sort of Moral or Social Significance anciently implied in a Felony as contrasted with a Misdemeanor is practically abandoned, though a memory of the distinction is pre- served in certain Judicial Forms. The tendency of all modern Legislation is to arrange Crimes on no more logical or abstruse principle than that based upon either the gravity of the Punishment with which they are visited, or the dignity and constitution of the Courts of Justice in which they are investigated. It is likely that these two grounds of arrangement will generally concur, the lighter classes of Offences being brought before Courts more simply constructed, and possessed of a more facile and elastic action, the more ponderous Cases being reserved for Courts furnished with a higher order of skill, of erudition, and of capacity for leisurely search. The French division of Penal Offences into Contraventions, Delits, and Crimes, though professedly founded on differences in the Penalties, in Practice coincides with the LAWS OF CIVIL INJURIES AND CRIMES. 303 principle of distinguishing Crimes by the Courts in which they are severally adjudicated upon. It is to be noticed that there is a tendency in England at the present day to multiply indefinitely the: classes; of Crimes which at once entail the lowest order of Punishment and require for their investigation the lowest rank of Judicial Tribunals'. A reckless multiplication of Crimes of this class, while it affords a constant temptation to a, Legislature importuned on every side by every species of Fanatics and of Political and Scientific Empirics, is probably one of the most disastrous forms in which Public Liberty is silently undermined. The immediate ends in view are. often plausible enough ; the immediate Offenders con- templated by the Law may command little or no Moral Sympathy ; the Police charged with executing the Law may, in average cases, be fairly honest and fairly discreet ; the Tribunal having cognisance of the Crime may be generally conscientious and occasionally competent. But it is never to be forgotten that loss of Political Liberty is not' to be estimated by the Quantity of the loss nor by the Quality of the immediate Sufferers. It is an evil hour for any State when, in order to compass present ends how- ever attractive, it parts, even for a day, with_ those Securities of Public Liberty which are implied in limiting to the utmost the list of Crimes and in. ensuring to all Offenders, however miserable their circumstances or however minute their 1 Crimes, an order of Tribunals unimpeachable alike for integrity, for laboriousness, and for Judicial accomplishments. The institution of such Courts, publicly exhibiting the amplest guarantees for the protection of the Liberty of the humblest, the weakest; and the vilest, is in no way incompatible with their pos- 304- THE SCIENCE OF JUKISPKUDENCE. sessing a ready and inartificial Procedure such as may- befit the investigation of frequently recurring Offences, neither subtly defined, nor, in themselves, of wide-reaching importance to the well-being of the Community. The question of Intention (falling under head II. of division B. in the above Classification), and that of certain grounds of Exculpation having relation, to it, (as Infancy and Insanity,) assumes an. importance in Criminal Cases, — both in view of the terrible issues frequently at stake for the Life and Liberty of Private Persons, and of the inherent difficulty of the investigation into complex states of mind as exhibited under the strangest conditions of Human Life, — which can scarcely be said to belong to it in any other part of the Law. The occasional difficulty of determining the past atti- tude of mind of an Accused Person in respect of the- immediate consequence of the Act or alleged Crime, the investigation of which is being proceeded with, is so great as to drive the Legislator, or else the Judge, to the use of special Presumptions, which either may or may not be capable of being rebutted. Such Presumptions are, for instance, that every Person " intends " the natural or ordinary consequences of his own Acts ; that every Person who causes the Death of another desired the Death of that other Person, either as an end in itself or as a means to some other end ; that Children below a certain fixed Age (seven years, in English Law) are incapable of forming any Intention whatever for the purposes of Criminal Law ; that Children below another, and a higher, fixed Age are, indeed, capable of forming such an Intention, but that, in default of distinct Evidence to the contrary, they do not in fact form one. The part that the vague term LAWS OP CIVIL INJURIES AND CRIMES. S05 Malice has played, and still plays, in the Administration of English Criminal Law is known to all students of that Law. Here, again, it is due at once to the difficulty and to the necessity of arriving at a decision as to the complex state of mind of an Accused Person that this word has been tortured into all the Protean phases represented by Actual Malice, Legal Malice, Implied Malice, Malice in Fact and in Law, and Malice Aforethought. This 'vacillation and hankering after a joint Legal and Moral Term is a curious illustration of the Ethical element which must enter even into the strictest Judicial enquiry. In the use of the word Malice, in all cases, there is un- doubtedly always a lurking reference to some sort of Moral Depravity, though perhaps only of a temporary sort. But the intangible nature of such an element compels the Legislator and the Judge to select certain determinate Sign's as essential characteristics of this depravity. Such Signs are the definite and familiar states of mind de- scribed as " Knowledge " and " Desire." Either of these states may be (1.) implied from surrounding circum- stances ; or (2.) presumed for purposes, of Judicial con- venience in default of satisfactory Evidence to.the contrary ; or (3.) presumed peremptorily, in the absence of certain definite and limited kinds of Evidence to the contrary. The ordinary Law of Murder in modern States, pid es- pecially in England, in India, and in the. United States, affords a sufficient illustration of the last-mentioned variety of Presumed Malice. The mere Act of Killing a Person carries with it a Presumption of Malice which can only be rebutted in a few distinctly determined ways, such as those implied in the grounds of Exculpation afforded by Self-defence, by grave and sudden Provocation, or by x 306 THE SCIENCE OF JURISPRUDENCE, . " exceeding Legal powers" in the course of discharging a Duty as a Public Servant. That the elements of Desire or of Knowledge are only matters of inquisition as de- noting what may be called Moral Mischievousness is inti- mated in the universal practice of holding Persons to be guilty of Murder, though the Person actually killed be not the Person against whom the Intention was directed. A curious illustration of the same point may be found in the old English Eule of the strictly Murderous character of a Death incidentally caused in the course of committing even the most trivial Felony, and, still more, in the more rational Eule of attaching the same character to the Death of a -Policeman violently, though accidentally, brought about in a fray arising out of the Execution of his Duty. Closely connected with the topic of Malice, as an element in Culpability, is that of Insanity, in the largest sense of the term, as a ground of Exculpation. This topic, which in many Criminal cases excites an interest oftentimes of the most strained and afflicting sort, is one surrounded with peculiar difficulties of its own, due to the complexity and variety of the Pacts which it brings into consideration. These Facts are partly Physical, or be- longing to that indistinctly marked region which lies between Physical and Psychological Science; partly Ethical, or dependent on a given Person's apprehensions of Eight and Wrong under abnormal and exceptional con- ditions ; partly Legal or Political, or dependent upon the amount of Legal Eesponsibility attributable to varying degrees of Mental Health, in view of the protection claimed by individual Persons, and of a due regard to the general safety of the whole Community. It is probably rather in the first of these, regions^— that LAWS OF CIVIL, INJURIES AND CRIMES. 307 is, the Physical, of Psy ecological. one,— that , the main practical. difficulty is experienced, It is generally ad- mitted in all Systems of La"w that sufficient and satisfactory grounds for Exculpation are "found in an actual Mental Incapacity, whether fixed or transient, of knowing at the moment of doing an Act, that it is forbidden by Law, or at any rate that it is Morally Keprehensible according to some Moral 'notions in the Agent's own mind; or in a Physical Incapacity to abstain from doing the Act. The difficulty is presented at the moment at ;.. which it is attempted to establish the fact of either of these sorts of Incapacity, and it is greatly exaggerated in cases where a Legal System, instead of exculpating all Insane Persons as a Class, affects to attach different degrees of Punishment to different measures of presumed Moral Kesponsibility. The ordinary Modes in which Evidence is .produced as to the state of mind. of an Accused Person, in the above respects, at the time of doing an Act, are by testifying to his general antecedents, Mental and Moral, possibly reaching many years back, from which an inference is suggested as to the probabilities of the case under consideration ; or by drawing attention to the surrounding facts at the time and place of the Act, from .which a like inference is sug- gested, without resorting for help to any circumstances in the Past; or, lastly, by tendering the recorded result's of a strange and anomalous experience as to special mani- festations" of Mental ^Derangement, accompanied by Acts resembling that- under consideration. The records of Criminal Trials are full Of an almost endless diversity of conditions of Mental Aberration, and, indeed, of an equal diversity of Medical and Moral Theories to. account for them. The confusion thus arising 12 308 THE SCIENCE OF JURISPRUDENCE. is aggravated by the necessarily unscientific education of the popular Tribunals which, in modern times, are wisely entrusted with the Jurisdiction in Criminal Cases. It re- quires no ordinary training in special Medical Science to appreciate the true bearing of the Evidence of an accom- plished Expert, or even to be cognisant of the amount of authority properly attributable to his opinions. This is all the more so as Ignorance often enough seeks to hide itself in emphasis, and true Knowledge, through the amount of accumulated material and the absence of rash generalisa- tions, perplexes and wearies the attention. It is also matter of common experience that so-called " Specialists," or Persons who have given a disproportionate amount of attention to a special branch of a subject, are either less likely than others to arrive at a wholly truthful con- clusion in a complex case, or are, at least, likely to produce an impression upon an unskilled Tribunal of having an authority which does not belong to them. The question of the value of Medical Evidence in Cases of Lunacy, is connected with the larger ques- tion of the general treatment of the Evidence of Ex- perts. It has been advocated in some quarters that Government should in all cases undertake the task of supplying a competent staff of accomplished Tech- nical Witnesses, — especially in cases involving Medical enquiries, — and that the decision of these Officials should in all cases be final. A practical difficulty is here en- countered on the ground that, in the most perplexing instances both of Injuries to the person (as of Infanticide and Poisoning) and of Insanity, a large mass of Evidence which can never be excluded must, from the necessity of the case, have been provided long before a. Criminal in- ' LAWS OF CIVIL INJURIES AND "CRIMES. 30 & vestigation is thought of. It may be, indeed, that a highly- trained body of Medical Jurists, properly authorised by Government, or organised on some system which shall pre- vent them from becoming a narrow and exclusive clique, might advantageously be called in to assist the Tribunal in the course of the Trial, or even might render valuable ser- vice as Assessors to a Court of Appeal. But in no case could any Evidence supplied by ordinary Medical Attendants, by Hospital Surgeons or even by accidental Medical Visitors, be properly excluded from consideration. The only hope of arriving at a theory of Insanity which shall supply a- series of serviceable Presumptions to the Judge lies in the mature perfection at once of Physical and of Ethical Science, The topic of Punishments has been placed in the last head of the above classified arrangement of all the topics forming the materials of a Criminal Code. For purposes of Judicial and of Popular convenience, it will probably be necessary to distribute this topic over the whole Code in such a way as to assign to every Crime, when and where completely described, its appropriate Punishment or range of Punishments. Nevertheless, there will remain a quan- tity of general matter, respecting the strictly Juridical aspects of Punishments,which will most properly be treated in a department by itself. It is perhaps needless to notice that the theory of Punishment, looked at as a whole, belongs as much to Ethics and to Politics as it does to Jurisprudence.. Indeed, it only belongs to the last-men- tioned Science to the extent that it qualifies the formal Construction and Administration of Law. For instance, it has already been noted that, in some countries, Crimea .themselves have been classified . solely with reference to 310 THE SCIENCE OF JUKISPfiUDENCE. the kind and measure of Punishment apportioned to them . In all Legal Systems, again, a marked distinction is drawn between a mere Compensation to a Sufferer and a Penalty inflicted for the general Political purpose of effectually discouraging a special Class of Offences. So, again, the Punishment attached to a Crime may be fixed imperatively and definitely by the Legislator, no discretionary power of modifying it being left to the Judge ; .or, again, it maybe fixed within definite Limits by the Legislator, or alternative Punishments may be propounded by him, and no more dis- cretionary power may be left to the Judge than is needed to enable him to choose within those Limits or between those alternatives. It is obvious that the selection of one or other of these courses by the Legislator not only quali- fies the Formal Structure of Criminal Law but affects the mechanism of its Administration. To this extent, then, the topic of Punishments strictly belongs to the Science of Jurisprudence. The relative Political value of the several courses above suggested belongs, as already said, to other closely-related Sciences. Apart, however, from a consideration of the amount of Discretionary Power, if any, left to the Judge in the application of Punishment, there are certain generally- recognised Modifications in Punishments with which the Jurist is intimately concerned. It may be, for instance, that Owing to the very restricted number of kinds of Punishment, which, in a modern State, are possible, there may be a great chasm between the Punishments applied to two sorts of Crime closely resembling each other, and there may be no chasm at all between the Punishments for Crimes of the greatest variety of Moral complexion. This, no do'ubt, is to some degree unavoidable, LAVS OF CIVIL INJURIES AND CRIMES. 311 inasmuch as the purpose of Punishment is now generally recognised to be, not an effective and dramatic retaliation, but such a rough mode of securing obedience to Law as is compatible with a regard to the claims of Humanity, and even, to the utmost extent possible, to the permanent welfare of the Criminal. In spite of the inevitableness of these incongruities, their operation on the Administration of Law must not be allowed to escape notice. In England there are many Crimes, which are punished with some of the severest Punishments known to the Law, an Attempt to commit which is visited only with a Penalty comparatively light. The consequence is that there is a prevalent tendency in. a popular Tribunal to fall back, in case of conflicting Evidence, on the lazy expedient v of finding the Prisoner guilty of an Attempt to commit a Crime, where all the Evidence, — if it is good for anything, — goes to prove that the complete Crime was committed. , The question now under consideration,— namely that of the necessary disproportion between gradations of Crime and gradations of Punishment, — is brought to the most perplexing issue in the case of the Punishment of Death. This Punishment has the following characteristics as distinguished from all others. : It admits, in itself, of no gradation ; it is irrevocable ; and it is more different in kind from all other Punishments than they are from each t)ther. In the use and application of this Punish- ment, two opposite instincts or sentiments have, especially in Modern Society, competed with each other. On the one hand'it has been demanded that inasmuch as Murder, the offence to which the Punishment of Death 'is now almost universally restricted,— differs from every other .312 , THE SCIENCE OF JURISPRUDENCE. Crime, in qualityif not in atrocity, so its Punishment should be equally sui generis, and should differ from every other Punishment in its Quality and in its Exemplary character as well as in its Amount. No doubt other more indistinct feelings, and even Eeligious associations, go far to reinforce these sentiments ; while the same Political considerations in reference to the Punishment of Death, as being presumably the only available means of rendering infrequent the most disastrous of all Crimes, are present as in appreciating the general utility of any other form of Punishment. An opposite class of sentiments takes note, first, of the infinite number of variations in Moral Culpability necessarily included in any Legal description of such a complex offence as Murder ; secondly, of the impropriety, on the one hand, of always affixing the severest Punishment to every variety of Offence falling under the general Legal Class ; or, on the other hand, of leaving a Judge — or, still worse, a Popular Tribunal — to determine when this Punishment shall fall, and when not. Other considerations, — based on Humanitarian views, more or less enlightened ; on the actual or presumed reluctance of Tribunals to convict Prisoners of an Offence followed by a Punish- ment so signal and irrevocable ; on the ascertained varia- bility of the Punishment according to the Mental and Physical circumstances of the Culprit ; as well as on more broad and general Political considerations as to the inex- pediency of all violent and excessive Punishments, — add their force to the purely Juridical arguments, and probably, for the generality of Persons whose thoughts tend in favour of this latter view, are a substitute for them. It will have been noticed that, in thus arraying the arguments for and against the Punishment of Death, only those considerations LAWS OP CIVIL ' INJURIES AND CEIMES. 313 have been brought into relief which are based on distinctly •Juridical grounds. The topic is, of course, capable of being viewed, and in fact is generally and properly viewed, rather on its numerous Ethical and Political sides than in its narrower aspect as an instrument- for giving the greatest possible efficiency to certain Classes of Laws. On those other sides the question as to the general expediency of re- taining the Punishment of Death may have to be resolved differently in different countries and at different epochs. An interesting and often a perplexing problem, both in the estimation of Criminal Culpability and in the Adjudication of Punishment, is presented in the case of resorting to Evidence of what is called Character. This class of Evidence may be resorted to for the purpose of suggesting an inference of improbability either as to the alleged commission of an Act or as to the alleged Intention with which it was committed. Or, again, recourse may be had to such Evidence solely for the purpose of estimating the probability of the offender repeating the Act, — a possible contingency which is properly taken into account in measuring the amount of Punishment, assuming that Discretionary Power for such a purpose is left in the hands of the Judge. In view of the close association between the Moral and Logical faculties, especially in untrained Persons, great care is often exercised to prevent the unfavourable ante- cedents of a Prisoner, — such as his previous Conviction for the same or for a different offence, — coming to the knowledge of the Popular Tribunal which is charged with the duty of investigating the Facts of a particular Case. The justification of this practice must be found in the fact that Evidence of general Character, unless it be given by 314 THE SCIENCE OF JURISPRUDENCE. Persons peculiarly competent, from their special situation, to form an opinion (as in the case of Employers,- Fellow- Labourers,. Fellow-Clerks, Superior Officers, Trade- Associates, and Ministers of Beligion), is generally of the most loose and flimsy description, being based, on the most unchallenged Hearsay, and often dictated by nothing else than a weakly Humanitarian sympathy. Evidence, on the other hand, of previous Convictions weighs down the probabilities of present guilt with almost too crushing a force, even if those Convictions were just, and if they were accidentally unjust the Prisoner's prospects can hardly fail to be seriously compromised. Nevertheless there is a certain artificial insincerity in excluding the sort of grounds for forming an opinion which are most familiarly relied upon in the ordinary intercourse of life ; the more so when that exclusion reaches to the most solemnly authenticated Judicial Facts. The histrionic insincerity is all the more glaring when, as in England, one portion of the Tribunal, — that is. the presiding Judge, — is, all through the Trial, in possession of Facts of the most damaging nature, from any use or knowledge of which the other part of the Tribunal is carefully shut out. The practical solution is to be found,— as in all cases where an over-anxiety to provide fallacious securities has led to the exclusion of Evidence,— in welcoming and freely handling all Evidence fairly pertinent to the Case (the question of pertinency being left, as elsewhere, to the general discretion of the Prose- cutor and of the Accused), due precautions being taken by the presiding Judge to inform the Jury of the special infirmities attaching to the sort of Evidence now under LAWS OF CIVIL INJURIES AND CRIMES. 315 consideration, and of the consequent deductions to be made from its apparent value. In the case Of referring to Evidence of Character for the purpose of apportioning Punishment, the Judge is necessarily less hampered in the choice of his Witnesses and in the class of Personal Antecedents with respect to which he may require Evidence to be produced. There are some Technical Offences as to which this sort of Evidence, bearing as it does on the probability of the recurrence of the Crime, may be of the utmost im- portance. For instance where three Persons are equally found Guilty of maliciously setting fire to stacks or houses, it may be established before the Judge, on his proceeding to pass Sentence, that one of the Prisoners is a young man of generally unblemished Character, who, on the solitary occasion in question, was, after a convivial meeting, engaged with others in a riotous brawl, his comrades and Accomplices in guilt having escaped the hands of Justice ; another of the three convicted Prisoners is, as frequently happens in this class of Crimes, a mere reckless, idle vagabond, who has done the Act from a sort of silliness approaching to Imbecility, or, as is sometimes said, "just to get up a blaze;" the third convicted Prisoner is a Farmer whose general Character is bad, who has been dismissed from his Tenancy, and who is known to have vowed vengeance against the new Tenant whose stacks he is proved to have destroyed. It is obvious that, in each of these cases, Evidence of general or of special Character is of the greatest moment, both in order to estimate how far the Offender is incorrigible, and how far there is a probability of a repetition of 316 THE SCIENCE OF JURISPRUDENCE . the same specific Offence. The Crime of Manslaughter, again, which presents every variety of shade of Moral qualities, demands, in nearly every case, for appor- tioning the Punishment due to it, a most anxious introspection of the Mental and Moral antecedents of the convicted Prisoner. It is needless to add that all Offences in which the Moral element is essentially predominant, as in those against Eeputation and in defiance of Sexual Kelationships, eminently need, on the conviction of an Offender, a scrutiny into Motives, Dispositions, and modes of Life, without which the Punishment may chance to be wholly ineffective or intolerably and unnecessarily severe. 317 CHAPTEE XIV. LAWS OF PROCEDUKE. It is well known that, in one sense, Laws of Procedure, of a very elementary sort, are the earliest of all Laws. In fact it seems indisputable that the first form in which Law, as a body of inflexible Bules proceeding from a com- petent Authority, obtains a practical ascendancy over the minds of a Primitive People, is in that of the actual applica- tion of such Kules to real controversies between one man and another. No doubt Professor Maine's use of the Homeric representation of the Arbitrator determining a disputed Case by reference, now to a rough-and- ready standard of Moral justice, and now to Traditional Maxims known to and cherished by the bystanders, is justified by the actual phenomena of all early Societies. Even at a much later stage it is in the actual scenes presented by the conduct of a Court of Justice that the Citizen finds most vividly mirrored the stern realities and meaning of Law. It is on this account that changes in Procedure are the most difficult of all changes in Law to bring about. Inveterate usage, and all the potent in- fluences of sight, hearing, and touch, render the average citizen exquisitely sensitive to the minutest modification of the accustomed solemn order ; and it is only by quicken-; 318 THE SCIENCE OF JURISPRUDENCE. ing effete forms with a new meaning, without invading the forms themselves, — a result which is accomplished by the device of Legal Fiction, — that, at some ages of Legal Development, necessary Eeforms can be introduced at all. A Right always means the kind of control exercised by one man over another which is delegated by the State itself to the Person vested with the Eight. Thus the control implied in the Eight is indirectly exercised by the State ; and the only meaning of a Eight is that the State has both the will and the power to make it real and effectual. At the primitive period just alluded to, this fact would be unmistakeably clear, inasmuch as a Eight would only be known to be such because the chosen Officers of the State declared it to have been Violated, and then and there reprimanded, punished, or exacted compensation from, the Violators of it. The purpose of Laws of Procedure is to give reality and efficiency to Eights, and to secure the performance of Duties. In order to carry out this purpose, a Hierarchy of Official Persons has to be constantly employed; a number of Persons, chosen from time to time by various methods out of the general body of Citizens, have to be invited or compelled to co-operate ; " Courts of Justice," or formal Assemblies of Suitors, Juclges,Witnesses, and Officers, convoked at fixed Times and Places, have to be instituted ; inflexible Eules for the statement of grievances and of the reply, for the conduct of argument and for the production of Evidence, have to be devised and observed ; provision for correcting the accidents, the irregularities, and the mistakes likely to occur in every lengthened and complex transaction, has to be made, as by New Trials, Delays, LAWS OP . PROCEDURE. . 819 and Appeals; and, lastly, machinery has to be provided for actually Punishing a proved Offender, for making him actually Compensate the. Person he is proved to have injured, or for forcibly Confiscating the Things the Offender owns, if he be unwilling otherwise to make the satisfaction which the Judicial Sentence commands. Thus the general matters with which Laws of Procedure have to deal may be distributed under the following heads : — A. — The establishment of Courts of Justice, Inferior, Superior, Civil, Criminal, Commercial, Original and of Appeal, and for Local matters. B.-r-The Formal Mode of Investigation- of alleged Breaches of Law : by 1. Preliminary Process for the purpose of ascertaining the real matters in controversy. 2. Trial of Issue of Fact (Evidence.) 3. Trial of Issue of Law. C. — Sentence, Assignment of Punishment, or of Measure and Mode of Compensation, and Execution of Sentence. D. — Extraordinary Kemedies, as by Interdict, Injunction, Mandamus, special Process of " Commercial Tribunals," Bankruptcy, Distress. E. — Limitation of Actions. E.-T-Parties to Actions, A, The Establishment op Courts op Justice. A Court of Justice is a concrete Assemblage of Persons and Things organised and regulated by the State for the purpose of formally investigating the Truth as to alleged 320 THE SCIENCE OF JURISPRUDENCE. Breaches of Law. The actual Courts of Justice,, existing at any moment, usually owe their origin, in a large measure, to Political accidents or to mere Social vicissitudes. An unconscious sense of expediency, and even an audacious spirit of innovation, will no doubt have introduced im- portant changes in the Traditional System ; but the general traces of the Past will linger here longer than elsewhere, the result often being a multitude of Courts existing side by side, with more or less parallel functions and with equal dignity. The phenomenon of two sets of Courts continuing side by side with each other for generations, — interfering with and controlling each other's free movements ; recognising different Legal Principles, even to the extent of one set of Courts supporting Eights wholly ignored by the other, and yet being all the while equal in dignity and authority, — has been witnessed in one country alone, that is, in England. It is not true that the Prastor.'s Jurisdiction at Eome pre- sents an exact parallel to the incongruous anomaly exhibited fox so many centuries by the antipathetic attitude of English Law and Equity. There was at Eome one Judge, one Court, one Trial, however multiform the Principles, the Eights, and the Eemedies recognised as available through the Prtetorian Jurisdiction. Nevertheless, as has been said, the air and habits of Antiquity cling to the institution of Courts of Justice, as it were, with peculiar fondness. For this reason] the nature of the Courts existing at any particular time in any country can hardly be explained or even described without constant reference to the facts of their Historical evolution. Tor the purposes of general Jurisprudence, the bare ground-plan laid down as common to all Systems. LAWS OF PBOCEDUBE. 321 of Law must here be more than usually skeleton-like and lifeless. Bearing in mind these considerations, the following is the Judicial substratum which gives rise to the leading differences distinguishing Courts of Justice from one another. Courts of Justice differ according as their purpose is : — 1. To investigate Breaches of the Law of less or greater importance or magnitude (Superior and Inferior Courts, Courts of Petty Sessions, County Courts, Courts of Quarter Sessions). 2. To investigate those Breaches of Law which are termed Civil Injuries, or those which are termed Crimes. 3. To conduct an Investigation into an alleged Breach of Law as a whole, that is, to pursue it from its com- mencement to its close ; or to conduct it partially, leaving another Court or other Courts to do the rest (Cours de premiere instance, Courts of Petty Sessions). 4. To conduct a Primary Investigation into an alleged Breach of Law, or to conduct a Secondary one by way of reviewing, on Appeal, the Decision of another Court of Justice which has already conducted such Primary Investigation. 5. To conduct Investigations into Breaches of Law having reference to peculiar Classes of Facts, or into matters bringing into consideration peculiar and recondite branches of Law. This last named principle gives rise to such distinctions as those between Courts of Common Law, Courts of Probate and Divorce, Courts of Admiralty, Ecclesiastical Courts, and the like. It may be noticed that the Court of Probate, like those of Chancery, of the Exchequer, and of Queen's Bench (to some small extent), affords Y 322 THE SCIENCE OF JUEISPBUDENCE. an instance of the purely Executive authority attached for some purposes to the Judge or Judges presiding in a Court of Justice. The jurisdiction of the Judge of a Court of Probate with respect to granting Probate in a doubtful case, like that of the English Chancellor in matters of Lunacy, and in making or approving Schemes for the reconstruction of Endowments under the Charitable Trusts Act of 1853, is of a purely Executive character. It is not an alleged Breach of the Law which is in ques- tion, and the Judge only represents the Executive Autho- rity of the State. The constitution of a Court of Justice implies not only the appointment of a Judge or body of Judges but also regulations as to the days and hours and places at which they shall sit. It furthermore implies the appointment of a number of subordinate Officials for the purpose of summoning Witnesses, registering Proceedings, keeping order in Court, and generally co-operating with the Judge or Judges in the details of their work. Again, a body of smaller regulations is needed as to the proper Mode of conducting Proceedings in Court, some of which regu- lations may be made directly by the Supreme Political Authority, while some are made directly by the Judges themselves subject to the control of that Authority, and others are merely time-honoured Eules which by long Judicial recognition have acquired the character of true Laws. In many of the Investigations conducted by Courts of Justice, it occurs that the Facts cannot be ascertained without an enquiry into a long and often complex train of Accounts, presenting no difficulty on the ground of conflicting Evidence and no Legal problem of any sort ; LAWS OF PROCEDURE. 323 or into a number of disputed statements by two Parties, in which each seems desirous of stating and knowing the truth, but through a number of circumstances they have been led to different conclusions as to their Eights in respect to each other. In the first class of Cases it is often expedient to provide, for the use of a Court of Justice likely to have such matters brought before it, some supplementary machinery in the form of a staff of special Officials whose sole function it shall be to investi- gate cases of Account ; and it may be made to rest in the discretion of the Court to determine in what circum- stances Parties shall be forced to have recourse to the Officials in question. In the second class of Cases it is a very ancient custom, dating even from the earliest period of Eoman Law, to refer the Parties, either with or without their assent, to an Arbitrator, who may be chosen either by the Parties or by the Court, and whose Award may either be made compulsorily binding or be made so binding subject to confirmation by the Court or by some other Court. The Terms in which the question maybe put before the Arbi- trator and the latitude of his discretion are matters of great importance, and may be specially controlled by the will of the Parties or, subject or not to such special control, generally controlled by universal Legal Eules. i It is, of course, of considerable moment that, on a Case coming before a Court of Justice, there should be no doubt or ambiguity as to what the Court has to try. It may depend upon the subject-matter whether the issue can be reduced to the simple affirmative or negative of a particular Pact, or whether the decision must be ad- dressed to a large body of more or less mutually involved 324 THE SCIENCE OF JURISPRUDENCE. Facts. Iii the matters of the simpler Crimes and. of the more elementary Modes of Civil Injury, the former may be the case ; in matters arising out of complicated com- mercial transactions or Fiduciary responsibilities, the latter is more likely to be so. Any way, the Court is interested that the question for trial be divested of all that is irrele- vant and only accidentally adhering to it, and, especially, that the points as to which the Litigants differ be clearly distinguished from those in which they agree. The pre- paratory simplification of a Case forming the subject- matter of a dispute in a Court of Justice, for the greater convenience and expedition of the Court, forms an im- portant branch of the second head of this part of the Law. B. The Formal Mode of Investigation of Alleged Breaches of Law. 1. Preliminary Process for the purposes of ascertaining the real matters in controversy. 2. Trial of issue of Fact. 3. Trial of issue of Law. 1. Preliminary Process. The obviousness and the palpable convenience of pro- viding for a large portion of a judicial inquiry being conducted outside the Court has impressed itself on the most primitive Systems of Law. In the old Legis Actiones of Roman Law, part of the Proceedings, — that is the part needing the presence of a Person cognisant of the essential Forms to be observed, and competent to insist on their .observance, was performed before the Judge, and the LAWS OF PROCEDURE. 325 other part either on the spot where the Things disputed about lay, or on some other spot. In the " Formulary " system the Parties were obliged to make the Form of their Demand and of their Plea fit into certain rough and familiar moulds, and when this was done, the Prastor had then to ascertain the true matter in dispute, and further- more to decide what Eule of Law was applicable to it.' Thereupon he sent the matter of Fact down to a Judge, or body of Judges, that they might investigate the truth about it. The history of Pleading in English Law is well known. Till within very recent times its technicality and tortuous prolixity, coupled with the uarrowmindedness of too many of the Judges who had to pronounce on its validity, rendered it one of the grossest of the many abuses of English law. There may be, and indeed are, existing in England at the present day, three distinct Modes or species of what is called Pleading. There may be (1.) that kind which consists in nothing more or less than an elaborate and almost colloquial Statement of all the circumstances out of which a Breach of Law is alleged to have taken place, or in which it is alleged to consist. This is followed by a simple denial ; or by an admission of the alleged Facts, attended with the allegation of new Facts giving a different complexion to the admitted ones ; or by an admission of the Facts, coupled with the allegation that no Breach of the Law is disclosed or has taken, place (Demurrer). A reply from the Plaintiff may be made to a similar effect. This is the typical structure of all Pleading, though the unqualified form of it here described has perhaps no better example than in English Equity Procedure. 32G THE SCIENCE OF JURISPRUDENCE. Another species is that more resembling the one prac- tised under the Formulary System at Borne, namely, that of obliging the Plaintiff to make the Form of his statement square with, or resemble as much as may be, some one of a number of customary, familiar, and alone judicially recog- nised Forms. It is well known what part this artificial limiting of an injured Person's opportunities of obtaining relief has played, in the historical development of English Laws of Procedure. It first gave rise to the interference of the Chancellor for the purpose of providing a Eemedy in Cases for which the existing Modes of recognised Process made no provision, and thereby founded the general Jurisdiction of the Court of Chancery. It sub- sequently introduced an arbitrary tyranny of outward Form, as already noticed, which at one period threatened to bury Public Justice and Common-sense with all the pageantry of a solemn and ceremonious funeral. It has, however, under recent Eeforms, especially those effected by the Common Law Procedure Acts, again revived, with a number of modifications in the direction of sim- plicity, brevity, and general rationality, which, if the theory of procuring a distinct Issue before Trial be pre- served at all, will save it from any more pandering to Professional astuteness at the expense of Moral truth and Public Justice. The abolition, gradual at first, of the Formulary system at Borne, and the introduction of that known as Extra-ordinaria, marks the same progress of ideas. Li fact, the very same complaints were made at Borne of the artificiality and technicality that gradually adhered to the older System which, a generation ago, were so familiar in the mouths of Law Beformers in England. LAWS OF PROCEDURE. 327 The obvious truth is that this System of Pleading errs through throwing too much responsibility on the Plaintiff and his Advisers, and too little on the Court before which the Trial takes place. A Person may have a Eight seriously invaded without any knowledge of the formal Class of Eemedies to which the Eemedy he ought to seek belongs, and, indeed, it may be an extremely fine ques- tion of logical Classification to determine to what Class it does belong. Surely the State ought, by its Function- aries, to undertake the task of answering this question, if the Eights it gives are to be actual and not visionary, or to be only conditional on making a happy guess as to the appropriate Eemedy. The progressive recognition of what are called " Equitable Pleas," the permission to join several Pleas together in answer to one Count, the concession of ample powers of Amendment, and the abolition of useless and antiquated distinctions between different kinds of Actions, are steps ofEeform which may enable the System of Pleading now under consideration to be retained without serious danger or inconvenience. A third System of Pleading is that of which a type is supplied by the existing practice in the English Court of Probate and Divorce, though the limitation of the subject- matter in that Court prevents the example being so serviceable as it might otherwise be. According to this System, a simple but not a detailed statement is required from the Plaintiff, and the fewest possible technical Eules as to the form, the order, the words, and the description of the Eights involved, are prescribed. Indeed, lengthy or detailed statements are in every way discouraged. Bare Facts and Dates and a mention of the general Eemedy sought are all that is necessary. The conveni- 328 THE SCIENCE OF JURISPRUDENCE. ence of this Mode of Pleading for a Court in which all the Eights or Eemedies fall under a very few definite heads, and in which the Judge may, at the direction of either of the Parties, himself try all the Issues, both of Law and of Pact, is conspicuous. The propriety of retaining, in any Case, a more artificial system of Pleading, such as those previously described, in their most improved and least objectionable forms, turns partly on the nature of the questions involved, and partly on the constitution of the Tribunal which tries questions of Pact. Under the Jury system, in view of the general inexperience of unpro- fessional men, it may be essential to restrict the length of the Proceedings, and to evolve the true and sole matter of contention by preliminary Pleading of a more or less strict sort. This is especially the case when the trans- actions are long and complex, and conflicting Eights exist (as by way of "Set-off" or by way of what is called " Contributory Negligence ") in both the parties, and a balance has to be struck between them. When the Jury are accomplished commercial men, as is often the case in the most important English trials, the matter is one of comparative indifference, as they may be assisted rather than confounded by hearing even extraneous, irrelevant, and generally admitted Facts. But, in the majority of Cases, which must needs be tried under less favourable circumstances, a simplification of the Issue by a system of technical Pleading would seem to be indispensable. This last observation is especially true in relation to Criminal Pleading, as to which it is of extreme importance that the Crime alleged to have been committed should be narrowly limited before Trial, so that the Prisoner may know to what matter to address his Defence. The habit LAWS OF PROCEDURE. 329 of calling into question a man's whole life, as exhibited in the materials of the French Acte d' accusation, however favourable to the procuring of Convictions, certainly is not favourable to Public Liberty. 2. Trial of Issue of Fact. The general purpose of a Judicial Investigation is two- fold. It is alleged that a Person duly described has violated some Duty, either positive or negative, imposed by Law. In other words, it is alleged that the Person described has done one of a Class of Acts, or has ab- stained from doing one of a Class of Acts, which the Law commanded him either to do or not to do, as the case might be. Two matters of Investigation are thereupon presented : the one as to what is the Class of Acts which the Law commands or forbids ; the other as to whether the Person indicated has done or omitted an Act which falls under that Class. Thus it comes about that two separate enquiries have to be made, the one as to the state of the Law, that is, the quality of the Acts of the kind in question which its language comprehends, and the other as to what has actually been done or omitted by the Person indicated. The latter enquiry again is often broken up into two parts according as it is the Act committed or omitted which is a matter of uncertainty or as it is the identity of the Agent which is a matter of uncertainty. But the latter enquiry, (as a whole, and comprehending these two subordinate branches,) however complex in some Cases, is clearly distinguishable from the former one, and some Legal Systems recognise the distinction so clearly that. they appoint one set of Judges 330 THE SCIENCE 'OF JURISPRUDENCE. to determine the state of the Law, — that is to conduct the former enquiry, — and a different set to determine the state of what are called " the Facts," — that is to conduct the latter enquiry. This distinction between the Tribunals severally for questions of Law and of Fact was known even to the Eomans during the " Formulary period," when the Prastor named a Judge or body of Judges and directed them as to the state of the Law applicable to the Facts they should find. The habit of drawing a sharp line between questions of Law and of Fact has been highly artificialised in English law, where the method of Trial by Jury, cherished as a great Constitutional bulwark, has given an almost excessive importance to a clear definition of the provinces of the Judge and the Jury respectively. Assuming then that questions of Fact, — that is of the contested Identity of Persons and of the contested Eeality of Acts or Omissions, — admit of Logical separation, for the purposes of Judicial Investigation, from questions as to the state of the Law, the problem is presented as to what Eules shall be observed in bringing before the proper Tribunal Evidence material to the Facts in dispute. In a controverted Case there are, by the hypothesis, two sets of Facts, or two aspects of the same set of Facts. It is in the Public interest that the Time of the Parties and of the Tribunal be economised as much as possible, that is, as much as is compatible with attaining to a knowledge of the Truth. This necessity introduces the expediency of what are called " Laws of Evidence," that is a Code of Eules having their source either in " Statutory " or " Judicial " Legisla- tion, and regulating the Classes of personal Witnessess or of alleged Events or Acts which alone it is competent for those interested to bring before the Tribunal. The ground LAWS OF PROCEDURE. 331 of these Eules is often said to be something different from. this, and, no doubt, a certain Legislative distrust of all Tribunals has led to an arbitrary Exclusion of Evidence or to absurd and needless restrictions upon its production. The true principle upon which alone the Exclusion of Evidence can be justified is that, inasmuch as a very wide Induction proves such or such a Class of Evidence to be generally worthless, and the admission of it conducive to Fraud, it economises the Time and energies of the Court to spare it the labour of invalidating it once again, or else of running the risk of being, through accidental inadver- tence, deceived by it. An important question in Criminal Cases is the ex- pediency of allowing the Accused to be publicly examined in open Court. The objections to this course are that it is too hard and. cruel a test to enforce on an innocent Person, and that it favours the fraudulent devices of the guilty. It is probable, however, that the Tribunal would be awake to distinguish between a genuine explanation and a clever imposture. Anyhow it seems the height of injustice to close the mouth of a Prisoner when a tissue of plausible charges and Facts is alleged against him and he is the only Person who is competent to give the connecting link which may change their whole complexion. A severe cross-examination of an Accused Person is un- doubtedly, on many grounds, not to be encouraged. Apart from all consideration of artificial Eules imposed by the Legislature or gradually introduced by Courts of Justice themselves for the Admission or for the treatment of Evidence of different sorts or produced from varying quarters,, there is one celebrated and, to a certain extent, real Classification of Evidence which demands particular 332 THE SCIENCE OF JURISPRUDENCE. attention. This Classification is that giving rise to the distribution of Evidence into the two contrasted varieties of " Direct ". and " Circumstantial." The full investigation of the true import of this distribution will afford a most instructive lesson on the general relation of purely Physical and Psychological Enquiries to the Administration of Law, and on the true grounds upon which alone confidence in any kind of Evidence is universally placed. All a Person knows with respect to any matter is derived from one of three sources or complex conditions of Pact. First, (1.) he may have seen or heard or come into Personal contact with the matter himself. Secondly, (2.) it may be that another Person, who has generally been known to speak the truth, .and who has a sound head, good eyes, good ears, and good general health, alleges that he has seen, heard, or come into Personal contact with some Thing or other, or some Pact or other. It has been found that, so often as this man was trusted before about other Things as to which he made similar assertions, those Things proved to be actually situated just in the way he said, and on this ground he is believed in the present case. In either of these two sets of circum- stances there is what is called "Direct Evidence" of the Thing or Pact in question, and the value of the Evidence depends on the state of the Investigator's own senses or else on the state of the senses of somebody else, on his opportunities for observation, and on the likelihood of his not being fraudulently deceived, and not telling a lie. Suppose, however, thirdly, (3.) that neither the Investigator nor anyone else can either see, hear, or come near the Thing or Matter as to which information is required. An Event may have occurred far from any LAWS OF PROCEDURE. 333 human eye, ear, or dwelling-place, in the darkness of the night, in the solitudes of the forest or of the ocean, under the dark shroud of artful concealment, or in the misty- recesses of the impenetrable Past. From whatever cause, the Fact in question cannot be itself approached ; but the surrounding Facts, past, contemporaneous, or succeeding, may have been seen, heard, or felt, either by the Investi- gator or by somebody else more or less likely to speak the truth about them. " Circumstantial Evidence " is, then, that sOrt of Evidence to a Fact taking place which is sup- plied not by anybody's having observed it take place, but by a number of other Facts or circumstances having been observed which are held to furnish a legitimate ground for an inference from them to the Fact in question. Hence the whole value and use of this sort of Evidence depends upon the twofold condition of all Facts whatever being bound together by a close and invariable asso- ciation, and of the Investigator's having acquired some reliable experience of the actual order in which they thus invariably succeed each other or concur. Bentham has named the Fact which is the Subject-matter of inquiry the " Principal " Fact, and the circumstances from which the presence of the "Principal" Fact is inferred, the " Evidentiary " Facts. There are certain fallacies respecting the true nature of Circumstantial Evidence to which the incessant con- troversies on the subject in Courts of Justice have given rise, and which have much tended to obscure it. One fallacy is that all Evidence is in some sense Circumstantial, inasmuch as there is required in all cases an inference from the report of the Investigator's own senses or of those of others to the truth of the Facts reported. This 334 THE SCIENCE OF JURISPRUDENCE. fallacy is founded on a mere arbitrary distortion of the common meaning of words. It has been, in fact, con- ventionally agreed to denominate that as Circumstantial Evidence which demands two Logical inferences instead of one, — that is, one from the sensational Perception of the Evidentiary Facts to the actual and objective exis- tence of those Facts, and another from the existence of those Evidentiary Facts to the existence of the Principal Facts in question. It is agreed to call all other evidence "Direct," and protests against this mode of distinctive expression are simply frivolous. Another fallacy on this subject is that Circumstantial Evidence is intrinsically and essentially of far higher positive value than Direct Evidence. It has been a common- place proposition in Courts of Justice that " Facts cannot lie." It is manifest, however, that the only accessible know- ledge even of the Evidentiary Facts which constitute Circumstantial Evidence having to be reached through the reports of the Investigator's own senses or of those of others, and each of these sources of information being vitiated by their appropriate possibilities of error, — such as delusion, or deception, or both, — this kind of Evidence is exposed at least to just as many chances of being falsely reported as the class of Evidence called Direct. But, furthermore, in addition to this equal chance of the Facts " lying," there are let in all the innumerable and characteristic possibilities of drawing irrational and erro- neous inferences from those Facts even when true. The fallacy here described is, no doubt, founded on the admitted truth that, among a large number of Witnesses to isolated Facts, of which Facts the Witnesses themselves may not appreciate the relevancy and import, there is LAWS OF rKOCEDUKE. 335 less likelihood of Conspiracy and Perjury than where a small number of Witnesses come prepared to tell an identical Story about a limited number of Facts obviously of the highest significance. There is, lastly, the fallacy of assuming Circumstantial Evidence to be radically weaker than Direct. This is a topic much dwelt upon in Criminal Defences, and is about as far removed from the truth as the allegation generally preferred on the other side. The fact is that no general and abstract comparison can be made between the relative values of the two species of Evidence. Some indirect Modes of Proving the offences of Poisoning and of Forgery have been far more convincing than the Direct Evidence tendered, in other cases, in order to establish the truth of an allegation of Slander or of picking a pocket. It is well said that a chain cannot be stronger than its weakest link ; but it is also true that several chains together, some of them even having weak links, are rightly treated as stronger than any one single chain many or all of whose links are of uncertain validity. A case for Criminal Inquiry arises when a certain Fact or a number of assembled Facts are brought to the notice of the Authorities, which Fact or Facts have, in common experience, been generally or sometimes found to originate in a Breach of the Criminal Law on the part of some Person or other. In instituting a Judicial Inquiry with a view to complete the whole history of the isolated Facts alone brought as yet to light, a series of provisional hypotheses are made about them, in the verification of which consist all the ulterior proceedings. The prominent Fact, for instance, which is the most 336 THE SCIENCE OP JURISPRUDENCE. conspicuous one in the Case, and which is the first to ex- cite suspicion, is that of some external detriment incurred either by Persons or by Things. The first hypothesis is that this detriment is caused through the Act of some Person or Persons unknown. The proof or verification of this is sometimes called inexactly " the establishment of the corpus delicti." The Mode of Proceeding is, of course, that applicable to all Cases where the Evidence is Cir- cumstantial. The Evidentiary Facts are first enumerated, such as the loss of the money, the broken desk, the smashed windows, the empty plate-chest, the smoking stacks, the bleeding and bruised body, the arsenic found in the tissues. Thereupon the obvious significance of these indications is determined by a precise or uncon- scious reference to general experience. Certain supposi- tions which Bentham has called " Infirmative," and the effect of which is to rebut the more ordinary Presump- tions, are then carefully weighed, and the possibility of the actual presence of the Facts they would imply rigidly investigated. Such Facts are Carelessness, Fraudulent fabrications of Evidence, Death from Natural Causes, erroneous Scientific conclusions, Suicide, and Accident. The result of this latter Process is then laid side by side with that of the former, and the general balance of Evi- dence, either for or against the hypothesis of Criminality, is cautiously struck. The second hypothesis, made in every Criminal Trial, after the Fact of some Crime having been committed (or the corpus delicti) has been established, is that the Cri- minal Act was that of some assigned Person or Persons. This hypothesis will be formed in some such way as follows : — The Act was done at a certain place and at or LAWS OF PROCEDURE. 337 within a certain Time. Again, the Crime was committed by some one possessed of the requisite Opportunity, and therefore not by anyone out of the country, nor a hun- dred miles off at the Time of the Crime. Thus access at the given Time to the Person Deceased ; knowledge of, and proximity to a house broken into ; official duty in refer- ence to Bank-books, and the like, — are obvious grounds, on the score of Opportunity, for implicating certain Per- sons in the preliminary hypothesis of Guilt. Furthermore, the Crime was committed by some one operated upon by such a Motive (or peculiar attitude of mind towards ulterior consequences) as would be sufficient, in the given case, to overcome the ordinary " tutelary " Motives, — Political, Social, Moral, and Eeligious, — which generally operate as dissuasives from Crime. The actual force of a given Motive, depending as it does on the idiosyncracy and the circum- stances of the man upon whom it operates, cannot be measured ; and therefore the smallest Motive, provided it is proved to have been really present, is ground for Sus- picion, as it is very frequently held to be sufficient, when accompanied 'by other Evidence, to justify Conviction. Lastly, it is probable that the Person who did the Act will have conducted himself in one or more of certain recog- nised Modes habitual among Persons committing Crimes. Symptoms of Criminality supplied in this way are Sudden Plight, Possession of Things Stolen within a limited Time after the Theft, Purchase or Possession of Poison, Threats or Professions of Hostility, Confessions, and such Dealings with Eights of Ownership as apparently have reference to the results or proceeds of the Crime. To frame and verify hypotheses on such indications as these is the work of the subordinate officers of the Police. The English and 338 THE SCIENCE OJ? JUIIJSBJIUDENCE. French Methods are here notoriously at variance. The English Official proceeds slowly and cautiously, and scarcely ventures to frame a hypothesis till he has congregated to- gether such a number of Evidentiary Facts as shall justify at the least a Magisterial Investigation. He adheres through- out to his hypothesis, when framed, till, by the result of this Investigation, or at the final Trial, it is found baseless, or else is in a greater or less degree substantiated. The French Official grasps at every straw of Evidence ; makes a num- berless variety of hypotheses and deserts them as rapidly as made ; examines privately any number of Persons whom he suspects, calling upon them to account for every hour of a given period of Time, and even for much of their past life; and ransacks to any amount, without a warrant, every square inch of the most private chambers or sacred re- positories, from which Evidence, however seemingly irre- levant, may, with any likelihood, be extracted. Now, experience has shown, in accordance with the above anticipations, that the typical history of a Crime from first to last includes some or all of the following phenomena and no others. The Criminal is (1.) possessed of an ascertainable Disposition or Character, belongs to a certain Station in life, and is actuated to commit the Crime by the desire of some pleasure or the apprehension of some pain, which desire or apprehension constitute his Motive. He has recourse to (2.) certain Preparations for doing the Act, and sometimes makes Declarations to others relating- to it, or uses Threats to the Person to whom it will be pre- judicial. Next he avails himself of a given (3.) Opportunity, and frequently brings with him certain (4.) Instrument to assist him in doing the Act. He commits the Act -by Violating (5.) some Material Object, whether a Thing strictly LAWS OF PROCEDURE. 339 s0 P a JJ e ^ or fy$ fo^y of a Person, thereby superinducing a determinate change in its previous and normal con- dition. In many cases he reaps and carries off with him (6.) certain Fruits of the Crime. In nearly all cases he resorts to devices for the purpose of (7.) Concealing the Crime. On being charged with the Crime he generally shows unmistakeable symptoms (8.) of Fear, and in some rare cases (9.) he Confesses the Crime. It is, of course, by no means true that this is the fixed and invariable history of every Crime. It is only of the nature of a general Formula, filled up with more or less completeness in each particular case. It is scarcely, pos- sible, however, to picture any case where, in conformity with general experience, a number of these several circum- stances are not present, nor where any other phenomenon, not included under any of these heads, can be present. It is in the skilful Logical use of such of the circumstances of the above several Classes as are supplied by the Evidentiary Facts of any given Case that the successful result, in a vast number of Judicial inquiries, of, the part of a Trial which is concerned with Issues of Fact will depend. Apart, however, from considerations of Legal restrictions imposed on the production of Evidence, and of the Logical value and use of such Evidence as is capable of being pro- duced, certain questions may have to be decided, or general Kules to be laid down, as to the Order in which the Pro- ceedings shall be conducted, and as to the rival claims of the Suitors or of the Prosecutor and the Prisoner, in respect of what is called the " Cross-examination " of each other's Witnesses. In some Systems of Law, the process of Ex- amination and Cross-examination of Witnesses is allowed to go on outside the Court, by a species of searching and 340 THE SCIENCE OP JURISPRUDENCE. Formal Correspondence, conducted, possibly, under the sanction of Oaths. This Process generally has especial reference to the more private or personal matters within the exclusive knowledge of one of the Suitors. It takes place under the direct Compulsory authority of the Court, and before the Cause comes into Court, that is, while the stage preliminary to the Trial is being proceeded with. When strict Eules of Evidence exist they must be abided by, or, — in the case of Evidence not allowed by these Eules being admitted, or of proper Evidence being re- fused, — a Eemedy may be obtained on application to another Court, and the whole Proceedings have to com- mence afresh. It is obvious that the question as to the nature of the Eules of Evidence, and whether a particular Class of Evidence is or is not excluded by those Eules, is (under the above definition) a question of Law and not of Fact. 3. — Trial of Issue of Laic. When once a question of Law is entirely severed from one of Fact, it is merely a matter of Logical argument for the competent Tribunal to determine its merits. It is a general principle to allow Appeals on questions of Law with far greater facility than on questions of Fact. In order to try a question of Fact at all, it may be necessary to make a hasty assumption as to the state of the Law which is in point when any one complains that a Eight of his is invaded. The Judge possibly acquiesces provisionally in this assumption if it be not too violent, reserving the question as to its actual value, if necessary, for more calm and mature consideration, when he can have the help of other competent Authorities ; or, it may be, he gives a LAWS OP PROCEDURE, 341 first decision, relying on the ready power of Appeal to some higher Tribunal which he knows is at hand. In England there is a Court of Appeal in Criminal Cases for disputed matters of Law, but none for matters of Fact. Similarly, the Cour de Cassation in Prance only takes notice in Criminal and Civil Cases of questions of Law. C. — Sentence, Assignment of Punishment or Measure and Mode of Compensation, and Execution of Sentence. After the question of Law is resolved, — the question of Pact being also decided, — a conclusion is come to that a given Person, either Prisoner or Defendant, has either done or not done some Act belonging to a Class of Acts com- manded or forbidden by Law. If he has done an Act forbidden or if he has not done an Act commanded, there remains but to assign the legal Punishment or the Measure and Mode of Compensation which he is to make to the injured Person. It may be, however, that the Members of the Tribunal are undecided, or differ widely in opinion. The question of requiring Unanimity will be considered later on in its bearing, especially, on Criminal Cases. But it may be possible for a Court to accept an intermediate Verdict, as " Not Proven" in Scotland, or "with Extenuating Cir- cumstances " in France. It has even been suggested that the Crime of Murder should be distributed into Classes, and that the Jury should find to which Class the Act in question belonged, the worst Class alone carrying with it the Penalty of Death. The value of these practices or recommendations will also be considered lower down. The last stage of Judicial Procedure is the Execution of 342 THE SCIENCE 6? JUfelSfETOENCE. the Sentence, but this rather belongs to the Duties 6f the Executive generally, and therefore to the part of the Law which deals with those Duties. D. — Extraordinary Eemedies. Besides the general Eemedies provided as above, and following upon a laborious Trial of questions of Fact and an erudite Investigation into questions of Law, there are in most Legal Systems certain more expeditious and simple Modes of obtaining Belief from threatened or actual Injuries than by thus bringing a formal Action. The method of Interdict or Injunction, by which a Judge, on a one-sided application of one Earty, makes a provisional Order upon the other Earty, commanding him to do or to abstain from certain definite Acts on peril of instant Eunishment, is a familiar instance of this Class of Eemedies. So is the remedy of Mandamus in the Court of Queen's Bench in England, by which local Authorities are positively com- manded to do certain Acts in the way of making Official Appointments, which they have neglected or hesitated to do. A curious and, at the present day in England, extremely interesting Class of exceptional Eemedies is that provided abroad by Commercial Tribunals, a topic which might be appropriately considered either under the general head of the Establishment of Courts of Justice, or in the present place. The grounds for providing the peculiar kind of ex- peditious and Summary Eemedies which the notion of a Commercial Tribunal implies are (1.) that rrien practically engaged in Commercial affairs are likely to be more com- petent than other men; and as much so as trained Lawyers, to pronounce Upon the Legal Eighth and Duties arising out LAWg O'f PROCEDtfRE. 343 of a strictly Mercantile transaction ; (2.) that the regular process of investigating the Facts before an ordinary Tri- bunal employed in matters not strictly Commercial involves delays, technicalities, and antiquated Solemnities, -which, if productive of much or little inconvenience in those cases, are, in Commercial matters, disastrous in the extreme, and provocative of the most ruinous Frauds ; (3.) that it is proved by experience in France and in other countries that the institution of such Tribunals tends to render Liti- gation simpler, cheaper, and more easily and beneficially resorted to, especially in matters of small pecuniary amount ; (4.) that the convenience of Foreign Suitors who may not understand the Procedure of the General Courts, but may easily learn that of a Commercial Tribunal, deserves consideration. The objections to the institution of such Tribunals are that the arguments drawn from the delay, technicalities, and costliness of the other Courts are quite as much arguments for improving these as for introducing new Courts free from these blemishes ; while the general habit of multiplying Courts and Modes of Procedure, according to the varying Subject-matter of transactions, produces a serious want of harmony in the Judicial System, and leads to popular confusion and misapprehension as to the grounds of the distinction. Again, it is urged that the use of these Tribunals in France,- where they act as a natural and necessary Supplement to the Jury System, as there existing, is no argument in favour of their use in this country, where a Special Jury of Merchants, as almost invariably summoned in important Commercial Cases, has all the efficiency of the best elected Commercial Tribunal in France. Iti spite, however^ of the force of these objections, the 344 THE SCIENCE OP JURISPRUDENCE. Special Jury System in England only touches the more momentous Cases, and a large class of these (such as those connected with Partnership and Joint Stock Company liabilities) are adjudicated upon by a single Judge in a Court of Equity. It is for the vast number of trifling Cases, demanding despatch at a few hours' notice at the hands of the most accomplished and honourable traders, that Commercial Tribunals are invoked ; though, perhaps, there is reason to be found in the first-mentioned objection, to the effect that the institution of these Tribunals is most conveniently proceeded with at the time of a general re-organisation of the whole Judicial System. The topic of Bankruptcy has already come on for con- sideration under the head of " Laws of Ownership," where it was treated as a Mode of Acquiring Eights of Ownership by Adjudication, and again under the head of " Laws of Contract," where it was treated as a Eemedy provided by Law in order to minimise loss in the expectation of a Contract being broken. The topic also belongs to the present place, inasmuch as it is the function of Laws of Procedure to institute and regulate the Judicial Machinery needed to give effect to the Eemedies implied in Bank- ruptcy. Either a Special Court may be established for the purpose, or the Functions of conducting Proceedings in Bankruptcy may be added to the Functions of some other Court, as they are in France to those of the Tribunals of Commerce ; or the two Systems may be combined, as in England, where the whole Administration of Bankruptcy Law is shared between the Court of Bank- ruptcy, the Court of Chancery, County Courts, and, to a slight extent, the Courts of Criminal Law. The Pro- ceedings are partly Inquisitorial and partly Executive. LAWS OP PEOCEDURE. 345 The first part of the Proceedings is concerned with (1.) determining, in accordance with Law, whether the Debtor in question has committed what is declared to be one of a Class of Acts termed " Acts of Bankruptcy ; " (2.) ascertaining who the Creditors are, and to what amount, and what are the Assets, if any, available for part Payment. The second part of the Proceedings is concerned with (1.) the Appointment of Persons, either nominated by the Credi- tors, or Officially designated, to be Assignees of the Assets under the responsibility of distributing them in the Order prescribed by the Court, and in obedience to the general Eules of Law ; (2.) passing a Sentence on the Debtor, generally based on a review of his Moral conduct in reference to his business transactions, and carrying with it some Penalty or the opposite, in the shape, perhaps, of a Greater or less Belief from the claims of his Creditors, (even from those against his after-acquired Eights of Ownership,) and of the exemption of his person from the operation of existing Writs of Execution. Provision is generally also made in the part of the Law dealing with the Administration of Proceedings in Bankruptcy for giving Legal Validity to Voluntary Compositions with Creditors, Formally made and authenticated and in no wise tainted with Fraud. A remarkable specimen of an exceptional Eemedy pro- vided by Law is supplied by the Law of 'Distress as existing in England, and which, becoming more and more un- popular, is likely to fall into gradual disuse. By the Law of Distress the direct application of the. Eemedy for the Breach of a Duty is put into the hands of the Person aggrieved, and it is not necessary for anyone else, other than the very subordinate Public Official known as the 346 THE SCIENCE OE JURISPRUDENCE. " bailiff," to interpose at all. The inconveniences of tlie Law ate that (1.) it is^executed by the Party interested, and irrecoverable loss may be inflicted on the alleged Debtor before the existence of the Debt, or the non-pay- ment of it, has been ascertained in a Court of Justice ; (2.) the Eemedy is of such a rough kind that it gives a vast opening to abuse and cruelty on the part of unscrupulous Persons, — a result always to be avoided by Law. The only defence of the practice is that, inasmuch as the Poor have often no other Assets than their few material goods, Landlords would require a higher Pent if they had a less readily available Security than the Law of Distress gives them. A simplification and a reduction in the costliness of Courts of Justice would go far to take away the foundation of this defence of the Law of Distress. E. — Limitation of Actions. The Policy of imposing some arbitrary Limit to the Time within which an Action can be brought is recom- mended by such obvious considerations that they need only to be stated in order to be thoroughly apprehended. Such considerations are (1.) the difficulty of procuring satisfactory Evidence after a long lapse of Time ; (2.) the expediency of not disturbing the existing state of things, in view of Public Expectation being based on their con- tinuance and not on their disturbance ; (3.) the general importance of restricting Litigation to the Limits imposed by the necessity of encouraging Public Confidence in the readiness of the State to maintain Eights once conceded. This necessity is the less the more apathetic and careless has been the Person in Whom the Eights UW§ &p PROCiifiliSi:. 3*47 vest,— on £he rational principle vigilaniibus, noH dor- niiehtibUs, subvenit lex. The effect of a Law for the Limitation of Actions is obviously much the same as one of Prescription, — that is, a Law which allows Eights to be acquired through their actual Exercise for a length of Time, more or less determinate, and with more or fewer other Conditions annexed. According to the details, however, of the special Legal System, the operation of the two classes of Law may, in practice, be different. A Eight may not be wholly valueless because a direct Action cannot be brought upon it. It may avail by way of Defence against an Action brought by somebody else. For instance, money paid by a Debtor in recognition of his Debt may, in some Systems of Law, be not allowed to be recovered back, though the payment could not be enforced by an Action. In all Systems of Law in which Laws for the Limitation of Actions prevail, it may be a matter of much importance td fix the exact Epoch at which an Action begins to be brought, because the period of Limitation dates back from that. Of equal importance is it to inark the Moment at which the Eight of Action accrued, because the period dates back to that. It is customary to provide for the cases of Persons who could be Plaintiffs having been abroad, Or not having attained Majority, or otherwise being under Disability to sue, and to except the period of Disability from the period of Limitation as counted for the particular case. In Erigland it is said that no period of Limitation ever runs against the Sovereign, and the same was said in the Middle Ages of the Eoman Catholic Church. It is not generally held advisable to have 348 THE SCIENCE OF JURISPRUDENCE. Statutes of Limitation for Crimes, though much practical injustice and much perplexity is often occasioned by the want of some such provision. F. — Parties to Actions. The Modes of practically enforcing Laws, as prescribed in Laws of Procedure, have been hitherto treated on the assumption that every one who has a Eight has an equal Capacity to enforce it. This Method has been adopted in order not to distract attention from the topic of Modi- fications in the application of the Eemedies themselves. It is true that whoever has a Eight is able to have it en- forced. But in some cases he can do so directly in person ; in others he can do it, or can only do it, by employing some Eepresentative ; in others, again, — as under some Criminal Systems, — the Person interested can do no more than give notice to some Public Official of a Eight having been Violated, and it becomes then the Duty of the Public Official to secure that the Offender is punished. Again, two or more Parties having in common a Eight Violated may be allowed to sue singly or only together, or to be sued singly or only together. Again, after an Action has commenced, if one of the Parties dies or marries, the Action may either terminate, or it may go on between the Parties who survive, or whose Condition remains unchanged, or it may go on with the Persons Legally substituted for the original Parties. This part of the Law, which practically is of extreme importance, may be represented under the following general Forms : — (a.) Those who must sue or be sued in the name of some Person either generically described by Law, LAWS OF PROCEDURE. 349 or so described subject to the Discretion of the Court (Infants, Lunatics, Married Women, Bankrupts, and the like). (b.) Those who may sue or be sued in the name of a Person chosen by themselves, subject or not to the Discretion of the Court. (c.) Those who can only sue or be sued when joined with other Persons peculiarly Eelated to them in point of Interest, or assumed by Law to be so Eelated. (d.) Those who on the Death or Change of Condition of any of the Parties to an Action, after its com- mencement, can only proceed with the Action on such Terms being complied with, or on such Persons being substituted as Parties, as the Law or the Court may direct. ( 510 GENERAL PROSPECTS OF hibited in conflict with one another in every State, and that a permanent reconciliation of these Tendencies will only be attained after a long and bitter experience of mistakes and failures. It may be said generally that the existence of either of these Tendencies or rival Principles implies the ac- ceptance of a number of Common Assumptions which there is reason to hope will become more and more undisputed as they are, in themselves, indisputable. Such Assumptions are, (1.) that the Supreme Felicity and Moral Perfection of all Human Beings, neces- sarily as yet only dimly shadowed out as an Ideal, — though ever needed in order to correct and purify the search after what is Possible and Eeal, — depend upon the utmost Expansion and the unmutilated Integrity of National Life and of Family Life; (2.) that the richest Development of which the Human Eace is susceptible is to be sought not in a monotonous Uniformity or an end- less repetition of identical types, but in Variety, in Contri- bution, in Eeciprocity, — or, in one word, in Organisation ; (3.) that the Spiritual, Moral, and Physical Perfection of the Individual Man and Woman is only to be obtained through the concurrence of a number of Conditions of which the influences of Family and of National existence are among the most momentous and the most potent ; and, (4.) that the accomplishment of this Perfection (partial as it must be, even according to the most sanguine expecta- tions), not as a rare and thinly-scattered privilege for Some but as a Common and evenly distributed boon for All, is the sole justifiable End of the efforts of the Statesman and of the Legislator. So far there is little difference of opinion among those profounder and more far-sighted THE SCIENCE OF JURISPRUDENCE: 511 / Thinkers whose views, for the present purpose, it is at all necessary to take into account. The difference begins so soon as a Theory of Action is contemplated for the purpose of hastening the attain. i.ent of these confessedly-desirable Ends. According to one view, the main or sole aid is to be found in improved Laws and in the more watchful and intelligent Energy of National Governments. Accord- ing to the other view, it is mainly or solely in what are called Moral or Spiritual efforts, whether isolated and desultory or to a greater or less degree finely organised, — and not in any machinery which must have its momentum in Physical Force, — that confident reliance can be placed. Between and beyond these competing views there is, of course, a third one, which will probably tend to establish itself with increasing steadiness through the mutual con- flicts ^f the other two. The purport of this view is that an ascertainable distinction can be drawn between the appropriate fields of Law and Government on the one hand, and of Moral Agencies on the other; and that consequences as pernicious are to be apprehended from confounding the two as from neglecting.: the use of either. The first of the views above noticed, — that is, the one which tends to enlarge indefinitely the Province of Government, — assumes the truth of one of two alternative sets of suppositions. In accordance with one of these 'sets of suppositions, it is held that, as Time advances, good Moral Habits are likely to become so fixed and dominant throughout the bulk of the Population that, however widely the Province of Government is extended, the Laws will operate only by way of affording an acceptable ' stimulus and guide without endangering Public Liberty 512 GENERAL PROSPECTS OF or inducing general Moral Paralysis. It is further pre- supposed that the Science and Art of Government and of Legislation will become more and more of a strictly ex- clusive and Professional character ; and that while, on the one hand, the narrow aims and the stolid ignorance of casually chosen Popular Legislators will be entirely away, on the other hand no Official prejudices or Aristocratic tempers will sully the purity and the wisdom of the Persons charged with the responsibility of Government. According to the alternative set of suppositions it is held (and this, no doubt, is the coarser Theory just now current in this country) that the only effective engine for working on Mankind in order to produce the richest results must be that implied in the employment of direct or indirect Physical Pressure, such as is involved in appealing to the Fear of Punishment, that is, of Physical Pain ; and that in view of the Ignorance, or the unequal diffusion of Know- ledge, to which Man is for a long time doomed, and of the perverse misconception of what conduces to his truest welfare, to which he is and will for a long time be help- lessly prone, the wisest and kindest measures to adopt are that those who think they know best what is for the Good of all should' use what Physical Force is at their disposal in order to help all to the attainment of that Good by Punishing those who refuse to seek it. These measures will generally be carried out in some such specious name as that of " Popular " or even " Democratic " Government, and by the plausible aid of Persons said to Eepresent the People, while the favourite argument in support of the Legislation adopted will be that no assault on Public Liberty is intended, but that the Liberty, not to say the Moral Sentiments or scruples of a Few must obviously be immo- THE SCIENCE OF JURISPRUDENCE. 513 lated in order to secure the liberty, ease, or convenience of the Many. Those who represent the opposite tendency, that is those who may be characteristically denoted as hostile to the Extension of the Province of Government and to the Multiplication of Laws, and as looking with most hope to the wise use of Moral Influences of all sorts, may be said to deny the validity of every one of the hypotheses assumed on the other side. As to the first class of these hypotheses, they say that it is of no practical value to rely on the advent of a Time when good Moral habits will be as widely prevalent as they are now the reverse, because the essential difficulty of the Problem consists in the actually existing state of Society at this day and in the Moral torpor and inanition to be found on every side. If a Theory of Government only professes to meet National evils by creating a glowing vision of a Time when that evil does not exist, the Theory has no lesson of any prac- tical interest to impart to the present Age. As to the second class of the hypotheses relied upon in support of the advantages to be derived from Extending the area of Law, it is urged, by way of answer, that it should be the main work of the enlightened Statesman to enact, to amend, to repeal, or to abstain from enacting Laws, not with the object of appealing to the brute fears of his Pellow-Citizens, but with the object of dis- pelling these fears and of helping towards a final triumph over them. The phrase " Public Liberty " means not the License of the Many coupled with the Degradation of a Few, but the Liberty of Every one, including the meanest and the humblest, — to the full extent that is com- patible with the general Liberty of All the rest. The only L L 514 GENERAL PROSPECTS OP limitations on this enjoyment of Liberty are applicable in cases where it is established by a Public Judicial Investi- gation that it has already been abused. Consistently with these broad and general Principles, it is open to the Legis- lator to construct a Catalogue of Eights and Duties for the special and limited purposes indicated sufficiently in the previous parts of this Treatise. The creation of Artificial Crimes, and the consequent reckless onslaughts upon Public Liberty, form the most perilous temptation to which a modern Statesman is exposed. The ignorance and the unhappy perverseness of the bulk of the Population is still so considerable in Modern States, that they present no barrier against the most enticing and hazardous Po- litical Experiments, while they offer the most ready though treacherous arguments for the stern necessity of having recourse to those Experiments. The inevitable result is general paralysis of Moral Eesponsibility ; Executive ty- ranny in obscure places and practised especially on Classes of Persons unable to attract Public attention for their defence ; a servile habit of reliance on Government for the instant remedy of every evil, — including those which are the direct consequences of voluntary vice or self- indulgence ; and the existence of a wide-spread network of Police-inspection and Espionage, sapping the essential vital force of a free, self-reliant, and self-respecting National Life. Out of these two opposing views there is a Theoretical, if not yet a Practical, issue to be found in one which contains the truth of both and the error of neither. According to this view Law and Government are indeed potent and majestic instruments, but,' — like others em- ployed in the Material world, — they are precious, or indeed are other than noxious, only when used in their THE SCIENCE OF JURISPRUDENCE. 515 proper Place and within their proper Limits. The proper Place and Limits, in any State, cannot be wholly deter- mined by abstract considerations, but must have reference to the circumstances, traditions, and Institutions prevailing at a given time in that State. Nevertheless some such abstract considerations as the following will not be with- out their use in fixing generally the true Place and Limits of Law and Government when contrasted with those of. what may be called purely Moral and Spiritual Forces. The purpose of Law is to maintain and to fortify Public Morality and not to create and invent it ; to give solidity and permanence to the essential Kelationships on which National Life depends, and not to be the fountain of their vital energy ; to secure for every Man and Woman, through the creation of Bights and Duties, a clear and open space for unrestricted action, within which they are free to develope all their faculties without hindrance or intrusion from without ; and to uphold the security of such Institutions as the voluntary efforts of Mankind may devise or adopt as seeming to them best calculated to quicken, to develope, and to invigorate the Moral aspira- tions of the Pace. It will be admitted on all sides that the highest degree of Perfection and of Moral Enfranchisement that Man can reach is in having the largest number of his faculties and emotions in the fullest exercise and flow, and with the least necessary restraint from without or from within. It will be admitted, too, that Man only discovers the use of his faculties and brings his highest emotions into play through Intercourse with his Brother-Man ; that the more intense and extended is this Intercourse, the more adequately developed he may become and he ought to become ; and 516' GENERAL PROSPECTS OF that there exists somewhere a true and Common Canon or Standard of action, — inflexible in itself and yet withal admitting of the nicest adjustments and the most exquisite modulations, — for all Members of the Society, which the more habitually each Member adopts, the vaster is the expansion of which his own nature is capable, and the less is the chance or the need of interruption by others ; and which the more habitually all men adopt, the more freely and harmoniously the general machinery of Social Inter- course works. This Canon or Standard of action is hard indeed to discover, and particular Societies may spend long Ages in unavailing tentative efforts to discover it. The Modes of its Discovery or even the prior question whether, in any strict sense of the term, it be a matter of Discovery at all, are not proper to the present discussion. It is sufficient to notice as a Fact that some Nations seem for a time to approach this Discovery nearer and nearer, and then to remove indefinitely far away from it ; some to stagnate, — neither approaching nor moving away ; some, in their constantly progressive History, to show hopeful signs of ever more and more nearly attaining to it. This Canon or Standard of action, — including here under the term action all the thoughts and feelings that give it life and worth, — is Absolute Morality. It is only the feeble Image or the mechanical scaffolding of this that is desig- nated by the phrase " National Law." It is obvious that the attendant Image will con- stantly be improving in quality and in efficiency ac- cording as the manifestation of the Keality it follows becomes increasingly distinct. In this way Law, though never reaching further nor deeper than to the control of outward Acts, tends even within these limits to become THE SCIENCE OF JURISPRUDENCE. 517 more and more nearly the exact expression of the highest and most refined Eeason of the People, while, on the other hand, its operation becomes more and more invisible and is scarcely recognised as other than a Mode of benevolent Guidance and Aid. Law in this last form characteristically stands forth as the ever-present and incarnate Witness of that ultimate Morality of which itself is at best no more than the Symbol and the Counterpart. It comes home with an awful directness to every Man and Woman in the Public recognition of Family Relationships, in the distribu- tion of Property, in the frame- work of Government, in the Formal arrangement of Contracts, and in the correction of outward Wrongs. In doing this it keeps ever testifying of the tender and intimate concern that Each one has in the Wills and Actions of Every other one, and that the State, embodying in itself the whole National Past, Present, and Future, has in the conduct of All. It reminds him ever and anon of an infinitely deeper and higher Eule than itself, which, without National danger or ruin, cannot be broken. It helps him to work onward in order to promote, both in himself and among those about him, the dominion of that higher Eule, by guarding him against the constant solicitations that will beset him, in the life of every day, to selfishness, thoughtlessness, and contempt of his Brother-Man. It is not, then, in Law nor in Government that hope must be placed for the direct culture of a Nation's true Vitality. It is in Moral and Spiritual efforts,— ^whether expressed in solitary and silent influences, or in highly Systematised Organisations, — that a firm and tranquil con- fidence can alone be reposed. It is these alone which can deal with the true springs of Human Action a,nd can 518 THE SCIENCE OF JURISPRUDENCE. penetrate to the mysterious workings of the Human Con- science. It is from these alone, and from the Everlasting Truths which it is their province to enforce and to repre- sent, that Man can draw all the inspiration he needs for Action, all the assurance he needs to give him a steady- trust in the enduring value of his Work, all the consolation he needs to support him against the vicissitudes he must encounter. In a word, it is to these direct Inspirers of Human Virtue and Energy that Law itself must turn in order to find at hand a race of Citizens whose dearest concern it will be to Obey, to Cherish, and to Eeform it. INDEX. of PAGE . 243 . 157 159, 160 . 300 322, 323 . 329 346, 347 348, 349 93 Abduction, Ground of Laws relating to Accession, where Classed „ Meaning and Juridical Import of Accessories and Principals (in Crimes), Law relating to Account, Procedure for Enquiry into Matters of Acte cC Accusation, Critical Notice of the French Actions, Nature and Policy of Laws relating to Limitation „ Laws determining the proper Parties to Act and Event, Explanation of Terms „ Marriage viewed as an, rather than as an Event .... 94 „ Death „ „ „ „ „ „ „ „ . . . 94 „ Bankruptcy „ „ „ „ „ „ „ „ . . . . 94 „ Elements of a Criminal 298 Acts, Interpretation of, by Ethical considerations .... 32 „ Character of: how open to Misconstruction .... 33 „ alone affected to be controlled by Law 75 Adjective Law opposed to Substantive Law by Bentham . . . 283 Adjudication involved in the idea of Law 3 „ where Classed 157 „ Juridical Import of, in respect of Ownership . . . 169 Adjunctio, Meaning of 160 Administrators, Law relating to , 262 „ Modes of their Appointment 271 Admiralty Courts, their International Character and Importance . 400 Adultery, Place of Laws relating to certain forms of, in a Scheme of Criminal Law 301 Advocacy, Functions of Lawyers as to 278 Advocates, Laws relating to 276-280 Affinity, Ground of Laws relating to 241, 242 Affreightment, Contract of, under what head Classified . . 216, 227 Age, Difference of: a Fact on which Science of Jurisprudence depends 12 „ Old, a Fact impairing Moral Responsibility .... 85 Agency, a Fact artificially restricting Moral Responsibility . 85, 90 „ Nature of Contract of 223,225 Agents as Contractors 191-193 520 INDEX. PAGE Alienation in Life and in Death : where Classed . . . 157 „ „ „ Juridical Import of . . 163-169 Aliens as Owners 146 „ as Contractors 193, 194 Allegiance, Juridical Import of Duties of 374 Alliances as Grounds of Mutual Dependence of States . . . 417 Ambassadors, Bights of States to Courteous Treatment of their . 420 American Union, Description of Mutual Dependence of States of . 417 Annexation of Territory as a Mode of Acquiring Rights of Ownership 423 Appeal, Court of, for Criminal Cases 341 Apprenticeship, Nature of Contract of .... . 223-225 Arbitration, Juridical Nature of 323 „ Modes of Constructing International Board of . . 399 „ Importance of referring International Disputes to . . 400 Arbitrator, his Functions 323 Armed Neutrality, The, of 1801 : its Influence on the Formation of Rules of International Law 503 Army, Rules regulating the Conduct of an Invading or Occupy- ing 447, 443 Arnold, Dr., his views on Irregular Risings in an Invaded Territory . 442 Artillery, Improvements in, as affecting the Frequency and Duration of Wars 440, 454 Assault, Right of Actions for, "under what head Classed . . . 290 Assaults, Place, in a Scheme of Criminal Law, of Laws relating to . 301 Assets in Bankruptcy 10 „ „ „ Laws regulating the Distribution of . . . 345 Assignees in Bankruptcy, Laws Regulating the Appointment of . 345 Attainder as resulting in Forfeiture . . . ' . . . .170 Attempts to commit Crimes are illustrations of Inchoate Responsibility 83 „ „ „ „ Defined, and Contrasted with Consummate Crimes 299, 300 Attorneys, Laws relating to 276-280 Austin, Mr., his use of the Term Jurisprudence .... 507 „ „ his use of the Distinction between " Primary " and " Secondary " or " Sanctioning " Rights . . .283 Austria : Description of its Constitutional Relation to Hungary . 417 Authority, The Legislative, Distinguished from the Executive . 105, 106 „ „ Supreme Political : Explanation of Phrase . 74, 107 „ „ „ „ cannot enjoy Rights nor be liable to Duties .... 77 „ „ „ „ Analysis of Elements of . . 108 „ „ „ „ Rights and Duties of Members of 110 „ „ „ „ Modes of Change of . . . 115 Award, Nature of Arbitrator's 823 Bailments, Nature of 151,152,202,203 „ Distinguishable from Sale 222 Balance of Power, Nature of Doctrine of 398 INDEX. 521 PAGE Bankruptcy, what is implied in a Law of . . ... . .10 „ viewed as an Act rather than as an Event ... 94 „ a Mode of Acquiring Eights of Ownership by Adjudica- tion 169 „ as a Mode of Minimising Loss .... 207, 208 „ Nature of Acts of 209, 845 „ Place of Topic of 344, 345 „ Assignees in 345 „ Distribution of Assets in 345 „ as a Topic of Private International Law . . . 388 „ Fraudulent : Place of Law relating to, in a Scheme of Criminal Law 301 Barristers, Law relating to 276-280 Bentham, Mr., his sagacious Measures rendered possible by the in- sulation of English Law „ „ opposes "Substantive" to "Adjective" Law . „ „ his use of the Term " Infirmative Suppositions " „ „ his Term3 "Principal" and "Evidentiary " Bigamy, Ground of Laws relating to Place, in a Scheme of Criminal Law, of Laws relating to 15 283 336 333 243 301 Billeting Troops, Rules for the Regulation of 448 Bills of Exchange, Nature and Incidents of . . 88, 206, 227, 228 Birth, a Fact on which the Science of Jurisprudence depends . . 12 Blasphemy, Place, in a Scheme of Criminal Law, of Laws relating to . 300 Bombardment, Laws controlling 450 Bond, Operation in English Law of a 211 Breach of Blockade, Punishment for 410 „ „ Contract opposed in English Law to a Tort . . 284, 285 „ „ International Law, Consequences of 410 Burglary, Place, in a Scheme of Criminal Law, of Laws relating to . 301 Capital Punishment, its Juridical Aspects . „ „ Evidence before Commission on . Carrier, A, Nature of his Rights .... Cases, Condition of Reports of, in England " Case Law " in England, what .... Cestuique-Trust, Description of Chancellor (The English), his Executive Functions . Chancery, Jurisdiction of Court of, as to Trusts . Character, Evidence of, its Nature .... „ As a Ground of/Suspicion .... Citizenship, its ^Nature and Import .... Civil Injuries and Crimes, Place and Import of Laws of, „ „ distinguished from Crimes „ „ Laws relating to Classification of Laws, what based on „ „ „ based on Quality of Persons . 100- 311-313 357-360 151, 152 484, 485 . 58 . 267 . 322 . 268 313-316 . 338 . 291 374-376 102, 283, sq. 286, 287 . 287 26, 37 26, 27 522 INDEX. PAGE Classification of Laws based on Interposition of a Thing . . 26, 27 „ >i » on Basis of Rights 66 „ „ „ various Bases of 96 „ of Crimes, its Place in a Scheme of Criminal Law . 300 „ of Punishments, „ „ „ „ „ „ „ . . 301 Code, Analogy of an International, to a Body of Moral Prescriptions . 46 „ An International, how it resembles the Phenomena of National Law 47 „ main Purposes of a 477 „ Napoleon, The, its Services in the History of Modern Codifi- cation , 506 Codes, Modern, as a Topic of Legal Education . . . 499, 501, 502 „ New York, their Interest and Value 502 Codification a Source of Law 53 „ Meaning and Import of the Term .... 469, 470 „ History of, in Germany ....... 472 „ The Question of in Germany, as contrasted with that in England 471-473 „ General Objections to 473-477 „ Methods of effecting 482 „ Special reasons for, in England .... 483-489 „ of English Law, Practical Diificulties attending . 487, 489 Coining, Laws relating to, their Place in a Scheme of Criminal Law . 300 Collegia, as Persons 81 Colonies, their Political Relation to the Mother-Country . . . 418 „ the British, their Relation to the Crown and to Parlia- ment 418,419 „ „ Criticism of Schemes for the Reconstruction of their Relation to England .... 419 Combatants and Non-combatants, Penalties affecting Practical Difficulties in distinguish- 410 mg 440,444 Comity, Rights of States to 420 Command, Definition of a 73 Commerce, Doubtful Rights of States to 421 „ Present Condition of, as Affecting Wars .... 435 „ of Neutrals with Belligerents 437 Commercial Tribunals as Exceptional Remedies .... 342 „ „ in Relation to Bankruptcy .... 344 „ Credit as Influencing the Frequency of Wars . . 452, 453 Commission, Practice of giving a, to Persons in order to resist Invader 442,443 Commixtio, Meaning of 1(30 Common Law, Convenience and Modes of Fusion of, with Equity 478-483 CommunauU, System of, prevailing on the Continent . . . 247 Community of Goods implies Laws of Ownership .... 463 "Compassing the Death of the King" is an illustration of Inchoate Responsibility entailing Punishment 83 INDEX. 523 PAGE Compensation for a Civil Injury, Modes of obtaining . . . 296, 297 » „ „ Place of Laws assigning Measure and Mode of 341 Compositions with Creditors, Laws Relating to 345 Compulsion, a Fact impairing Moral Responsibility . . . .85 Concealment, as a Ground of Suspicion 339 Confederation of States, Nature of a Permanent . . . 417, 418 Confession of Crime, as a Ground of Conviction .... 339 Confiscation of Ships, as a Penalty for Breach of Blockade . . 410 Conflict of Laws, Examples of 369 Confuaio, Meaning of 160 Consanguinity, Ground of Laws relating to .... 242, 243 Consent of Friends, as a Condition of Marriage 241 ' Consolato del Mare ' as a Source of International Law . . . 405 Constitution of the State, Laws relating to the, their Place . 97, 98 „ „ „ „ Distribution of . . 103 Constitutional Law, its Place 97, 98, 102 „ „ Distribution of Topics of .... 103 sq. „ Morality, meaning and criticism of Phrase . . 104, 105 Constructive Fraud, a Fact artificially held to impair Moral Re- sponsibility „ „ Explanation of Doctrine of „ „ Application of Doctrine to Contractors Duress Contraband of War, Penalties for carrying .... Contract, Mental as contrasted with Formal, Elements of . „ a Rudimentary Fact on which the Science of Jurisprudence depends „ Idea of, latent in that of Ownership . „ Historical and Real Place of Laws of . „ Laws of „ Anatysis of Judicial Elements in Laws of „ End of Laws of „ Phenomenon of, as a Social Characteristic „ Mode of Development of . . . „ Complete Explanation of Term . „ Relation of a, to a Conveyance . „ Persons who Make .... „ Acts by which the Making of a, is signified „ Rights Accruing through the Making of „ how Dissolved ,, Rights to Dissolution of, where classified „ Injuries to Rights under a . „ Private International Laws of Contracts, Classification of „ Implied, ambiguous uses of Phrase . „ of Affreightment .... of Assurance • 85 274, 275 under 189 410 12 13 63; 99; 176 sq.. 179 178 177 177,178 179-181 165, 166 181-194 194-200 201-208 211, 212. . 211 288, 291 383, 384 213-229- 199, 200 216, 227 216,226 524 INDEX. PAGE Contracts, of Guaranty 226 „ of Indemnity 216, 226 „ Relating to Negotiable Securities .... 216,227 „ In View of Marriage 215-218 „ „ Sale 219,220 „ Subsidiary, attending Sale 221 „ Certain, bave tbe notion of Sale underlying tbem . 222, 223 „ of Warranty, as Subsidiary to a Sale .... 221 Contraventions, Delits, and Climes: Nature of Division of Offences into in France • 302 Contributory Negligence, its Juridical Nature ..... 328 Convention of Geneva of 1864 and of 1868, Nature and Purport of . 449 „ of St. Petersburgh, Purport of 450 Conveyance, A, its Relation to a Contract having for its Object a Sale 221 „ „ its General Relations to Contract . . . 165, 166 Conveyancing, Functions of Lawyers as to . . . . .278 Copyhold Estate, under what bead Classified 149 „ „ what Rights implied in .... 149, 150 „ „ Mode of Conveyance of a 164 Copyright, Nature of 140, 141 „ Rights of Action for Piracy of, where Classified . . 291 Corporate Bodies, Laws relating to Certain 281 Corporation, a Person 81 Corporations as Owners 147 Corpus Delicti, Meaning of Expression 336 Cour de Cassation in France 341 Courts, Admiralty : their International Character and Importance . 400 „ Prize : their International Purposes 400 „ of Appeal for Criminal Cases 341 „ of Justice, Laws for their Establishment .... 320 „ „ - „ their various Characters and Purposes . . 321 „ „ Probate : their Executive Functions .... 322 „ „ „ their Constitution, and what it implies . . 322 „ „ Chancery : their Jurisdiction as to Trusts .... 268 „ „ Equity, Distinguished from Praetorian Court at Rome . 320 „ „ Law and Equity : Suggested Statute for affording identical Remedies in 480 sq. Creditors, Relief from Claims of, in Bankruptcy .... 345 „ Compositions with, in Bankruptcy 345 Crime, A, Definition of 286 „ „ Distinguished from a Civil Injury .... 286, 287 „ ,, Analysis of Elements of 299 Crimes, Laws of Civil Injuries and, Place and Import of . . 100-102 „ „ relating to 297 „ Consummate, Distinction between them and Attempts to Commit Crimes 299 „ Classification of, its Place in a Scheme of Criminal Law . 300 „ Concurrent, as Affecting Punishment 301 INDEX. 525 TAGE Crimes, Mischief of Creating Artificial 614 Criminal Liability, at what Age it commences by English Law . . 86 „ Act, its Elements 298 „ Cases, Court of Appeal for 341 „ Pleading, Juridical Character of 328 „ Procedure, Conflicting Theories of ... . 349 sq. Cross-examination, Claims of Rival Suitors in respect of . . 339, 340 „ „ „ Prosecutor and Prisoner in respect of . 339 Culpa Lata, Levis, and Levissima, Distinctions between . . 203, 204 Curator, Purposes of his Appointment 260 „ Prodigi, Policy of Institution of 260 Customs, Recognition and Adoption of, a Source of Law ... 52 Damages, Vindictive, Nature of 211 Death, a Fact on which the Science of Jurisprudence depends . . 12 „ viewed as an Act rather than as an Event, in case of Homicide 94 „ The Punishment of, its J uridical Bearing . . . 311-313 „ „ „ In Relation to Prerogative of Pardon . 352, 356 „ „ „ Evidence before Capital Punishment Comnris- mission concerning .... 357-360 Decisions of International Courts, a Source of International Law . 408 Declarations, as a Ground of Suspicion 338 Deed, English, as a Mode of Transfer 164 Definition of Leading Terms, a Topic of the Science of Jurisprudence 49 Dalits, Contraventions., and Crimes, Nature of Division of Offences into, in France . 302 Demurrer, Juridical Nature of a 325 Dependence of a State, its. Limitations and Modes . . . 416,417 Depositary, A, Nature of his Rights ...... 151, 152 Digest, Signs of Attempting a, in England ..... 488 Diligence, Want of, what 203, 204 Diminutio Capitis, as a Mode of Forfeiture 170 Diplomatists, Correspondence of, a Source of International Law . 408 Disobedience to Law, Act of, must be Intentional .... 4 Disposition as a Ground of Suspicion 338 Dissolution of Contract, Rights to, where Classified .... 211 Distress, Nature of Laws of 345, 346 Divorce, Law of, what Elements it involves 10 „ Nature and Policy of Laws of 252-257 „ Modes of Legislating with lespect to .... 256,258 ,, Court, Mode of Pleading in the English . . . 327, 328 „ Rules in Private International Law respecting . . 384-387 Domicile, Nature and Juridical Import of . . . . , 376-378 Domicilii, Lex, Meaning of t 378 Dominium, Nature and Incidents of 148,149,151 Donatio Mortis Causa, Import of 167 Droop, Mr., his views on Irregular Warfare by Population of an Invaded Territory .... 442 526 INDEX. Dboop, Mr., his views on Modes of Distinguishing Combatants from Non-combatants „ . . 444, 445 Drunkards as Contractors 187 Duress, Persons under, as Contractors 188, 189 Duties imposed by Law without Rights being conferred, Certain . 65 „ Absolute, not included in Mr. Austin's Divisions . . 283, 284 Duty, Explanation of Term 76-79 „ A, how far it presupposes a Eight ...... 76 Easements, Nature of . . 150,151 „ , under what head Classified 149 Ecclesiastical Corporations, Laws relating to 281 „ System of Europe : its Influence on International Law . 402 Education Laws, under what head Classified ..... 249 „ of Children, Who Legally Responsible for . . 248, 257 Educational Corporations, Laws relating to 281 Eleemosynary „ „ „ „ 281 Embezzlement, Prosecution for, a Mode of Protecting Rights of Ownership 175 Emphyteusis, Rights implied in 149, 150 Error, a Fact Impairing Moral Responsibility .... 85, 87 Equitable Pleas : their Historical Import 327 „ „ Recent Permission of Use of, in Common Law Courts 479 „ and Legal Rights, Suggested Statute for Recognising in one and the same Court Equity, a New Series of Legal Principles . „ administered by a New Set of Officials . „ an Instrument of Legal Reform „ a Source of Law „ Notion of, in relation to the Law of Trusts „ Courts of, how distinguishable from Praetorian Court at Rome „ Convenience and Modes of Fusing, with Common Law . 479-482 Escheat as a Mode of Forfeiture 170 Espionage, a Vicious Consequence of Multiplying Crimes . . . 514 Established Church, Nature of Laws in Support of . . . 460, 461 Establishment (Church), Juridical Import of Term . . . 460, 461 Estates, Copyhold, Rights implied in 149 „ Fee-simple „ „ „ 148 „ Tail „ „ „ 149 „ Usufructuary „ „ „ 149 Ethical Science, Relation of, to Science of Jurisprudence . 25, 29, 30-34 Ethics and Social Ethics of each other Event, Explanation of Term „ Bankruptcy, when regarded as an „ Death „ „ „ „ „ Marriage „ „ „ „ Evidence of Acts involved in Idea of Law how far they can be treated independently . 35 93,94 . 94 . 94 . 94 3 INDEX. 527 PAQE Evidence of Character, its Nature 813-316 „ Circumstantial 332-339 „ Classification of Kinds of 331, 332 „ Direct 332-335 „ of Experts 308 „ Expediency of Laws Regulating Admission of . . . 330 „ Laws Regulating, included in Laws of Procedure . . 102 „ Medical, in Cases of Lunacy 308 "Evidentiary" Facts: their Nature and Juridical Import . . 334-339 Exculpation, Grounds of 304, 306 „ Classification of Grounds of 299 Execution of Sentence, Laws relating to 341 Executive Authority: Meaning of Phrase, and Distinction from Legislative Authority . . 105, 106, 117 Executive Authority, Functions of 117 „ „ Component Elements of . . . . 117, 118 „ „ Analysis of Laws Regulating .... 121 „ „ Laws providing Securities against Abuses by 119, 120 „ „ Its Special Functions in the Ratification of Treaties 430,431 Executors, Laws relating to 262, 270 „ Rights of Action for Injuries committed by: where classified 291 Experts, Evidence of 308 Extenuating Circumstances, History and Import of the Verdict of, in France 341,358,359 Extortion, Place, in a Scheme of Criminal Law, of Laws relating to . 301 Extradition, Doubtful Right of States to 421 „ Doctrine of, in relation to Political Offences . . . 362 „ of Fugitives Accused of Murder 360 „ Place of Topic of 388 „ Treaties, their General Nature 362 Extraordinaria, System of Procedure at Rome, it3 Historical Import 326 Extraordinary Remedies, Place of Laws providing .... 342 Fact, Questions Involved in Trial of Issues of 329 Factory Acts, under what head Classified 249 Family Life, what Embryonic Juridical Facts it implies ... 20 Father and Child, Laws relating to . . 235, 245, 247, 250, 257, 258 Fear as a Ground for Suspecting an Accused Person .... 339 Fee-simple Estate, meaning of Phrase 148 Felonies and Misdemeanors, Historical Nature of the Division . . 302 Felons as Owners 147 Feoffment as a Sign of Transfer 164 Feudalism, its Influence on the Creation of International Law . . 401 „ M. Guizot's Account of the Prevalence of, in Europe . 401 „ what was implied in its very Nature .... 402 Fiction, Legal, Professor Maine's Theory respecting .... 13 „ ,, A Source of Law 52 528 INDEX. PAGE Fideicommissa, their History in relation to the Law of Trusts 263, 266, 270 Fideicommissarius, his Functions 267 Fiduciarius, how Appointed 270 „ his Functions 267 Fiscui, a Person 81 „ whether a Person or a Thing 142 Fisheries in Canada, Treaties Regulating Disputed Claims to . . 426 Fjxt&res,/underrtWhat head Classified 135, 136 Forgery ,^la£e,Tjl a Scheme of Criminal Law, of Laws relating to . 301 Forfeiture, where Classed 157 „ Juridical Import of, as a Mode of acquiring Eights of Ownership . 170 „ As a Penalty in International Law 410 Foreign Law as a Topic of Legal Study .... 499, 501, 502 " Formulary " System of Procedure at Rome, its Juridical Nature 325, 330 Fraud, Analysis of the state of Mind implied in, a Main Department of Juridical Enquiry ........ 12 a Fact impairing Moral Responsibility .... 85, 87 Import and Illustrations of ..... . 84, 88 on what Ground it relieves the Person pleading it . . .83 Regulation of Legal Consequences of ... . 88, 92 Constructive, Explanation of 92 „ a Fact artificially held to impair Moral Respon- sibility .85 French Writers, their value to the Juridical Student .... 506 Fruits of Crime, Carrying off, as a Ground of Suspicion . . . 339 Geneva, Conventions of, 1864 and 1868, Nature and Purport of . . 449 German Philosophical Language, Value of Acquaintance with, to Juridical Students 505 „ Words to express Idea of " Law " untranslateable . . 505 Germany, Use to Juridical Student of Juridical Literature of . . 505 Government, a Fact on which the Science of Jurisprudence depends . 12 „ Rudimentary Form of, how accounted for . . . 21 „ Formal Creation of, how explained .... 20 „ Notion of, contemporaneous with that of Law . . 97 „ Science of 88 „ and Direct Moral Forces, Contending Theories as to their several Provinces 511, 517 Grotitjs, Explanation of Popularity of his Work .... 407 „ Roman Vesture of his Work 403 Growth of Law, Mode of, as Affecting Question of Codification . 476, '477 Guaranty, Contract of 216, 226 Guardian and Ward, Foundations of Relationship . . . 259, 260 „ j, ,, Laws relating to, under what head Classed 235, 258 ,, „ „ Scheme of Laws relating to ... 262 Guardianship of Children, Who Legally Responsible for . . 248, 257 „ „ „ Modes of Providing for . . . 260, 2G1 INDEX. Guardianship ofliunatics Guerilla-bands, Nature of, and Rules respecting Gtjizot, M., his Account of the Feudal Institutions of Europe 529 PAGE 260, 261 444, 445 . 401 Hareditas, a Person , 81 „ whether a Person or a Thing 142 Hanseatic League, Laws of, as a Source of International Law . . . 405 Health, Rights to Enjoyment of Conditions of 288 Historical Methods, Identical, for some purposes, with Logical Methods 18 „. School, as opposed to Philosophical School in Germany 471, 472 History, Science of, recognises Facts already reduced to Scientific Form 16 Homicide, Difficulties attending Verbal Description of . . 357-360 Ht/ngart : its Constitutional Relations to Austria . . . .417 Husband and Wife, Laws relating to, under what head Classed 235, 236 „ „ „ Distribution of Topics of Laws relating to . . 236 „ „ „. Description of Moral and Legal Relationship of 236-239 „ „ „ Signs of Creation of Relationship of . . 239-243 „ „ „ Rights and Duties Accruing as between . 243-252 ,. ,, „ Signs of Termination of Legal Relationship of . 252 „ „ „. Rights of Action for Injuries to, where Classed . 291 „ „ „ Rules of Private International Law respecting 385-387 Idiocy, a Fact Impairing Moral Responsibility 85 Ignorance, Regulation of Legal Consequences of .... 88 „ .of Law, Presumption against 89 Immorality, Contracts Void on Ground of . . .■ . . . 228 Imprisonment, Rights of Action for False, where Classed . . 290 Imputability, Legal, Three Distinct Sorts of Capacity needed for . 84 Incest, Ground of Laws forbidding . . , ... . , 243 „ Place, in a Scheme of Criminal Law, of Laws relating to ., 301 Indemnity,, Contract Qf . ,. . • 216, 226 Independence of. States', Limitations of Doctrine of ,. . . 416,417 „ , „ „ Rights presupposed in . , . , . 420, 421 Independent, Meaning of a State being 416, 417 India, English Argument in favour of Annexation of Territory in .' 423 Infamia, its Operation in Roman Law , . 276 Infancy, a Fact Impairing Moral Responsibility . ... 85-87 „ , as Operating on Capacity for Ownership . . . 144, 145 „ „ . „ „ „ „ Making Contracts . . 184-186 Infants as Contractors 184-186 „ . Guardianship of 260, 261 " Infirmative Suppositions," Beniham's Use of Expression - ■ . . 336 In Fraudem Legis, Doctrine of 386 Injunction, a Process for Protecting Rights of Ownership . . 174 , r Nature of Process of ...... 174, 342 " Inquisitorial " System of Criminal Procedure as opposed to " Liti- ' gious " System. 349, 350 Insanity, a Fact Impairing Moral Responsibility r . , " S5-&7 M M 530 INDEX. PACH Insanity, as operating on Capacity for Ownership . . . 144, 145 „ as operating „ „ ,, Making Contracts . . 184, 187 „ as a Grouud of Exculpation .... 299, 306-309 Instruments of a Crime in the Possession of the Accused, as a Ground of Suspicion 338 Insurance, Interpretation of Contracts of 206 „ Fire, Liability of Company in Case of Insurer's Negligence . 207 „ Life, Implied Conditions in Contract of ... . 206 „ Marine, Grounds of Exemption from Liability under Con- tract of 206 Intemperance, a Pact Impairing Moral Responsibility . . 85-87 Intention, Analysis of, a Main Department of Juridical Enquiry . 12 ,, „ „ a Criminal 298 Intercourse, A Cessation or Suspension of, as Penalty for Breach of In- ternational Law . .• 411, 412 Interdict, a Process for Protecting Rights of Ownership . . . 174 „ Process of 342 Interest, Payment of, under Contracts, how Determined . . 210, 211 Interference, Rights of States to Security against .... 420 International Law, its Nature and Origin 391, 392 „ „ Code of, Alleged Analogy of a, to a Body of Moral Prescriptions ..... 46 „ „ Effect of, on History of Law . . . 45-47 „ „ Sources of 46, 404-409 „ „ General Character of Sanctions of . . 47, 409 „ „ its Sanctions Described and Enumerated . 409-413 „ „ its Conditions as a Possibility . . . 401-404 „ „ Private 366 sq. „ „ Public 391 sq. „ „ „ how it illustrates the Essential Nature of all Law 502 „ „ „ Concern of the Jurist with . . 503, 504 „ „ „ its Function in Legal Education . 601-504 ,, „ „ Opposed to International Morality . 393-395 Interpretation, Theory of 53 „ True Import of, as a Process . . . . 59, 60 ,, Complete Meaning of Term as part of a Judicial Process ........ 59 „ Judicial, an Instrument in Legal Reforms ... 15 „ Processes of, as Essential Sides of the Phenomenon of Law 49 „ of Acts, its general bearing on Legal Classification . 29 ,, Extensive or Restrictive, a Source of Law ... 62 „ how Affected by Mode of Publication of Laws . . 54 „ of Treaties, Obstacles to Universal Canon of . 428, 429 „ Difficulties of, as Affecting the Question of Codifica- tion 474-476 , Interrogatories in Procedure, their Origin and Nature . . 339, 840 INDEX. 531 • PAOB Interrogatories, Extension of Use of, to Courts of Common Law. . 479 Intoxication, Necessaries Supplied during Fit of .... 87 Invasion, Irregular Resistance to, by Population . . . 442-444 Invention as a Mode of Acquiring Eights of Ownership : where Classed 157 „ Juridical Import of . Issues of Law and of Fact, Modes of Trial of . 161 328, 329, 340 Jeppbbson, Mr., his Statement of the Monroe Doctrine . . . 422 Judicial Decisions, a Source of Law 68 „ Separation, Policy of Permitting a 256 Jurisprudence, a Science . 1, 4 What Constitutes the Science of 4-8 „ Extension and Enrichment of Science of . . 9 „ Science of, Dependent on Growth of Positive Law . 12 n „ „ Ultimately Dependent on Facts of Human Life and of Natural World (as Age, Sex, Birth, Death) 12 )t „ „ Description of 18 j, „ „ Emphatically a German Production . 504, 505 „ „ „ True Import of Phrase . . . 607-509 „ „ „ General Prospects of . . . . 457 sq. „ A System of, how Distributed 44 „ Mr. Austin's Use of Term 607 „ Various Uses of Term 507 Jurist, Functions of a 6-8, 1 8, 19, 29, 504 „ The, his Concern with Systems of Foreign Law . . . 501 Juries, Policy of requiring Unanimity from .... 363-365 Jury, Trial by, its Juridical Aspects ..... 328, 330, 363 Jus ad Rem does not always precede a Conveyance .... 165 „ in Re, under what head Classed 149 „ „ Rem, Historical Import of Phrase 127 „ Rerum, its Historical opposition to Jus Personarum . . 126, 127 „ Personarum „ „ „ „ Rerum , . . 126, 127 „ in Personam, Historical Import of Phrase 127 „ Gentium, its Bearing on Private International Law . . 366, 367 „ „ „ „ „ Public „ „ 403 „ Naturale „ „ „ Private „ „ • 366, 367 „ Nature „ „ „ the History of Public International Law . 403 Justice, Courts of, Laws for the Establishment of 319 sq. „ Natural, Interest of Phrase to Jurist 31 Kidnapping, Place, in a Scheme of Criminal Law, of Laws relating to 301 " King, The, can do no Wrong," Import of Phrase .... 118 Language, A Fact on which Science of Jurisprudence depends . . 12 „ is reinforced from Observations of the Vulgar ... 17 „ Inherent Difficulties of 55 M M 2 532 INDEX. PAGE Language of Law, how affecting its Administration . . 81, 32 „ & its Inrperfec|iona ; a#aJfecting the Question of Codification 474, 475 „ Various Uses of the Word 70 „ of God ; Natural ; Moral 70 „ Explanation of Term ; 73 „ and Morality, Real Connection of 77, 78 „ Affects to Control Acts alone 74, 75 „ Interpretation of 3, 50 sq. „ Sources of, involved in Idea of Law 3 „ „ „ Investigation of ..... 50 sq. „ „ „ Enumeration of Possible ..... 52 „ „ „ Time of First Appearance of 22 „ Notion of, how Developed 24 „ Not an Isolated Social Phenomenon ..... 18 „ Growing Fixity and Distinctness of 19 „ the Expression of Moral Order demanded by the People . . 21 „ not the Sole Cause of Human Society 35 „ Fact of, presents itself in Two Aspects ..... 41 „ Phenomena of, Distributed under their Main Heads ... 27 „ Three Essential Aspects of 49 „ Any particular System of : how Analysed ..... 42 „ of Persons opposed to Law of Things 27 „ of Persons 96, 100 „ of Things . 96 „ " Public and Private." Criticism of Opposition ... 98 „ Growth of Positive, Determined by National Progress . . 12 „ " Case," in England: what 58 „ Condition of relations of Written and Unwritten, in England 483-487 „ Common, Convenience and Modes of Fusing it with Equity 478-482 „ „ (English) an Example of Formation of Certain Sources of Law . . . ... . . .52 „ of " Torts," its Place . . . . ' . . . .101 „ Relating to Husband and Wife 236 sq. „ „ „ Parent and Child . . 235, 245, 247, 250, 257, 258 „ „■ „ Guardian and Ward 235, 258 „ Constitutional, its Place 97, 98 „ Systems of Foreign, as Sources of Law 52 „ Foreign, as a Topic of Legal Study .... 499, 501, 502 „ Private International, its Nature 366 sq. „ Public „ „ 391 sq. „ „ „ Functions of, in Legal Education . 501-504 „ „ „ Sources of .... 46, 404-409 „ „ „ its Effect on History of Law . . 45-47 „ Primitive : what it is the key to 48 „ of Murder laid down in McNaughten's Case .... 33 „ Trial of Issue of 340 INDEX. 533 PAGE Law and Morality : Contending Theories as to their respective Pro- vinces 510-517 „ Written and Unwritten : their several Qualities as Affecting the Question of Codification 473-475 „ German Words to express Idea of, Untranslateable . . . 505 Laws of Nature, Interest of Phrase to Jurist 31 „ Written : on what they depend for their Special Value . . 56 „ Unwritten, Sources of 58 „ Written and Unwritten, Relative Values of . . 59, 474, 475 „ Various Bases of Classification of 26, 27, 96 „ Relating to the Constitution and Administration of the State : their Place 97, 98 „ „ „ „ Distribution of 103 sq. „ of Ownership, Purpose and Place of 99 „ of Contract 176 sq. „ „ „ Historical and Real Place of 99 „ Affecting Special Classes of Persons, Place of . . 100, 230 sq. „ of Civil Injuries and Crimes, Place of 100-102, 283 „ „ Crimes 297 sq. „ „ Procedure 317 sq. „ „ „ their Place 100-102 „ Relating to Advocates 276-280 „ „ „ Attorneys 276-280 „ „ „ Barristers 276-280 „ „ „ Certain Corporate Bodies 281 „ „ „ Notaries Public 276-280 „ „ „ Proctors 276-280 „ „ „ Solicitors 276-280 „ „ „ Trustees 262-276 „ „ „ Writers to the Signet 276-280 „ of Evidence, their Expediency 330 „ Examples of Conflict of 369 „ Private International, respecting Ownership . . . 378-382 „ „ „ „ Contract . . . 383, 384 „ „ „ Affecting Special Classes of Persons 384-387 „ „ „ respecting Procedure . . . 387-389 Leading Terms, List of 48, 49, 71 „ „ Explanation of 69-95 „ „ Created by the Sentiments of the People ... 69 Lectures : their Function in Legal Education .... 495-497 Legal Education : its Prospects in England .... 490 sq. „ System, a Skeleton, Leading Principles of 61, 62 „ „ Basis of Distribution of a 67 „ „ Leading Divisions of a 67 Legis Actiones : their Nature 324 Legislation, Direct and Conscious ....... 13 „ the most effective instrument in Changing the Law . 13 „ Rudimentary Form of, how accounted for 21 534 index. FAQS Legislation, Stage of Conscious, when it is reached .... 24 „ Science of, how related to Jurisprudence ... 87 „ Judicial, a Source of Law ...... 62 „ Statutory, a Source of Law 63 Legislative Authority, Meaning of Phrase, and Distinction from Executive Authority 105, 106 Legislator, Will of, how discovered . . . . . . .69 Legitimatio per suhsequens Matrimonium, Policy of 250, 251 Legitimation of Children 250, 251 Letting and Hiring, Nature of Contract of . . . » . . 222 Lex Aquilia, Action under, a Mode of Protecting Rights of Ownership 175 „ Domicilii, Meaning of ........ 378 „ Fori, Meaning and Application of 382, 384, 387, 388 „ Loci Actus, Meaning and Application of 382, 386, 387 „ „ Mei Sitce „ „ „ „ 379-382 „ Situs, Meaning of ........ 379, 380 Libel in relation to Doctrine of Privilege 293, 294 Libels, Indecent, Place in a Scheme of Criminal Law, of Laws relating to 300 „ Malicious 301 Liberty, Public, what it imports 513, 514 Lien, as a Mode of Minimising Loss 207, 208 Limitation of Actions, Nature and Policy of Laws relating to . 346, 347 " Litigious " System of Criminal Procedure, as opposed to " Inquisi- torial" System . 349, 350 Loan, Contract of, as Distinguishable from Sale 222 Locatio Conductio, Nature of Contract of ..... . 151 Logical Methods, Identical, for some purposes, with Historical ■ . 18 Lunatics as Owners 144, 145 „ „ Contractors 187, 188 „ Guardianship of 260, 261 Lunacy — see Insanity McNaughten's Case, Law of Murder laid down in . . . .33 Maine, Professor, to what his Speculations owe their Importance • 11 „ „ his Theory respecting Equity 13 „ „ „ „ „ Legal Fictions ... 13 „ „ „ Theories of Ownership .... 123, 124 „ „ „ Theory on Laws of Contract . . . 176, 177 „ „ „ „ of the Jus Naturale .... 367 „ „ „ Description of the Development of Jus Gentium and Jus Naturale ..... 403 Maintenance of Children, who Responsible for .... 248, 257 Malice, Analysis of, a main Department of Juridical Enquiry . . 12 „ Definitions of Term ' . 305, 306 „ Actual, Meaning of Phrase 305, 306 „ Aforethought „ „ , 305, 306 „ Implied „ „ , 305,306 „ Legal „ „ , 305, 306 INDEX. 535 PAGH Malice, Modes of Defining, in relation to Murder t . . 859-361 Malicious Arrest, Rights of Action for, where Classed . . . 290 „ Injury to Property, Rights of Action for, where Classed . 290 „ Libel, Place in a Scheme of Criminal Law, of Law relating to 301 „ Prosecution, Rights of Action for, where Classed . . 290 Mancipation as a Sign of Transfer 164 Mandamus, Nature of Remedy by 342 Mandatary, Nature of his Rights 151, 152 Manslaughter, Law of, its Place in a Scheme of Criminal Law . . 301 „ its varying Qualities 316 „ Difficulties attending its Distinction from Murder 857, 360 Marriage, a Fact on which the Science of Jurisprudence depends . 13 „ Presupposes the Existence of Law ..... 89 „ Primitive, as a Mode of National Training .... 467 „ Policy of Laws in Support of 468 „ a Fact artificially held to Impair Moral Responsibility . 85 „ as Operating on Capacity for Ownership . . . 144-146 „ when treated as an Event and when as an Act ... 94 „ not a Contract 216 „ Contracts in view of 215-218 „ Settlements, Law relating to Trustees of . . . 270 „ Place, in a Scheme of Criminal Law, of Offences relating to 301 „ Fraudulent Evasion of Laws of, its Place in a Scheme of Criminal Law 301 „ Private International Laws respecting . . . 385-387 Married Women as Owners 145, 146, 245-247 „ „ „ Contractors , . . 190 Maxims, Legal, a Source of Law ...... 52, 58 Medical Evidence in Cases of Lunacy 308 Metayer Tenancies, Rights implied in 149 Mill, Mr., his Criticisms of Mr. Austin's Divisions . . . 283, 284 Minister of Justice, Policy of instituting, a 351-353 Minors as Owners 145, 147 „ under 25, Guardianship of 260 Misdemeanors and Felonies, Historical Nature of Divisions . . 302 Mistake, Analysis of, a Main Department of Juridical Enquiry . . 12 „ a Fact Impairing Moral Responsibility . . . 85-87 Monroe Doctrine, Mr. Jefferson's Statement of 422, 423 „ „ as stated by Mr. Monroe 422 Moral Responsibility, Terms Respecting Qualifications of . . .82 n „ Assumptions involved in 82 if Capacities essential to the Idea of , > . 83 . f Classification of Facts which are held to Impair 84, 85 „ as shared between Principal and Agent . . 90 Morality, its Relation to Law 77, 78, 514-516 „ and Law (International) Contrasted .... 893-395 „ Constitutional, Meaning and Criticism of Phrase . 104, 105 y, Absolute, true Import of Phrase . . . . . , 515, 518 •536 index; PACK Mortgage, Contract of, Assimilated to Contract In View of Sale . 223 „ Suggested Mode of Fusing Rules in Equity and Common Law respecting ........ 480 „ Aspect of, in Courts of Common Law and of Equity . . 269 Mortgagee, Nature of Eights of a 151, 152 „ . Claims of a, in Common Law and in Equity . . 269, 270 Mortgagor, his Rights in English Law . . . 152, 153, 269, 270 Mortmain, Effect of Laws of, on Law of Trusts ..... 268 Motive, Analysis of, a Main Department of Juridical Enquiry . . 12 „ of an Accused, as Ground of Suspicion 338 Municipal Corporations, Laws relating to 281 Murder, its Place in a Scheme of Criminal Law ..... 301 „ Presumptions made in applying Law of 305, 306 „ English Law of, as laid down in McNaughten's Case . . 33 „ Suggestions for Novel Definition of ... 357-360 „ Evidence before Capital Punishment Commission with respect to Crime of 357-360 Mutiny Act, Place of, in Legal System ...... 120 Napoleon, his Indirect Influence on the Discussion of Codification in Germany 471 National Character, made up of what Elements ..... 22 Nationality, Juridical Import of Term ...... 375 ., Mode of Determining, in Fkance 375 Nations, Law of, said to he part of the Law of England . . '. 394 " Natural " Agents as opposed to other Things 129 Naturalisation, Import of Laws of ..... . 375, 376 Nature, Laws of, Interest of Phrase to Jurist 31 „ " Law of," a Source of Law 52 Negligence, Analysis of, an important Department of Juridical Enquiry 12 „ Distinct Grades of • 203, 204 „ Contributory, its Juridical Nature . 328 Negotiable Securities, Contracts relating to .... 216, 227 Neutral Claims, Development and Nature of ... 434-438 „ „ Grounds of Enforcing 436 „ „ Modes „ „ 436, 437 „ Flag and Merchandise, Rules of Treaty of Paris respecting 433,434 " Neutrality, The Armed," of 1801, its Influence on the Formation of Rules of International Law 503 New Yoke Codes, their Interest and Value 502 N on-Combatant Population, Effects of War' upon, as influencing Fre- quency of Wars , . 452, 453 Non-intervention, Recent phases of Doctrine of .... 398 Notaries Public, Laws relating to 276-280 Notice, Juridical Import of, in respect of Dishonour of Bill of Exchange 206 Novatio, its Operations 212 Noxalis Actio, its Nature as a Mode of Compensation , . . 297 L Nuisance, Rights of Action for, where Classed , , . . 290 INDEX. 537 Nuisances, Public, Place of Laws relating to, in a Scheme of Criminal Law 300 157, 146, of for 99 Obligation, Natural, Meaning of Phrase Occupancy, Meaning of, as a Juridical Fact Occupation, Doctrine of, in International Law . Oleron, Laws of, as a Source of International Law Opportunity to»do a Criminal Act, as a Ground of Suspicion Outlaws as Owners . . . „ „ Contractors .... Outlawry, as affecting Rights of Ownership Own, Persons who Owned, Things Ownership, Function of Jurist in ascertaining Meanin „ A Fact on which Jurisprudence depends „ Quality, not Fact, of, a Proper Matter Dispute „ General Nature of Fact of „ Progressive Vicissitudes of Fact of „ Object and Place of Laws of „ Laws of „ Distribution of Laws of „ Laws of, Implied in Theories of Community of Goods . 463 „ Injuries to Rights of, under what head Classed . 288, 290 „ Enumeration of Modes of Protecting Rights of . . 174 „ Development of Notion of, as affecting Progress of Juris- prudence . 458 „ . Professor.MilNE's and Sir JohS Lubbock's Speculations concerning 123, 124 „ , Private, International Laws of .... 378-382 „ not a Creature of Antecedent Law 4 „ . Notion of Individual, of Slow Growth .... 5 „ Individual, an Organic Element of Social Development . 19 ,, Exercise of Capacity of (Possession) . . .6, 153, 154 „ Fact of, begins or ends on the happening of what Events 5, 164 „ Rights of, explained 147, 148 „ „ „ as between Husband and Wife . . 245, 247 „ „ „ „ „ „ „ „ Various Spe- cies of . 246, 247 „ „ „ „ Parent and Child . . . 248-250 200 158 422 405 338 147 . 193 . 170 5, 143 5, 128 . 462, 463 • 13 Political . 462, 463 . 122, 123 . 123 125, 127, 128 122 sq. . 124, 125 Paley's and Austin's Theories concerning Promise Pardon, Prerogative of, its Nature and Policy Parent and Child, Laws relating to Paris, Treaty of, of 1856, Effect of Rules of . Parties to Actions, Law Determining the Proper Partnership, Nature and Elements of Contract of Patent Right, Nature of . . 205 . 352-357 . 235, 236 406, 433, 434 . 348, 349 . 226 . 140, 141 538 INDEX. FAOH Patent Right, Rights of Action for Infringement of, where Classed . 291 Paterfamilias, his Rights of Ownership ...... 132 Pawnbroker, Nature of his Rights 151, 152 Peace, Modes of Favouring, and Prospects of a Permanent. 399, 400, 456 Pei jury, Laws of: their Place in a Scheme of Criminal Law . . 300 Person, Modern Notion of a . . . . . . . .46 „ Explanation of Term 79, 80 „ Various Uses of Ttrm ........ 80 „ Distinction of a, from a Thing 79- 81 „ Moral Responsibility of a, as a Ground for the Conception of Legal Relationship 12 „ Was the Roman Slave a ....... 80 „ A "Fictitious "or "Artificial" 81 „ A Corporate Body is a Legal 81 „ A State as a 414, 415 Personal Rights, Distinction between, and Real Rights ... 27 „ Property, History of, and Distinction from Real Property 134, 135 „ Security, Rights to : under what head Clashed . . 288, 290 „ " Statutes," " Real," and " Mixed," Meaning of expressions . 380 Persons, The Classes of, contemplated by every Law as such . . 25 „ Quality of, as a Basis of Classification of Laws ... 26 „ Law of, opposed to Law of Things 27 „ „ 96,100 „ Laws Affecting Special Classes of 230 „ „ „ „ „ „ their Place . . 100 „ who Own, Classification and Description of . . 143-147 „ „ Make Contracts 181 „ Use of Term in Public International Law . . . 414, 415 Philosophical School in Germany as opposed to the Historical . 471, 472 Physical Science, Relation of, to Science of Jurisprudence ... 25 „ ,, Use of to Jurist .29 „ „ Effect of Progress of, on War 440 Pignus, Nature of Contract of 151 Place, a Fact on which the Science of Jurisprudence Depends . . 12 Pleading, Functions of Lawyers as to 278 „ its Nature and Varieties 325-328 Pleas, Various Modes of Presenting or Joining .... 325-327 „ Equitable, Extension of Use of, to Common Law Courts . . 479 Plebiscite, Process of Resorting to a, characterised .... 424 Pledge, Distinguishable from Sale 222, 223 Political Authority, Supreme, Explanation of Phrase ... 74 „ „ „ cannot enjoy Rights nor be liable to Duties 77 „ Crimes, their Nature 360, 361 „ Economy recognises Classes of Facte already reduced to Scientific Form of 16 „ „ its Relation to the Science of Jurisprudence . . 36 „ Science „ „ „ „ „ „ „ . 25 INDEX. 539 FAGB Politics, General, Science of, recognises Facts already reduced to Scientific Form 16 i» » „ of, -what it comprehends .... 34 Possessio Naturalis and ad Interdicta, Meaning of 153, 154 » ,, how applicable in International Law . . . 422 „ Civilis, Meaning of 154 „ ad TJmcapionem, Meaning of 154 Possession, Juridical Import of 153, 154 „ Usages and Contracts in reference to, on a Sale . 220, 221 Power of Appointment, Suggested Statutory Changes in Equitable Jurisdiction over 480, 481 Praetorian Jurisdiction at Rome Distinguished from that of Courts of Equity 320 Pre-emption, Rules regulating Claims to, on the part of an Occupying Army' 448 Preparations for' a Crime, as a Ground of Suspicion .... 338 Prerogative of English Monarch, Import of Term .... Ill „ „ Pardon, its Nature and Policy .... 352-357 Prescription, Explanation of 162, 163 „ where Classed ........ 157 „ Policy of Laws of 347 " Primary" Rights, their Nature as opposed to " Secondary " Rights 283, 290, 291 Principals and Accessories in Crimes, Law relating to 300 „ „ Agents, Nature of Mutual Relations of . . 193, 224 Prisoners of War, Progressive Mitigation of Treatment of . . 439 Private International' Law, its Nature 366 sq. „ ' „ „ its Materials and their Classification 369-372 „ „ „ its Existing Condition and Prospects 889, 390 „ Law, as opposed to Public Law, Criticism of Phrase . . 98 Privilege, Explanation of Term in Reference to Defamation . 293, 294 Prhileges of Members of English Parliament, Illustrations of, and Meaning of Term 111,112 Prize Courts, their International Character and Importance . . 400 Probate, Court of, its Executive Functions generally .... 322 „ „ „ „ Functions in Appointing Administrators . . 271 „ „ „ Modes of Pleading in the . . . . 327, 328 Procedure, Framing Rules of, a Source of Law 62 „ Laws of, Meaning and Place of 100, 102 „ ' „ „ Matters dealt with by 319 „ » » 317 „ Criminal, Conflicting Theories of ... . 349 sq. „ Private International Law concerning . . . 387-389 Proctors, Laws relating to 276-280 Profession, Legal, an Engine for Adapting Law to National Exigencies 13-15 „ „ Habits of Mind of a 14 Professional Lawyers, Laws relating to Classes of 276-280 540 INDEX. Property, an Abused Expression 4 „ Individual Interest in, as contrasted with Family Interest in 12 „ Real and Personal, History and Meaning of Distinction between ...... Promise, Paley's and Austin's Theories of Prosecutor, Policy of Instituting a Public . Psychological Science, in relation to Science of Jurisprudence Public Law, Criticism of Phrase .... „ International Law ...... Punishment, Juridical Aspects of ... . „ Idea of, is involved in Idea of Law „ Place of Laws regulating Assignment of „ Fear of, as an Instrument of Government Quasi ex Contractu, Import of Obligations so called . „ Delict, Meaning and History of the Expression 134, 135 . 205 351, 352 25,29 391 sq. 309-313 3 . 341 . 512 . 199 295, 296 Rape, Law relating to, its Place in a Scheme of Criminal Law - . 301 Ratification, its Application to the Contracts of Agents . . . 192 „ of Treaties, Modes of, criticised 430 Ratio Decidendi, Meaning of Phrase 58, 484 „ „ Mode of Eliciting the 484, 485 Real Rights, Distinction between, and Personal Rights ... 27 „ Property, History and Meaning of its Distinction from Personal Property 134, 135 Religious Faith of Parents, as Legally Affecting Education of Children 249 Remedies, Extraordinary, Place of Laws Providing . . . 319, 342 Reports of Cases, Condition of, in England .... 485, 486 Reprisals, as Penalties for Breach of International Law . . 411, 421 Reputation, Rights to, under what head Classed . . . 288, 290 Requisitions, Rules regulating Claims to make, on the part of an Army 448 Res Fungibiles and Res Non-fungihiles, Nature of Distinction de- scribed 138, 139 „ Mancipi and „ Nec-mancipi, Nature of Distinction described . 135 „ Singulce „ Universitas Rerum „ „ „ „ 129, 142 Residence, Fact of, as Implied in Domicile 377 Responsibility, Moral, Allegation of, Involved in Idea of Law . . 3 Restitutio in Integrum, Operation of, upon Contracts .... 213 Retortions, as Penalties for a Breach of International Law . . 411 Rhodian Laws, as Sources of International Law .... 405 Right, Explanation of Term 76-79 „ A, presupposes a Corresponding Duty 76 „ of Search 433 „ „ Action for Civil Injuries -290 Rights, Distinction between Real and Personal 27 „ of Ownership, Explanation of Phrase .... 147.148 „ „ „ in National Territory 422 „ • - Vested and Contingent, Explanation of Phrase , . 172, 173 INDEX. 541 PAGE Eights, "Primary,'' their Nature as opposed to "Secondary" Rights . 283 „ "Sanctioning" 66, 283 „ "Secondary" 66, 283 „ to Conditions of Health 288, 290 „ „ Personal Security 288, 290 „ „ Reputation 288, 290 „ of States Classified 420 „ of Way, under what head Classed 150 „ and Duties of Belligerents 432 „ „ „ ,, Neutrals 434 Robbery, Law relating to, its Place in a Scheme of Criminal Law . 301 Roman Law, its Influence on Modern International Law . . 402, 403 „ „ its Province in Legal Education .... 499, 500 „ „ in Scotland, its continuing Influence .... 500 „ „ Dutch, its survival in some English Colonies as adding Interest to its Study 500 Sale, not a Contract 219 „ Contracts in view of 219, 220 „ Subsidiary Contracts attending 221 „ Notion of, underlies the Notion of certain other Contracts . 222, 223 "Sanctioning" Rights 66,283 „ „ their Nature as opposed to " Primary " rights . 283 Sanctions, their Nature in Public International Law . . 409, 410, 413 „ in Public International Law Enumerated . . . 410, 411 „ , „ „ „ Modes of enforcing . . 411-413 Savigny, his Researches into Doctrine of Domicile .... 377 „ his Position in the Discussion on Codification in Germany 471-473 Science, a, Description of ......... 16 „ of Jurisprudence, Definition of 18 „ „ Statical and Dynamical view of . . 43, 44 „ Ethical, its relation to Jurisprudence .... 25, 29 „ of Government „ . „ 38 „ of Legislation „ „ 37 „ Physical „ „ .... 25,29 „ Psychological „ „ .... 25, 29 „ of Political Economy,, „ ..... 36 „ Political, what it Comprehends 34 Search, Penalties for resisting 410 „ Right of 433 "Secondary" Rights as opposed to "Primary "Rights . 283,290,291 Seditions, Conspiracies, and Libels viewed as Political Crimes . . 361 Senatus Con&uttum Macedonianum, its Purport ..... 185 Sentence, Laws relating to, their place 341 n „ „ Execution of 341 Separation des Biens, Policy of ....... . 256 Servitudes, under what head Classified 149 Nature of . 150,151 542 INDEX. PAQE Set-off, its Juridical Nature , # 328 Sex, Difference of, a Fact on which Science of Jurisprudence depends 12 „ „ Qualifying Moral Responsibility . . 85, 86 „ Grounds of Recognising, in Laws . . . 464-470 Sexes, Laws Regulating the Relations of the .... 464-470 Slander, Rights of Action for, where Classed ..... 290 „ of Title, Action for, a Mode of Protecting Rights of Ownership 175 Slavery, Lord Mansfield's Opinion on 78 „ Abolition of, how operating on History of Law . . 45-47 Social Ethics, Science of, recognises Facts already reduced to Scientific Form 16 Soldier, Professional, Tendency to oppose the, to the Citizen . 439-441 Solicitors, Rights of Action for Injuries committed by, where Classed 291 Somhersett's Case .78 " Source " of Law, Definition of Term 62 Sources of Law, Notion of, involved in Idea of Law .... 3 „ » 49 „ „ Explanation of Phrase ...... 60 „ „ Time of First Appearance of 22 „ „ Proximate Causes of parts of Legal Sj'stem . , 61 „ „ Enumeration of ..... . 62, 53 „ International Law, Meaning of Phrase . . . 404, 406 „ „ „ Character of 46 „ Unwritten Law in England, what . . . 58 Sovereignty, Territorial, its Nature and Import .... 372, 373 Special Classes of Persons, Laws affecting 230 „ „ „ Injuries to Rights appertaining to . 288, 291 Specification, where Classed 157 „ Meaning of 159 State, Explanation of Term 71-73 „ Definition of a, in International Law .... 414-416 Station in Life, as a Ground of Suspicion of an Accused Person . 338 Status, Conception of . 231-235 Statute of Frauds, its Policy and Import 197 „ of Limitations, Debt barred by 200 „ Suggestion of a, for Fusing Law and Equity .... 480 Statutes, English, Existing Condition of 486, 487 ,, „ Suggestions for Improvements in Formal Enact- ments of 487, 488 „ " Real," " Personal," and " Mixed," Meaning of Expressions 380 Stipulatio, Capacity of Articulation essential to 184 Stoppage in Transitu, as a Mode of Minimising Loss . . . 207, 208 St. Petersburg, Convention of, of 1868, its Purport. . . 449,450 " Substantive " Law, Opposed to " Adjective " Law, by Bentham . 283 Suicide, Laws relating to, their Place in a Scheme of Criminal Law . 300 System, Legal, Leading Principles of a skeleton . . , 61,62 INDEX. 543 l'AQB Terminology, Legal, Eromoted by Legal Profession .... 14 Terms, Leading, List of 46 n » Definition of, a Topic of the Science of Jurisprudence 49 „ Need and Use of clear Intuition of Meaning of . .49 Territorial Sovereignty, its Nature and Import .... 372, 373 Territory, National, Rights of Ownership of States in 452 „ „ „ „ „ „ International Questions as to Modes of Acquiring .... 422-424 „ Enemy's, Treatment and Occupation of, by an Invad- ing Army 446-449 Testamentary Method, what it involves 7, 8 „ Disposition, Political Grounds of recognising a . 167, 168 Text-Writers, Influence of,, as a Source of International Law . . 407 Theft, Laws relating to, their Place in a Scheme of Criminal Law . 301 Thibattt, his Position in the Discussion on Codification in Germany 471, 472 Thing, Interposition of a, a Basis of Classification of Laws . 26, 27 „ Explanation of Term 79, 80 Things, Corporeal and Incorporeal, their Distinction . . . 139-142 „ Destructible and Indestructible ...... 6 „ Divisible and Indivisible 6 „ Enjoyable by one Person or by more than one ... 6 „ Law of, Opposed to Law of Persons ..... 27 » » >< • 96 „ Movable and Immovable ..... 6, 129, 131 „ „ „ „ Described and Classified . . 131-138 „ „ „ „ Rules respecting, in Private International Law . . 379, 382 „ Owned, Modes of Distributing 128, 129 „ Perishable and Imperishable 6 „ Treated as Persons 81 Threats, as a Ground of Suspicion of an Accused .... 338 Time, a Fact on which the Science of Jurisprudence depends . . 12 Title, Various Meanings of Term 171,172 „ how the- Term is best Used 172 Torts, Law of, its Place 101 „ Opposed in English Law to Breach of Contract . . . 284 Trade or Property Marks, Place, in a Scheme of Criminal Law, of Laws relating to 301 Tradition, as a Sign of Transfer 164 Treason, Place, in a Scheme of Criminal Law, of Law of . . . 300 „ viewed as a Political Crime 361 „ Constructive, Place, in a Scheme of Criminal Law, of Law of 300 „ Misprision of „ „ „ „ „ „ „ „ „ „ 300 Treaties, on what their Possibility rests ' 425 „ their various Purposes ........ 425 „ Modes in which they become Sources of International Law 406, 407 „ the Making and Upholding of, a Condition of lasting Peace 455, 456 544 INDEX PAGE Treaties, Causes of Imperfect Observance of . . . 426-431 „ Ratification of, Suggestions for Regulating . . . 430, 431 „ of Extradition, their Nature .... . 362 Treaty of Paris of 1856, Effect of Rules of . . . . 406,433,434 „ Rights of States created by 421 Trespass, Rights of Action for, where Classed 290 Trial of Issue of Fact 329 n „ n » Law 340 „ by Jury, its Juridical Aspects 328, 330, 363 Tribunals, Commercial, Nature of, as Exceptional Remedies . 342-344 Troops, Rules for regulating the Billeting of 448 Trust, a Fact Artificially Qualifying Moral Responsibility . . 85, 91 „ Juridical Nature of a 283-265 „ Elements in the Conception of a 263, 264 Trustees, Moral Responsibility of, how measured .... 91 „ why Treated as a " Special Class" of Persons . . . 265 „ Laws relating to 262-276 „ their Rights and Duties 272-275 „ Modes of Enforcing Duties of 275 „ Rights of Action for Injuries committed by, where Classed . 291 „ • Suggested Statutory Changes in Equitable Jurisdiction over 480 Trusteeship, Description of the Relation implied in . . . . 267 „ Modes in which it takes its Rise .... 268-272 Trusts, Principle of, as Affecting Capacity of Ownership . . . , 145 „ Constructive, Meaning of Phrase 266 Unanimity of Juries, General Policy of requiring the . . 363-365 Uniform, a National, as a Mode of Distinguishing Combatants from Non-Combatants 441, 444, 445 United States os AsfEKicA,Nature of Constitution of 104, 114, 120,417, 430 „ „ „ Amendments „ ... 114 „ „ „ their Relation to the Treaty of Paris of 1856 434 Universitas Serum opposed to Singula Res ..... 142 „ Juris, as a Ground of the Rules in International Law Affecting Movables 381 Universities, their Province in Legal Education .... 493 Usucapio, as a Form of Prescription 162 Usufructuary Estates, Rights implied in 149 ; 151 Usufruetus, under what head Classified 151 Urns, „ „ „ 151 Utility, Recognition of General, a Source of Law .... 52 Vaccination Laws, under what head Classified 249 Vested and Contigent Rights, Nature and Import of the Distinction 172, 173 Vigilantibus nan Dormieniibus subvenit Lex, Meaning of 347 War, as a Penalty for Breach of International Law . . . .411 - „ The Sole Legal Justification of . 420 INDEX. 545 PAGE War, Limitations on Powers possessed by a Nation at . . 431, 432 „ Rules for Mitigation of Consequences of 432 Ward, Mr., his Enquiry into the Foundation and History of the Law of Nations 402 Wards, Rights of Action for Injury to, where Classed . . .291 Warranty, Contracts of, as attending Sale 221 Way, Rights of, under what head Classified 150 Wesilake, Mr., his Theory of Private International Law of Movables 380,381 Will, an Element in Moral Responsibility 82, 84 „ how far present in cases of Infancy and Insanity ... 83 Will, A, what it involves 7 „ Juridical Elements of 168, 169 „ its Formalities 8 „ Made during a Lucid Interval 34 „ Nuncupatory, Import of 167 Wills, Laws relating to Suppression or Mutilation of, their Place in a ^^^^^^^^U^A^J^^^G^J-d/ ■ 301 Women/Laws regulating Relations of Men and . . . 464-470 Married, as Owners „ „ as Contractors 145, 146, 245-247 . 190 . 55, 476 Words, Changing significance of Wounded, Rules providing for Care of the Sick and, in War . 449, 454 Writers to the Signet, Laws relating to 276, 280 Written and Unwritten Law, their respective Qualities as Affecting the Question of Codification . 472-476 „ ,, „ their State and Relations in England 483-487 LONDON : PRINTED b¥ ' 8POTTISWOODE AND CO., KEW-STREET SQTTARE AND 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