OJorn^U ICam ^rl^aol ICtbrarg Cornell University Library K 235.G77 The nature and sources of the law, 3 1924 017 092 846 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017092846 Columbia SSni&ersitg ILcctuws THE NATURE AND SOURCES OF THE LAW THE CAEPENTIER LECTURES 1908-1909 COLUMBIA UNIVERSITY LECTURES THE NATURE AND SOURCES OF THE LAW BY JOHN CHIPMAN_GRAY, LL.D. KOYALL PROFESSOR OF LAW IN HARVARD UNIVERSITY THE COLUMBIA UNIVERSITY PRESS 1909 All rights reserved COPTEIGHT, 1909, Bt the COLtTMBIA UNIVEE8ITT ,PEES8. Set up and electrotyped. Published October, 1909. J. S. Cashing Co. — Berwick & Smith Co. Norwood, Mass., U.S.A. \c^. )'/ 1 ;R\v^V/ TO HIS OLD PUPILS WHOSE AFFECTIONATE REGARD HAS BEEN TO HIM A LIFE-LONG BLESSING PEOM THEIR GRATEFUL MASTER PREFACE Some fifty years ago I came across a copy of Austin's " Province of Jurisprudence Determined," then little read in England, and all but unknown in this country; and since then, although my work has been mainly on other lines, the subject has seldom been for long wholly out of my mind. I put my ideas into substantially their present shape a dozen years ago; I have held them in abeyance more than the prescribed nine years ; but I doubt if they would ever have been published had not Columbia University done me the honor of applying the lene tormentum of an invitation to give a course of lec- tures on the Carpentier Foundation. The lectures were read at Columbia University in the spring of 1908. They have been here divided into thirteen chapters, but no attempt has been made to change the familiar style they bore in delivery. The use of homely expressions and examples helps one to keep a grasp on the facts of daily life, the loss of which is the chief danger in the moral sciences. There may not be so good a defence for the repetitions in these lectures; readers may be provoked by what they will consider damnable iteration ; but here, too, it seemed desirable to show how, in approaching the Law from different points of view, the same truths emerge as fundamental. My wish to keep the lectures within moderate limits has led to the omission of much that might properly have VIU PREFACE found a place in them. For a fuller and, it may be, a broader treatment of several of the subjects treated, I commend to the reader the books of two of my learned friends, " Studies in History and Jurisprudence," by Mr. James Bryce, now British Ambassador at Washington, and a " First Book of Jurisprudence," by Sir Frederick Pollock, Corpus Christi Professor of Jurisprudence at Oxford. The student of Jurisprudence is at times troubled by the thought that he is dealing not with things, but with words, that he is busy with the shape and size of count- ers in a game of logomachy, but when he fully realizes how these words have been passed and are still being passed as money not only by fools and on fools, but by and on some of the acutest minds, he feels that there is work worthy of being done, if only it can be done worthily. I have endeavored to acknowledge my conscious indebt- edness to other writers, but when, one has been reading and thinking on a subject for half a century, it is difficult, indeed impossible, to tell what is one's own and what one owes to others. It is best to make no claim to originality; I make none. It is a pleasure to render my hearty thanks to the authorities of the University, and especially to Dean Kirchwey and the other members of the Faculty of Law, for their cordial welcome and encouragement. J. C. G. July U, 1909. TABLE OF CONTENTS PART I NATURE OF THE LAW CHAPTER I SECTION Legal Rights and Duties 1 CHAPTER n Legal Persons 63 CHAPTER in The State 149 CHAPTER IV The Law 191 CHAPTER V The Courts 248 CHAPTER VI Law of Nations 277 CHAPTER VII Jurisprudence 288 ix X CONTENTS PART II SOURCES OF THE LAW CHAPTER VIII BEOTION Statutes 322 CHAPTER IX Judicial Precedents 420 CHAPTER X Judicial Peecedents in the United States . . . 513 4 CHAPTER XI Opinions of Experts 551 CHAPTER XII Custom 598 CHAPTER XIII Morality and Equity 642 APPENDIX 1. Pji Us us in the Later Roman Empire .... 658 2. HUBEDITAS Jacens 669 3. Reception of the Roman Law 681 4. The Church of England 688 5. Visitors 690 6. Autonomy 694 7. Rules of Construction 700 8. Desuetude of Statutes in the United Statf.s . . 706 9. Kentucky Law of Non-citation 715 TABLE OF AUTHORS COMMENTED ON OR QUOTED The Beferences ake to Sections Austin, 9, 14, 46, 59, 150, 152, 166, 167, 172, 173, 175, 176, 180, 182, 185, 186, 193, 199-202, 205, 213, 289, 240, 285, 289, 298-301, 310, 334, 345, 470-474, 485-493, 498, 601, 611, 646-648, 655. Bentham, 200, 470, 589. Bergbohm, 656. Blackstone, 344, 359, 467-494, 599, 603, 604. Bliss, 180 n. Bracton, 451. Brinz, 140. BrittOD, 453. Brown, 286. Bucltland, 297. Bulow, 369. Carter, 211, 224, 495-510, 600- 620. Clark, 655. Coke, 360, 411, 459. Cooley, 527. Dernburg, 442. Dicey, 12, 284. Duck, 564, 565. Dwarris, 361. Fleta, 452. Fortescue, 454, Gengler, 444. Gerber, 696. Gierke, 124, 126. Gilbert, 655. Glanville, 450. Greer, 630. Grimke, 708. Guyet, 402. Hale, 344, 466. Hammond, 348, 471-494. Hargrave, 411. Harrison, 4, 245, 246. Hegel, 58, 67. Hoadly, 229, 276, 369. Plobbes, 46. Holland, 29-31, 284, 289, 290, 297, 311-314. Holmes, 110. Holt, 692, 693. HoltzendorfP, 697. Ihering, 49, 74, 75, 87, 144-148, 367, 592, 635, 678. Jordan, 440. Kant, 167, 168, 214. Karlowa, 68. Keller, 441. Kriiger, 655. Lewis, 569. Lightwood, 315-321. Littell, 718. Littleton, 454. Macaulay, 435. XII AUTHORS COMMENTED ON OR QUOTED Maine, 85, 201, 587, 634, 647, 655. Maitland, 127, 455-457. Maurenbrecher, 444. Meurer, 67. Plaoentinus, 402. Plato, 104. Piatt, 312, 314. Plowden, 458. Puohta, 638. Pulton, 414. Savigny, 203-205, 207, 372, 374, 441, 592, 638-640, 679. Sidgwick, 47. Smith, George H., 43, 656. Smith, Munroe, 597 a. Sohm, 380, 405, 427 n, 679. Stobbe, 441, 684, 685, 687. Story, 284, 590. Thibaut, 345, 439, 444. Thon, 49. Thurlow, 688. Uhrig, 97. Wachter, 441. Windscheid, 377, 407. Yale, 633. Zitelmann, 67. PAET I THE NATURE OF THE LAW CHAPTER I LEGAL EIGHTS AND DUTIES Sec. 1. There are three ways of approaching the Law. The first two may be called respectively the his- torical and the systematic, analytic, or dogmatic. To the third it is more difficult to give a name. This third way starts from the needs of society, and considers how far the Law is adequate or inadequate to those needs. As it deals with what the Law ought to be, we may designate it as the deontological or ethical. All three ways are used by jurists and judges, all three often by the same jurist or judge, and rightly, for each illustrates and helps the others. It would be pedantic to attempt to separate them rigidly. In a comprehensive treatment of any ques- tion concerning human conduct, what men have done, what men are doing, and what they ought to do have all to be considered. Sec. 2. Each of these methods has its advantages and its drawbacks. Sec. 3. The history of institutions is no mean aid to the understanding of their nature. Especially is it useful with regard to the anomalies and lack of symmetry in an actual system which render its substance hard to classify 1 2 NATURE AND SOURCES OF LAW and difficult to remember. It helps to distinguish those parts of the Law which correspond to modern ideas from those which are survivals of an earlier age. For instance: To the arrangement of the Law, according to our modern notions, with reference to the nature of rights and duties, the forms of action have been a hindrance, but that hin- drance is greatly lessened when we understand how tres- pass, and trover, and assumpsit had their origin in a time when the Law was arranged with reference not to rights, but to remedies. Again, the difficulty of remembering legal doctrines which have no present rational excuse for being is alleviated if we can trace them to the times when they had their origin. A present reason is better than a past reason, but a past reason is better than no reason at all. Sec. 4. But the historical method has its disadvantages; it begets literary rather than practical study ; it hinders the grasping of the Law of the present time as a whole. Mr. Frederic Harrison has some noteworthy remarks on this point. 1 Speaking of the historical study of the Roman Law, which was so stimulated by the discovery of Gains, he says : " The result to the overburdened memory of the student is too often to lead to a spirit of legal ana- chronism, thoroughly hostile to the really legal mind. . . . It is desirable to know how irregular, how arbitrary, and how archaic the Roman system once was, but the essential thing is to know how symmetrical, how wise, how scien- tifically right it ultimately became." Sec. 5. To turn to the systematic or dogmatic method. That the orderly arrangement and study of the doctrines of the Law now actually existing is desirable, will meet 1 31 Fortn. Kev. 120-130. LEGAL RIGHTS AND DUTIES 3 no contradiction and needs no proof. But yet, in the study of the Law, an exclusive attention to its present condition has its dangers. The sympathetic student of dogma — and students of dogma are generally sympathetic — is apt to mistake blemishes for beauties, or, at any rate, to consider them part of the normal structure. Sec. 6. Take a topic in some actually prevailing system of Law. It may contain a multitude of rules, confused, contradictory, which can be worked into a coherent body of doctrine only by virtue of limitations and qualifications, by strained meanings, and by artificial presumptions ; but if we look back along the history of the Law, we shall very likely find one simple doctrine running through it all, but distorted here, and perverted there, and misunder- stood in a third place, whence have arisen anomalies and exceptions, which we learn to recognize as anomalies and exceptions, but whose anomalous and exceptional charac- ter we do not discover when we are simply face to face with the present system. Sec. 7. Now for what I have called the deontological method of dealing with the Law, the consideration of its fitness or unfitness to meet the needs of society. This is for legislators and the advisers of legislators. How far is it a method to be followed by judges and jurists ? The opinions of judges in the Common Law and of jurists in the Civil Law on what society needs have profoundly influenced the Law, and for the better. And what could be a happier state of affairs than that judges and jurists should approach the Law from the side of the public welfare and seek to adapt it to the promotion of the common good ? Sec. 8. And yet we must use caution here. Nothing would be more to be desired than that judges and jurists 4 NATURE AND SOURCES OF LAW should mould and guide the Law to make it correspond to the needs of society, if they know what the needs of society are. But this is a tremendous if; they probably do not know; there is little in their calling and life to have given them that knowledge. Judges and jurists are men of their time ; they are swayed, like the rest of us, by the Zeitgeist, and it is well that they are; but that they should consciously set about developing the Law, say in a social- istic or anti-socialistic manner, is not well. Sec. 9. A treatise on Law constructed on this third method would be a Treatise on Legislation rather than on Jurisprudence. All writers on Jurisprudence have, how- ever, employed it incidentally. And this is inevitable. Even Austin, the strictest of the analytic jurists, admits that "it is impossible to consider Jurisprudence quite apart from Legislation; since the inducements or consider- ations of expediency which lead to the establishment of laws, njust be adverted to in explaining their origin and mechanism." ^ Sec. 10. In these lectures I propose to follow the systematic method and to call your attention to the analy- sis and relations of some fundamental legal ideas, rather than to tell their history or prophesy their future develop- ment. Not that I am insensible to the value of historical studies, nor blind to the fact that legal conceptions are constantly changing, yet, to borrow a figure from the shop, it is well at times to take account of stock, to consider and analyze Law in the stage of development which it has reached, although we believe it neither possible nor desirable that the development should not go on in the future. 1 2 Aust. Jur. (4th ed.) 1113. LEGAL RIGHTS AND DUTIES 5 Sec. 11. If I may be allowed to reproduce some words of mine, dug from tlie pages of an old periodical: "Besides, as one should remember, though most legal conceptions alter, and there may be few which are so based on eternal principles that they cannot change while the order of nature continues, yet their change is often ex- ceedingly slow, and many of them go back as far as we have a clear knowledge of human a£Eairs, and show to our eyes no signs of decay. Sec. 12. " The analytic study of the general conceptions of the Law is not, as experience has shown, without its dangers. It may easily result in a barren scholasticism. ' Jurisprudence,' as Mr. Dicey says, i ' is a word which stinks in the nostrils of a practising barrister. A jurist is, they constantly find, a professor whose claim to dogma- tise on law in general lies in the fact that he has made himself master of no one legal system in particular, whilst his boasted science consists in the enunciation of platitudes which, if they ought, as he insists, to be law everywhere, cannot in fact be shown to be law anywhere.' Yet, as Mr. Dicey in the same article goes on to show, ' Prejudice ex- cited by a name which has been monopolised by pedants or impostors ' should not blind us to the advantage of having clear and not misty ideas on legal subjects. Sec. 13. "Especially valuable is the negative side of analytic study. On the constructive side it may be un- fruitful, but there is no better method for the puncture of windbags. Most of us hold in our minds a lot of proposi- tions and distinctions, which are in fact identical, or absurd or idle, and which we believe, or pretend to our- selves to believe, and which we impart to others, as true 1 5 Law Mag. and Rev. (4th series) 382. 6 NATURE AND SOURCES OF LAW and valuable. If our minds and speech can be cleared of these, it is no small gain. Sec. 14. " This is the great merit of Austin. His style is inexpressibly wearisome. He himself once ex- pressed a doubt whether his love-letters were not written in the fashion of an equity draughtsman ; and certainly his treatise resembles in manner more the charging part of an old bill in equity than any other kind of human com- position. The insolence of his language also — though very likely not of his thought — is often offensive, and the theories which he advanced have not remained unshaken. But his unwillingness to let others juggle with words, or to juggle with them himself, or knowingly to leave any dark corner of a subject unexplored, has seldom been equalled, and to many students has made the reading of his crabbed book a lesson never to be forgotten in intel- lectual honesty." Sec. 15. The task of an analytic student of the Law is the task of classification, and, included in this, of defini- tion. It has been truly said that he who could perfectly classify the Law would have a perfect knowledge of the Law, but the besetting sin of the analytic jurist is the conviction that his classification and definitions are final. He is often sensitive, over sensitive, to this fault in other writers, but he feels that he himself has said the last word. I cannot hope to escape this failing of all our tribe. But I want to warn you of its existence, that you may exercise a judicious scepticism. I shall be more than satisfied if I can interest you enough in the subject to make you think it worth while to question my conclu- sions. Sec. 16. The Common Law has often been reproached LEGAL RIGHTS AND DUTIES 7 with the lack of precision and certainty in its definitions, but, in truth, it is a great advantage of the Common Law, and of the mode of its development by judicial decision, that its definitions are never the matters resolved by the cases ; they are never anything but dicta. If at the end of the sixteenth, or of the seventeenth, or even of the eighteenth century, there had been definitions binding by statute on the Courts; if the meaning of "contract," and " malice," and " possession," and " perpetuities " had been fixed, what fetters would have been imposed on the natu-, ral development of the Law. And it is the great disad- vantage of a code, that practising lawyers and jurists alike are hampered by the cast-iron classification and definitions of a former generation, which, in the advancement of legal thought and knowledge, are now felt to be imperfect and inadequate. Sec. 17. But although our attempts at classification are necessarily provisional and temporary, although the one certain prophecy that the legal writer can make is that the classification which approves itself to him at the beginning of the twentieth century will surely not be the one which will prevail at its end, yet our imperfect efforts may not be useless, our classification and our definitions, inadequate as they will doubtless prove to be, may yet be stepping- stones to higher things. It may be well to climb up the hill of knowledge, although we feel sure we shall never reach the top. Sec. 18. The danger in dealing with abstract concep- tions, whether in the Law or in any other department of human knowledge, is that of losing foothold on the actual earth. The best guard against this is the concrete in- stance, the example. Much fine-spun speculation has been 8 NATURE AND SOURCES OP LAW demolished by showing that it did not fit the facts. I shall, therefore, try to test the soundness of any theories I may advance, by applying them to sets of facts and see- ing how they work in practice. Nor shall I apologize for the familiar and homely character of my instances — the more familiar the better. Sec. 19. The Common Law is the system whose funda- mental conceptions I shall try to analyze, but from time to time I wiU compare them with the like conceptions in the Civil Law, as exemplified in the Law of Rome, of Germany, of France, and of Scotland. As to the other countries of Europe, I regret to say that I have next to no knowledge of their Law. Sec. 20. The Law is so closely concatenated that it is hard to determine where to approach it ; an attack upon any part, to be successful, seems to call for a previous knowledge of other parts. Yet one must begin somewhere. Where shall it be ? Man was not made for the Law, but the Law for man. The Law has, for its subject-matter, the legal rights and duties of men. With those rights and duties we will begin. But first, a word or two on rights and duties in general. Sec. 21. Human intercourse in all stages of civilization above the lowest condition of savagery (if even that be an exception) assumes that there is a difference between right and wrong, and that men ought to do right and to refrain from doing wrong. I do not propose to consider the true test of right and wrong, — whether it be the will of God, or living according to Nature, or the dictates of conscience, or the principle of utility, or anything else ; nor shall I attempt to analyze the meaning of the word " ought," or to explain the origin of the feeling of obligation ; LEGAL RIGHTS AND DUTIES 9 whatever its origin, the members of every society which is far enough advanced to have a Law have acquired it. Sec. 22. The ambiguity of language has been an obsta- cle in the path of even the physical sciences, but the harm which it has worked in the moral sciences is far greater. These latter deal with the conduct of life, and we are con- stantly using words, now loosely, as the counters of daily talk, and now with an attempt to pin them down to serve as the exact expressions of the most abstract notions. So it is with the word " right." Sec. 23. In most of the languages of Europe, the same word is used to express " a right " and also " Law." Thus, jus, reckt, droit, diritto, derecho, etc. This double meaning of the word has worked woeful confusion in the legal phi- losophy of the Germans. If they have finally grasped the distinction between what they style objectives recht, or " Law," and subjectives recht, or " a right," the grasp is, on the part of many writers, with a by no means firm hand. Sec. 24, Though in English we are spared this particu- lar ambiguity, the English word "right" furnishes an- other. It is sometimes a substantive and sometimes an adjective. As an adjective, "right" means "in accord- ance with what ought to be." But what does "right" mean as a substantive ? When we say that John Doe has a right to a farm, what do we mean ? I am not speaking, for the moment, of legal rights. But, apart from the Law, has a man rights, and if so, what are they? He certainly has, in common parlance. Let us try to get at the mean- ing of the word a little more precisely. Seo. 25. Right is correlative to duty ; where there is no duty there can be no right. But the converse is not necessarily true. There may be duties without rights. 10 NATURE AND SOURCES OF LAW In order for a duty to create a right, it must be a duty to aot or forbear. Thus, among those duties which have rights corresponding to them do not come the duties, if such there be, which call for an inward state of mind, as distinguished from external acts or forbearances. It is only to acts and forbearances that others have a right. It may be our duty to love our neighbor, but he has no right to our love. Aime-moi, ou je te tue, is an extravagance. The utmost to which our neighbor has a right is that we should treat him as if we loved him. Sec. 26. Again, a duty to which a right corresponds must be a duty to act or forbear towards other persons. Among the duties with correlative rights are not included self-regardant duties, those which have no reference what- ever to other persons. In our complex state of societj"-, there may be few duties which are absolutely and solely self-regardant ; but such duties may be conceived. If a ship, laden with Medford rum, be wrecked on a desert island, although the owner be the sole survivor, and al- though he have no hope or chance of rescue, it may yet be his duty not to pass his time in drinking up the cargo. But no one has here any right. Sec. 27. Once more, in order to give a man a right, there must be a duty to act or forbear in his interest. There may be a duty to do an act to a person where we cannot say that he has a right to have the act done. Thus, it may be the duty of Jack Ketch to hang Jonathan Wild, but we do not say that Wild has a right to be hanged. Sec. 28. Excluding what ought to be excluded, we have, then, this as a definition of moral right : When one is under a duty to act or forbear in the interest of a LEGAL RIGHTS AND DUTIES 11 person, such a person has a right to that act or for- bearance. Sec. 29. Another meaning given to " a right " is to be found adopted and explained in Mr. Holland's " Elements of Jurisprudence," i as well as anywhere. " What, then," he says, "is 'a legal right ' ? But first, what is a right generally ? It is one man's capacity of influencing the acts of another, by means, not of his own strength, but of the opinion or the force of society. When a man is said to have a right to do anything, or over anything, or to be treated in a particular manner, what is meant is that pub- lic opinion would see him do the act, or make use of the thing, or be treated in that particular way, with approba- tion, or at least with acquiescence ; but would reprobate the conduct of anyone who should prevent him from doing the act, or making use of the thing, or should fail to treat him in that particular way." Sec. 30. But is this approval by public opinion a nec- essary element in the idea of a right? In some of the United States, — as, for example, in Texas, — statutes ex- empt property of debtors to a very large amount from being taken for their debts, and these statutes, judging from the language of the Courts, meet with the hearty approval of the public opinion of the neighborhood, as designed, they say, " to cherish and support in the bosoms of individuals, those feelings of sublime independence which are so essential to the maintenance of free insti- tutions." ^ Does this give the Texan farmer a right not to pay his debts ? Does the fact that he lives in a commu- nity where such things are practised and praised affect 1 Jurisprudence (lOth ed.) 78. ^Franklin v. Ooffee, 18 Tex. 413, 416. 12 NATURE AND SOURCES OF LAW the question? If a man has to pass upon the rights of himself or of any one else, it is more than probable that his judgment will be affected by the tone of the commu- nity in which he lives, but, if he is honest, he does not consciously admit the voice of public opinion as the test of the existence of rights. Public opinion is no more an essential element of rights than it is of morality itself. Sec. 31. It may be said that all this is a question of nomenclature, and that Mr. Holland may give to a word any meaning he pleases, provided his usage is consistent with itself. But it is submitted that, while the need of scientific precision sometimes requires a writer to select and adhere to one of the meanings of a word or phrase between which popular speech varies, he should depart from ordinary usage as little as possible. The failure to observe this rule has two evil results. In the first place, the writer is more likely to be misunderstood by his read- ers, and secondly, his own attention will sometimes flag, he will unconsciously substitute the common for his own arbitrary meaning, and the undistributed middle will bring his argument to grief. Sec. 32. It is undoubtedly desirable to have a term to express what a man has by virtue of public opinion concerning the duty of others to act or forbear in his interest, but it had best not be " rights " simply; " positive moral rights," though not entirely unobjectionable, seems as unobjectionable as any that has been proposed. Sec. 33. While on this matter of nomenclature, it may be remarked that although " right " and " dutj^ " are used as correlative terms, and in common parlance, as well as in scientific terminology, there can be no right where there is no duty, yet " right " seems to have had its origin LEGAL RIGHTS AND DUTIES 13 in the Law, and " duty " in ethics ; that, in spite of each term being now domesticated in the domain of the other, so that they have paired in both places, the expression " moral right " does not come as trippingly from the tongue as "legal right," and, on the other hand, "legal duty" strikes the ear with a less familiar sound than "moral duty;" and that the ideas first evoked by the words "right" and " duty " are of " legal right " and of " moral duty," respectively. Sec. 34. So much as to rights and duties generally : now for legal rights and duties. Human society is organ- ized for the protection and advancement of human inter- ests. The object of its organization is to insure the doing of certain things which individuals could not do, and to protect individuals in the accomplishment of their wishes to an extent to which they could not protect themselves. Sometimes the real purpose of organization is to secure the interests of a very limited number of persons. But yet, such are the blessings of order, that any political organization, however small the number of persons in- tended to be benefited by it, is better for the rest than anarchy. Sec. 35. To accomplish its purposes, the chief means employed by an organized society is to compel individuals to do or to forbear from doing particular things. Some- times the society puts this compulsion in force of its own motion ; and sometimes it puts it in force only on the motion of the individuals who are interested in having it exercised. Sec. 36. The rights correlative to those duties which the society will enforce of its own motion are the legal rights of that society. The rights correlative to those 14 NATURE AND SOURCES OF LAW duties which the society will enforce on the motion of an individual are that individual's legal rights. The acts and forbearances which an organized society commands in order to protect legal rights are the legal duties of the persons to whom those commands are directed. Sec. 37. The poverty of our nomenclature, on which I have already remarked, has worked a confusion in these fundamental ideas. The word " duty " has been used so preeminently in the sphere of morality that there is at- tached to it, and, in a less degree, to the correlative word " right," the flavor of " ouglit," of right as opposed to wrong, which is difficult to remove even by prefixing the word "legal"; and many persons feel a natural repulsion from the statement that, "It is a legal duty to obey a statute commanding an immoral act." Sec. 88. And yet if legal duties are the acts and for- bearances which an organized society will compel, it is obvious that many very immoral acts and forbearances have been legal duties. Sec. 39. But some writers, while admitting this, are led by the ethical atmosphere which attends " right " and " duty " to connect law with ethics, not in a legitimate but in an illegitimate way. They recognize " that a posi- tive right is that which is regarded and treated as a right in some system established for the maintenance of rights," and that this positive right may differ from what they call right in fact, or natural right, but they insist that the function of organized society is not to create rights, but to declare them, and that any distinction between legal duties and rights, on the one hand, and duties and rights in fact is due to the imperfection with which society per- forms its functions ; in other words, that the essence of LEGAL RIGHTS AND DUTIES 15 legal duties is that they are moral duties as declared by society, and not simply acts and forbearances which society will enforce ; that is, although they do not deny that this last is a correct description, they say that it does not bring out the true nature of legal duties. Sec. 40. Now, it may be granted that an organized society, in acting through its legislative or judicial organs, is generally purporting to act in accordance with morality, but, on the other hand, many statutes are passed without any question of morality occurring to the legislators, and the real motives of many legislative acts have been un- doubtedly selfish and immoral. Sec. 41. Let us take a case which will serve as a test. Suppose some autocrat of absolute power, cynical, utterly selfish or capricious, — a Caligula or a Heliogabalus, — should enact as a whim, that a favored individual should have certain powers of extortion over other citizens. If remonstrated with on the immorality of his edict — " Yes," he would say, " as immoral as you please, but what do I care for morality. It is my will; can't I play the fool if I wish ? "What are you going to do about it ? " Suppose the judges and officers carried out the edict, and the people obeyed. The favorite would have had his legal rights ; his victims would have been under a legal duty to obey. The edict did not declare moral rights, it did not purport to declare moral rights, it was issued in defiance of morality; yet, because it was a rule which was enforced by the organized society, it created legal duties and legal rights. Sec. 42. It may be well to be reminded, by the resem- blance between names given to legal and moral relations, that organized societies establish many legal duties with a 16 NATURE AND SOURCES OF LAW moral purpose, and that they ought not to establish legal duties which are inconsistent with good morals ; but it is not well to affirm, simply on similarity in name, that the essence of legal duties is a thing which they sometimes possess and sometimes do not. Sec. 43. The illicit process indicated shows that it is unfortunate that we have no words for those ideas com- monly expressed by " legal duties " and " legal rights " which might be without the ethical coloring, which it requires an effort of attention to dissociate from " duties " and "rights" however qualified, but it is a question hardly of the importance given to it by Mr. George H. Smith in his treatise on " The Elements of Right and of the Law," the second edition of which was published at Chicago in 1887, and the purpose of which is a strenuous polemic against the use of the expression " legal right." The author insists that there is but one kind of right, that "moral right is a tautology, that a right connotes the idea of moral Tightness," and that for " legal right " should be substituted "action" or " legal power." In all the other European languages, as well as the English, the term used to express what Mr. Smith calls " action " or " legal power " is "right," or its equivalent, viz. reeJit, droit, diritto, derecho, etc., and the general usage is too firmly fixed to be changed except by general consent. Sec. 44. But though it is unadvisable to banish the term " legal right " from the vocabulary of Jurisprudence, it is not, perhaps, entirely the same with "legal duty." Though the noun substantive " a right " is now become a word familiar in the domain of ethics, it seems, as above remarked, to have been originally a term of the Law, but, on the other hand, the word " duty " had its beginning in LEGAL RIGHTS AND DUTIES 17 the sphere of morality and has never been able to shake off the effect of its surroundings, and while " legal right " is a phrase more familiar than "moral right," "legal duty" is a forced expression. Sec. 45. On the whole, perhaps the best term to express the correlative of "legal right" would be not "legal duty," but "legal obligation." "Obligation" has a far weaker ethical flavor than " duty," carrying with it the idea of external and not of internal compulsion. And yet it should be remembered that " obligatio " in the Civil Law is the regular technical term for the correlative, not of Jura generally, but of a particular class, jura in per- sonam, that, although such a usage cannot be said to have yet established itself in the nomenclature of the Com- mon Law, it is desirable to have a word equivalent to the Roman obligatio, and that " obligation " is the most natural to select. In any attempt, therefore, to popularize the conceptions of Jurisprudence to lay readers, it may be best to speak of " legal obligations," there being with them little danger of confusing " obligation " with the obligatio of the Roman Law, but in books for more instructed read- ers there may be less ambiguity in using the expression " legal duty," though, as has been shown, such use has its dangers. Sec. 46. Although usage, jus et norma loquendi allows, indeed requires, us to employ " legal rights," if not " legal duties," without any connotation of moral rightness, the same final judge condemns the use of " just " without that connotation. Hobbes, indeed, affirms that " no law can be unjust," and Austin, defending him,isays : " By the e^pi- thet just, we mean that a given object, to which we apply 1 1 Jur. (4th ed.) 276, note. 18 NATURE AND SOURCES OF LAW the epithet, accords with a given law to which we refer it as to a test. And as that which is just conforms to a determinate law, justice is the conformity of a given object to the same or a similar measure." If by " we " are meant Austin and Hobbes, the statement may be correct, but such is not the common usage. In that usage, justice is in- dissolubly connected with morality. A debtor in whose favor the statute of limitations has run is under no " legal duty " to pay, his creditor has no " legal right " against him, but if the debtor refuses to pay, his conduct would not be called "just." Sbo. 47. Professor Sidgwick puts the matter well: "And hence has arisen a crude definition of Justice, which identifies just conduct with conduct in conformity with Law. But reflection shows that we do not mean by Justice merely the habit of Law-observance. For, first,, we do not always call the violators of law unjust, but only of some laws ; not, for example, duellists or gamblers. And secondly, we continually perceive that Law does not completely realize Justice : our notion of Justice furnishes a standard with which we compare actual laws and pro- nounce them just or unjust. And, thirdly, there is a part of just conduct which lies outside the sphere of Law: for example, we think that a father may be just or unjust to his children in matters where the Law leaves (and ought to leave) him free."^ Sec. 48. Protected Interests and Rights. If it is my in- terest to receive a hundred dollars from Balbus, or if it is my interest to go out of a room, and if organized society 1 Sidgwick, Methods of EtMcs, Book 3, c. 5, § 1. But see J. S. Mill, Essay on Nature, p. 52. LEGAL RIGHTS AND DUTIES 19 imposes a duty upon Balbus to pay me, or imposes a duty upon everybody not to interfere with my leaving the room, I have a legally protected interest and I have a legal right. What is the legal right which I have ? The full definition of a man's legal right is this : That power which he has to make a person or persons do or refrain from doing a certain act or certain acts, so far as the power arises from society imposing a legal duty upon such person or persons. Therefore, my legal right in the cases supposed is the power to compel Balbus to pay me, or the power to pre- vent persons from interfering with my leaving the room. Sec. 49. Ihering, in his " Spirit of the Roman Law," defined rights as legally protected interests. This defini- tion was received in Germany with a sort of enthusiasm, and, indeed, it was a great advance on the nonsense that had been talked upon the subject, but it has been strenu- ously attacked by many German jurists of whom Thon is the protagonist, and there is an extensive literature on the subject.^ Ihering's adversaries seem on this point to have the better of the argument. The right is not the interest itself ; it is the means by which enjoyment of the interest is secured. It is the power to get the money from Balbus, or the power to leave the room, which is the legal right, not the payment of the money or the leav- ing the room. Common usage, however, permits us to describe this right as the right to be paid, or the right to leave the room, and this usage does not seem likely to lead to any evil results. Sec. 50. By the interests of a man is meant the things which he may desire. I shall not attempt to enumerate * A convenient reference to this literature will be found in 1 Wind- sclieid, Pandekten, § 37. 20 NATURE AND SOURCES OF LAW or classify the objects of human desire. The object may be the ownership or possession of a corporeal thing, as a book ; it may be an act, as eating a dinner ; it may be a relation, as marriage ; and the desire may be a foolish or hurtful one. The eating of shrimp salad is an interest of mine, and, if I can pay for it, the law will protect that interest, and it is, therefore, a right of mine to eat shrimp salad which I have paid for, although I know that shrimp salad always gives me the colic. Sec. 51. The legal rights of a man are the rights which are exercisable on his motion.^ A man has, therefore, no legal right as to those interests in the realizing of which he is protected only by other people exercising their rights. The fact that the State can punish the burglar who breaks into my house does not give me any right not to have my house broken into. Not that I am without a right not to have my house broken into. The law can protect my interest not to have a thing done in several ways : as in the first place, by allowing me to withstand the act by force ; or secondly, by allowing me to limit the freedom of the person who wishes to do the act by placing obstacles in his way; or thirdly, by appealing to the courts to punish such person. The law may deny to a man this third mode of protecting his interest, but if it allows him the first and second, or either of them, he has a legal right. A system of law may, as the Common Law does, merge the tort in the felony, and refuse the house- holder an action against the burglar, but so long as he can withstand the burglar, even to killing, and can draw bolts and bars to keep him out, he has the right not to have his 1 See Sec. 36, ante. LEGAL RIGHTS AND DUTIES 21 house entered. If, when I heard a burglar lifting the latch of my door, the State allowed me to use neither threats nor force to compel him to desist, and if the State also forbade me to turn any lock or push any bolt, or in any other way interfere to keep him on the outside, and if the only thing to prevent his coming in was the fact that the State could, if it would, hang him or send him to prison, then / should have no right not to have my house entered, whatever right the State might have. Sec. 52. So the interests of brute animals may have legal protection. Very often, indeed, acts commanded or forbidden towards animals are not commanded or forbidden for the sake of the animals, but for the sake of men ; but certain acts of cruelty, for instance, towards beasts, may be forbidden, at least conceivably, for the sake of the creatures themselves. Yet beasts have no legal rights, because it is not on their motion that this protection is called forth. Sec. 53. The protection which society gives to a man's interests is either direct or indirect. Sometimes it protects them directly, as when its courts compel a man who is threatening to flood the land of a riparian proprietor up- stream to take down his dam ; sometimes indirectly, as by giving a man a right to have a wrong-doer compelled to make compensation. And the right to ask the courts for aid is not always a right to sue in them, but is often a right to be protected against suits brought by others. For in- stance, unde^ a statute of limitations, if a debt remains unpaid for six years, the creditor cannot compel the debtor to pay it ; that is, the debtor has a right to interpose the defence of the statute and thereby call upon the court to refuse its assistance to enforce the creditor's demand. So 22 NATURE ANB SOURCES OF LAW again, a houseliolder has the right to eject by force a trespasser from his "castle." That is, if sued by the trespasser for assault, he can call upon the court to refuse the plaintiff its help. In other words, a man's legal rights include not only the power effectually to call for aid from an organized society against others, but also the power to call effectually upon the society to abstain from aiding others. Sec. 54. Let us dwell for a moment more on the nature of the protection which society affords to a man's interests. In the first place, it may allow him to protect himself; this is self-help. Secondly, it may allow him to appeal to the courts to protect him, as by an injunction. Thirdly, it may allow him to appeal to the courts for compensation for injuries. In all three of these cases, the actual volition of the man himself is necessary. He must put up his own fists ; he must bring his suit for an injunction or for dam- ages in the courts. The State will not double up his fists for him, nor will it bring a suit for him in the courts. The right to these modes of protection is, therefore, his right. Sec. 55. But there is a fourth method in which the State protects a man's interests, and that is the prevention of injury to them, not by the intervention of the courts, but by the intervention of administrative officers. My interest not to have my windows broken is protected not only by my power of appealing to the courts to prevent or compensate for the breaking, but also by the presence of the policeman on his beat. In this case you may say there is no actual volition on my part. I do not know that the integrity of my windows is threatened. Yet the stopping of the window breaking is really dependent upon my will, LEGAL RIGHTS AND DUTIES 23 for if I tell the police to let the boys go ahead and break my windows, it will cease to interfere. What really hap- pens in this case is that the State assumes a wish on my part (an assumption amply fortified by the ordinary attri- butes of human nature) that my windows should not be broken. Indeed, after all, in this fourth class of cases is there not an actual volition ? Every man undoubtedly actually wishes that his property should be protected, and also that the State, through its administrative officers, should protect it, so that, even in this case, there may be said to be an actual volition and that, therefore, the man has a right. It should be noted that the State may, and probably often does, allow a man to commit to the State a larger power to protect his interests than it would allow him to exercise in his own person. Sec. 56. There is a fifth method by which the State protects a man's interests, and that is, by declaring that it will punish criminally acts against certain interests of in- dividuals, and by punishing accordingly. The dread of punishment undoubtedly protects the interests of the in- dividuals, but in this protection the volition of the indi- viduals protected has no place, and it cannot be said that they have any right to this form of protection. i Sec. 57. To give effect to a man's right, an exercise of free will on his part is necessary. No legal compul- sion is laid on any one to enforce his right as such. It is true that one is sometimes under a legal duty to exercise 1 See Sec. 51, ante. In some countries, though this is, I think, not common in the United States, the bringing of certain criminal prosecutions is dependent upon the will of the man injured. In such a case the injured person has a right to have the wrong-doer criminally punished. The form of the enforcement of the right is mere matter of machinery. Such was the old appeal of death in England. 24 NATURE AND SOURCES OF LAW a right, but this is a duty towards B to enforce a right against A, as, for instance, in many cases arising under contracts of indemnity. But the exercise of a legal right against a person is never a legal duty owed to that person. It is of the nature of a man's right as such, that to seek or to abstain from seeking the aid of society for the pro- tection of his interest is a matter of his own free will. Sec. 58. And this leads me to speak of a notion of some writers that the object of organized society in creat- ing rights should be the protection of the freedom of the will. Whether this notion, as is sometimes supposed, originated with Hegel, is a question I do not feel com- petent to decide. I have no claim to be the one man whom Hegel said understood his philosophy. But, with whomever the notion originated, I conceive it to be erro- neous. It might as well be said that the object of creat- ing rights is to restrain the freedom of the will. I wish to have a beautiful watch, but society restrains the ex- ercise of my will, because the watch belongs to you. I do not want to pay you a hundred dollars, but society compels me to do it, because I have contracted to pay it. I wish to put you out of the way quietly, but society will not allow me to poison you. In truth, neither proposition is correct. Rights should be created neither solely to protect the freedom of the will nor solely to restrain it, but to establish and maintain those relations among men which are most for the advantage of society or of its members. This is best obtained sometimes by permitting the will to be exercised, sometimes by restraining it. If one chooses to say that the ideal at which an organized society should aim in creating rights is human perfection, I do not know that there is any objection to it. LEGAL RIGHTS AND DUTIES 25 Sec. 59. An exercise of the will is necessary to give effect to legal rights. What connection with will have legal duties ? The legal duties of a person are those acts and forbearances which an organized society commands him in order to protect legal rights. What is a " com- mand," as the word is used by writers on Jurisprudence ? Its meaning is well explained by Austin. ^ " If you express or intimate a wish that I shall do or forbear from some act, and if you will visit me with an evil in case I comply not with your wish, the expression or intimation of your wish is a command. A command is distinguished from other significations of desire, not by the style in which the desire is signified, but by the power and the purpose of the party commanding to inflict an evil or pain in case the desire be disregarded." This conditional evil is called by Austin the sanction of the command. Sec. 60. In order to create a legal duty, it is not necessary that the person subject to the duty should have the will to do it. He may have the will not to do it ; it still remains his legal duty. But must he have the poten- tiality of obeying it? The potential exercise of will is not necessary for the creation of a legal duty. I obtain a judgment against Thomas Dusenbury for a thousand dol- lars. Dusenbury may not have five dollars in the world ; still he is under a legal duty to pay the thousand dollars. Further, must he know of the command ? This is not necessary. If there is a statute in a State forbidding the sale of cigarettes, a man who sells a cigarette has violated a legal duty, although he does not know of the statute, and even although he has just arrived from Lithuania, and can- not understand the language in which the statute is written. 1 Jur. (4th ed.) 91. 26 NATURE AND SOURCES OF LAW Sec. 61. A man, therefore, may be bound by a legal duty to do an act, although he cannot possibly do it, and although he does not know that he has been ordered to do it. The exercise of his will, actual or potential, is not necessarily involved in the creation of a legal duty to which he is subject. This emphasizes the point to which I have already referred, the infelicity of the term " legal duty " to signify the burden imposed correlative to legal rights. Sec. 62. That a right should be given effect there must be an exercise of will by the owner of the right. But an idiot has no will ; a fictitious body, like a corpora- tion, has no will. Has an idiot, then, no legal rights ? Has a corporation no legal rights ? The way the Law meets these questions I will try to show in the next chap- ter, in which I propose to deal with legal persons, as they have been recognized in different systems of Law. CHAPTER II LEGAL PERSONS Sec. 63. In books of the Law, as in other books, and in common speech, " person " is often used as meaning a human being, but the technical legal meaning of a "person" is a subject of legal rights and duties. Sec. 64. One who has rights but no duties, or who has duties but no rights, is, I suppose, a person. An instance which would commonly be given of the former is the King of England; of the latter, a slave. Whether in truth the King of England has no legal duties, or a slave no legal rights, may not be entirely clear. I will not stop to dis- cuss the question. But if there is any one who has rights though no duties, or duties though no rights, he is, I take it, a person in the eye of the Law. Sec. 65. As I showed at the end of the first chapter, a legal duty does not imply any exercise of will on the part of the one subject to the duty, and, therefore, for the exist- ence of a legal duty, the person bound need not have a will ; but in order that a legal right be exercised, a will is necessary, and, therefore, so far as the exercise of legal rights is concerned, a person must have a will. Sec. 66. In various systems of Law different kinds of persons are recognized. They may be classified thus : (I) Normal human beings ; (II) abnormal human beings, such as idiots ; (HI) supernatural beings ; (IV) ani- 27 28 NATURE AND SOURCES OF LAW mals; (V) inanimateobjects, such as ships ; (VI) juristic persons, such as corporations. Some of these persons, such as idiots, ships, and corporations, have no real will. How are we to deal with them ? That is the most diffi- cult question in the whole domain of Jurisprudence. Let us take these classes in order. Sec. 67. (I) Normal Human Beings. Here we are not troubled with any question as to the actual presence of a will. The normal man or woman has a will. Indeed, some German writers make will of the essence of per- sonality. Thus, Hegel defines " personality " as the " subjective possibility of a legal will." So Zitelmann : "Personality is the legal capacity of will, the bodiliness (Leihlichheit') of men, is for their personality, a wholly ir- relevant attribute." And again, Meurer : "The juristic conception of the juristic person exhausts itself in the will, and the so-called physical persons are, for the law, only juristic persons with a physical superfluum." Sec. 68. On the other hand, Karlowa,^ to whom I am indebted for the foregoing quotations, says : " The body is not merely the house in which the human personality dwells ; it is, together with the soul, which now for this life is inseparably bound with it, the personality. So, not only as a being which has the possibility of willing, but as a being which can have manifold bodily and spiritual needs and interests, as a human centre of interest, is a man a person." Sec. 69. It is this last definition which American and English jurists impliedly, if not expressly, adopt as the true definition of a person. It is that which I shall accept. Jurisprudence, in my judgment, need not vex itself about 1 15 Grttnhut, Zeitsohr. 381, 383. LEGAL PERSONS 29 the " abysmal depths of personality." It can assume that a man is a real indiYisible entity with body and soul ; it need not busy itself with asking whether a man be any- thing more than a phenomenon, or at best, merely a suc- cession of states of consciousness. It can take him as a reality and work with him, as geometry works with points, lines, and planes. Sec. 70. It should be observed, before leaving this class of normal human beings, that they can exercise their rights through agents, such as servants, bailiffs, or attor- neys, and they can delegate to their agents the decision of the question whether the rights of the principals shall be exercised or not. But there is no difficulty here; the original spring is a real exercise of will by the owner of the right. Sec. 71. (II) Abnormal Human Beings. Some human beings have no will ; such are new-born babies and idiots. Perhaps it is not correct to say that they are absolutely without wiUs, but their potentiality of will is so limited that it may be neglected. Yet, though without wills, new-born babies and idiots have rights. Sec. 72. But, further, there are certain human beings who are not destitute of natural wills, but to whom the Law, for one reason or another, denies what may be called a legal will; that is, the Law says their natural wills are not operative for the exercise of certain classes of rights, — not, generally, for the exercise of all their rights but of certain classes of rights. Such denials vary in different systems of law. Let us take a simple instance from the Common Law. Suppose Doe, a young man of nineteen, owns a house, and Roe, coming along, breaks the windows. Doe has a right to compensation ; and yet, if he wills to 30 NATURE AND SOURCES OF LAW bring a suit against Roe, either himself or by his agent or attorney, the Law does not regard that will, and the court will refuse in that suit to compel Roe to make compensa- tion, because the right has not been put in motion by a will which the Law regards as operative. Sec. 73. What is to be done ? A next friend, or a guardian, exercises his will and brings a suit in the name and behalf of the infant. The will of the guardian is attributed to the infant. It is not the guardian, but the infant, who is the subject of the right — the legal person. We usually say this attribution is a fiction. Sec. 74. And here I must make a digression, I fear a rather long digression, on the nature and use of fictions in the Law. There is a strong feeling against the use at the present day of fictions in the Law. This feeling is justifi- able or not, according as the fictions belong to the one or the other of two classes, the distinction between which was clearly brought out, for the first time, so far as I am aware, by Ihering ; ^ one of the many services which he has rendered to the science of Jurisprudence. Sec. 75. The first class of fictions is called by Ihering "historic fictions." These historic fictions are devices for adding new law to old without changing the form of the old law. Such fictions have had their field of operation largely in the domain of procedure, and have consisted in pretending that a person or thing was other than that which he or it was in truth (or that an event had occurred which had not in fact occurred) for the purpose of thereby giving an action at law to or against a person who did not really come within the class to or against which the old action was confined. 1 3 Geist d. rom. R. (4th ed.) § 58, pp. 301-308. LEGAL PERSONS 31 Sec. 76. The prsetors employed such fictions in aiding them to build up the towering fabric of the Roman Law on the narrow basis of the Twelve Tables. Thus, persons to whom the praetor thought it just that a man's property- should go on his death, — relations, for instance, on the mother's side, who were not heirs, — were, by a fiction, considered heirs and were allowed to use actions such as heirs could use. Seredes quidem non sunt, sed heredis loco constituuntur benefieio prcetoris. Ideoque seu ipsi agant, seu cum his agatur, ficticiis aotionibus opus est in quibus heredes esse finguntur.^ Sec. 77. So when it was thought just that an action which was given by the Civil Law only to or against a Roman citizen should be extended to or against a foreigner; " Oivitas Romana peregrino fingitur, si eo nomine agat aut cum 60 agatur, quo nomine nostris legihus actio constituta est, si modo justum sit, earn actionem etiam ad peregrinum ex- tendi:"^ Sec. 78. Fictions have played an important part in the administration of the Law in England, and it is character- istic of the two peoples that the use of fictions in England was bolder and, if one may say so, more brutal in England than it was in Rome. Sec. 79. Thus, for instance, in Rome the fiction that a foreigner was to be considered as a citizen was applied in this way. It was not directly alleged that the foreigner was a citizen, but the mandate by the prsetor to the judex who tried the case was put in the following form : " If, in case Aulus had been a Roman citizen, such a judgment ought to have been rendered, then render such a judg- ment." In England the plaintiff alleged a fact which was 1 Xnp. Fragm. 28, 12. 2 Gai. 4, 37. 32 NATURE AND SOURCES OF LAW false, and the courts did not allow the defendant to con- tradict it. Sec. 80. One of the purposes for which the English courts allowed fictions was to extend their jurisdiction. A maxim says that to extend jurisdiction is the part of a good judge. When judges and their officers were paid largely by fees, there was a somewhat less exalted motive. The modes in which the courts employed fictions for this end are familiar to all readers of Blackstone, but perhaps you will let me remind you of some of them. Sec. 81. Of the three superior Courts of Law, the King's Bench, the Common Pleas and the Exchequer, the Court of Common Pleas alone had original jurisdiction of causes between subject and subject not involving violence or fraud ; but, as an exception, when a man was in the custody of the Marshal or prison-keeper of the Court of King's Bench, he could be sued also in the latter court. Now a plaintiff, wishing to sue in the King's Bench for an ordinary debt, would allege that the defendant was in the custody of the Marshal, and that therefore the case was within the jurisdiction of that court. The allegation was false, but the court did not allow the defendant to con- tradict it. Sec. 82. By a like fiction, the Court of Exchequer extended its jurisdiction. It was properly a court of revenue only, but a debtor of the King was allowed to sue another subject in that court, on the ground that the defendant, by withholding from the plaintiff his due, made the plaintiff less able to discharge his debt to the King. Now a plaintiff, desiring to sue in the Exchequer to col- lect money or damages to which he was entitled brought a writ called quo minus, in which, after stating his claim LEGAL PERSONS 33 against the defendant, he alleged that by reason of the withholding by the defendant of the plaintiff's due, the plaintiff was the less able to discharge his debt to the King. The allegation that the plaintiff was indebted to the King was false, but the court did not allow it to be contra- dicted. Sec. 83. These devices, however, were not applicable to suits for the recovery of a freehold interest, — that is, of an interest in fee or for life in land. Of such suits the Court of Common Pleas had sole jurisdiction. But suits to recover interest less than freehold — i.e. terms for years — could be brought in the King's Bench. Thomas Plow- den, then, desiring to sue in the King's Bench to recover a freehold interest from Henry Moore, who was in posses- sion, caused a suit to be brought in that court by one John Doe, in which it was alleged that Plowden had demised the land to Doe for a term for years, that Doe entered upon the premises demised, that one William Stiles, known as the casual ejector, entered upon the premises demised, and with swords, knives, and staves ousted Doe from the land. At the same time Plowden sent to Moore a letter purporting to be written to Moore by his " loving friend " Stiles, the casual ejector, saying that unless Moore appeared as defendant. Stiles would suffer judgment to be entered against him. Doe and his lease, Stiles and his swords, knives, and staves, were the creatures of fiction, but the court would not let Moore in to defend the suit unless he would confess lease, entry, and ouster. This fictitious proceeding was brought over to this country, and prevailed everywhere in the Colo- nies except in Massachusetts and New Hampshire. The fictitious Doe changed his name to Jackson in New York 34 NATURE AND SOURCES OF LAW and to Den in New Jersey. I do not know if even now the old fiction has entirely disappeared in the United States. Sec. 84. There was no lack of other fictions in the English Law, in the shape of allegations which one of the parties made and the other was not allowed to deny, in order that the wine of new law might be put into the bottles of old procedure. Thus, in an action of trover to recover damages for the detention of goods to which the plaintiff was entitled, he alleged that he casually lost the goods and that they came to the possession of the de- fendant by finding. The most grotesque of these fictions was that by which, for the purpose of giving a remedy in England for a wrong done in the Mediterranean, it was alleged that the Island of Minorca was at London, in the parish of St. Mary Le Bow in the Ward of Cheap ; and yet, perhaps, the palm must be given to that fiction of the United States Federal Courts that all the stockholders in a corporation are citizens of the State which incorporates it. This fiction is remarkable for the late date of its origin and for its absurd results. I shall return to it in another connection. Sec. 85. As Maine says, in his " Ancient Law," ^ fictions of the historical kind are almost a necessity of the Law at a certain stage of human development. " They satisfy the desire for improvement, which is not quite wanting, at the same time that they do not offend the superstitious disrelish for change which is always present." But as a system of Law becomes more perfect, and its development is carried on by more scientific methods, the creation of such fictions ceases, and better definitions and rules are 1 (5th ed.) 26. LEGAL PERSONS 35 laid down which enable us to dispense with the historic fictions which have been already created. Such fictions are scaffolding, — useful, almost necessary, in construc- tion, — but, after the building is erected, serving only to obscure it. A chief objection to their continuance, to quote again from Maine,^ — is that they are " the great- est of obstacles to symmetrical classification. . . . There is at once a difiiculty in knowing whether the rule which is actually operative should be classed in its true or in its apparent place." Sec. 86- Thus, to take an instance from the practice as to the jurisdiction of the Court of Exchequer, of which I have spoken, should we say : The Court of Exchequer has jurisdiction only over matters concerning revenue, but as the ability of the King's debtor to pay the Sovereign may depend upon his collecting money due him from other subjects, the King's debtors may sue in the Exchequer to recover their debts, and if any one alleges that he is a debtor of the King's, the Court of Exchequer will hold it to be an uncontradictable truth ? Or should we say, all persons can sue in the Court of Exchequer to recover money due them if they allege in their declaration — truly or falsely is immaterial — that they are debtors to the King ? Sec. 87. The second class of fictions, according to Ihering's division, ajUd which he calls dogmatic fictions, instead of being obstacles to symmetrical classification, have been introduced and used as aids to it. These dog- matic fictions are not employed to bring in new law under cover of the old, as are the historic fictions, but to arrange recognized and established doctrines under the most con- venient forms. 1 (5th ed.) 27, 28. 36 NATURK AND SOURCES OF LAW Sec. 88. Thus, there is a legal doctrine of unimpeach- able soundness that a vendee or mortgagee cannot be deprived of his interest in the land by any dealings by the vendor or mortgagor, subsequent to the sale or mortgage, with one who knows of it. Thus, if A. mortgages land to B,, and afterwards makes a deed of it to C, who knows of the mortgage to B., C. can hold nothing as against B. Further, it is desirable that a vendee or mortgagee should be able to protect himself by recording his title. Thus, to take our former example, if A. mortgages to B. and B. records his mortgage, a deed from A. to C. will pass nothing, whether C. knows of the mortgage or not. Now, C. is excluded in both the cases suggested, but reaUy on distinct technical grounds. In the first case, he is ex- cluded because he knows of the mortgage to B.; in the second, because B. has recorded his mortgage ; and yet, because it is convenient to treat the whole subject together as the results in both cases are the same, we put it under the head of notice, and say that the registration is con- structive notice ; that is, notice by fiction, to all the world. Sec. 89. Fictions of the dogmatic kind are compatible with the most refined and most highly developed systems of Law. Instead of being blameworthy, they are to be praised when skilfully and wisely used. Yet, though handy, they are dangerous, tools. They should never be used, as the historic fictions were used, to change the Law, but only for the purpose of classifying established rules, and one should always be ready to recognize that the fictions are fictions, and be able to state the real doctrine for which they stand. Sec. 90. Let us return, now, to the particular occasion for the application of a dogmatic fiction which we have to LEGAL PERSONS 37 consider, — the case of a human being who is either natu- rally destitute of will, or to whose will the Law, for one reason or another, has denied the power of putting in motion his rights in certain matters. We have defined a man's legal rights as those rights which society will enforce on his motion, but with more entire accuracy it may be said that a man's legal rights are the rights which society will enforce on the motion of some one authorized by society to put his rights in motion. In the case of a normal human being, the only one authorized by society to put a man's rights in motion is the man himself ; but in the case of an abnormal human being, the person authorized to do so is not the man himself, but some one else. Who such person is, is a matter to be determined by the rules of each particular system. The fiction comes in when we say that what is, in truth, the will of some one else exercised on his behalf is the will of the possessor of the right, — when we attribute another's will to him. It is ponvenient to bring together, by means of this attribution, the rights of normal and abnormal persons, for the interests which the rights are given to protect are the same in both classes, and in both classes the same results follow from the exercise of the rights. Sec. 91. Where action on behalf of an abnormal human being is taken in the courts, the will attributed to him is that of some other definite person. How about cases where the administrative officers of the State protect him or his property ?i Where the inability to will is not natural, but imposed by the Law, as in the case of a young man just under age, the imposed inability does not extend to these cases. The young man may request the police to 1 See Sec. 55, ante. 38 NATURE AND SOURCES OF LAW protect him or his property. Where the ability to will is really absent — as in the case of a new-born child or of an idiot — the will which the Law attributes to the abnormal human being is not that of any definite individual, but that which is common to all, or the vast majority, of nor- mal human beings. Sec. 92. In the case of juristic persons, as we shall see, the application of dogmatic fictions is more complicated. Sec. 93. Included in human beings, normal and ab- normal, as legal persons, are all living beings having a human form. But they must be living beings ; corpses have no legal rights. Has a child begotten but not born rights ? There is no difficulty in giving them to it. A child, five minutes before it is born, has as much real wiU as a child five minutes after it is born ; that is, none at all. It is just as easy to attribute the will of a guardian, tutor, or curator to the one as to the other. Whether this attri- bution should be allowed, or whether the embryo should be denied the exercise of legal rights, is a matter which each legal system must settle for itself. In neither the Roman nor the Common Law can a child in the womb exercise any legal rights.^ Sec. 94. But putting an end to the life of an unborn child is generally in this country an offence by statute against the State ; and in our Law a child once born is considered for many purposes as having been alive from the time it was begotten. ^ 1 See Windscheid, Pand. § 52. 2 The history of the development of the Common Law on this subject is curious. Originally, a child does not seem to have been considered for any purpose as living before his birth. The House of Lords, at the end of the seventeenth century, misunderstanding the existing law, and to the great disgust of the Judges, allowed a contingent remainder-man who was LEGAL PERSONS 39 Sec. 95. (Ill) Supernatural Beings. We have hitherto been considering as persons, human beings. We have now to pass to beings who, though not human, are intel- ligent, i.e., supernatural beings. There is no difficulty in giving legal rights to a supernatural being and thus making him or her a legal person. Supernatural beings — Gods, angels, devils, saints — must deal in earthly- business and appear before earthly tribunals through priests or other human beings, but the relation which obtains between a God and his priests is like that which obtains between a normal man and his agents or attorneys, and not like that which exists between an infant and his guardian, where, as we have seen, the will of the latter is attributed to the former. There is no need of fiction here. In the society which x-ecognizes the legal rights of a God, the existence of the God is a fact of revealed reli- gion, and that authority to represent him has been given by the God to the priests, is also a fact of revealed re- ligion. The society is dealing with what it believes to be a reality, just as much as when it deals with human beings ; it is not pretending that that is true which it knows or believes not to be true. Sec. 96. In several systems of Law, supernatural beings have been recognized as legal persons. This was true, to a limited extent, in ancient Rome.^ The temples were, begotten but not bom at the end of the particular estate to take. Then the doctrine was extended to cover all cases where it was for the benefit of the child to be considered as having been born. Is the doctrine to be extended to cases where such extension benefits, not the child, but others ? It is well settled that it does so extend in cases arising under the Rule against Perpetuities ; whether it should be extended to other cases is yet sub judice. The leading authorities are collected in 5 Gray's Cases on Property (2d ed.) 47-54, 718-720. 1 3 Gierke, Deutsche Genossenschaftsrecht, 62-65. 40 NATURE AND SOURCES OF LAW perhaps, owned by the Gods. The Romans held very different views from those of Mr. Malthus. He who had the most children served the State best, and so, a privilege to take by will was given to those women who had at least three children, — jus trium liberorum. In the course of time, the same privileges were given as a reward to per- sons who had not had three children, or, indeed, any chil- dren at all, but the same name was retained, and so, oddly enough, to Diana, of all persons in the world, or rather out of the world, was given the jus trium liberorum.'^ Sec. 97. When, under Constantine, Christianity took the place, as the State Church, of the older religions, it might have been supposed that the Christian God and his saints would have become legal persons ; but this does not seem to have been the case. The early Christians were wary of imitating the religious establishments of the Em- pire ; in their own organizations they had recourse more readily to the analogies and precedents of the civil admin- istration. The Church buildings and charitable institu- tions were owned by corporations, or were like the modern German stiftungen, and Justinian ^ enacted that if any one should make Christ his heir, the church of the tes- tator's domicil should be the heir, and, if any archangel or martyr was named as heir, his oratory should be deemed the heir. I will return later to this law of Justinian's, in connection with juristic persons. Though the sound view undoubtedly is that in the Civil Law of the present day there are no supernatural persons, yet the opposing view 1 Dion Cassius, 55, 2 ; XJlp. Fragm. 22, 6 ; 1 Pernice, Labeo, 260-263. It should be observed that it is to Diana Ephesiaca that tTlpian allows testameatary privilege, and It is perhaps not clear that the Ephesian Artemis did not have children. 2 1 Cod. 1, 2, 25. LEGAL PERSONS 41 has not been without defenders. Thus Uhrig says : "Since the Church (^KiroJiengemeinde) is the bride of Christ, she dwells with him in this house of God, and the property of the Church QKirchenvermogen) belongs as dowry to her, but the Lord has durante matrimonio the property in her dowry." ^ Sec. 98. But in the Germany of the Middle Ages, God and the saints seem to have been often regarded as true legal persons. 2 Sometimes the expression is odd enough: Thus, a donor declares, " Dat unse leve frauwe Maria die moder CJiristi Jesu und der ritter Sanctus Greorgius disses Tcirspels gruntherrn sein" ; or ^'■Domini genetrici heatce Marice in perpetuum possidendem perdono " ; or to Saint Widon " in perpetuam hereditatem," or " Deo omnipotenti ejusque prcenominatis apostolis hereditaria Jure conceditur." Sometimes the supernatural person is charged with a legal duty. Thus, " Sanctus Spiritus tenetur 40 sol. pro dudbus mansis quas hahuit in domo laterali." " Sanctus Spiritus in Travemunde dat 5 marcas annuatim de molendino et pratis et agris." Sec. 99. In the Common Law, neither the Deity nor any other supernatural being has ever been recognized as a legal person. Blasphemy has been dealt with as a crime, but the legal person who has a legal right, and who alone can put it in motion, is, as in all crimes, the State. Very probably the motive of the State in giving itself this right to sue for blasphemy was, originally, because it was deemed that such prosecution was pleasant to the Almighty or would avert his wrath. Now such prosecutions are 1 See Meurer, Der Begrifi und Eigenthiimer der heiligen Sachen, § 57, p. 282, note 1. 2 2 Gierke, Deutsche Genossenschaftsreoht, 527 et seq. 42 NATURE AND SOURCES OF LAW usually defended on the ground that the utterance is offensive to many of the community. Sec. 100. (IV) Animals. Thus far we have been considering human beings and supernatural beings, but animals may conceivably be legal persons. Mrst, legal persons because possessing legal rights. In the systems of modern civilized societies, beasts have no legal rights. It is true there are everywhere statutes for their protec- tion, but these have generally been made, not for the beasts' sake, but to protect the interests of men, their masters. Such statutes have sometimes, however, been enacted for the sake of the animals themselves. It has, indeed, been said that statutes passed to prevent cruelty to animals are passed for the sake of men in order to pre- serve them from the moral degradation which results from the practice of cruelty, but this seems artificial and unreal; the true reason of the statutes is to preserve the dumb creatures from suffering. Yet, even when the statutes have been enacted for the sake of the beasts themselves, the beasts have no rights. The persons calling upon the State for the enforcement of the statutes are regarded by the Law as exercising their own wills, or the will of the State or of some other organized body of human beings. The Law of modern civilized societies does not recognize animals as the subjects of legal rights. Sec. 101. It is quite conceivable, however, that there may have been, or, indeed, may still be, systems of Law in which animals have legal rights, — for instance, cats in ancient Egypt, or white elephants in Siam. When, if ever, this is the case, the wills of human beings must be attributed to the animals. There seems no essential dif- ference between the fiction in such cases and in those where. LEGAL PERSONS 43 to a human being wanting in legal will, the will of another is attributed. Sec. 102. Secondly, animals as legal persons, because subject to legal duties. In modern systems of law, beasts are not subject to legal duties. As we have seen, the power of obeying or of understanding a command is not necessary for the creation of a duty. And, if a dog is unable to understand the words of a statute, so is an idiot or a new-born child. But in order that any being may become a legal person by virtue of a command issued by organized society, the command must be directed to that being. Now, the State does not give commands to dogs. If there is an ordinance that the town constable may kill all dogs without collars, the constable may have a legal right to kiU such dogs, but the dogs are not under a legal duty to wear collars. A legal duty to put collars on the dogs is imposed on their masters. Sec. 103. In modern Jurisprudence, animals have no legal duties, but in early stages of the Law, they seem to have been regarded for some purposes as having legal duties, for a breach of which they were liable to be pun- ished. The fiction here, if fiction there was, did not con- sist, as would be the case if legal rights were given to beasts, in attributing to them the will of human beings, but in attributing to them a capacity to receive commands directed to them. It is likely, however, that there was often no conscious use of fiction at all. It was genuinely believed that the animals really knew that they were dis- obeying the Law. Moreover, it is highly probable that in primitive times such dealings with beasts originated in a crude notion of vengeance, without any distinct attribution of intelligence or will to the animal, and when such practices 44 NATURE AND SOURCES OF LAW survived, they often, it is likely, took on the form of reli- gious expiation, rather than of punishment for breach of legal duty.i ' Sec. 104. This idea of regarding an animal as the sub- ject of a legal duty prevailed among the Jews and the Greeks. Thus, "And surely your blood of your lives will I require ; at the hand of every beast will I require it, and at the hand of man " ; ^ " If an ox gore a man or a woman that they die ; then the ox shall be surely stoned and his flesh shall not be eaten." ^ So in Plato, "'Eaz/ B' dpa vtto- ^vyiov 7} ^coov dWo ri ^ovevarj rivd . . . eTre^iTeoaav /xev 01 •irpocrrjKOVTe'; rov (l)dvov ra Kreivavn BiaSiica^ovTCOv Se raiv d