» |H kN 1 ■ ■J K SI7 Qlnrttjll Slaui §rl(nol Siibrarjj Digitized by Microsoft® Cornell University Library K 230.S17J9 1920 Jurisprudence / 3 1924 021 181 940 V- V. "LK" Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Library, 2008. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® JURISPRUDENCE SALMOND Digitized by Microsoft® BY THE SAME AUTHOR, THE LAW OE TORTS. A Treatise on the English Law of Liability for Civil .Injuries. FIFTH EDITION. 1920. London : SWEET & MAXWELL, Ltd. Digitized by Microsoft® JURISPRUDENCE BY Sir JOHN SALMOND, 80LICITOE-OBNEEAL FOR NEW ZEALAND. ^iftt) CDitton. LONDON : SWEET AND MAXWELL, LIMITED, 3, CHANOEEY LANE, W.C. 2. JatD publishers. 1920. Digitized by Microsoft® OF MY SON, WILLIAM GUTHRIE SALMOND, A CAPTAIN IN THE NEW ZEALAND ARMY, WHO IN FRANCE ON THE gTH DAY OF JULY, 1918, GAVE UP HIS LIFE IN THE 26TH YEAR OF HIS AGE. Digitized by Microsoft® ( V ) PREFACE TO THE SIXTH EDITION. /;^.v---TK In this Edition I have supplemented in an additional Appendix the brief e^tdinatiOn qf the conception of State-territory contained in Chapter V. The legal theory of this matter is rendered difficult by the complexity of modern constitutional and inter- national arrangements. It has been further con- sidered, therefore, with reference to the actual organization of the British Empire, and more par- ticularly with reference to the important distinction between British possessions and British protectorates. It may be that the details contained in the new Appendix are appropriate rather to a work of English constitutional law than to one of abstract jurisprudence ; nevertheless a knowledge of those details would seem to be essential to a due com- prehension of the general conception of State - territory. I have now omitted the Appendix of biblio- graphy which appeared in the former Editions of this work. Eighteen years have elapsed since it Digitized by Microsoft® VI PREFACE TO THE SIXTH EDITION. was written, and neither my engagements nor my opportunities are now such as enable me to maintain it as an adequate guide to the literature of the subject. In other respects I have made no material changes in the present Edition. I have to thank Mr. A. W. Chaster, LL.B., of the Middle Temple, Barrister -at-Law, for attending to its passage through the press and for the preparation of the Index. J. W. S. Wellington, November, 1919. Digitized by Microsoft® ( vii ) PREFACE TO THE FIRST EDITION. I HAVE endeavoured to make this book ueef ul to more than one class of readers. It is written primarily for the use of those students of the law who are desirous of laying a scientific foundation for their legal education; yet I hope that it will not be found destitute of interest by thoee law^yers whoee academic studies lie behind them, but who have not wholly ceased to concern themselves with the theoretical and scien- tific aspects of the law. Further, a great part of what I have written is suflB.caently free from the technicaiitieB and details of the concrete legal system to serve the purposes of those laymen who, with no desire to adventure themselves among the repellent mysteries of the law, are yet interested in those more general portions of legal theory which touch the problems of ethical and political science. It twill be noticed that occasional passages of the text axe printed in smaller type. These are of lesser importance, of greater idiffioulty, or of a controversial or historical charaoter, and are not essential to the continuity of the exposition. J.W.S. Adelaide, March, 1902. Digitized by Microsoft® Digitized by Microsoft® ( ix ) CONTENTS. CHAPTER I. THE SCIENCE OF JDRISPEDDENCE. PAGE § 1. Jurisprudence as the Soieuee of Law 1 § 2. Jurisprudence as the Science of Civil Law 3 § 3. Theoretical Jurisprudence 4 § 4. English and Foreign Jurisprudence 7 CHAPTER II. CIVIL LAW. § 5. The Definition of Law 9 § 6. The Administration of Justice 11 § 7. Law logically subsequent to the Administration of Justice 12 § 8. Law and Fact 15 § 9. The Justification of the Law 19 § 10. The Defects of tte Law 23 § 11. General and Special Law 27 § 12. Common Law 32 § 13. Law and Equity 34 CHAPTER III. OTHER KINDS OF LAW. § 14. Law in General — A Rule of Action 40 § 15. Physical or Scientific Law 41 § 16. Natural or Moral Law 43 § 17. Imperative Law 47 § 18. Conventional Law 64 § 19. Customary Law 55 § 20. Practical Law 56 § 21. International Law 56 § 22. The Law of Nations as Natural Law 59 § 23. The Law of Nations as Customary Law 61 § 24. The Law of Nations as Imperative Law 61 Digitized by Microsoft® X CONTENTS. OHAPTBE IV. THE ADMINISTBATION OF JUSTICE. PAGE § 25. Necessity of the Administration of Justice 65 § 26. Origin of the Administration, of Justice 67 § 27. CSvU and Criminal Justice 70 § 28. The Purposes of Criminal Justice: Deterrent Punishment 75 § 29. Preventive Punishment 75 § 30. Reformative Punishment 76 § 31. Retributive Punishment 80 § 32. Civil Justice: Primary and Sanctioning Rights 84 § 33. A Table of Legal Remedies 87 § 34. Penal and Remedial Proceedings 88' § 35. Secondary Functions of Courts of Law 89 CHAPTER V. THE STATE. § 36. The Nature and Essential Functions of the State 93 § 37. Secondary Functions of the State 98 § 38. The Territory of the State 99 § 39. The Membei-ship of the State 99 § 40. The Constitution of the State 106 § 41. The Government of the State 110 § 42. Independent and Dependent States Ill § 43. Unitary and Composite States 113 CHAPTER VI. THE SOUKOES OF LAW. § 44. Formal and Material Sources 116 § 45. L^al and Historical Sources 116 § 46. A List of Legal Sources 119 § 47. The Sources of Law as Constitutive and Abrogative 122 § 48. Sources of Law and Sources of Rights 123 § 49. Ultimate Legal Principles 124 CHAPTER VII. LBQISLATION. § 60. The Nature of Legislation 126 § 61. Supreme and Subordinate Legislation 12S § 62. Relation of Legislation to other Sources 131 § 83. Codification 135 § 54. The Interpretation of Enacted Law 13 Treatise of the Principles of JurispYadenoe as del-ermined by Nntwre. On the Continent on the other hand, the literature of natural law, though no longer as flourish- ing as it was, is still of importance. One of the best known work's of this class is Ahrens' Cours de Droit Naturel. A typical example from an earlier epoch is Pufendorfs once celebrated but now neglected work De Jure Naturae et Gentium (1672). See on this subject, Reid's Philosophical Works, Essay on the Active Powers, V. 3. (Of systems of natural inris- prudence.) Also Dugald Stewart's Works, VII. 256 (Hamaton'a ed ) Digitized by Microsoft® §2] THE SCIENCE OF JUEISPEUDENCE. 2. Jurisprudence as the Science of Civil Law. In a second and narrower sense, jurisprudence, instead of including all three of the foregoing divisions, is limited to one only, namely, that which we have distinguished as civil. It is the science of civil law. A similar specific application belongs to the term law also, for when we speak of law without a.ny qualifying epithet, we commonly mean that particular form, which is administered in the tribunals of the state. So when we speak of jurisprudence without more, we usually intend the science of this special kind of law and this alone. ^^ Civil jurisprudence is divisible into three branches, which may be distinguished as Systematic, Historical, and Critical. The first deals with the present; its purpose is the exposition of the legal system as it now is. The second deals with the past; it is concerned with the legal system in the process of its historical development. The third deals with the ideal future; it expounds^the law not as it is or has been, but as it ought to be. Systematic jurisprudence is legal exposition; historical jurisprudence is legal history; while critical jurisprudence is commonly known as the science of legislation. iThe term civil law, though once in common use to indicate the law of the land, has been partly superseded in recent times by the improper substi- tute, positive law. Jus positivum was a title invented by medieval jurists to 'denote law made or established {positurn) by human authority, as opposed to that jus naturale which was uncreated and immutable. It is from tiiis con- trast that the term derives all its point and significance. It is not permis- sible, therefore, to confine positive law to the law of the land. All is positive which is not natural. International and canon law, for example, are kinds of jus positivimi no less than the civil law itself. See Aquinais, Summa, 2. 2. q. 57 (De Jure) art. 2. Utrum jus convenienter dividatnr in jus naturale -et jus positivum. See also Suarez, De Legibus, I. 3. 13: (Lex) po^itiva dicta -est, quasi addita natural! legi. The term civil law possesses several other meanings, wliich are not likely, however, to create any confusion. It often means the law of Eome (corpus juris civilis') as opposed more especially to the canon law {oorpn,": juris canonici), these being the two great systems by wliich, in the Middle Ag'es, "State and Church were respectively governed. At other times it is used to signify not the whole law of the land, but only the residue of it after de- ducting some particular portion having a special title of its own. Thus civU is opposed to criminal law, to ecclesiastical law, to military law, and so on. The term civil law is derived from the jus civile of the Romans. Quod quisque populus ipse sibi jus constituit, id ipsius proprium civitatis est ■vocatui-que jus civile, quasi jus proprium ipsius civitatis. Just. Inst. I. 2. 1. 1 (2) Digitized by Microsoft® THE SCIENCE OF JUEISPEUDENCE. [§ 3 § 3. Theoretical Jurisprudence. There is yet a third and still narrower sense, in which juris- prudence includes not the whole science of civil law, but oidy a particular part of it. In this limited eigtiificsLtion it m&j be termed abstract, theoretical, or general, to distinguish it from the more concrete, practical, and special departments of legal study. It is with this form only that we are concerned in the present treatise. How, then, shall we define it, and how distin- guish it from the residue of the science of the civil law? It is the science of the first principles of the civil law. It is not possible, indeed, to draw any hard line of logical division between these first principles and the remaining portions of the legal system. The distinction is one of degree rather than of kind. Nevertheless it is expedient to set apart, as the subject- m.atter of a special department of study, those more funda- mental conceptions and principles which serve as the basis of the concrete details of the law. This introductory and general portion of legal science, cut oH for reasons of practical conveni- ence from the special portions which come after it, constitutes the subject-matter of our inquiry. It comprises the first prin- Xiiples of civil jurisprudence in all its three divisions, systematic,, historical, and critical. The fact that its boundaries are not capable of being traced with logical precision detracts in no degree from the advantages to be derived from its recognition and separate treatment as a distinct department of juridical science. Practical legal exposition acknowledges no call to rise to first principles, or to proceed to ultimate analysis. From the point of view of law |as an art, the importance of conceptions and principles varies inversely with their abstractness or generality. Practical jurisprudence proceeds from below upward, and ascends no further than the requirements of use and practice demand. Theoretical jurisprudence, on the contrary, attributes value to the abstract and the general, rather than to the con- crete and the particular. Even when these two departments of knowledge are coincident in their subject-matter, they are far apart in their standpoints, methods, and purposes. The Digitized by Microsoft® § 3] THE SCIENCE OF JUEISPRUDENCE. 5 aim of the abstract study is to supply, that theoretical fouuda- tion which the science of law demands, but of which the art of! law is careless. Opinions may well differ to some extent as to the matters which are fit, by reason of their generality or theii' theoretic and scientific interest, to find a place among the contents of abstract jurisprudence. Speaking generally, however, it may; be said that this science appropriately deals with such matters as the following: — • 1 . An analysis of the conception of civil law itself, together with an examination of the relations between this and other forms of law. 2. An analysis of the various subordinate and constituent ideas of which the complex idea of the law is made up; for example, those of the state, of sovereignty, and of the adminis- tration of justice. 3. An account of the sources from which the law proceeds, with an investigation into the theory of legislation, precedent, and customary law. 4. An examination of the general principles of legal develop- ment, as contrasted with the historic details of the growth of the individual legal system, this last pertaining to legal history,. 5. An inquiry into the scientific arrangement of tlie law, that is to say, the logical division of the corpus juris into distinct departments, together with an analysifs of the distinc- tions on which the division is based. 6 . An analysis of the conception of legal rights together withi the division of rights into various classes, and the general theory of the creation, transfer, and extinction of rights. 7. An investigation of the theory of legal liability, civil and criminal. 8. An examination of any other juridical conceptions which by reason of their fundamental character, or their theoretical interest, significance, or difficulty, deserve special attention from the abstract point of view; for example, property, possession, obligations, trusts, incorporation, and many others.^ iJt will be understood that this Wat is not intended a< an exhaustive .state- ment of the proper contents of a vvoi-k of abstract .jurisprudoncp, but merely Digitized by Microsoft® 6 THE SCIKNCE OF JURISPEUDKNCE. [§ S It may avoid misconceptions, and assist us in understanding what theoretical jurisprudence is, if Ave state shortlj- what it is not. 1. In the first place it is not an elementarj- outline of the concrete legal system. It deals not with the outlines of the law, but with its ultimate conceptions. It is concerned not with the simplest and easiest, but with some of the most abstruse and diiHcult portions of the legal system. Theoretical juris- prudence is not elementary law, any more than metaphysics is elementary science. 2. In the second place it is not, as the name general juris- prudence suggests, and as some writers have held,i the science of those conceptions and principles which all or most systems of law have in common. It is true, indeed, that a great part of the matter with which it is concerned is to be found in all mature legal systems. AU these have the same essential nature and purposes, and therefore agree to a large extent in their fundamental principles. But it is not because of this universal reception, that such principles pertain to theoretical jurispru- dence. Were it a rule of every country in the world that a man could not marry his deceased wife's sister, the rule would not for that reason be entitled to a place in this department of legal science. Conversely, as universal reception is not sufficient, so neither is it necessary. Even if no system in the world, save that of England, recognised the legislative efficacy of precedent, the theory of case-law would none the less be a fit and proper subject of the science in question. 3. Finally, this branch of knowledge has no exclusive claim to the name of jurisprudence or of legal science. It is not, as some say, the science of law, but is simply the introductory portion of it. As we have already seen, it is not even capable of definite and logical separation from the residue of legal learning. The division is one suggested by considerations of practical convenience, not demanded by the requirements of logic. as illustrative of the Mnds of matters with which this branch of legal learning- justly concerna itself. 1 Austin, Lectures on Jurisprudence, 3rd ed. p. IIOS. Digitized by Microsoft® § 3] THE SCIENCE OF JURISPRUDENCE. 7 Tho divisions of legal science, as they have been stated and explainetl in the foregoing pages, may be exhibited in tabular form as follows: — i Theoretical. The Theory of Civil Law — The Science of the First Principles of Civil Law. ' Systematic — Legal Exposition. ^ Practical < Historical — Legal History. JUEISPEUDEHCE, or the Science of Law in General. V Critical — The Science of Legislation. International. The Science of the Law of Nations. , Natural. The Science of Natural Law and Justice. § 4. English and Foreign Jurisprudence. The use of the term jurisprudenice to indicate exclusively that special branch, of knowledge which we have termed theoretical jurisprudence, is a peculiarity of English nomenclature. In foreign literature juris- prudence and its synonyms include the whole of legal science and aie never used in this specific and limited signification. The foreign works which correspond most accurately to the English literature of this subject are of three different kinds: — 1. Works devoted to the subject known as Juridical Encyclopoedia, one of tho best known examples of which is that of Arndts. He defines this department of legal science as comprising " a scientific and systematic outline or general view of the whole province of jurispru- dence {Rechtswissenschaft), together with the general data of that science." "Its purpose," he adds, "is to determine the compass and limits of jurisprudence, its relation to other sciences, its internal divi- sions, and the mutual relations of its constituent parts." ^ 2. Books of Pandektenrecht (that is to say. Modern Roman Law), and more especially the Introductory or &eneral Part of these works. German jurists have devoted extraordinary energy and acumen to the analysis and exposition of the law of the Pandects, in that modern form 1 Arndts, Juriatisohe Enoyklopadie und Methodologie, p. 5, 9th ed. 1895. See also Puchta's Enoyklopadie, being the introductory portion of his Cursus der Institutionen, translated by Haatie (Outlines of Jurisprud'enoe, 1887). The term general jurisprudence (allgemeine Rechtslehre') is occasionally appHed to this form of literature. See Holtzendorif's Enoyklopadie der JEleohtswissenschaft, 5th ed. 1890. (Elemente der allgemeinen Rechtslehre, by Merkel.) Digitized by Microsoft® 8 THE SCIENCE OF JURISPRUDENCE. [§ 4 in which it was received in Germany until superseded by recent legis- lation. Much of the work so done hears too special a reference to the details of the Eoman system to be in point with respect to the theory of English law. The more general portions, however, are admirable examples of the scientific analysis of fundamental legal conceptions. Special mention may be made of the unfinished System of Modern Roman Law by Savigny, and of the similar works of Windscheid and Demburg. 3. A third form of foreign literature which corresponds in part to our English books of jurisprudence, consists of those works of jtcris- prndentia naturalis which have been already referred to. These contain the theory of natural law and natui-al justice, while English jurispru- dence is concerned with civil law, and with the civil or legal justice which that law embodies. Yet the relation between natural and civil law, natural and civil justice, is so intimate that the theory of the one is implicitly, if not explicitly, that of the other also. Widely, therefore, as they differ in aspect, we may place the Erenoh Philosophie du droit Ttaturel and the German Naturrechtswissenschaft side by side with our own theoretical jurisprudence. It is, indeed, from the earlier literature of natural law, as represented by Pufendorf, Burlamaqui, Heineccius, and others,! that the modern English literature rff jurisprudence is directly descended. ^ 1 Jurisprndetitia univrrsalis or generaJvi wa-s originally merely a synonym for jurisprv-clentla naturalis. 2 The term jurisprudence is used by French lawyers as the equivalent of that which English lawyers call ease-law — ^tlie development of the law by judicial decisions. "Jurisprudence — la manifere dont uu tribunal juge habitueUoment telle ou telle question " (Littre) . Jurisprudence in this sen.«e is coritrasted with doctrine, i.e., extrajudicial legal literature. Digitized by Microsoft® ( 9 ) CHAPTER II. CIVIL LAW. § 5. The Definition of Law. The law is the body of princdplos recognised and applied bj the state in the administration of justice. Or, mor'e shortly: The law consists of the rules recognised and acted on in courts of justice. It will be noticed that this is a definition, not of a law, but of the, law, and our first concern is to examine the significance of this distinction. The term law is used in two senses, which may be conveniently distinguished as the abstract and the ■concrete. In its abstract application we speak of the law of England, the law of libel, criminal law, and so forth. Similarly we use the phrases law and order, law and justice, courts of law. It is to this usage that our definition is applicable. In its concrete sense, on the other hand, we say that Parliament has enacted or repealed a law. We speak- of the by-laws of a railway company or municipal council. We hear of the corn laws or the navigation laws. The distinction demands atten- tion for this reason, that the concrete term is not co-extensivei with the abstract in its 3,pplication. Law or the law does not consist of the total number of laws in force. The constituent elements of which the law is made up are not laws but rulee of law or legal principles. That 3, will requires two witnesses is not rightly spoken of as a law of England; it is a rule of English law. A law means 3. statute, enactment, ordinance, decree, or any other exercise of legislative authority. It is one of the sources of law in the abstract sense. A law produoea istatute-law, just as custom produces customary law, or as a precedent produces case-law. Digitized by Microsoft® 10 CIVIL LAW. [§ 5 This ambiguity is a pieculiarity of English speech. All the chief Continental languages possess distinct expressions for the two meanings. Law in the concrete is lex, loi, gesetz, legge. Law in the abstract is jus, droit, recht, diritto. It is not the case, indeed, that the distinction between these two sets of terms is always rigidly maintained, for we occasionally find the concrete word used in the abstract sense. Medieval. Latin, for example, constantly uses lex as equivalent to jus, and the same usage is not uncommon in the case of the French loi. The fact remains, however, that the Continental languages possess, and in general make use of, a method of avoiding the ambiguity inherent in the single English term. Most English writers have, in defining law, defined it in the concrete, instead of in the abstract sense. They have attempted to answer the question: "What is a law?" while the true in- quiry is: " What is law? " The central idea of juridical theory is not lex but jus, not gesetz but recht. To this inverted and unnatural aiiethod of procedure there are two objections. In the first place it involves a useless and embarrassing conflict with legal usage. In the mouths of lawyers the concrete significa- tion is quite unusual. They speak habitually of law, of the law, of rules of law, of legal principles, but rarely of a law or of the laMS. When they have occasion to express the concrete idea, they avoid the vague generic expression, and speak of some particular species of law — a statute. Act of Parliament, by-law, or rule of Court. In the second place, this consideration of laws instead of law tends almost necessarily to the conclusion that statute law is the type of all law and the form to which all of it is reducible in the last analysis. It misleads inquirers by sending them to the legislature to discover the true nature and origin of law, instead of to the courts of justice. It is conse- quently responsible for much that is inadequate and untrue in the juridical theory of English writers.^ 1 On the distinotion between law in the concrete and law in the abstract senses, see Pollock's Jurisprudence, pp. 15-19, 2nd ed., and Bentham's Principles of Morals and Legislation (Works I. 148 n.). Digitized by Microsoft® § 6] CIVIL LAW. 11 § 6. The Administration of Justice. We have defined law bv reference to the administration of justice. It is needful, therefore, to obtain here some under- standing of the essential nature of that function of the state, though a complete analysis of it must be deferred to a later period of our inquiry. That some form of compulsion and control is essential for the realization in human conduct of the idea of justice, experience has made sufficiently manifest. Unfortunately for the welfare of the world, men are not so constituted that to know tlie right is to do it. In the nature of things there is a conflict, partly real, partly only apparent, between the interests of man and man, and between those of individuals and those of society at large; and to leave every man free to do that which is right in his own eyes, would fill the world with fraud and violence. " We have seen," says Spinoza, at the commencement of his Treatise on Politics,^ " that the way pointed out by Reason herself is exceeding difficult, insomuch so that they who persuade themselves that a multitude of men can be induced to live by the rule of Reason alone, are dreamers of dreams and of the golden age of the poets." If, therefore, we would maintain justice, it is necessary to add com- pulsion to instruction. It is not enough to point out the way; it is needful to compel men to walk in it . Hence the existence of various regulative or coercive systems, the purpose of which is the upholding and enforcement of right and justice by some instrument of external constraint. One of the most important of these systems is the administration of justice by the state. Another is the control exercised over men by the opinion of the society in which they live. A third is that scheme of coercion established within the society of states for the enforce- ment of the principles of international justice. The administration of justice may therefore be defined as the maintenance of right within a political community by means of the physical force of the state. The instrument of coercion employed by any regulative system is called a sanction, and any rule of right .supported by 1 Tractatus Politicus, I. 5. Digitized by Microsoft® 12 CIVIL LAW. [§ 6 «ucli means is said to be sanctioned. Thus physical force, in tho various methods of its application, is the sanction applied by the state in the jadministration of justice. Censure, ridicule, contempt, are the sanctions by which society (as opposed to the state) enforces the rules of morality. War is the last and the most formidable of the sanctions which in the society of nations maintain the law of nations. Threatening of evils to flow here or hereafter from divine anger are the sanctions of religion, so far as religion assumes the form of a regulative or coercdve systemi.i A sanction is not necessarily a punishment or penalty. To punish wrongdoers is a very effectual way of maintaining the right, but it is not the only way. We enforce the rule of right, not only by imprisoning the thief, but by depriving him of his plunder, and restoring it to its true owner; and each of these applications of the physical force of the state is equally a sanc- tion. The examination and classification of the different forms of sanction made use of by the state will claim our attention in a later chapter on the administration of justice. § 7. Law Logically Subsequent to the Administration of Justice. We have defined law as the body of principles observed and .acted on by the state in the administration of justice. To this definition the following objection may be made. It may be said: "In defining law by reference to the admiui^tration of justice, you have reversed the proper order of ideas, for law is the first in logical order, and the administration of justice .second. The latter, therefore, must be defined by reference to the former, and not vice verm. Courts of justice are (■>s(mtiallj- courts of law, justice in this usage being merely another name for law. The administration of ju.^tice is esscntiallv the en- forcement of the law. The laws are the commands h^id bv the 1 The term sanction is derived from Roman law. The mnotio was origi- nally that part of a statute which established a penalty, or made other provision in respect of the disregard of its injunctions. D. 48. 19. 41. By an easy transition it has come to mean the penalty itself. Digitized by Microsoft® § 7J CIVIL LAW. la state upon its subjects, and the law courts are the organs through which these conunands are enforced. Legislation, direct or in- direct, must precede adjudication. Your definition of law is therefore inadequate, for it runs in a circle. It is not per- missible to say that the law is the body of rules observed in the administration of justice, since this function of the state must itself be defined as the application and enforcement of the law." This objection is based on an erroneous conoeption of the essential nature of the administration of justice. The primary purpose of this function of the state is that which its name implies — to maintain right, to uphold justice, to protect rights,, to redress wrongs. Law is secondary and unessential. It con- sists of the fixed principles in accordance with which this function is exercised. It consists of the pre-established and authoritative rules which judges apply in the administration of justice, to the exclusion of their own free will and discretion. For good and suificient reasons the courts which administer justice are constrained to walk in predetermined paths. They are not at liberty to do that wliich seems right and just in their own eyes. They are bound hand and foot in the bonds of an authoritative creed which they must accept and act on without demur. This creed of the courts of justice constitutes the law, and 80 far as it extends, it excludes all right of private judg- ment. The la'W is the wisdom' aaid justice of the organizeid commonwealth, formulated for the authoritative direction of those to whom the commonwealth has delegated its judicial functions. What a litigant obtains in the tribunals of a modern and civilized state is doubtless justice according to law, but it is essentially and primarily justice and not law. Judges are appointed, in the words of the judicial oath, " to do right to all manner of people, after the laws and usages of this realm." Justice is the end, law is merely the instrument and the means ; and the instrument must be defined by reference to its end. It is essential to a clear understanding of this matter to remember that the administration of justice is perfectlj' possible without law at all. Howsoever expedient it may be, howsoever usual it may be, it is not necessary that the courts of the statu should, in maintaining right and redressing wrong, act accord- Digitized by Microsoft® 14 CIVIL LAW. r§ "^ ing to those fixed and predetermined principles which are called the law. A tribunal in which right is done to all manner of people in such fashion as comtaendfe' itself to the unfettered discretion of the judge, in which equity and good conscience and natural justice are excluded by no rigid and artificial rules, in which the judge does that which he deems just in the par- ticular case, regardless of general principles, may not be an efficient or trustworthy tribunal, but is a perfectly possible one. It is a court of justice, which is not also a court of law. Moreover, even when a sj-stem of law exists, the extent of it may vary indefinitely The degree in which the freo dis- cretion of a judge in doing right is excluded by predetermined rules of law, is capable, of indefinite increase or diminution. The total exclusion of judicial discretion by legal principle is impossible in any system. However great is the encroachment of the law, there must remain some residuum of justice which is not according to law — some activities in respect of which the administration of justice cannot be defined or regarded as the enforcement of the law. Law is a gradual growth from small beginnings. The development of a legal system consists in the progressive substitution of rigid pre-established principles for individual judgment, and to a veiy large extent these principles grow up spontaneously within the tribunals themselves. That great aggregate of rules which constitutes a developed legal system is not a condition precedent of the administration of justice; but a product of it. Gradually from various sources — precedent, custom, statute — there is collected a body of fixed principles which the courts apply to the exclusion of their private judgment. The question at issue in the administration of justice more and more ceases to be, " What is the right and justice of this case? " and more and more assumes the alterna- tive form, "What is the general principle already established and accepted, as applicable to such a case as this? " .Justice becomes increasingly justice according to law, and courts of justice become increasingly courts of law. Digitized by Microsoft® § 8] CIVIL LAW. 15 § 8. Law and Fact. The existence of law is, as has been said, marked and measured by the exclusion, in courts of justice, of individual judgment by authority, of free discretion by rule, of liberty of ■opinion by pre-established determinations. The remarkable extent to which this exclusion is permitted is a very charao^ teristic feature of the administration of justice; but it is not and cannot be complete. Judicial action is accordingly divisible into two provinces; one being that of law, and the other that of fact. All matters that come for consideration before courts of justice are either matters of law or matters of fact. The former are those falling within the sphere of pre-established and authorita- tive principle, while the latter are those pertaining to the province of unfettered judicial discretion. In other words, every question which requires an answer in a court of justice is either one of law or one of fact. The former is one to be answered in accordance with established principles — one which has been alreadj' authoritatively answered, explicitly or implicitly, by the. law. A question of fact, on the other hand, is one which has not been thus predetermined — one on which authority is silent — one which the court may and must answer and determine in accordance with its own individual judgment. It must be clearly understood that by a question of fact, as we have used the expression, is meant any question whatever except one of law, whether that question is, or is not, one of fact in the other senses of this equivocal term. We are not concerned, for example, with the distinction between matters of fact and matters of right, or with that between matters of fact and matters of opinion. Everything is fact for us which is not predetermined by legal principles. It is clear that this is the sense in which this term must inevitably be used, if the dis- tinction between questions of fact and questions of law is to be exhaustive and logical. The distinction may be illustrated by the following examples: — "Whetlier a contractor has been guilty of unreasonable delay in build- ing a house is a question of fact; the law contains no rules for its deter- Digitized by Microsoft® 16 CIVIL LAW. [§ S mination. But whether the holder of a bill of exchange has been guilty of unreasonable delay in giving notice of dishonour, is a question of law to be determined in accordance with certain fixed principles laid down in the Bills of Exchange Act. Whether verbal or written evidence of a contract is the better, is a question of law, the superiority of the latter being the subject of a pre-existing and authoritative- generalisation. But whether the oral testimony of A. or that of B. is the better evidence, is a question of fact, left entirely to the untrammelled judgment of the court. What is the proper and reasonable punishment for murder is a question of law, individual judicial opinion being absolutely excluded by a fixed rule. What is the proper and reasonable punishment for theft is (save so far as judicial discretion is limited by the statutory appointment of a maximum limit) a question of fact, on which the law has nothing to say. The question whether a child accused of crime has sufficient mental capacity to be criminally responsible for his acts, is one of fact, if the accused is over the age of seven years, but one of law {to be answered in the negative) if he is under that age. The point in issue is the meaning of a particular clause in an Act of Parliament. Whether this is a question of fact or of law, depends on whether the clause has already been the subject of authoritative judicial interpretation. If not, it is one of fact for the opinion of the court. If, however, there has already been a decision on the point, the question is one of law to be decided in accordance with the previous determination. The conclusion may seem paradoxical that a question of statutory inter- pretation may be one of fact, but a little consideration will show that the statement is correct. It is true, indeed, that the question is one as to what the law is, but a question of law does not mean one as to what the law is, but one to be determined in accordance with a rule of law. A question is very often both one of fact and one of law, and is then said to be a mixed question of lavv^ and of fact. It is to be answered partly in accordance with fixed legal principles, and as to the residue in accordance with free judicial opinion. That is to say, it is not a simple, but a composite questioin, resolvable into a greater or less number of simple factors, some of which pertain to the sphere of the law and the others to that of fact. Let us take, for example, the question as to the proper term of imprisonment for a certain convicted criminal. This may, according to circumstances, be a pure question of fact, a pure question of law, or a mixed question of law and of fact. It belongs to the first of these class'Ss, if the law contains not Digitized by Microsoft® § 8] CIVIL LAW. 17 provision whatever on the matter, the court having in conse- quence a perfectly free hand. It belongs to the second class, if the matter is definitely predetermined by a fixed rule, appoint- ing the exact length of imprisonment to be awarded . It belongs to the third class, if the law has fixed a minimum or maximum term, but has left the court with full liberty within the appointed limits. Similarly, whether the defendant has been guilty of fraud is a mixed question of law and of fact, because it is resolvable into two elements, one of law and the other of fact; what acts the defendant has done, and with what intent he did them, are pure questions of fact; but whether such acts, done with such an intent, amount to fraud is a pure question of law. So the question whether a partnership exists between A. and B. is partly one of fact (viz ., what agreement has been made between these persons), and partly one of law (viz., whether such an agreement constitutes the relation of partnership). Similar composite questions are innumerable. The distinction between matters of fact and matters of law is thrown into great prominence by the composite character of the typical English tribunal and the resulting division of functions between judge and jury. The general rule is that questions of law are for the judge and questions of fact for the jury. This rule is subject, however, to numerous and important exceptions. Though there are no cases in which the law is left to the jury, there are many questions of fact which are withdrawn from the cognisance of the jury and answered by the judge. The inter- pretation of a written document, for example, may be, and very often is, a pure matter of fact, and nevertheless falls within the province of the judge. So the question of reasonable and prob- able cause for prosecution — wliich arises in actions for malicious prosecution — is one of fact and yet one for the judge himself. So it is the duty .of the judge to decide whether there is any sufficient evidence to justify a verdict for the plaintiff, and if he decides that there is not, the case is withdrawn from the jury altogether; yet in the majority of cases this is a mere matter of fact, undetermined by any authoritati.ve principles.^ 1 It is to be noted, therefore, that the distinction between law and fact depends not on the person by whom, but on the manner in which the matter S.jr. 2 Digitized by Microsoft® 18 CIVIL LAW, [§ 8 The validity of a legal principle is entirely independent of its truth. It is a valid principle of law, not because it is true, but because it is accepted and acted on by the tribunals of the state. The law is the theory of things, as received and acted on within the courts of justice, and this theory may or may not conform to the reality of things outside. The eye of the law does not infallibly see things as they are. Nor is this divergence of law from truth and fact necessarily, and in its full extent, inexpe- dient. The law, if it is to be an efficient and workable system, must needs be blind to many things, and the legal theory of things must be simpler than the reality. Partly by deliberate design, therefore, and partly by the errors and accidents of historical development, law and fact, legal theory and the truth of things, are far from complete coincidence. We have ever to distinguish that which exists in deed and in truth, from that which exists in law. Fraud in law, for example, may not be fraud in fact, and vice versa. That is to say, when the law lays down a principle determining, in any class of cases, what shall be deemed fraud, and what shall not, this principle may or may not be true, and so far as it is untrue, the truth of things is excluded by the legal theory of things. In like manner, that which is considered right or reasonable by the law may be far from possessing these qualities in truth and fact. Legal justice may conflict with natural justice; a legal wrong may not be also a moral wrong, nor a legal duty a moral duty. is determined. Yet, although this is so, an illogical and careless usage of speech sometimes classes as questions of law all those which are for the decision of judges, irrespective of the existence or non-existence of legal principles for their determination. It is worth potice that questions of fact, left to the determination of judges, tend to be transformed into questions of law, by the operation of judicial precedent. In the hands of judges decisions of fact beget principles of law, while the decisions of juries have'no such law-creating efficacy. This is a matter which we shall consider at length in connection with the theory of precedent. Ths distinction between law and fact, with special reference to trial by jury, is very fuUy considered by Thayer in his Preliminary Treatise on the Law of Evidence, pp. 183-262. See also Terry's Leading Principles of Anglo-American Law, pp. 53-62. Digitized by Microsoft® § 9] CIVIL LAW. 19 § 9, The Justification of the Law. We have seen that the existence of law is not essential to the administration of justice. Howsoever expedient, it is not necessary that this function of the state should be exercised in .accordance with those rigid principles which constitute a legal .system. The primary purpose of the judicature is not to enforce law, but to maintain justice, and this latter purpose is in its nature separable from the former and independent of it. Even when justice is administered according to law, the propor- tion between the sphere of legal principle and that of judicial 'discretion is different in different systems, and varies from time to time. This being so, it is well to make inquiry into the •uses and justification of the law — to consider the advantages •and disadvantages of this substitution of fixed principles for the arbitriitm judicis in the administration of justice — in order that we may be enabled to judge whether this substitution be good or evil, and if good within what limits it should be •confined . That it is on the whole expedient that courts of justice should hecome courts of law, no one can seriously doubt. Yet the •elements of evil involved in the transformation are too obvious and serious ever to have escaped recognition. Laws are in theory, as Hooker says, "the voices of right reason"; they are in theory the utterances of Justice speaking to men hy the mouth of the state; but too often in reality they fall far short of this ideal. Too often they " turn judgment to wormwood," and make the administration of justice a reproach. Nor is this "true merely of the earlier ^nd ruder stages of legal development . At the present day our law has learnt, in a measure never before attained, to speak the language of sound reason and good sense ; "but it still retains in no slight degree the vices of its youth, nor is it to be expected that at any time we shall altogether escape from the perennial conflict between law and justice. It is needful, thorofoR;, that the law should plead and prove the ■ground, and justification of its existence. The chief uses of the law are three in number. The first of 2 (2) Digitized by Microsoft® 20 CIVIL LAW. [§ 9 these is that it imparts unif orinity and certainty to the adminis- tration of justice. It is vitally important not only that judicial decisions should be correct, distinguishing accurately between right and wrong, and appointing fitting remedies for injustice, but also that the subjects of the state should ba able to know beforehand the decision to which on any matter the courts of justice will come. This prevision is impossible unless the course of justice is unif onn, and the only effectual method of procuring uniformity is the observance of those fixed principles which con- stitute the law. It would be well, were it possible, for the tribunals of the state to recognise and enforce the rules of absolute justice; but it is better to have defective rules than to have none at all. For we expect from the coercive action of the- state not merely the maintenance of abstract justice, but the establishment within the body politic of some measure of system, order, and harmony, in the actions and relations of its members. It is often more important that a rule should be definite, certain, known, and permanent, than that it should be ideally just. Sometimes, indeed, the element of order and cer- tainty is the only one which requires consideration, it being entirely indifferent what the rule is, so long as it exists and is adhered to. The rule of the road is the best and most familiar example of this, but there are many other instances in which justice seems dumb, and yet it is needful that a definite rule of som:o sort should be adopted and m;aintain©d. For this reason we require in great part to exclude judicial discretion of a body of inflexible law. For this reason it is, that in no civilised community do the judges and magistrates to- whom is entrusted the duty of maintaining justice, exercise -with a free hand the viri boni arhitrium. The more complex our civilisation becomes, the more needful is its regulation by law, and the less practicable the alternative method of judicial pro- cedure. In simple and primitive communities it is doubtless possible, and may even be expedient, that rulers and magistrates should execute judgment in such manner as best commends itself to them. But in the civilisation to which we have now- attained, any such attempt to substitute the deliverances of natural reason for predetermined principles of law would lead Digitized by Microsoft® ■§ 9] CIVIL LAW. 21 to chaos. "Reason," says Jeremy Taylor,^ "is such a box of quicksilver that it abides no where; it dwells in no settled taansion; it is like a dove's neck; . . . and if we inquire after the law of nature" (that is to say, the principles of justice) " by the rules of our reason, we shall be as uncertain as the discourses of the people or the dreams of disturbed fancies." It is to be observed in the second place that the necessity of conforming to publicly declared principles protects the ad- ministration of justice from the disturbing influence of improper motives on the part of those entrusted with judicial functions. The law is necessarily impartial. It is made for no particular person, and for no individual case, and so admits of no respect of persons, and is deflected from the straight course by no irrele- vant considerations peculiar to the special instance. Given a definite rule of law, a departure from it by a hair's-breadth is visible to all naen; but within the sphere of individual judgment the differences of honest opinion are so manifold and serious that dishonest opinion can pass in great part unchallenged and undetected. Where the duty of the judicature is to execute justice in accordance with fixed and known principles, the whole force of the public conscience can be brought to the enforcement •of that duty and the maintenance of those principles. But when courts of justice are left to do that which is right in their own eyes, this control becomes to a great extent impossible, public opinion being left without that definite guidance which is essential to its force and influence. So much is this so, that the administration of justice according to law is rightly to be regarded as one of the first principles of political liberty. " The legislative or supreme authority," says Locke, ^ " cannot assume to itself a power to rule by extemporary, arbitrary decrees, but is bound to dispense justice, and to decide the rights of the subject by promulgated, standing laws, and known, authorized judges." So in the words of Cicero, ^ "We are the slaves of the law that we may be free." iDuotor Dubitantium (Works XII. 209. Heber's ed.). 2 Treatise of Government, II. 11. 136. 3 Pro Cluentio, 53. 146. Digitized by Midrosoft® 22 CIVIL LAW. [§ ^ It is to its impartiality far more than to its wisdom (for this latter virtue it too often lacks) that are due the influence and reputation which the law has possessed at all times. Wise or foolish, it is the same for all, and to it, therefore, men have ever been willing to submit their quarrels, knowing, as Hooker^ says^ that "the law doth speak with all indifferency; that the law hath no side-respect to their persons." Hence the authority of a judgment according to law. The reference of international 'disputes to arbitration, and the loyal submission of nations t» awards so made, are possible only in proportion to the develop- ment and recognition of a definite body of international law. So in the case of the civil law, only so far as justice is trans- formed into law, and the love of justice into the spirit of law- abidingness, will the influence of the judicature rise to an efficient level, and the purposes of civil governnient be adequately fulfilled. Finally, the law serves to protect the administration of justice- from the errors of individual judgment. The establishment of the law is the substitution of the opinion and conscience of the community at large for those of the individuals to whom judi- cial functions are entrusted. The principles of justice are not always clearly legible by the light of nature. The problems offered for judicial solution are often dark and difficult, and there is great need of guidiance from' that experience aind wisdom of the world at large, of which the law is the record. The law is not always wise, but on the whole and in the long run it is wiser than those who administer it. It expresses the will and reason of the body politic, and claims by that title to overrule the will and reason of ,judges and magistrates, no less than those of private men. "To seek to be wiser than the laws," says Aristotle,2 "is the very thing which is by good laws for- bidden." 1 Ecclesiastical Polity, I. 10. 7. 2 Rhetoric, 1. 15. See also Bacon, De Augmentis, Lib. 8, Aph. 58 1 Neminem oportere legibus esse sapientiorem. Digitized by Microsoft® § lOj CIVIL LAW. 23 § 10. The Defects of the Law. These then are the chief advantages to be derived from the exclusion of individual judgment by fixed principles of law. Nevertheless these benefits are not obtained save at a heavy cost. The law is without doubt & remedy for greater evils, yet it brings with it evils of its own. Some of them are inherent in its very nature, others are the outcome of tendencies which, however natural, are not beyond the reach of effective control. The first defect of a legal system is its rigidity. A general principle of law is the product of a process of abstraction. It results from the elimination and [disregard of the less material circumstances in the particular cases falling within its scope, and the concentration of attention upon the more essential ele- ments which these cases have in common. We cannot be sure that in applying a rule so obtained, the elements so disregarded may not be material in the particular instance;' and if they are so, and we make no allowance for them, the result is error and injustice. This possibility is fully recognised in departments of practice other than the law. The principles of political economy are obtained by the elimination of every motive save the desire for wealth; but we do not apply them blindfold to individual cases, without first taking account of the possibly disturbing influence of the eliminated elements. In law it is otherwise, for here a principle is not a mere guide to the due exercise of a rational discretion, but a substitute for it. It is to be applied without any allowance for special circumstances, and without turning to the right hand or to the left. The result of this inflexibility is that, however carefully and cunningly a legal rule may be framed, there will in all probability be some special instances in which it will work hardship and injustice, and prove a source of error instead of a guide to truth. So infinitely various are the affairs of men, that it is impossible to lay down general principles which will be true and just in every case. If we are to have general rules at all, we must be content to pay this price. The time-honoured maxim, Siimmum jus est summa injuria. Digitized by Microsoft® 24 CIVIL LAW. [§ 10 is an expression of the fact that few legal principles are so founded in truth that they can be pushed to their extremest logical conclusions without leading to injustice. The more general the principle, the greater is that elimination of im- Imaterial elements of which it is the result, and the greater: therefore is the chance that in its rigid application it may be found false. On the other hand, the more carefully the rule is qualified and limited, and the greater the number of exceptions and distinctions to which it is subject, the greater is the diffi- culty and uncertainty of its application. In attempting to escape from the evils which flow from the rigidity of the law, we incur those due to its complexity, and we do wisely if we discover the golden mean between the two extremes. Analogous to the vice of rigidity is that of conservatism. The former is the failure of the law to conform itself to the requirements of special instances and unforeseen classes of cases. The latter is its failure to conform itself to those changes in circumstances and in men's views of truth and justice, which are inevitably brought about by the lapse of time. In the absence of law, the administration of justice would automati- cally adapt itself to the circumstances and opinions of the time; but fettered by rules of law, courts of justice do the bidding, not of the present, but of the times past in which those rules were fashioned. That which is true to-day may become false to- morrow by change of circumstances, and that which is taken to-day for wisdom may to-morrow be recognised as folly by the advance of knowledge. This being so, some method is requisite whereby the law, which is by nature stationary, may be kept in harmony with the circumstances and opinions of the time. If the law is to be a living organism, and not a mere petrification, it is necessary to adopt and to use with vigilance some effective instrument of legal development, and the quality of any legal system will depend on the efiiciency of the means so taken to secure it against a fatal conservatism. Legislation —the substitution of new principles for old by the express declaration of the state — is the instrument approved by all civilised and progressive races, none other having been found Digitized by Microsoft® ■§ lO] CIVIL LAW. 25 comparable to this in point of efficiency. Even this, however, is incapable of completely counteracting the evil of legal con- servatism. However perfect we may make our legislative machinery, the law will lag behind public opinion, and public opinion behind the truth. Another vice of the law is formalism. By this is meant the tendency to attribute undue importance to form as opposed to substance, and to exalt the immaterial to the level of the mate- rial. It is incumbent on a perfect legal system to exercise a sound judgment as to the relative importance of the matters which come within its cognisance ; and a system is infected with formalism in so far as it fails to meet this requirement, and raises to the rank of the material and essential that which is in truth unessential and accidental. Whenever the importance of a thing in law is greater than its importance in fact, we have a legal formality. The formalism of ancient law is too notorious to require illustration, but we are scarcely yet in a position to boast ourselves as above reproach in this matter. Much legal reform is requisite if the maxim De minimis non curat lex is to be accounted anything but irony. The last defect that we shall consider is undue and needless complexity. It is not possible, indeed, for any fully developed body of law to be such that he who runs may read it. Being, as it is, the reflection within courts of justice of the complex facts of civilised existence, a very considerable degree of elaboration is inevitable. Nevertheless the gigantic bulk and bewildering ■difficulties of our own labyrinthine system are far beyond any- thing that is called for by the necessities of the case. Partly through the methods of its historical development, and partly through the influence of that love of subtilty which has always been the besetting sin of the legal mind, our law is filled with needless distinctions, which add enormously to its bulk and nothing to its value, while they render great part of it unin- telligible to any but the expert. This tendency to excessive subtilty and elaboration is one that specially affects a system which, like our own, has been largely developed by way of judicial decisions. It is not, however, an unavoidable defect, Digitized by Microsoft® 26 CIVIL LAW. [§ 10 and the codes which have in modern times been enacted ja European countries prove the possibility of reducing the law to a system of moderate size and intelligible simplicity. From the foregoing considerations as to the advantages and' disadvantages which are inherent in the administration of justice according to law, it becomes clear that we must guard against the excessive development of the legal system. If the- benefits of law are great, the evils of too much law are not small. The growth of a legal system consists in the progressive- encroachment of the sphere of law upon that of fact, the gradual exclusion of judicial discretion by predetermined legal prin- ciples. All systems do to some extent, and those which recognise precedent as a chief source of law do more especially, show a tendency to carry this process of development too far. Under the influence of the spirit of authority the growth of" law goes on unchecked by any effective control, and in course- of time the domain of legal principle comes to include much that would be better left to the arhitrium of courts of justice. At a certain stage of legal developonent, varying according tO' the particular subject-matter, the benefits of law begin to be outweighed by those elements of evil wliich are inherent in it. Bacon has said, after Aristotle;^ Optima est lex quae mini- mum relinquit arhitrio juMcis. However true this may be in general, there are man}' departments of judicial practice tO' which no such principle is applicable. Much has been done in recent times to prune the law of morbid growths. In many departments judicial discretion has been freed from the bonds of legal principle. Forms of action have been abolished; rules- of pleading have been relaxed; the credibility of witnesses has become a matter of fact, instead of as formerly one of law; a discretionary power of punishment has been substituted for the terrible legal uniformity which onoe disgraced the adminis- tration of criminal justice; and the future will see further reforms in the same direction. 1 Bacon, De Augmentis, Lib. 8, Aph. 46; Aristotle's Ehefcoric, I. 1. Digitized by Microsoft® § 10] CIVIL LAW. 27 W have hitherto taken it lor granted that legal principles are necessarily inflexible — that they are essentially peremptory rules excluding judicial discretion so far as they extend — that they must oi; necessity be followed blindly by courts of justice- even against their better judgment. There seems no reason, however, in the nature of things why the law should not, to a considerable extent, be flexible instead of rigid — should not aid,, guidcj and inform judicial discretion, instead of excluding it — should not be subject to such exceptions and qualifications as in special circumstances the courts of justice shall deem reasonable or requisite. There is no apparent reason why the law should say to the judicature: "Do this in all cases, whether you con- sider it reasonable or not," instead of: "Do thisi except in those cases in which you consider that there are special reasons for doing otherwise." Such flexible principles are not unknown even at the present day, and it seems probable that in the more perfect system of the future much law that is now rigid and peremptory will lapse into the category of the conditional. It will always, indeed, be found needful to maintain great part of it on the higher level, but we have not realised to what an extent flexible principles are sufficient to attain all the good purposes of the law, while avoiding much of its attendant evil. It is probable, for instance, that the great bulk of the law of evidence should be of this nature. These rules should for the most part guide judicial discretion, instead of excluding it. In the former capacity, being in general founded on experience and good sense, they would be valuable aids to the discovery of truth; in the latter, they are too often the instruments of error. § 11. General and Special Law. The whole body of legal rules is divisible into two parts, which may be conveniently distinguished as General law and Special law. The former includes those legal rules of which the courts will take judicial notice, and which will therefore be applied as a matter of course in any case in which the appro- priate subject-matter is present. Special law, on the other hand, consists of those rules which, although they are true rules of la^V, Digitized by Microsoft® 28 CIVIL LAW. [ § 11 the courts will not recognise and apply as a matter of course, but which must be specially proved and brought to the notice of the courts by the parties interested in their recognition. In other words, the general law is that which is generally applic- able; it is that which will be applied in all cases in which it is not specially included by proof that some other set of prin- ciples has a better claim to recognition in the particular instance. Special law, on the contrary, is that which has only a special or particular application, excluding and superseding the general law in those exceptional oases in which the courts are informed of its existence by evidence produced for that purpose. The test of the distinction is judicial notice. By this is meant the knowledge which any court, ex officio, possesses and acts on, as contrasted with the knowledge which a court is bound to acquire through the appointed channel of evidence formally produced by the parties. A judge may know much in fact of which in law he is deemed ignorant, and of which, therefore, he must be informed by evidence legally produced. Conversely he may be ignorant in fact of much that by law he is entitled judicially to notice, and in such a case it is his right and duty to inform himself by such means as seem good to him. The general rule on the matter is that courts of justice know the law, but are ignorant of the facts. The former may and must be judicially noticed, while the latter must be proved. To each branch of this rule there are, however, important exceptions. There are certain exceptional classes of facts, of which, because of their notoriety, the law imputes a knowledge to the courts. Similarly there are certain classes of legal rules of which the courts may, and indeed must, hold themselves ignorant, until due proof of their existence has been produced before them.- These, as we have said, constitute special, as opposed to the general law. By far the larger and more important part of the legal system is general law. Judicial notice — recognition and application as a matter of course — is the ordinary rule. As to this branch of the law we need say nothing more in this place, but the rules of special law call for further consideration. They fall for the most part into five distinct classes. A full account of these must Digitized by Microsoft® .§ ll] CIVIL LAW. 29' wait until we come to deal with the sources of law in a subse- quent chapter, but in the meantime it is necessary to mention them as illustrating the distinction with which we are her© concerned. 1. Local customs. — Immemorial custom in a particular locality has there the force of law. Within its own territorial limits it prevails over, and derogates from, the general law of the land'. But the courts are judicially ignorant of its existence. If any litigant will take advantage of it, he must specially plead and prove it; otherwise the general law wiU. be applied. 2. Mercantile customs. — The second kind of special law con- sists of that body of mercantile usage which is known as the law merchant. The general custom of merchants in the realm of England has in mercantile affairs the force of law. It may make, for example, an instrument negotiable, which by the general law of the land is not so. This customary law merchant is, like local customary law, special and not general ; but, unlike local customary law, it has the capacity of being absorbed bj-, or taken up into the general law itself. When a mercantile usage has been sufficiently established by evidence and acknow- ledged as law by judicial decision, it is thereafter entitled to judicial notice. The process of proof need not be repeated from time to time.i The result of this doctrine is a progressive trans- formation of the rules of the special law merchant into rules of the general law. The law of bills of exchange, for example, was formerly part of the special law merchant, requiring to be pleaded and proved as a condition precedent to its recognition and application; but successive judicial decisions, based upon evidence of this special law, have progressively transmuted it into general law, entitled to judicial notice and to application as a matter of course. 3. Private legislation. — Statutes are of two kinds, distin- guishable as public and private. The distinguishing charac- teristic of a public Act is that judicial notice is taken of its existence, and it is therefore one of the sources of the general 1 Edie ■y. Bast India Co., 2 Burr. 1226 ; Barnet v. Brandao, 6 M. & G. at p. 665; Uoult v. Balliday, (1893) 1 Q. B. 125; Bx -parte Turquand, 14 Q. B. D. 636; Edelateim v. Schuler, (1902) 2 K. B. 144. Digitized by Microsoft® 30 CIVIL LAW. [§11 law. A private Act, on the other hand, is one which, owing to its limited scope, docs not fall within the ordinary cognisance ■of the courts of j ustice, and will not be applied by them unless specially called to their notice by the parties interested. Examples of private legislation are .acts incorporating indivi- dual companies and laying down the principles on which they are to be administered, acts regulating the navigation of some river, or the construction and management of some harbour, or any other enactments concerned, not with the interests of the realm or the public at large, but with those of private individuals •or particular localities.^ Private legislation is not limited to Acts of Parliament. In most cases, though not in all, the delegated legislation of bodies subordinate to Parliament is private, and is therefore a source, not of general, but of special law. The by-laws of a railway ■company, for example, or of a borough council, are not entitled to judicial notice, and form no part of the general law of the land. Rules of court, on the other hand, established by the judges under statutory authority for the regulation of the proce- dure of the courts, are constituent parts of the ordinary law. 4. Foreign law. — The fourtli kind of special law consists of those rules of foreign law, which upon occasion are applied even in English courts to the exclusion of English law. Experience lias shown that justice cannot be efficiently administered by tribunals which refuse on all occasions to recognise any law but their own. It is essential in many cases to take account of some system of foreign law, and to measure the rights and liabilities of litigants by it, rather than by the indigenous or territorial law of the tribunal itself. If, for example, two men make a contract in France, which they intend to be governed by the law of France, and one of them sues on it in an English court, justice demands that the validity and effect of the contract shall be determined by French, rather than by English law. French, rather than English law will therefore be applied in such a case eVen by English judges. The principles which 1 By tlie Interpretation Act, 1889, s. 9, it is provided that " Every Act passed after the year 18.50 . . shall be a public Act, and shall be judicially noticed as such, unless the contrary u expressly provided by the Act." Digitized by Microsoft® § ll] CIVIL LAW. 31 determine and regulate this exclusion of local by foreign law constitute the body of legal doctrine known as private international law. Foreign law, so far as it is thus recognised in English courts, Isecomes, by virtue of this recognition, in a certain sense English law. French law is French as being applied in France, but English as being applied in England. Yet though it is then part of English law, as being administered in English courts, it is not part of the general law, for English courts have no official knowledge of any law save their own. 5. Conventional law. — The fifth and last form of special law is that which has its source in the agreement of those who are subject to it. Agreement is a juridical fact having two aspects, and capable of being looked at from two points of view. It is both a source of legal rights and a. source of law. The former of these two aspects is the more familiar, and in ordinary cases the more convenient, but in numerous instances the latter is profitable and instructive. The rules laid down in a contract, for the determination of the rights, duties, and liabilities of the parties, may rightly be regarded as rules of law which these parties have agreed to substitute for, or add to the rules of the general law. Agreement is a law for those who make it, which supersedes, supplements, or derogates from the ordinary law of the land. Modus et ■conventio vincunt legem. To a very large extent, though not completely, the general law is not peremptory and absolute, but consists of rules whose force is conditional on the absence of any other rules agreed upon by the parties interested. The articles of association of a company, for example, are just as much true rules of law, as are the provisions of the Companies Acts, or those statutory regulations which apply in the absence ■of any articles specially agreed upon. So articles of partner- ship fall within the definition of law, no less than the provisions of the Partnership Act which they are intended to supplement or modify, for both sets of rules are authoritative principles which the courts will apply in all litigation affecting the affairs of the partnership. Digitized by Microsoft® 32 CIVIL LAW. [§ II We have made the distinction between general and special law turn wholly upon the fact that judicial notice is taken of the former but not of the latter. It may be objected that this is a merely external and superficial view o2 the matter. Gteneral law, it may be argued, is so called because it is common to the whole realm and to all persons in it, while special law is that which has a special and limited application to particular places or classes of persons. In this contention there is an element of truth, but it falls short of a logical analysis of the distinction in question. It is true that the general law is generally wider in its application than special law. It is chiefly for this reason, indeed, that the former is, while the latter is not, deemed worthy of judicial notice. But we have here no logical basis for a division of the legal system into two parts. Much of the general law itself applies to particular dasses of persons only. The law of solicitors, of auctioneers, or of pawn- brokers, is of very restricted application; yet it is just as truly part of the ordinary law of the land as is the law of theft, homicide, or libel, which applies to all mankind. The law of the royal prerogative is not special law, by reason of the fact that it applies, only to a single indi- vidual ; it is a constituent part of the general law. On the other hand, mercantile usage is dependent for its legal validity on its generality; it must be the custom of the realm, not that of any particular part of it; yet until, by judicial proof and recognition, it becomes entitled for the future to judicial notice, it is the special law merchant, standing outside the ordinary law of the land. The law of bills of exchange is no more general in its application now, than it ever was; yet it has now ceased to be special, apd has become incorporated into the general law. The element of truth involved in the argument now under consideration is no more than this, that the comparative generality of their application is One of the most important matters to be taken into consideration in determining whether judicial notice shall or shall not be granted to rules of law. § 12. Common Law. The term common law is used by English lawyers with un- fortunate diversities of meaning. It is one of the contrasted terms in at least three different divisions of the legal system. 1. Common law and statute law. — By the common law is sometimes meant the whole of the law except that which has its origin in statutes or some other form of legislation. It is the unenacted law that is produced by custom or precedent. Digitized by Microsoft® § 12 J CIVIL LAW. 33 as opposed to the enacted la~vv made by Parliament or sub- ordinate legislative autliorities. 2. Common law and equity. — In another sense common law means the whole of the law (enacted or unenacted) except that poi"tion which was developed and administered exclusively by the old Court of Chancery, and which is distinguished as equity. 1 It is in this sense, for example, that we speak of the Court of King's Bench or Exchequer as being a court of common law. 3. G. and f .'23. b. Aequitas tamen eibi locum vindicat in hac parte. See also Y. B. 30 & 31 Ed. I. 121 : — ■ Et hoc plus de rigore quam de aequitate. Digitized by Microsoft® 38 CIVIL LAW. [§ 1^ law- as opposed to the common law. The equity of tlie Chancery has changed its nature and meaning. It was not originally law at all, but natural justice. The Chancellor, in the first days of his equitable jurisdiction, did not go about to set up and administer a new form of law, standing side by side with that already recognised in the Court of Common Pleas. His purpose was to administer justice without law, and this purpose he in fact fulfilled for many a day. In its origin the juriis- diction of the Chancellor was unfettered by any rules whatever. His duty was to do that " which justice, and reason, and good faith, and good conscience require in the case."^ And of such requirements he was in each particular case to judge at his own good pleasure. In due time, however, there commenced that process of the encroachment of established principle upon judicial discretion, which marks the growth of all legal systems. By degrees the Chancellor suffered himself to be restricted by rule and precedent in his interpretation and execution of the dictates of the royal conscience. Just in so far as this change proceeded, the system administered in Chancery ceased to be a system of equity in the original sense, and became the same in essence as the common law itself. The final result was the establishment in England of a second system of law, standing over against the older law, in many respects an improvement on it, j^et no less than it, a scheme of rigidj technical, predetermined principles. And the law thus developed was called equity, because it was in equity that it had its source. Closely analogous to this equity-la^' of the English Chan- cellor is the jns praetor ium of the Roman praetor. The praetor, the supreme judicial magistrate of the Roman republic, had much the same power as the Chancellor of supplying and correcting the deficiencies and errors of the older law by recourse to aequitas. Just as the exercise of this power gave rise in England to a body of Chancery law, standing by the side of the common law, so in Rome a jus praetor imn grew up distinct 1 Cited in Spence's Equitable Jurisdiction of the Court of Chancery, I. 408, note («). Digitized by Microsoft® § 13] CIVIL LAW. 39 from the older jus civile. "Jus praetorium," says Papinian,! • "est quod praetores introduxerunt, adjuvandi vel supplendi vel corrigendi juris civilis gratia, propter utUitatem publicam." The chief distinction between the Roman and the English cases is that at Rome the two systems of law co-existed in the same court, the jus praetorium practically superseding the jus civile so far as inconsistent with it; whereas in England, as we have seen, law and equity were administered by distinct tribunals. Moreover, although the jus praeioriuni had its source in the aequitas of the praetor, it does not seem that this body of law was ever itself called aequitas. This transference of meaning is peculiar to English usage. ^ ID. 1. 1. 7. 1. -A special application by English lawyers of the term equity in its original sense, as opposed to x/rictiim jm is to be seen in the phrase, tha equity of o. statuir. By this is meant the spirit of a law as opposed to its letter. A matter is said to fall witliin tlie equity of a statute, when it is covered by the reason of the statute, although through defective draftsman- ship it is not within itfs actual terms. " Valeat aequitas," say.s Cicero, " quae paribus in causis parln jura desidorat." Topica IV. 23. Digitized by Microsoft® ( 40 ) CHAPTER III. OTHER KINDS OF LAW. § 14. Law in General — A Rule of Action. Having considered in the foregoing chajDter the nature of civil law exclusively, we now jDroceed to examine certain other kinds of law which need to be distinguished from this and from each other. In its widest and vaguest sense the term law includes any rule of action: that is to say, any standard or pattern toi which actions (whether the acts of rational agents or the opera- tions of nature) are or ought to be conformed. In the words of Hooker,! " ^yg term any kind of rule or canon whereby actions are framed a law." So Blackstone says:^ "Law, in its most general and comprehensive sense, signifies a rule of action, and is applied indiscriminately to all kinds of action, whether ani- mate or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics or mechanics, as well as the laws of nature and of nations." Of law in this sense there are many kinds, and the follow- ing are sufficiently imjDortant and distinct to deserve separate mention and examination: (1) Physical or Scientific law, (2) Natural or Moral law, (3) Imperative law, (4) Conventional law, (5) Customary law, (6) Practical law, (7) International law, (8) Civil law. Before proceeding to analyse and distin- guish these, there are the following introductory observations to be made: — (1) This list is not based on any logical scheme of division and classification, but is a mere simplex enmner-atio of the chief forms of law. 1 Ecdesiastioal Polity, I. 3. 1. 2 Commentaries, I. 38. Digitized by Microsoft® § 14] OTHER KINDS OF LAW. 41 (2) Tliei-e is nothing to prevent the same rule from belonging to more than ono of these classes. ,3) Any discussion as to the rightful claims of any of tliese classes of rules to be called law — any attempt to distinguish law properly so called from law improperly so called — would seem to be nothing more than a purposeless dispute about words. Our business is to recognise the fact that they are called law, and to distinguish accurately between the different cla.«ses of rules that are thus known by the same name. § 15. Physical or Scientific Law. Physical laws or the laws of science are expressions of the uniformities of nature — general principles expressing the regu- larity and liarmony observable in the activities and operations of the universe. It is in this sense that we speak of the law of gravitation, the laws of the tides, or the laws of chemical com- bination. Even the actions of human beings, so far as they are uniform, are the subject of law of this description: as, for example, when we speak of the lawB of political economy, or of Grimm's law of phonetios. These are rules expressing not what men ought to do, but what they do. Physical laws are also, and more commonly, called natural laws, or the lavs^s of nature; but these latter terms are ambiguous, for they signify also the moral law; that is to say, the principles of natural right and wrong. This use of the term law to connote nothing more than nniformitj' of action is derived from law in the sense of an impefrative rule of action, by way of the theological conception of the universe as governed in aU its operations (animate and inanimate, rational and irrational) by the will and command of God. The primary source of this conception is to be found in the Hebrew scriptures, and its secondary and immediate source in the scholasticism of the Middle Ages — a system of thought which was formed by a combination of the theology of the Hebrews with the philosophy of the Greeks. The Bible con- stantly speaks of the Deity as governing the universe, animate Digitized by Microsoft® 42 OTHEE KINDS OF LAW. [§ l-S and iuanimate, just as a ruler governs a society of men; and the order of the world is conceived as due to the obedience of all created things to the wiU and commands of their Creator. " He gave to the sea his decree, that the waters should not pass his commandment. "1 " He made a decree for the rain, and a way for the lightning of the thunder."- The schoolmen made this same conception one of the first principles of their philosophio system. The lex aeterna, according to St. Thomas Aquinas, is the ordinance of the divine wisdom, by which all things in heaven and earth are governed. " There is a certain eternal law, to wit, reason, existing in the mind of God and governing the whole universe. . For law is nothing else than the dictate of the practical reason in the ruler who governs a perfect community. "3 " Just as the reason of the divine wisdom, inas- much as by it all things were created, has the nature of a type or idea; so ako, inasmuch as by this reason all things are directed to their proper ends, it may be said to have the nature of an eternal law. And accordingly the law eternal is nothing else than the reason of the divine wisdom regarded as regulative and directive of all actions and motions.'"* This lexaeternu was divided by the schoolmen into two parts. One of these is (,oy, jvs cii'nle) . It is also the Eternal Law (lex aeterna), as having existed from Digitized by Microsoft® § 16] OTHER KINDS Or LAW. 45 the commencement of the world, uncreated and immutable. Lastly, in modem times we find it termed the Moral Law, as- being the expression of the principles of morality. The term natural law, in the sense with which we are here concerned, is now fallen almost wholly out of use. We speak of the principles of natural justice, or of the rules of natural morality, but seldom of the law of nature, and for this depar- ture from the established usage of ancient and medieval speech there are at least two reasons. The first is that the term natural law has become equivocal ; for it is now used to signify physical law — the expression of the uniformities of nature. The second is that the term law, as applied to the principles of natural justice, brings with it certain misleading associations — sugges- tions of command, imposition, external authority, legislation — which are not in harmony with the moral philosophy of the- present day. The following quotations illustrate sufficiently the ancient and medieval conceptions of the law of nature: — Aristotle. — "Law is either universal (xoivor vo^os) or special (i'Siot v0;O.(ii). Special law consists of the written enactments by which men are governed. The universal law consists of those unwritten rules whick are recognised among all men." ^ " Eight and wrong have been defined by reference to two kinds of law. . Special law is that which is established by each people for itself. . . The universal law is that which is conformable merely to Nature." - Cicero. — "There is indeed a. true law (lex), right reason, agreeing, with nature, diffused among all men, unchanging, everlasting. . It is not allowable to alter this law, nor to derogate from it, nor can it be repealed. We cannot be released from this law, either by the praetor or by the people, nor is any person required to explain or interpret it. Nor is it one law at Rome and another at Athens, one law to-day and another hereafter; but the same law, everlasting and unchangeable, will bind all nations at all times; and there will be one common lord and ruler of all, even God the framer and proposer of this law." ^ Philo Judaeus. — " The unerring law is right reason; not an ordinance- made by this or that mortal, a corruptible and perishable law, a lifeles,s iHhet. I. 10. 2Khet. I. 13. 3 Be Rep. III. 22. 23. Digitized by Microsoft® , 4G OTHER KINDS OF LAW. [§ 16 law written on lifele:les are the rules and regulations of a club or other society, and the laws of whist, cricket, or any other game. What are the laws of whist, except the rules which the players expressly or tacitly agree to observe in their conduct of the game? In many cases conventional \a.\\ is also civil law; for the rules which persons by mutual agreement lay down for them- 1 Sec, for pxample, Bentham's Principles, p. 330 (Works T. loU; Therins" Zwcek im Eecht. I. p. 334 (3rd ed.). ^ Digitized by Microsoft® § 18] OTHER KINDS OF LAW. 55 selves are often enforced by the state. But whether or not these oonventional rules thus reoeive recognition and enforcement as part of the law of the land, they constitute law in the wide sense of a rule of human action.^ The most important branch of conventional law is the law of nations, which, as we shall see later, consists essentially of the rules which have been agreed upon by states, as governing their conduct and relations to each other. § 19. Customary Law. By customary law is here meant any rule of action which is actually observed by men — any rule which is the expression of some actual uniformity of voluntary action. Custom is a law for those who observe it — a law or rule which they have set for themselves, and to which they voluntarily conform their actions. It is true that custom is very often obligatory; that is to say, it is very often enforced by some form of imperative law, whether the civil law or the law of positive morality; but, irrespective of any such enforcement, and by reason solely of its de facto observance, it is itself a law in that wide sense in which law means a rule of action. ^ Some writers regard international law as a form of customary law. They define it as Consisting of the rules actually observed by states in their conduct towards each other. We shall con- sider this opinion in a later section of the jDresent chapter. Civil law, as we have defined it, is a form of customary law, inasmuch as it consists of the rules actually observed by the state in the administration of justice. It is the custom of the judicature. The relation betwe,en popular custom and the civil 1 That part of the civil law which has its source in agreement is itself called conventional law. See ant&, § 11, and post, § 46. This use of the term mnst be distinguished from that which is here adopted. CouventionaL law IB the present sense is not a part of the civil law, but a different Mnd of law. ^ Notice that the term customary law is ambiguous in the same manner as the term conventional law. It means either (1) the kind of law described in the text, or (2) that part of the civil law which has its source in custom,., See § 56. Digitized by Microsoft® 56 OTHER KINDS OF LAW. [§ 19 law is an important matter which Avill be considered in a later chapter. It is sufficient here to make the following remarks with regard to it: — (1) Popular custom has not in itself the nature of civil law; for the essence of civil law lies in its recognition bj" the state in the administration of justice. (2) Popular custom is one of the jirimitive substitutes for civil law, men being governed by custom before the state has been established or has undertaken the function of making and administ-ering law. (3) Popular custom is one of the sources of the civil law; for that law, when it comes into existence, is largely modelled on the pre-existing customs of the community. Civil law, which is the custom of the state, is based to a large extent on that precedent customary law which is merely the custom of the society. § 20. Practical Law. Yet another kind of law is that which consists of rules for the attainment of some practical end, and AAhich, for want of a better name, we may term practical law. These laws are the rules which guide us to the fulfilment of our ]Hirpo.ses ; which inform us as to what we ought to do, or must do, in order to attain a certain end.^ Examples of such are the laws of health, the laws of musical and poetical composition, the laws of style, the laws of architecture, the rules for the efficient conduct of any art or business. The laws of a game, such as whist, are of two kinds: some are conventional, being the rules agreed upon by the players; others are praotical, being the rules for the successful playing of the game. § 21. International Law. International law or the law of nations consists of those rules -which govern sovereign states in their relations and conduct towards each other. All men agree that such a body of law 1 They are the expression of what Kant and other moralists have termied hypothetical imperatives, as opposed to the categorical imperative of the moral law. Digitized by Microsoft® § 2l] OTHER KINDS OF LAW. 57 exists, and that states do in fact act in obedience to it; but when we come to inquire what is the essential nature and source of' this law, we find in the writings of those who deal Math it a very curious absence of definiteness and unanimity. The opinion which we shall here adopt as correct is that the law of nations is essentially a species of conventional law — that it has its source in international agreement — that it consists of the rules which sovereign states have agreed to observe in their dealings -Hith each other. This law has been defined by Lord Russell of Killowen^ ag' " the aggi'egate of the rules to which nations have agreed to ■conform in their conduct towards one another." " The law of nations," saye Lord Chief Justice Coleridge,- " is that collection of usages which civilised states have agreed to observe in their dealings with each other." " The authorities seem to me," says Lord Esher,^ " to make it clear that the consent of nations is requisite to make any proposition part of the law of nations." ■" To be binding," says Lord Cockburn,* " the law must have received the assent of the nations who are to be bound by it,. This assent may be express, as by treaty or the acknowledged concurrence of governments, or may be implied from efetab- lished usage." The international agreement which thus makes international law is of two kinds, being either express or implied. Express agreement is contained in treaties and international conven- tions, such as the Declaration of Paris, the Conventions of the Hague, or the provisions as to the League of Nations contained in the Treaty of Peace made with Germany in 1919. Implied agreement is evidenced chiefly by the custom or jH'actice of states. By obser^dng certain rules of conduct in the past, states have impliedly agreed to abide by them in the future; by claiming the observance of such customs from other states, they have impliedly agreed to be bound by them themselves. Inter- national law derived from express agreement is called in a 1 L. Q. E. XII. p. 313. Adopted by Lord Alverstone, C. J., in West Rand Gold Miming Co. v. Sex, (1905) 2 K. B. at p. 407. ^Seg. V. Eeyn, 2 Ex. D. p. 63. ^Beg. V. Keyn, 2 Ex. D. p. 131. ^Reg. v. Keyn, 2 Ex. D. p. 202. Digitized by Microsoft® 58 OTHER KINDS OF LAW. [§ 21 narrow Sfnse the conventional law of nations, although in a wider sense the whole of that law is conventional; that part which is based on implied agreement is called the customary; law of nations. The tendency of historical development is for the whole body of the law to be reduced to the first of these twot forms — to be codified and expressed in the form of an inter- national couAention, to which all civilised states have given their express consent. Just as customary civil law tends to be absorbed in enacted law, so customary international law tends, to be merged in treaty law. International law is further di\'isible into two kinds, whioli may be distinguished as the common law of nations and the particular law of nations. The common law is that which pre- vails universally or at least generally among all civilised states, being based on their unanimous or general agreement, express, or implied. The particular law is that which is in force solely between two or more states, hj virtue of an agreement made betwc-en them alone, and derogating from the common law. International law exists only between those states whiah have expressly or impliedly agreed to observe it. Those states (which now include all civilised communities and some which are as yet only imperfectly civilised) are said to constitute the family or society of nations — an international society governed by the law of nations, just as each national society is governed by its own civil law. New states are received into this society by mutual agreement, and thereby obtain the rights and become subject to the duties created and imposed by international law. Writers are, however, as we liave ah-eady indicated, far from- being unanimous in their analysis of the essential nature of the- law of nations, and the various competing theories may be- olassified as follows : — (1) That the law of nations is, or at least includes, a branch of natural law, namely, the rules of natural justice as applic- able to the relations of states inter se. (2) That it is a kind of customari/ law, namely the rules actually observed by states in their relations to each other. Digitized by Microsoft® § 21] OTHER KINDS OF LAW. 5i> (3) That it is a' kind of iiiipemtirr. law, namely the rules enfoi-ced upon states by international opinion or by the threat or fear of war. (4) That it is a kind of conventional law, as already ex- plained. Having accepted the last of these theories as correot, let us shorth' consider the nature and claims of the three others. § 22. The Law of Nations as Natural Law. All writers on international law may be divided into three classes by reference to their opinions as to the relation between this law and the principles of natural justice. The first class consists of those who hold that the law of nations is wholly in- ■cluded Avithin the law of nature — that it consists merely of the princii>les of natural justice so far as applicable to sovereign states in their relations and conduct towards each other — that the study of inltemational law is simply a branch of moral philo- sophy — and that there is no such thing as a positive law of nations, consisting of a body of artificial rules established by states themselves. Thus Hobbes says:^ "As for the law of nations, it is the same with the law of nature . For that which is the law of nature between man and man, before the constitu- tion of commonwealth, is the law of nations between sovereign and sovereign after." The same opinion is expressed by Christian Thomasius,^ Pufendorf,^ Burlamaqui,* and others, but is now generally discredited, though it is not destitute of support even yet. A second opinion is that intemational law is both natural and positive — that it is divisible into two parts, distinguished as the natural law of nations, which consists of the rules of natural' justice as between states, and the positive law of nations, con-» sisting of rules established by states by agreement, custom, or in some other manner, for the government of their conduct towards each other. The natural law of nations is supplementary or 1 De Corpore PoUtico, Eng. Wks. IV. 228. - PuDdamenta Juris Nat. et Grent. I. 5. 67. SDe Jure Nat. et Gent. 11. 3. 23. ^Prinoipos du droit de la nature et des gens, vol. iv. p. 16, ed. 1820. Digitized by Microsoft® 60 OTHER KINDS OF LAW. [§22 subsidiary to the positive law, being applicable only i^'ben no positive rule has been established on the point. Eeprasenta- tives of this opinion are Grotius, Wolf, Vattel, Blackstone, Halleck, Wheiaton, Phillimore, Fiorc, T^wiss, and othere. The third opinion is that international law is wholly positive — that it consists exclusively of a set of rules actually established in some way by the action of sovereign states themiselves — and that the rules of natural justice are not in themseh'cs rules of international law at all, but pertain to that law only if, and only so far as, they have been actually incorjDorated into the estab- lished system of positive law. This is now the prevalent opinion, and we have here accepted it as the correct one.^ By those who maintain it the rules of natural justice as between states are called international morality, and are distinguished by this name from international law. These two bodies of rules ai^e partly, coincident and partly discordant. The conduct of a state may be a breach of international morality but not of international law, or a breach of law though in accoixlance A^-ith morality, or it may be both immoral and illegal. The question whether rules of natural justice are to be in- cluded as a part of international law is, indeed, in one aspect, a mere question of words. For tliesc rules exist, and .states are in honour bound by them, and the question is merely as to the name to be given to them. Nevertheless, questions of words are often questions of practical importance, and it is of un- doubted importance to empliasise by a difference of nomen- clature the difference between rules of international morality, by which, indeed, states are bound whether they have ao-reod to them 01' not, but which are uncertain and subject to endless dispute, and those rules of international law, which by means of international agreement have been defined and cstabli-shcd and removed from the sphere of the discussions and insoluble doubts of moral casuistry. lit is maintained by such writers as HaU, Eivier, Bluutsohli, Xtm, Sido-- wick, Westlake, Walker, Lawrence, and Oppenlieini. ' ° Digitized by Microsoft® § 23] OTHEK KINDS OF LAW. 61 § 23. The Law of Nations as Customary Law. lEven those writers who agree in the opinion that interna- tional law is or at least includes a system of positive law, differ among themselves as to the essential nature and source o£ these rules; and we proceed to consider the various answers that have been given to this question. Some writers consider that inter- national law has its source in international custom — that it con- sists essentially and exclusively of the rules which are actually observed by sovereig-n states in their dealings with one another. ^ This view, however, is not prevalent, and is, it is belieived, un- sound. International custom is not in itself international law; it is nothing more than one kind of evidence of the international agreement in which aU such law has its source. There are many customs which, because they are based on no such underlying agi'eement, have not the force of law, states being at liberty to depart from them when they please. Conversely there is much law which is not based on custom at all, but on express inter- national conventions. These conventions, if observed, will of course create a custom in conformity with the law; but they, constitute law themselves from the time of their first making, and do not wait to become law until they have been embodied in actual practice. New rules of warfare established by con- vention in time of peace are law already in time of pea«e. § 24. The Law of Nations as Imperative Law. By some writers international law is i-egarded as a form of imperative law; it consists, they say, of rules enforced upon states by the general opinion of the society of states, and also 1 " The sole source of (international) law,'' says Dr. Walker in Ma History of International Law, vol. i. p. 21, " is actual observance." This law, he adds, p. 31, is " the embodiment oE state practice." It is not easy to make a list of the genuine adherents of this opinion, becauae so many writers intro- duce vagueness and uncertainty into their exposition by speaking of inter- national consent as well as of intenmfcional praotioe as a source of law; and they fail to make it clear whether such practice is operativei per sa, or only as evid-ence of underlying consent. Moreover, the word consent is itself used ambiguously and vaguely, and it is often difficult to know whether it means international agreement, or international opinion, or the harmonious practice of states. '^ Digitized by Microsoft® f)2 OTHER KINDS OF LAW. [§ 24 in extreme cases by war waged against the offender hj the state injured or by its allies. Thus Austin says:i " Laws or rules of this species, which are imposed upon nations or sovereigns by ■opinions current among nations, are usually styled the law of nations or international law." In considering this view it is to te admitted that in many oases the rules of the law of nations are thus sanctioned and enforced by international opinion and force. But the question to be answered is whether this sanction is of the essence of the matter; because, if it is so, all rules so sanctioned must be, and no others can be, rules of international law. It is clear, however, that the sanction of war cannot be the essential test; for in the first place this sanction is but seldom applied even to undoubted violations of international law, and in the second place it is at least as often resorted to when there is no violation of such law at all. What then shall te said of the alternative sanction of international opinion? Is this the test and essence of a rule of international law ? For the following reasons it is submitted that it is not: — (1) Many forms of state action are censured by public opinion, which are admittedly no violation of the law of nations. A state may act within its legal rights, and yet so oppressively or unjustly as to excite the adverse opinion of other nationsi. (2) There may be violations of international law which are in the particular circumstanoes regarded as excusable, and approved by international opinion. (3) Public opinion is variable from day to day — dependent on the special circumstances of the individual case — not uniform as we pass from state to state — ^not uniform even throughout the population of the same state. International law, on the other hand, is a permanent, uniform system of settled rules, independent of the fickle breath of public approbation or cen- sure — made and unmade by the express or implied agreements of sovereign governments, and not by the mere opinions and prejudices which for the moment are in public favour. Inter- national law is one thing, international positive morality is another thing; but the doctrine here criticised identifies and 1 1, p. 187. Digitized by Microsoft® § 24] OTHER KINDS OF LAW. 63 confounds them as one. International law is made, as has been said, by the acts and contracts of governments; internationaJ. opinion is made chiefly by journalists and the writers of books. Opinion, if sufficiently uniform and sufficiently permanent, will doubtless in time constrain the law into conformity with it; but it is not the same thing. (4) Public opinion cannot be made the basis of any rational or scientific body of rules or legal doctrines. For such opinion is simply the belief of the public that certain forms of con- duct are in conformity with natural justice. So far as this belief is well founded, the law based upon it is simply the law •of nature; so far as it is erroneous, the law based on it is simply a mistake which disappears ipso facto on being recog- nised as such. It is impossible to recognise as a subject of scientific interpretation and investigation any international law based on erroneous public opinion; and if based on true opinion, it is nothing save the principles of natural justice. Certain writers seek to avoid the first of these objections by so defining international law as to include onlj^ one portion of the body of rules approved and sanctioned by international opinion, the remaining portion constituting international posi- tive morality. According to this opinion international law consists of those rules which international opinion not merely approves, but also regards as rightly enforceable by way of war. International positive morality, on the other hand, con- sists of those rules of which opinion approves, but of the en- forcement of which by way of war it would not approve. That is to say, international law is distinguished from international morality by an application of the distinction familiar to the older moralists between duties of perfect and duties of imperfect obligation.^ This view would seem to be exposed to all the objections already made to the cruder theory which we have just con- sidered, with the oxception of the first; and it is also exposed iS«e Westlake, International Law, p. 7; Chapters on the Prla. of Int. Law, p. 2; Hall, Int. Law, p. 1; Si(%wic-k, Elements of Politics, Ch. 17; pp. 274 sgg. 1st ed. ; Oppenheim, International Law, I. § 5. Digitized by Microsoft® 64 OTHEE KINDS OF LAW. [§ 24 to this further oriticism, that it is impossible thus to divide public apinion sharply into two parts by reference to the justification of war or any other kind of forcible compulsion. Whether such compulsion is right is a matter to be determined not by the application of any. fixed or predetermined rules, but by a consideration of all the circumstances of the individual instance; and even then opinion wiU in most cases be hope- lessly discordant. Moreover, there are forms of state action which are not the violation of any established rule of inter- national law, and which nevertheless are so contrary to thfe rightful interests of another state that they would be held to be rightly prevented or redressed by way of war. Conversely there are rules of undoubted law which are of such minor importance, that a war for the vindication of them would b& viewed by international opinion as a folly and a crime. Digitized by, Microsoft® ( «-^ ) CHAPTER IV. THE ADjnNISTKATION OF JUSTICE. § 25. Necessity of the Administration of Justice. " A HEED of wolves," it has been said,^ " is quieter and more at one than so manj' men, unless they all had one reason in them, or have one power over them." Unfortunately they have not one reason in them, each being moved by his own interests and passions; therefore the other alternative is the sole resource. For the cynical emphasis with which he insists upon this truth, the name and reputation of the philosopher Hobbes have suffered much. Yet his doctrine, however hyperbolically ex- pressed, is true in substance. Man is by nature a fighting animal, and force is the ultima ratio, not of kings alone, but of all mankind. Without "a common power to keep them all in awe," it is impossible for men to cohere in any but the most primitive forms of society. Without it, civilisation is unat- tainable, injustice is unchecked and triumphant, and the life of man is, as the author of Leviathan tells us, " solitary, poor, nasty, brutish, and short. "^ However orderly a society may be, and to whatever extent men may appear to obey the law of reason rather than that of force, and to be boimd together by the bonds of sympathy rather than by those of physical constraint, the element of force is none the less present and 1 Jeremy Taylor's Works, XIII. 306, Heber's ed. - Hobbes' Leviathan, ch. 13: "Hereby it is manifest that during the time men live without a common power to keep them all in awe, they are in that condition which is called war; and such a war as is of every man against every man. . . . Whatsoever therefore is consequent to a time of war, where every man is enemy to every man, the same is consequent to the time wherein men live without other security than what their own strength and their own, invention ,shaU furnish them withal. In such condition there is no place for industry ... no arts, no letters, no society, and, which is worst of all, con- tinual fear and danger of violent death ; and the life of man, solitary, poor, nasty, brutish, and short." S..T. 5 Digitized by Microsoft® 66 THE ADMINISTRATION OF JUSTICE. [§ 25 operative. It has become partly or \\'1io11t latent, but it still exists. A eociety in which the power of the state is never called into actual exercise marks not the disappearance o£ governmental control, but the final triumph and supremacy of it. It has been thought and said by men of optimistic temper, that force as an instrument for the coercion of mankind is merely a temporary and provisional incident in the develop- ment of a perfect civilisation. We may well believe, indeed, that with the progress of civilisation we shall see the gradual cessation of the actual exercise of tovce, whether by way of the administration of justice or by waj' of war. To a large extent already, in all orderly societies, this element in the administration of justice has be-come merely latent; it is now for the most part sufficient for the state to declare the rights and duties of its subjects, without going beyond declaration to enforcement. In like manner the future may see a similar destiny overtake that international litigation which now so often proceeds to the extremity of war. The overwhelming power of the state or of the international society of states may be such as to render its mere existence a sufficient substitute for its exercise. But this, as already said, would he the per- fection, not the disappearance, of the rule of force. The ad- ministration of justice by the state must be regarded as a per- manent and essential element of civilisation, and as a device that admits of no substitute. jNIen being what they are, their conflicting interests, real or apparent, draw them in diverse ways; and their passions prompt them to the maintenance of these interests by all methods possible, notably by that method of private force to which the public force is the only adequate reply. The constraint of public opinion is a valuable and indeed indispensable supplement to that of law, but an entirely in- sufficient substitute for it. The relation between these two is one of mutual dependence. If the administration of justice requires for its efficiency the support of a healthy national conscience, that conscience is in its turn equally dependent on the protection of the law and the public force. A coercive Digitized by Microsoft® § 25] THE ADMINISTRATION OF JUSTICE. 67 system based on public opinion alone, no less than one based on force alone, contains within itself elements of weakness that would be speedily fatal to efficiency and permanence. The influence of the public censure is least felt by those who need it most. The law of force is appointed, as all law should be, not for the just, but for the unjust; while the law of opinion is set rather for the former than for the latter, and may be defied with a large measure of impunity by determined evil- doers. The rewards of successful iniquity are upon occasion very great; so much so that any law which would prevail against it, must liave stei-ner sanctions at its back than any known to the public censure. It is also to be observed that the influence of the national conscience, unsupported by that of the national force, would be counteracted in any but the smallest and most homogeneous societies by the internal growth of smaller societies or associations possessing separate interestsi and separate antagonistic consciences of their own. It is certain that a man cares more for the opinion of his friends and immediate associates, than for that of all the world besides. The censure of ten thousand may be outweighed by the ap- proval of ten. The honour of thieves finds its sanction and support in a law of professional opinion, which is opposed to, and prevails over that of national opinion. The social sanction, therefore, is an efficient instrument only so far as it is asso- ciated with, and supplemented by the concentrated and irre- sistible force of the incorporate community. Men being what they are — each keen to see his own interest and passionate to follow it — society can exist only under the shelter of the state, and the law and justice of the state is a permanent and neces- sary condition of .peace, order, and civilisation. § 26. Origin of tlie Administration of Justice. The administration of justice is the modern and civilised substitute for the primitive practices of private ^■engeance and violent self-help. In the beginning a man redressed his wrongs and avenged himself upon his enemies by his own hand, aided, if need be, by the hands of his friends and kinsmen; but at b¥ Mk Digitized 6y Microsoft® 68 THE ADMINISTRATION OF JUSTICE. [§ 26 the present daj he is defended by the sword of the state. For the expression of this and other elements involved in the estab- lishment of political government, ■we may make use of the contrast, familiar to the philosophy of the seventeenth and eighteenth centuries, between the civil state and the state of nature. This state of nature is now oommonlj^ rejected as one of the fictions which flourished in the era of the social contract, but such treatment is needlessly severe. The term certainly became associated ^^•ith much false or exaggerated doctrine touching the golden age on the one hand and the helium mnnium oanfra omnes of Hobbes on the other, but in itself it nevertheless afi'ords a convenient mode for the expression of an undoubted truth. As long as there have been men, there has probabl;)' been some form of human society. The state of nature, therefore, is not the absence of society, but the absence of a society so organised on the basis of jDliysical force, as to constitute a state. Though human society- is coeval with mankind, the rise of political society, properly so called, is an. event in human history. One of the most important elements, then, in the transi- tion from the natural to the civil state is the substitution of the force of the incorporate community for the force of indi- viduals, as the instrument of the redress and punishment of injuries. Private vengeance is transmuted into the adminis- tration of criminal justice; while civil justice takes the place of violent self-help. As Locke says,i in the state of nature the law of nature is alone in force, and every man is in his own case charged with the execution of it. In the civil state, on the other hand, the law of natiu'e is supplemented by the civil law, and the maintenance of the latter by the force of the organised community renders unnecessary and unpermissible the maintenance of the former by the forces of private men. The evils of the earlier system '^^-e^e too great and obvious to escape recognition even in the most primitive communities. Eveiy man was constituted by it a judge in his own cause, and might was made the sole measure of right. Nevertheless the 1 Treatise on Government, II. cli. 2. Digitized by Microsoft® § 26] THE ADMINISTRATION OF JUSTICE. 69 substitution was effected only with difficulty and by slow degrees. The turbulent spirits of early society did not readily abandon the liberty of fighting out their quarrels, or submit with good grace to the arbitrament of the tribunals of the state. There is muoh evidence that the administration of justice was in the earlier stages of its development merely a choice of peaceable arbitration, offered for the voluntary accept- ance of the parties, rather than a compulsory substitute for self-help and private war. Only later, with the gradual growth of the power of government, did the state venture to suppress with the strong hand the ancient and barbarous system, and to lay down the peremptory principle that all quarrels shall be brought for settlement to the Courts of law. All early codes show us traces of the hesitating and gradual method in Avhich the voice and force of the state became the exclusive instruments of the declaration and enforcement of justice. Trial by battle, which endured in the law of England until the beginning of the nineteenth century ,i is doubtless a relic of the days when fighting was the approved method of settling a dispute, and the right and power of the state went merely to the regulation, not to the suppression, of this right and duty of every man to help and guard himself by his own hand. In later theory, indeed, this mode of trial was classed with the ordeal .as judicium Dei — the judgment of Heaven as to the merits of the case, made manifest by the victory of the right. But this explanation was an afterthought; it was applied to public war, as the litigation of nations, no less than to the judicial duel, and it is not the root of either practice. Among the laws of the Saxon kings we find no absolute pro- hibition of private vengeance, but merely its regulation and restriction. 2 In due measure and in fitting manner it was the 1 In the year 1818 in a private prosecution for murder (an appeal of murder) the accused demanded to be tried by battle, and the claim was allowed by the Court of King's Bench. The prosecutor was not prepared to face the risks of this mode of litigation, and the accused was diBcharged: Ashford v. Thornton, 1 Barn. & Aid. 405. This case led to the abolition of appeals of felony and of trial by battle by the statute 59 Geo. III. c. 46. 2 Laws of King Alfred, 42. (Thorpe's Ancient Laws and Institutes of England, I. 91): " We also command that he who knows his foe to be at home fight not before he demand justice of him. If he have such power that Digitized by Microsoft® 70 THE ADMINISTRATION OF JUSTICE. [§ 26 right of every man to do for himself that which in modem times is done for him "by the state . As royal j ustioe grows in strength, however, the law begins to speak in another tone, and we see the establishment of the modern theory of the exclusive ad- ministration of justice by the tribunals of the state. ^ § 27. Civil and Criminal Justice. The administration of justice has been already defined as the maintenance of right within a political community by means of the physical force of the state. It is the application by the state of the sanction of force to the rule of right. We have now to notice that it is divisible into two parts, which are distin- guished as the administration of civil and that of criminal justice. In applying the sanction of physical force to the rules of right, the tribunals of the state may act in one or other' of two different ways. They laeLY either enforce rights, or punish wrongs. In other words, they may either compel a man to he can beset his foe and besiege him, let him keep- him within for seven days, and attack him not, if he will remain within. . . But if he have not suiBcient power to beside him, let him ride to the ealdorman, and beg aid of him. If he will not aid him, let him ride to the king before he fight*. "' 1 As late as the closing years of Henry III. it was found necessary ta resort to special statutory enactments against a lawless recurrence to the older system. The statute of Marlborough (52 Hen. III. c. 1) recites that " At the time lof a commotioin late stirred up within this reabn, and alsoi since, many great men and divers other have disdained to accept justice from the King and his Court, like as they ought and were wont in time of the King's noble progenitors, and also in his time, but took great revenges and dis- tresses of their neighbours and of others, until they had amends and fines at their own pleasure." The statute thereupon provides that " All persons, as well of high as of low estate, shall receive justice in the King's Court, and none from henceforth shall take any such revengie or distress of liis own authority without award of our Court." Long after the strength of the law of England had succeeded in suppressing the practice, the right of private war continued to be recognised and regulated by law in the more feebty governed states of the Continent. An interesting account of tlie matter is given by M. Nys in his Origines du Droit International (1894), ch. 5. A reminiscence of the older doctrine and practice may be seen to this day in England in that " peace of our Lord the King " which every criminal is formally charged in his indictment with having broken. The King of England made good at an early date his monopoly of war, and all private war or violence was and is a violation of his peace. AlS to the King's peace, see Sir F. Pollock's Oxford Lectures, pp. 65-90; Select Essays in Anglo- American Legal History, II. pp. 403-417. Xn interesting picture of the relations between law and private force in the primitive community of Iceland is to be found in the Sag'a of Burnt Njal' (Da^sent's translation). Digitized by Microsoft® § 27] THE ADMINISTRATION OF JUSTICE. 71 perform the duty which he owes, or they may punish him for having failed to perform it. Henoe the distinction between civil and criminal justice. The former consists in the enforcement of rights, the latter in the punishment of wrongs. In a civil pro- ceeding the plaintiff claims a right, and the court secures it for him by putting pressure upon the defendant to that end; as when one claims a debt that is due to him, or the restoration of property wrongfully detained from him, or damages payable to him by way of compensation for wrongful harm, or the preven- tion of a threatened injury by way of injunction. In a criminal proceeding, on the other hand,' the prosecutor claims no right, but accuses the defendant of a wrong. He is not a claimant, but an accuser. The court makes no attempt to constrain the defendant to perform any duty, or to respect any right. It visits him, instead, with a penalty for the dut_y already dis- regarded and for the right already violated; as where he is hangetl for murder, or imprisoned for theft. Both in civil and in criminal proceedings there is a icrong (actual or threatened) complained of. For the law will not enforce a right except as against a person who has already vio- lated it, or who has at the least already shown an intention of doing so. Justice is administered only against wrongdoers, in act or in intent. Yet the complaint is of an essentially different character in civil and in criminal cases. In civil justice it amounts to a claim of right; in criminal justice it amounts merely to an accusation of wrong. Civil justice is concerned primarily with the plaintiff and his rights; criminal justice with the defendant and his offences. The former gives to the plaintiff, the latter to the defendant, that which he deserves. A wrong regarded as the subject-matter of civil proceedings is called a civil wrong; one regarded as the subject-matter of criminal proceedings is termed a criminal wrong or a crime. The position of a person who has, by actual or threatened w rong- doing, exposed himself to legal proceedings, is termed liability or responsibility, and it is either civil or criminal according to the nature of the proceedings to which the wrongdoer is exposed. The same act may be both a civil injury and a crime, both forms of legal remedy being available. Reason demands that Digitized by Microsoft® 72 THE ADMINISTRATION OF JUSTICE. [§ 27 in general these two remedies shall be concurrent, and not merely alternative. If possible, the law should not only compel men to perform their disregarded duties, but should by means of punishment guard against the repetition of such wrongdoing in the future. The thief should not only be compelled to restore his plunder, but should also be imprisoned for having taken it, lest he and others steal again. To this duplication of remedies, however, there are numerous exceptions. Punishment is the sole resource in cases where enforcement is from the nature of things impossible, and enforcement is the sole remedy in those cases in which it is itseK a sufficient precautionary measure for the future. Not to speak of the defendant's liability for the costs of the proceedings, the civil remedy of enforcement very commonly contains, as we shall see later, a penal element which is sufficient to render unnecessary or unjustifiable any cumu- lative criminal responsibility. We have defined a criminal proceeding as one designed for the punishment of a wrong done by the defendant, and a civil proceeding as one designed for the enforcement of a right vested in the plaintiff. We have now to consider a very different explanation which has been widely accepted. By many persons the distinction between crimes and civil injuries is identified with that between public and private wrongs. By a public wrong is meant an offence committed against the state or the community at large, and dealt with in a proceeding to which the state is itself a party. A private wrong is one com- mitted against a private person, and dealt with at the suit of the individual so injured. The thief is criminally prosecuted by the Crown, but the trespasser is civilly sued by him who^ right he has violated. Criminal libel, it is said, is a public wrong, and is dealt with as such at the suit of the Crown ; civil libel is a private wrong and is dealt \vith accordingly by way of an action for damages by the person libelled. Blackstone's statement of this view may be taken as representative: "Wrongs," he says,i "are divisible into two sorts or species, 1 Commentaries, III. 2. Digitized by Microsoft® § 27] THE ADMINISTRATION OF JUSTICE. 73 jjrivate wrongs and public wrongs. The former are an infringe- ment or privation of the private or civil rights belonging to individuals, considered as individuals, and are thereupon fre- quently termed oivil injuries; the latter are a breach and violation of public rights and duties which affect the whole community considered as a community; and are distinguished by the harsher appellation of crimes and misdemeanours. "^ But this exf)laiiation is insufficient. In the first place all public wrongs are not crimes. A refusal to pay taxes is an offence against the state, and is dealt with at the suit of the state; but it is a civil wrong for all tliat, just as a refusal to repay money lent by a private person is a civil wrong. The breach of a contract made with the state is no more a criminal offence than is the breach of a contract made with a subject. An action by the state for the recovery of a debt, or for damages, or for the restoration of public property, or for the enforcement of a public trust, is purely civil, although in each case the person injured and suing is the state itself. Conversely, and in the second place, all crimes are not public wrongs. Most of the very numerous offences that are now punishable on summary conviction may be prosecuted at the suit of a private person; yet the proioeedings are undoubtedly criminal none the less. We must conclude, therefore, that the divisions between public and private wrongs and between crimes and civil injuries are not coincident but cross divisions. Public rights are often enforced, and private wrongs are often punished. The distinction between criminal and civil wrongs is based not on any difference in the nature of the right infringed, but on a difference in the nature of the remedy applied. 1 Austin's theory of the distinction is somewhat different from Blackstone's, for he makes the distinction between public and private wrongs, and there- fore between criminal and civil wrongs, turn not on the public or private nature of the right violated, but solely on the public or private nature o* the proceeding taken in respect of its violation. " Where the wrong," he says (p. 518, 3rd ed.), " is a civil injury, the sanction is enforced at the discretion of the party whose right has been violated. Where the wrong is a crime, the sanction is enforced at the discretion of the sovereign." Thig theory, however, is exposed to the same objections as those which may be made to Black,stone's, and it need not be separately considered. Digitized by Microsoft® 74 THE ADMINISTRATION OF JUSTICE. [§ 27 The plausibility of the theory in question is chiefly attri- butable to a certain peculiarity in the historical development of the administration of justice. Where the criminal remedy of punishment is left in the hands of the individuals injured, to be claimed or not as they think fit, it invariably tends to- degenerate into the civil remedy of pecuniary compensation. Men barter their barren rights of vengeance for the more substantial solatium of coin of the realm. Offenders find no difficulty in buying off the vengeance of those they have offended, and a system of money payments by way of composi- tion takes the place of a system of true punishments. Hence it is, that in primitive codes true criminal law is almost unknown. Its place is taken by that portion of civil law which is con- cerned with pecuniary redress. Murder, theft, and violence are not crimes to be punished by loss of life, limb, or liberty, but civil injuries to be paid for. This is a well-recognised charac- teristic of the early law both of Rome and England. In the Jewish law we notice an attempt to check this process of sub- stitution, and to maintain the law of homicide, at least, as truly criminal. " Ye shall take no satisfaction for the life of a mur- derer, which is guilty of death: but he shall be surely put to death. "1 Such attempts, however, wiU be for the most part vain, until the state takes upon itself the office of prosecutor, and until offences worthy of punishment cease to be matters between private persons, and become matters between the wrongdoer and the community at large. Only when the criminal has to answer for his deed to the state itself, will truo criminal law be successfully established and maintained. Thus at Eome the more important forms of criminal justice per- tained to the sovereign assemblies of the people, -while ci%nl justice was done in the courts of the praetor and other magis- trates. So in England indictable crimes are in legal theory offences against " the peace of our Lord the King, his crown and dignity," and it was only, under the rule of royal justice that true criminal law was superadded to the more primitive system of pecuniary compensation. Even at the present day,. ^ Numbers, xxxv. 31. Digitized by Microsoft® § 27] THE A0MINI?5'I'KAT10N OF JUSTICE. 75 for the protection of the law of crime, it is necessary to pro- hibit as itself a crime the compounding of a felony, and to prevent in courts of summary jurisdiction the settlement of criminal proceedings by the parties without the leave of the court itself. Such is the historical justification of the doctrine which identifies the distinction between civil injuries and crimes with tliat between public and private wrongs. The considera- tions already adduced should be sufficient to satisfy us that the justification is inadequate. § 28. The Purposes of Criminal Justice: Deterrent Punishment. The ends of criminal justice are four in number, and in respect of the purposes so served by it, punishment may be distinguished as (1) Deterrent, (2) Preventive, (3) Reforma- tive, and (4) Retributive. Of these aspects the first is the essential and all-important one, the others being merely acces- sor j-. Punishment is before all things deterrent, and the chief end of the law of crime is to make the evildoer an example and a warning to all that are like-minded with him. Offenoes are committed by reason of a conflict between the interests, real or apparent, of the wrongdoer and those of sooiety at large. Punishment prevents offences bj' destroying this con- flict of interests to which they owe their origin — by making all deeds w^hioh are injurious to others injurious also to the doers of them — by making every offence, in the words of Locke, " an ill bargain to the offender." Men do injustice because they have no sufficient motive to seek justice, which is the good of others rather than that of the doer of it. The purpose of the criminal law is to supply by art the motives which are thus wanting in the nature of things. § 29. Preventive Punishment. Punishment is in the second place preventive or disabling. Its primary and general purpose being to deter by fear, its secondar}' and special purpose is, wherever possible and ex- Digitized by Microsoft® 76 THE ADMINISTKATION OF JUSTICE. [§ 29 pedient, to prevent a repetition of wrongdoing by the disable- ment of the offender. We hang murderers not merely that we may put into the hearts of others like them the fear of a like fate, but for the same reason for which we till snakes, namely, because it is better for us that they should be out of the world than in it. A similar secondary purpose exists in such penal- ties as imprisonment, exile, and forfeiture of office. § 30. Reformative Punishment. Punishment is in the third place reformative. Offences are committed through the influence of motives upon character, and may be prevented either by -a change of motives or by a- change of character. Punishment as deterrent acts in the former method; punishment as reformative in the latter. This curative or medicinal function is practically limited to a par- ticular species of penalty, namely, imprisonment, and e\en in this case pertains to the ideal rather than to the actual. It would seem, however, that this aspect of the criminal law is destined to increasing prominence. The new science of crimi- nal anthropology would fain identify crime with disease, and w^ould willingly deliver the criminal out of the hands of the men of law into those of the men of medicine. The feud between the two professions touching the question of insanity threatens to extend itself throughout the whole domain of crime. It is plain that there is a necessai-y conflict between the deterrent and the reformative theories of punishment, and that the system of criminal justice will ^ary in important respects according as the former or the latter principle prevails in it. The purely reformative theory admits only suoh forius of punishment as are subservient to the education and discipline of the criminal, and rejects all those which are profitable only as deterrent or disabling. Death is in this view no fitting penalty; we must cure our criminals, not kill thorn. Flogging and other corporal inflictions are condemned as relics of bar- barism by the advocates of the new doctrine; such penalties are said to be degrading and brutalizing both to those who Digitized by Microsoft® § 30] THK ADMINISTRATION OB^ JUSTICE. IT suffer and to those who inflict them, and so fail in the central purpose of criminal justice*. ImjDrisonment, indeed, as already indicated, is the only important instrument available for the^ purpose of a purely reformative system. Even this, however,, to be fitted for such a purpose, requires alleviation to a degree quite inadmissible in the alternative system. If criminals are sent to prison in order to be there transformed into good citi- zens by physical, intellectual, and moral training, prisons must be turned into dwelling-places far too comfortable to serve as any effectual deterrent to those classes from which criminals are chiefly drawn. A further illustration of the divergence between the deterrent and the reformative theories is supplied by the case of incorrigible offenders. The most sanguine advo- cate of the curative treatment of criminals must admit that there are in the world men who are incurably bad, men who by some vice of nature are even in their youth beyond the reach- of reformative influences, and with whom crime is not so much a bad habit as an ineradicable instinct. What shall be done with these? The only logical inference from the reformative- theory is that they should be abandoned in despair as no fit subjects for penal discipline. The deterrent and disabling theories, on the other hand, regard such offenders as being pre-eminentl^y those with whom the criminal law- is called upon to deal. That they may be precluded from further mischief, and at the same time serve as a warning to others, they are- justly deprived of their liberty, and in extreme cases of lif& itself. The application of the purely reformative theory, therefore,, would lead to astonishing and inadmissible results. The per- fect system of criminal justice is based on neither the reforma- tive nor the deterrent principle exclusively, but is the result of a compromise between them. In this compromise it is the deterrent principle which possesses predominant influence, and its advocates who have the last word. This is the primary- and essential end of punishment, and all others are merely secondary and accidental. The present tendency to attribute- exaggerated importance to the reformative element is a reaction against the former tendency to neglect it altogether, and like Digitized by Microsoft® 78 THE ADMINISTKATION OF JUSTICE. [§ 30 inost reactions it falls into the falsehood of extremes. It is an imjDortant truth, anduly neglected in times past, that to a very large extent criminals are not normal and healthy human beings, and that crime is in great measure the product of phj-sical and mental abnormality and degeneracy. It has been too much the practice to deal with offenders on the assumption that they are ordinary types of humanity. Too much attention has been paid to the crime, and too little to the criminal. Yet ■\ve must be careful not to fall into the opposite extreme. If crime has become the monopoly of the abnormal and the de- generate or even the mentally unsound, the fact muist be ascTibed to the selective influence of a system of criminal justice based on a sterner principle than that of reformation. The more efhoient the coercive action of the state becomes, the more successful it is in restraining all normal human beings from the dangerous paths of crime, and the higher becomes the proportion of degeneracy among those who break the law. Even with our present imperfect methods the proportion of insane persons among murderers is very high; but if the state ■could succeed in making it impossible to commit murder in a sound mind without being indubitably hanged for it afterwards, murder would soon become, with scarcely an exception, limited to the insane. . If, after this consummation had been reached, the opinion were advanced that inasmuch as all murderers are insajie, murder is not a crime which needs to be suppressed by the strong arm of the penal law, and pertains to the sphere of jBedicine rather than to that of jurisprudence, the fallacy of the argument would be obvious. Were the state to act on any- such principle, the proposition that all murderers are insajia Avould very rapidly cease to be true. The same fallacy, though in a less obvious form, is present in the more general argument that, since the proportion of disease and degeneracy among ■criminals is so great, the reformative function of pujiishmeat should prevail over, and in a gi'eat mea.sure exclude, its deterrent and coercive functions. For it is chiefly through the perma- nent influence and operation of these latter functions, partly direct in producing a fear of evildoing, partly indirect in estab- Digitized by Microsoft® § 30] THE ADMINISTRATION OF JUSTICE. 79 lishing and maiiitainiiig those moral habits and sentiments ■which are possible only under the shelter of coercive law, that crime has- become limited, in such measure as it has, to the •degenerate, the abnormal, and the insane. Given an efhcient penal system, crime is too poor a bargain to commend itself, save in exceptional circumstances, to any except those who lack the self-control, the intelligence, the prudence, or the moral sentiments of the normal man. But apart from primitive law in its sterner aspects, and apart from tliat positive morality which is laa'gely the ]3roduct of it, crime is a profitable industry, which win flourish exceedingly, and be by no means left as a monopoly to the feebler and less efficient members of society. Although the general substitution of the reformative for the •deterrent principle would lead to disaster, it may be argued that the substitution is possible and desirable in the special case •of the alDnormal and degenerate. Purely reformative treat- ment is now limited to the insane and the very young; should it not be extendjed to include all those who fall into oritoei through their failure to attain to the standard of normal humanity? No such scheme, however, seems practicable. In the first place, it is not possible to draw any sharp line of dis- tinction between the normal and the degenerate human being. It is difiicult enough in the only case of degeneracy now recog- nised by the law, namely insanity; but the difficulty would l)e a thousand-fold increased had we to take account of every lapse from the average type. The law is necessarily a rough and ready instrument, and men must be content in general to he judged and dealt with by it on the basis of their common humanity, and not on that of their special idiosyncrasies. In the second place, even in the case of those who are distincilyi abnormal, it does not appear, except in tlie special instance of mental unsoundness, that the purely deterrent influences of punishment are not effective and urgently required. If a man is destitute of the affections and social instincts of humanity, the judgment of common sense upon him is not that he should he treated more leniently than the normal e\ildoer — not that society should cherish him in the hope of making him a good citizen — but that by the rigour of penal discipline his fate Digitized by Microsoft® 80 THE ADMINISTKATION OF JUSTICE. [§ 30 should be made a terror and a warning to himself and others. And in this matter sound science approves the judgment of common sense. Even in the case of the abnormal it is easier and more j^rofitable to prevent crime by the fear of punishment than to procure by reformative treatment the repentance and amendment of the criminal. It is needful, then, in vie'w of modern theories and tenden- cies, to insist on the j^rimary importance of the deterrent element in criminal justice. The reformative element must not be over- looked, but neither must it be allowed to assume undue promi- nence. To what extent it may be permitted in particular instances to overrule the requirements of a strictly deterrent theory is a question of time, place, and circumstance. In the case of youthful criminals the chances of effective reformation are greater than in that of adults, and the rightful importance of the reformative principle is therefore greater also. In orderly and law-abiding communities concessions may be safely made in the interests of reformation, which in more turbulent societies would be fatal to the public welfare. § 31. Retributive Punishment. We have considered criminal justice in three of its aspects — namely as deterrent, disabling, and reformative — and we have now to deal with it under its fourth and last aspect as retri- butive. Retributive punishment, in the only sense in which it is admissible in any rational system of administering justice, is that which serves for the satisfaction of that emotion of retributive indignation ^^hich in aU healthy communities' is stirred up by injustice. It gratifies the instinct of revenge or retaliation, which exists not merely in the individual wronged, but also by way of sympathetic extension in the society at large. Although the system of private revenge has been suppressed, the emotions and instincts that lay at the root of it are still extant^ in human nature, and it is a distinct though subordinate function of criminal justice to afford them their legitimate satisfaction. For although in their lawless Digitized by Microsoft® § 3l] THE ADMINISTRATION OF JUSTICK. 81 and unregulated exercise and expression they are full of cvili, there is in them none the less an element of good. The emotion of retributive indignation, both in its self -regarding and its sympathetic forms, is even yet the mainspring of the criminal law. It is to the fact that the punishment of the wrongdoer is at the same time the vengeance of the wrong'ed, that the. administration of justice owes a great part of its strength and efleotiveness. Did we punish criminals merely from an in- tellectual appreciation of the expediency of so doing, and not because their crimes arouse in us the emotion of anger anid the instinct of retribution, the criminal law would be but a feeble instrument. Indignation against injustice is, moreover, one of the chief constituents of the moral sense of the com- munity, and positive morality is no less dependent on it than is the law itself. It is good, therefore, that such instincts and emotions should be encouraged and strengthened by their satisfaction; and in civilised societies this satisfaction is possible in any adequate degree only through the criminal justice of the state. There can be little question that at the present day the sentiment of retributive indignation is defi- cient rather than excessive, and requires stimulation rather than restraint. Unquestionable as have been the benefits of that growth of altruistic sentiment which characterises modern society, it cannot be denied that in some respects it has taken a perverted course and has interfered unduly with the sternei*, virtues. We have too much forgotten that the mental attitude which best becomes us, when fitting justice is done upon the evildoer, is not pity, but solemn exultation .^ The foregoing explanation of retributive punishment as essentially an instrument of vindictive satisfaction is by nOt means that which receives universal acceptance. It is a very widely held opinion that retribution is in itself, apart altogether from any deterrent or reformative influences exercised by it, a right and reasonable thing, and the just reward of iniquity^ 1 Diogenea Laertius tells us that when Salon was asked how men might most effectually be restrained from committing injustice, he answered: " If those who are not injured feel as much indignation as those who are." S.J. 6 Digitized by Microsoft® 82 THE ADMINISTRATION OF JUSTICE. [§ 31 According to this view, it is right and proper, without regard to ulterior consequences, that evil should be returned for evil, and that as a man deals with others so should he himseli be dealt with. An eye for an eye and a tooth for a tooth is deemed a plain and self-sufficient rule of natural justice. Punishment as so regarded is no longer a mere instrument for the attainment of the public welfare, but has become an end in itself. The pur- pose of vindictive satisfaction has been eliminated without any substitute having been provided. Those who accept this view commonly advance retribution to the first place among the various aspects of punishment, the others being relegated to subordinate positions. This conception of retributive justice stiU retains a prominent place in popular thought. It flourishes also in the writings of theologians and of those imbued with theological modes of thought, and even among the philosophers it does not lack advocates. Kant, for example, expresses the opinion that punishment cannot rightly be inflicted for the sake of any benefit to be derived from it either by the criminal himself or by society, and that the sole and sufficient reason and justifica- tion of it lies in the fact that evil has been done by him vvhcv suffers it.i Consistently with this view, he derives the measure of punishment, not from any elaborate considerations as to the amount needed for the repression of crime, but from the simple principle of the l&x talionis: "Thine eye shall not pity; but life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot. "2 No such principle, indeed, is capable of literal interpretation; but subject to metaphorical and symbolical applications it is in Kant's view the guiding rule of the ideal scheme of criminal justice. It is scarcely needful to observe that from the utilitarian point of view hitherto taken up by us such a conception of retri- 1 Kant's Reohtslchre (liastio's trans, p. 195). The like opinion is ex- pi-esscd in Woolsey's Political Science, I. p. 334: " The tlieory that in pimisliing an evildoer the state renders to him his deserts, is the only one that seems to have a solid foundation. . . It is fit and right that evil, physical or mental, suffering or shame, should be incurred hy the wrongdoer." See also Fry, Studies by the Way (The Theory of Punishment), pp. 43-71. 2 Deuteronomy, six. 21. Digitized by Microsoft® § 3l] THE ADMINISTRATION OF JUSTICE. 83 butive punishment is totally inadmissible. Punishment is in itself an evil, and can be justified only as the means of attaining a greater good. Retribution is in itself not a remedy for the mischief of the offence, but an aggravation of it. The opposite opinion may be regarded as a product of the incomplete trans- mutation of the conception of revenge into that of punishment. It results from a failure to appreciate the rational basis of the; instinct of retribution — a failure to refer the emotion of retri- butive indignation to the true source of its rational justification — so that retaliation is deemed an end in itself, and is regarded as the essential element in the conception of penal justica. A more definite form of the idea of purely retributive punish- ment is that of expiation. In this view, ci'ime is done away, with, cancelled, blotted out, or expiated, by the suffering of its appointed penalty. To suffer punishment is to pay a debt due to the law that has been violated. Guilt plus punishment is equal to innocence. " The wrong," it has been said,i " whereby he has transgressed the law of right, has incurred a debt. Jus- tice requires that the debt be jDaid, that the wrong be expiated. . . . This is the first object of punishment — to make satisfac- tion to outraged law." This conception, like the preceding, marks a stage in the transformation of revenge into criminajl justice. Until this transformation is complete, the remedy of punishment is more or less assimilated to that of redresis. Revenge is the right of the injured person. The penalty of wrongdoing is a debt which the offender owes to his victim, and when the punishment has been endured the debt is paid, thc' liability is extinguished, innocence is substituted for guilt, and the vinculum juris forged by crime is dissolved. The object of true redress is to restore the position demanded by the rule of right, to substitute justice for injustice, to compel the wrongdoer to restore to the injured person that which is his own. A like purpose is assigned to punishment, so long as it is imperfectly differentiated from that retributive vengeance which is in' some sort a reparation for wrongdoing. The fact that in the expia- ' Lilley, Eight and Wrong, p. 128. • 6 (2) Digitized by Microsoft® 84 THE ADMINISTRATION OF JUSTICE. [§ 31 tory theory satisfaction is conceived as due rather to the outraged majesty of the law, than to the victim of the offence, merely marks a further stage in the refinement and purification of the primitive conception. § 32. Civil Justice; Primary and Sanctioning Rights. We proceed now to the consideration of civil justice and to the analysis of the various forms assumed by it. It consists, as we have seen, in the enforcement of rights, as opposed to the punishment of wrongs. The first distinction to be noticed is that the right so enforced is either a Primary or a Sanctioning right. A sanctioning right is one which arises out of the viola- tion of another right. All others are primary; they are rights which have some other source than wrongs. Thus my right not to be libelled or assaulted is primary; but my right to obtain pecuniary compensation from one who has libelled or assaulted me is sanctioning. My right to the fulfilment of a contract made with me is primary ; but my right to damages for its breach is sanctioning. The administration of civil justice, therefore, falls into two parts, according as the right enforced belongs to the one or the other of these two classes. Sometimes it is impossible for the law to enforce the primary right; sometimes it is possible but not expedient. If by negligence I destroy another man's pro- perty, his right to this property is necessarily extinct and no longer enforceable. The law, therefore, gives him in sub- stitution for it a new and sanctioning right to receive from me the pecuniary value of the property that he has lost. If on the other hand I break a promise of marriage, it is still possible, but it is certainly not expedient, that the law should specifically enforce the right, and compel me to enter into that marriage; and it enforces instead a sanctioning right of jjcouniary satisfaction. A sanctioning right almost invariably consists of a claim to receive money from the wrongdoer, and wo shall here disregard any other forms, as being quite exceptional. Digitized by Microsoft® § 32] THE ADMINISTRATION OF JUSTICE. 85 The enforcement of a primary right may be conveniently termed specific enforcement. For the enforcement of a sanc- tioning right there is no very suitable generic term, but we may venture to call it sanctional enforcement. Examples of specific enforcement are proceedings whereby a defendant is compelled to pay a debt, to perform a contract, to restore land or chattels wrongfully taken or detained, toi refrain from committing or continuing a trespass or nuisance, or to repay money received by mistake or obtained by fraud!. In all these cases the right enforced is the primary right itself, not a substituted sanctioning right. What the law does is to insist on the specific establishment or re-esftablishment of the actual state of things required by the rule of right, not of another state of things which may be regarded: as its equiva- lent or substitute. Sanctioning rights may be divided into two kinds by refer- ence to the purpose of the law in creating them. This purpose is either (1) the imposition of a pecuniary penalty upon the defendant for the wrong which he has committed, or (Sf) thtei provision of pecuniary compensation for the plaintiff in respect of the damage which he has suffered from the defendant's wrongdoing. Sanctioning rights, therefore, are either (1) rights to exact and receive a pecuniary penalty, or (2) rights to exact and receive damages or other pecuniary compensation. The first of these kinds is rare in modem English law, though it was at one time of considerable importance boith in; our own and in other legal systems. But it is sometimes thei case even yet, that the law creates and enforces a sanction- ing right which has in it no element of compensation to the person injured, but is appointed solely as a punishment for the wrongdoer. For example, a statute may make provision for a pecuniary penalty payable to a common informer, that is to say, to any one who shall first sue the offender for it. Such an action is called a penal action, ae being brought for the recovery of a penalty. But it is none the less a purely civil, and in no respect a criminal proceeding. Primarily and Digitized by Microsoft® HQ THE ADMINISTRATION OF JUSTICE. [§ 32 immediately, it is an action for the enforcement of a right, not for the punishment of a wrong. It pertains, therefore, to the civil administration of justice, no less than an ordinary action for the recovery of a debt. The mere fact that the sanctioning right thus enforced is created by tlie law for the purpose of punishment does not bring the action within the sphere of criminal justice. In order that a proceeding should be criminal it is necessary that its direct and immediate purpose should be punishment; it is not enough that its purpose should be the enforcement of a right which has been created by way of punishment. A proceeding is civil if it is one for the en-, foroement of a right, and the source, nature, and purpose of the right so enforced are irrelevant.^ The second form of sanctioning right — the right to pecu- niary compensation or damages — is in modern law bj^ far the more important. It may be stated as a general rule, that the violation of a private right gives rise, in him whose right it is, to a sanctioning right to receive compensation for the injury so done to him. Such compensation muet itself be divided into two kinds, which may be distinguished as Restitution and Penal Redress. In respect of the person injured, indeed, these two are the same in their nature and operation; but in respect of the wrongdoier they are ^'ery different. In restitu- tion the defendant is compelled to give up the pecuniary value of some benefit which he has wrongfully obtained at the ex- pense of the plaintiff ; as when he who has wrongfully takeu or detained another's goods is made to pay him the pecuniary, value of them, or when he who has wrongfully, enriched him- self at another's expense is compelled to account to him for all money so obtained. Penal redress, on the other hand, is a much more common and important form of legal remedy than more restitution. ^ It is worth notice that an action may be purely penal even though thei penalty is payable to ilie person injured. It is enough in such a case that the receipt of the penalty should not be reckoned aa or towards the compensa- tion of tiie recipient. A good example of this is Hie Roman actio furti by which the owner of stolen goods could recover twice their value from the thief by way of penalty, without prejudice nevertlieleaa to a further action for the recovery of the gs>^z^«^M/fc?8s8R#heir value. §32] THE A.DMINISTEATION OF JUSTICE. 87 The law is seldom oontent to deal with a wrongdoer by merely oomp«lliug him to restore all benefits which he has derived from his wrong; it commonly goes further, and compels him to pay the amount of the plaintiff's loss; and this maj' fai' exceed the profit, if any, which he has himself received. It is clear that compensation of this kind has a double aspect and nature; from the point of view of the plaintifl it is compen- sation and nothing more, but from that of the defendant it is a penalty imposed upon him for his wrongdoing. The com- pensation of the plaintiff is in such cases the instrument which the law uses for the punishment of the defendant, and because of this double aspect we call it penal redress. Thus if I burn down my neighbour's house by negligence, I must pay him the value of it. The wrong is then undone with' respect to him, indeed, for he is put in as good a position as if it had not been committed. Formerly he had a house, and now he has the worth of it. But the wrong is not undonei with respect to me, for I am the poorer by the value off the house, and to this extent I have been punished for my negli- gence. § 33. A Table of Legal Remedies. The result of the foregoing analysis of the various formis assumed by the administration of justice, civil and criminal, may be exhibited in a tabular form as follows: — 'Specific Enfoece- MENT — cnf orcemen t of a primary right : e.f^., paymetit of debt, or return of property detained. I. Legal Proceed- ings Civil — Enforce- ' ment of rights CCoMl'BNSATION- Sanctio:»al Enfoece- MBNT — enforcement . of a sanctioning right Restitxttiok — return of profit unlawfully made. II. Penal Eedeess — payment for loss unlawfully in- ^ flicted. III. Penalty: e.;i., action by informer for statutory penalty. IV. . Ckiminal — Punishment of wrongs: «.y., imprisonment for theft. V. Digitized by Microsoft® THE ADMINISTRATION OF JUSTICE. [§ 34 § 34. Penal and Remedial Proceedings. It will be noticed that in the foregoing Table legal proceed- ings have been divided into five distinct classes, namely: (1) actions for specific enforcement, (2) actions for restitu- tion, (3) actions for penal redress, (4) penal actions, and (5) criminal prosecutions. It must now be observed that the last three of these contain a oommon element which i* absent from the others, namely the idea of punishment. In aU these three forms of pro<»dur6 the ultimate purpose of the law is in whole or in part the punishmemt of the defendant. This is equally so, whether he is imprisoned, or com!pelled to pay a i^ecuniary penalty to a common informer, or is held liable in damages to the person injured hj him. All these pro- ceedings, therefore, may be classed together as penal, and as the sources of peTial liability. The other forms, namely specific enforcement and restitution, contain no such penal element; the idea of punishment is entirely foreign to them; and they may be classed together as remedial, a'nd as the sources of reynedial liability. From the point of view of legal theory this distinction between penal ^nd remedial liability is, as we shall see, of even greater importance than that be- tween criminal and civil liability. It will be noted that all criminal proceedings are at the same time penal, but that the converse is not true, some civil proceedings being penal while others are merely remedial. It may be objected that this explanation fails to distinguish between penal liability and criminal, inasmuch as punishment is stated to be the essential element in each. The answer to this objection is that we must distinguish between the ulterior and the immediate purposes of the law . Proceedings are classed as criminal or civil in respect of their immediate aim: they are distinguished as penal or remedial in respect of their entire purpose, remote as well as immediate. One way of punishing a wrongdoer is to impose some new obligation upon him, and to enforce the fulfilment of it. He may be compelled to pay a penalty or damages. ^Whenever this course is adopted, the Digitized by Microsoft® •§ 34] THE ADMINISTRATION OF JUSTICE. 89 immediate design of the law is the enforoement of the right to the penalty or damages, but its ulterior design is the jDunish- ment of the Avrong out of which this right arose. In resi>ect of the former the pi-ooeedings lare civil, not criminal; while in respect of the latter ithey are penal, not remedial. Penal proceedings, therefore, may be defined as those in whicli the object of the law, immediate pr ulterior, is or includes the punishment of the defendant. All others are remedial, the purpose of the law being nothing more than the enforoement of the plaintiff's right, and ,the idea of punishment being irre- levant and inapplicable. § 35. Secondary Functions of Courts of Law. Hitherto we have confined our attention to the administra- tion of justice in the narrowest and most proper sense of the term. In this sense it means, as we have seen, the applica- tion bj'- the state of ,the sajiction of physical force to the rules of justice. It is the forcible defence of rights and suppression of wrongs. The administration of justice properly so called, therefore, involves in every case two parties, the plaintiff and the defendant, a right claimed or a wrong complained of by the former as against the latter, a judgment in favour of the one or the other, and execution of this judgmlent by the power •of the state if need be. W© have now to notice that the administration of justice in a .wider sense includes all the functions of courts of justice, whether they conform to the foregoing type or not. It is to administer justice in the strict sense that the tribunals of the state are established, and it is by reference to this essential purpose that they must he defined. But when once established, they are found to be useful instruments, by virtue of their constitution, procedure, authority, or special knowledge, for the fulfilment of other more or less analogous functions. To these secondary and non- ■essential activities of the courts, no 'less than to their primary and essential functions, the term administration of justice has 3>een extended. They are miscellaneous and indeterminate in Digitized by Microsoft® 90 THE ADMINISTEATION OF JUSTICE. [§ 35- character and number, and tend to increase with the advancing complexity of modern civilisation. They fall chiefl}' into four- groups: (1) Petitions of Right. — The courts of law exercise, in the- first place, the function of ^adjudicating upon claims made bj^ subjects against the state itself. If a subject claims that a debt is due to him from the CroAvn, or that the Crown has broken a contract with him, or wrongfully detains his pro- perty, he is at liberty to take proceedings by way of petition of right in a court of law for the determination of his rights in the matter. The petition is addressed to the Crown itself., but is referred for consideration to the courts of justice, and these courts will investigate the claim in due form of law, and pronounce in favour of the petitioner or of the Crown, just as in an action between two private persons. But this is not the- administration of justice properly so called, for the essential' element of coercive force is lacking. The state is the judge- in its own cause, and pannot exercise constraint against itself. Nevertheless in the wider sense the administration of justica- includes the proceedings in a petition of right, no less than a criminal jDrosecution or an action for debt or damages against a private individual. (2) Declarations of Right. — The second form of judicial action which does not conform to the essential tj-pe is that which results, not in anj- kind of coercive judgment, but merely in a declaration of right. A litigant may claim the- assistance of a court of law, not because his rights have been violated, but; because they are uncertain. What he desires may be not any remedy against an adversary for the violation of a right, but an authoritative declaration that the right exists. Such a declaration may be the ground of subsequent proceedings' in which the right, having been -violated, receives enforcement, but in the meantime there is no enforcement nor- any claim' to it. Examples of declaratory proceedings are declarations of legitimacy, declarations of nuUitj^ of marriage, advice to trustees or executors as to their legal powers and duties, and the authoritative interpretation of wills. Digitized by Microsoft® § 35] THK ADMINISTRATION OF JUSTICE. Ul (3) A3)ninistratioiiti. — A third form of socoudary judicial action iucludes all those easfs in which courts of justice under- take the management and distribution of property. Examples are the administration of a trust, the liquidation of a company by the court, and the realisation and distribution of an insolvent estate. v4 : Tiflr!< of Right. — The fourth and last form includes all those cases in which judicial decrees are employed as the means of creating, transferring, or extinguishing rights. Instances are a decree of divorce or judicial separation, an adjudication of bankruptcy, an order of discharge in bankruptcy, a decree of foreclosure against a mortgagor, an order appointing or removing trustees, a grant of letters of administration, and vesting or charging orders. In all these cases the judgment or decree operates not as the remedj' of a wrong, but as the title of a right. These secondary forms of judicial action are to be classed luider the head of the civil administration of justice. Here, as in its other uses, the term civil is merely residuary; civil justice is all that is not criminal. We have defined the law a.s consisting of the rules observed in the administration of justice. We have now seen that the latter term is used in a double sense, and the question therefore arises whether it is the strict or the wide sense that is to be adopted in our definition of the law. There can be no doubt, however, that logic admits, and convenience requii-es, the adoption of the wider application. We must recognise as law the sum total of the rules that are applied by courts of justice in the exercise of any of their functions, whether these are primary and essential or secondary and accidental. The principles in accordance with which the courts determine a, petition of right, decree a divorce, or grant letters of administration, are as truly legal principles as those which govern an action of debt or a suit for specific performance. SUMMARY. The administration of justice by the state a permanent necessity. The origin of the administration of justice. .J. ,. ( Criminal — The punishment of wrongs. / Civil — The enforcement of rights. Digitized by Microsoft® S2 THE ADMINISTRATION OF JUSTICE. [§ 35 Crimes not necessarily pu,Wic wrongs. Purposes of punishment: — 1. Deterrent. 2. Preventive. 3. Reformative. 4. Retributive. / Enforcement of primary rights — Specific enforcement. Civil Justice . Enforcement of sanctioning rights— Sanctional en- forcement. „ , . , „ , ( Compensation j Tlestitution. Sanctional enforcement | p^j^^j. >■ Penal redress. Justice f ^nisdiS'l — independent of the idea of pimishment — always civil. ' Penal — involving the idea of punishment — civil or criminal. Subsidiary functions of courts of justice: — 1. Petitions of right. 2. Declarations of right. 3. Administration of property. 4. Creation, transfer, and extinction of rights. Digitized by Microsoft® ( 93 ) CHAPTER V. THE STATE. § 36. The Nature and Essential Functions of the State.. A COMPLETE analysis of the nature of law involves an inquiry into tho nature of the state, for it is in and through the statsi alone that law exists. .Jurisprudence is concerned, however, only with the elements and first principles of this matter. An exhaustive theory of political government pertains not ta jurisprudence, but to the allied science of politics. From the lawyer nothing more is required than such an understanding of the essential nature of the state, as is sufficient and neces- sary for the establishment of sound juridical theory. A state or political society is an association of human beings- established for the attainm,ent of certain ends by certain means. It is the most important of all the various kinds of society in which men unite, being indeed the neeessarj^ basis and condition of peace, order, and civilisation. What then is the essential difference between this and other forms of association ? In what does the state essentially differ from such other societies as a church, a university, a joint-stock company, or a trade union? The difference is clearly one of junction. The state must be defined by reference to such of its activities and purposes as are essential and characteristic. But the modern state does many things, and different things at different times and places. It is a com'mon carrier of letters and parcels, it builds ships, it owns and manages railways, it conducts savings banks, it teaches children, and feeds the poor. All these cannot be of its essence. It is possible, however, to distinguish, among the multitudinous operations of government, two which are set apart as primary and essential. Tlu.'se two are war and the ackmnistraiion of justice. The fundamental Digitized by Microsoft® 94 THE STATE. [§ 36 IDurposii and end of political socit'ty is defunee against external enemies, and the maintenance of peaceable and orderly relations within the community itself. It would be easy to show by a long succession of authorities that these two have always been recognised as the essential duties of governments. The Israelites demanded a king, that he "may judge us, and go out before us, and fight our battles; "^ and this conception of the primary end and aim of sovereignty obtains recognition still as true and adequate. Leviathan, as Hobbes^ tells us, carries two swords, the sword of war and that of justice. This is the irreducible minimum of governmental action. Every society which performs these two functions is a political society or state, and none is such which does not pei-form them. How much activity in other directions may be profitably combined with them is a question with A\''hich we are not here concerned. We are dealing with the definition, and therefore with the essence, not with the accidents of political society.^ It is not difficult to show that war and the administration, of justice, however diverse in appearance, are merely two different species of a single genus. The essential purpose of each is the same, though the methods are different. Each consists in the exercise of the organised physical force of the communit}', and in each case this force is made use of to the same end, namely, the maintenance of the just rights of the communitj" and its members. We have alreadj- seen that in administering justice the state uses its physical power to en- force rights and to suppress and punish wrongs. Its purpose 1 I. Samuel, viii. 20. 2 Englisli Works, II. 76: "Both, swords, therefore, as well this of war as that of justice, . . . essentially do belong to the chief command." 3 " The primary function of the state," says Herbert Spencer (Principles of Ethics II. 204. 208. 214) " or of that agency in which the powers of the state are centralised, is the function of directing the combined actions of the incorporated individuals in war. The firet duty of the ruling agency is national defence. What we may conader as measui'es to maintain inter-tribal justice, are more imperative and come earlier, than measures to maintain justice among individuals. . Once established, this secondary function of the state goes on developing; and becomes a function next in importance to the f miction of protecting against external enemies. . . With the progress of civilisation the administration of justice continues to extend and to become more efficient. . . . Between these essential functions and aU other functions there is a division, which, though it cannot in all ca.se^ be drawn ■with precision, is yet broadly marked." Digitized by Microsoft® § 36] THE STATE. 95 ill waging war — that is tO' say, just war, which is the only kind which can be regarded as an essential form of state activitj- — is the same. These two primary functions are simply the two •different waj's in which a political society uses its power in the •defence of itself and its members ia-gainst external and internal ■enemies. They are the two methods in which a state fulfils its appointed purpose of establishing right aoid justice by physical force. What, then, is the essential difference between these two functions? It lies apparently in this, that the administration of justice is the judiicial, while -n^ar is the extrajudicial us© of the force of the state in the maintenance of right. Force is .judicial, when it is applied bj'' or through a tribunal, whose TDusiness it is to judge or arbitrate between the parties who are at issue. It is extrajudicial vdien it is applied by the state directly, without the aid or intervention of any such judge or arbitrator. Judicial force involves trial and adjudi- cation, as a condition precedent to its application; extra- judicial force does not. Judicial foroe does not move to the maintenance of rights or the suppression of wrongs, until these rights and wrongs have been authoritatively declared and ascer- tained by the formal judgment of a court. The jDrimary pur- pose of judicial force is to enoecute judffmient against those who will not voluntarily yield obedience to it. Only indirectly, and through such judgment, does it enforce rights and punish wrongs. But extrajudicial force strikes directly at the offender. It recogiaises no trial or adjudication as a condition of its exercise. It requires no authoritativie judicial doclaration of the rig'hts protected or of the wrongs punished by it. When a rebellion or a riot is suppressed by troops, this is the extra- judicial use of foroe; but ^when, after its sujDipression, the rebels or rioters are tried, sentenced, and punished by the criminal courts, the force so us«i is judicial. To shoot a nian on the field of battle or at a barricade is war; to shoot him after capture and oondetamation by a court martial is the administra- tion of justice. 1 ' 1 It is to be noted that the term war is commonly applied only to the more ex^treme forms of extrajudicial force. Kioting would not be termed' Digitized by Microsoft® 96 • THE STATE. [§ Sft lu addition to the esseatial difference which we have ju.st noticed, there are iseveral Iminor and unessential differences, which are cOm'monly, though not invariably present. The chief of these are the following: 1. Judicial force is regulateid by law, while the force of arms i? usualh' exempt from such control. Justice is accord- ing to law; war is according to the good pleasure of those by whom it is carried on. Inter armia leges silent is a maxim which is substantially, though not wholly, true. The civil law- has little to say as to the exercise by.the state of its mi litary functions. As between the state and its external enemies, it is absolutely silent; and even as to the use of extrajudicial' force within the body politic itself, as in the suppression of riots, insurrections, pr forcible crimes, the law lays down no principle save this, that such force is allowable when, and only when, it is necessary. Necessitas non habet legem. Within the community the law insists that all force shall be judicial if possible. This protection against leitra j udioial force — this free- dom from all constraint save that which operates through the courts of \Ay\ and justice — is. one of the chief privileges of the members of the bodj' politic. We accept it now as a matter of course, but in older and more turbulent days it was recognised as a benefit to be striven for and maintained with anxious vigilance. 1 2. In the second place judicial force is com'monl;^' exercised against private persons, extrajudicial force against states. It is clear, however, that this is not necessarily or invariably the civil war, although the difference betweea them is merely one of degree. Nor would the punitive expedition of an armed cruiser against a village in the South Sea Islands be dignified with the name of war, though it differs only in degree from the blockade or bombardment of the ports of a civiUsed' state. To be perfectly accurate, therefore, we should oppose the administra- tion of justice not to war, but to the extrajudicial use of force coomting war as the most important species of the latter. War, however, so greatly over- shadows in importance all other forms of such force, that it is more con-, venient to take it as representing the genus, and to disregard the others. 1 The prohibition of the use of extrajudicial force by the King against his Subjects is one of the main provisions of Magna Carta (sec. 39) : " No free man shall be taken or imprisoned or disseized or outlawed or exiled or anyways destroyed, nor wili we go against him, nor will we send agaimstl him, save by the lawful judgment of his peers, or by the law of the land." Digitized by Microsoft® § ;3fiJ 'JHE STATE. 97 case. It is not impossible that one state should administer justioo between two others, or between another state and itself. And on the other hand, it may wage war with its own subject;-, or with pirates or other persons who do not constitute a political society. o. Thirdly, the administratioia of justice is generally the internal, Avhile war is g-enerally the external exercise of the power of the state. In other words, the state commonly pro- ceeds against internal enemies by way, of judicial, and against external enemies by way of extrajudicial force. The adminis- tration of justice is the right and privilege of the members of the body politic itseK. Those who stand outside the com- munity — whether they are individuals or states — have no claim to the impartial arbitrament of judicial tribunals, and may be struck at directly by the armed and heavy hand of the state. Yet this also is merely a general, and not an invariable rule. 4. Fourthly and lastly, in the administration of justice the clement of force is commonly latent or dormant, whereas in war it is seen in actual exercise. Those persons against whom! the .state administers justice are cominonly so completely within its power, that they have no choice saVe voluntary submission and obedience. It is enough that the state possesses irresistible force and threatens to use it; its actual use is seldom called for. In war, on the other hand, there is commonly no such overwhelming disparity of power, and a state which in this fashion seeks to imppse its will on others must usually go^ beyond threats to their actual execution. Henoe it is, that in the administration of justice the element of trial and adjudication is in appearance far more predomi- nant and important than that of force. Viewed externally and' superficially, this function of the state looks like the elimination of force as a method of the settlement of con- troversies, and the substitution of peaceful arbitration. But it is not so. Force is the essence of the administration of justice, no less than of war; but for the most part it lies latent and concealed. The establishment of courts of justice S.J. 7 Digitized by Microsoft® 98 THK STATE. [§ 36 marks not the subhtitutiou of arbitration for force, but the substitution of one kind of force for another — of public force for private, of judicial force for extrajudicial, of latent and threatened force for that which is actually exercised. As' states increase in power, this difference between their two essential functions is intensified. In feeble, turbulent, and ill-governed states the clement of force in the administration of justice tends to come to the surface. The will of the state no longer receives implicit obedience from those that are subject to its jurisdiction. It may be necessary to execute the judgments of the courts by military force, and there may be little difference of external aspect between the use of judicial force in the execution of a judgment, and the use of extrajudicial force in the suppression of riot, rebellion, or civil § 37. Secondary Functions of the State. The secondary functions of the state may be divided into two classes. The first consists of those which serve to secure the efficient fulfilment of the primary functions, and the chief of these are two in number, namely, legislation and taxation. Legislation is the formulation of the principles in accordance with which the state intends to fulfil its function of adminis- tering justice. Taxation is the instrument by which the state obtains that revenue which is the essential condition of all its activities. The remaining class of secondary functions comprises all other forms of activity which are for any reason deemed specially fit to be undertaken by the state. This special fitness may proceed from various sources. It is derived partly from the fact that the state represents the whole popu- lation of an extensive territory; joartly from the fact that it posse^sses, tlirough the organised physical force at its command, powers of coercion whidi are non-existent elsewliere; and ' Uu tho original identity and gradual ditfereiuiation of the two functions of the state, see Spencer's Sociology, II. pp. 493 sqq. " The sword of jus- tice," he says at p. 494, " is a phra.9e sufficiently indicating the truth that action against the public enemy and action against the private enemy are in the la«t resort the same." Digitized by Microsoft® § 37] THE STATE. 99 partly from the fact that its financial resources (due to the exer- cise of its coercive powers by way of taxation) are immensely beyond those of all other persons and societies. Considerations such as these have, especially in modern times, induced the state to assume a great number of secondary and unessential functions which, in a peaceful |and law-abiding community, tend even to overshadow and conceal from view those primary functions in which the essential nature of the state is to be found. § 38. The Territory of the State. The territory of a state is that portion of the earth's surface which is in its exclusive possession and control. It is that region throughout which the state makes its will permanently supreme, and from which it permanently excludes all alien interference. 1 This exclusive possession of a defined territory is a charaxjteristic feature of all civilised and noi'mal states. It is found to be ,a necessary condition of the efficient exercise of governmental functions. But we cannot say that it is essential to the existence of a state. A state without a fixed territory— a nomadio tribe for example — is perfectly possible. A non-territorial society may be organised for the fulfilment of the essential functions of government, and if so, it will be a true state. Such a position of things is, however, so rare and unimportant, that it is permissible to disregard it as abnormial. It is with the territorial state that we are alone concerned, and with reference to it we may accordingly define a state as a society of inen established fm- the maintenance of peace and' justice mthin a deterndned territory by imy of force. § 39. The Membership of the State. Who then are the members of this society, and by what title do men obtain entrance into it? In all civilised communities the title of state-membership is twofold, and the members of the body politic are of two classes accordingly. These two 1 The legal conception of state territory is more fully considerod in Appendix V. DigitizSl dy^icrosoft® 100 THE STA'i'E. [§ 39 titles are citizenship aud residence. Tlie former is a personal, the latter merely a territorial bond between the state and the individual. The former is a title of permanent, the latter one of temporary membershij) of the political comtnunity. The state, therefore, consists, in the first place, of aE those who by virtue of this personal and permanent relationship are its citizens or subjects, and in the second place, of all those who for the time being reside within its territory, and so possess a temporarj' and territorial title to state-membership. Both classes are equally members of the body politic, so long as their title lasts; for both have claims to the protection of the laws and government of the state, and to such laws and government both alike owe obedienoe and fidelity. They are alike subject to the dominion of the state, and it is in the interests of both that the state exists and fulfils its functions. These two titles of state-membership are to a great extent united in the same persons. Most British subjects inhabit British territory, aird most inhabitants of that territory are British subjects. Yet the coincidence is far from complete, for many men belong to the state by one title only. They are British subjects, but not resident within the dominions of the Crown; or they are resident within those dominions, but are not British subjects. In other words, they are either non-resident subjects or resident aliens. Non-resident aliens, on the other hand, possess no title of membership, and stand altogether outside the body politic. They are not within the power and jurisdiction of the state: they owe no obedience to the laws, nor fidelity to the government: it is not for th(>m or in their interests that the state exists. i 1 Speaking generall}', we may say that the terms subject and citizen are synonymous. Subjects and citizens are alike those whose relation to the state is personal and not merely territorial, permanent and not merely temporary. This equivalence, however, is not absolute. For in the first place, the term subject is commonly limited to monarchical forms of government, while the term citizen is more specially applicable in the case of republics. A British subject becomes by naturiilisatioii a citizen of the TJnited States of iVmerica or of France. In the second place, the term citizen brings into prominence the rights and privileges of the status, rather than it^ correlative obligations, while the re-verse is tJie ease with the term suhjeot. Finally it is to he noticed that the term subject is capable of a diffei-ent and wider application, in which it includes all members of the body -politic, whether they are citizens (i.e., subjects sfricto seiixn) or resident aliens. All such persons are sub- Digitized by Microsoft® § 39] Tin-: STATE. \ 101 The practical importance of the distinction hctweeip ,the two forms of state-membership' lies chiefly in the superior privileges possessed by citizens or subjects. Citizenship is a title to rights which are not available for aliens. Citizens are members Optimo jw^e, while aliens stand on a lower level in the scale of legal right. Thus British subjects alone possess political as opposed to merely civil rights ;i until a few years ago the}- alone were capable of inheriting or holding land in England; to this day they alone can own a British ship or anj- share in one; they alone are entitled when abroad to the protection of their government against other states, or to the protection of English courts of law against illegal acts of the English executive; they alone can enter British territory as of right; they alone are entitled to the benefit of certain statutes from the operation of which aliens are expressly or by implication excluded. It is true, indeed, that we must set off against these special (privileges certain corresponding burdens and liabilities. Subjects alone remain within the power and jurisdiction of the Crown, even when they are outside its dominions. Wheresoever they are, they owe fidelitj' and obedience to the laws and government of their own state, while an alien may release himself at will from all such ties of subjection. Nevertheless the status of a subject is a privilege and not a disability, a benefit and not a burden. Citizenship is the superior, residence the inferior title of state- memT>ership . Viewing the matter historically, we may say that citizcn- jeets, as being subject to the power of the state and to its jurisdiction, and as owing to it, at least temporarily, fidelity and obedience. Thus it has been said that: " Every alien coming into a British colony becomes temporarily a subject of the Crown — bound by, subject to, and entitled to the benefit of the laws which affect all British subjects." Low v. Routledrje, 1 Ch. App. at p. 47. See also Jeffreys v. Boosey, 4 H. L. C. 815. So in Hale's Pleas of the Crown, I. 542, it is said: "Though the statute speaks of the king's sub- jects, it extends to aliens, . . for though they are not the king's natural torn subjects, they are the king's subjects when in England by a local allegiance." 1 The possession of political rights is so characteristic and important a feature of citizenship, that some may be tempted to regard it as the essence of the matter. This, however, is not so. Women had no political rights, yet a wife was as much a British subject as her husband. The distinction between subject and ali<>n may exist under a despotic government, neither class possessing any political rights at all. Digitized by Microsoft® 102 THE STATE. [§ 39 ship is a legal conception the importance of whicli is con- tinuously diminishing. The consistent tendency of legal development is to minimise the peculiar rights and liabilities of subjects, and to make residence rather than citizenship' the essential and sufficient title of state-membership. The acqui- sition and loss of citizenship are being gradually made easier, while the legal effects of its acquisition and loss are being graduallj^ made less. The jDrescnt state of things is, indeed, a compromise between two fundamentally different ideas as to the constitution of a political society. Citizenship and its remaining privileges are the outcome lof the primitive con- ception of the state a^ a personal and permanent union of determinate individuals, for whose exclusive benefit the laws and government of the state exist. Residence, regarded as a title of membership and protection, is the product 'of the more modern conception of the state, as consisting merelj' of the inhabitants for the time being of a certain territory. The personal idea is gradually giving place to the territorial, and the present twofold title of membership is the outoomte of a oompromise between these two co-existent and competing principles. It is not su,ggested, indeed, that the final issue of legal development will' be the total disappearance of per- sonal in favour of territorial membership. A oom^promise between the two extreme principles, in some such form as that which has now been attained to, may well prove permanent. In the present condition of international relations it is clearly necessary. We have seen that citizens are those 'members of 'a state, whose relation to it is personal and pernianent, and who by virtue of this relation receive from the state special rights, powers, and privileges. If we ;ask further, what is the title of citizenship, or how this special bond of union is consti- tuted, no general answer is possible. This is a matter of law, varying in different systems, and from time to time in the same system. English law claims as subjects all who are born within the dominions of the Cro'Wn, regardless of their descent; while French law, on the contrary, attaches French citizenship to French blood and descent, regardless in general Digitized by Microsoft® § 39] THE STATE. 103 of the place of birth. ^ Viewed, however, in respect of its historical origin and primitive form, we may say that citizen- ship has its source in nationality. Fellow citizens are those who belong not merely to the same state but also to the same nation . It is quite common to use the term citizeinship and nation-^ ality as synonymous, and this usage, though incorrect, is significant of a very real connexion between the two ideas. Nationality is membenship of a nation; citizenship is one kind of membership of a state. A toation is a society of men miited by common blood and descent, and by the various subsidiary bonds incidental -thereto, such as common sjaeeeh, religion and manners, A state, on the other hand, is a societj" of men united under one government. These two forms of society are not necessarily coincident. A single nation iivd.j be divided into several states, and conversely a single state may comprise several nations or parts of nations. The Hellenes were of one blood, but formed man}' states, while the Roman empire included many nations, but was one state. Nevertheless nations and states tend mutually to coin- cidence. The ethnic and the political unity tend to coalesce. In every nation there is ^.n impulse, morie or less powerful, to develop into a state — to add to the subsisting community of descent a corresponding community of government and political existence. Conversely every state tends to become a nation; that is to say, the unity of political organisation eliminates in course of time ,the national diversities within its borders, infusing throughout all its papulation a new and common nationality, to the exclusion of all remembered relationship with those beyond the limits of the state. The historical origin of the conception of citizenship is to be found in the fact that the state has grown out of the 1 British nationality is acquired in the following ways: — (a) By birth in British dominions. (b) By descent from a father born in British dominions or natu- ralised as a British subject, (o) By the marriage of an alien woman to a British subject. (d) By naturalisation. (e) By continued residence in a territory after it has been conquered or otherwise acquired by the British Crown. Digitized by Microsoft® 104 THE STATE. [§ 39 nation. Speaking generally we may say that the state is in its origin the nation politically organised. It is the nation incorporated for the purposes of government and self-defence. The citizens are the members of a nation which has thus developed into a state. Citizenship is nationality that has become political. Men become united as felloAV-citizens, because they are, or arc deemed to be, already united b}' the bond of common kinship. It is for their benefit and protec- tion that the body politic has been established, and they are its only members. Their citizenship is simply a legal and artificial bond of union superimposed upon the pre-existing bond of a common nationality.. With aliens this national state has no conoern. It is noit created on 'their behalf, and! they have no part or lot in it, for its law and government are the exclusive birthright of its citizens. Only bj- slow degrees does the notion of territorial membership arise and make good its claim' to legal recognition. Gradually the govern- ment and the laws cease to be exclusively national and per- sonal, and become in part territorial also. The new prin- cii^lo makes its way, that ,the state exists for the benefit and) protection of the whole population of a certain territory, and not mereljr on behalf of ^a, certain nationality. The law l>ecomes more and more that of a country, rather than that of a people. State-membership becomes twofold, I'esidence standing side by side with citizenshii>. It becoimes possible to belong to the Roman state without being a Roman. The citizens consent to share their rights with outsiders, but the two classes never reach equality, and the personal union stands permanently on a higher level than the territorial. The special privileges re- tained by citizens at the present day are the scanty relics of the once exclusive claims of the nation to the protection and activi- ties of the state. 1 The relation between a state and its members is one of reciprocal obligation. The state owes protection to its members, while they in turn owe obedience and fidelity to it. 1 On this transition from the national to the territorial idea of the state, see Maine, Early History of Institutions, pp. 72-76. As to the history of the conception and law of citizenship, see Salmond on Citizenship and! All^iance, L. Q. E. xvii. 270, and xviii. 49. Digitized by Microsoft® §39] THE STATE. 105 ]\Ien belong to a state in order that they may be doftnidod by it against each other and against external enemies. But "this defence is not a privilege to be had for nothing, and in return for its protection the state exacts from its zuembers swvices and sacrifices to which outsiders are not constrained. From its members it collects its revenue; from them it requires the performance of public duties; from them it demands an habitual submission to its will, as the price of the bencHts of its guardianship. Its membei'S, therefore, are not merely in a special manner under the protection of the state, but are also in a special manner under its coercion. This special duty of assistance, fidelity, and obedience, is •called allegiance, and is of two kinds, corresponding to the two ■classes of members from whom it is required. Subjects owe permanent aUegianoe to the state, just as they are entitled to its permanent protection. Resident aliens owe temporary allegiance during the period of their residence, juist ris their title to state protection is similarly limited. An alien, when in England, must be faithful to the state, must submit to its ivill, and obey its laws, even as an Englishman; but when lie leaves English shores, he leaves behind him his obligation ■of allegiance, together with his title to protection. A British subject, on the other hand, takes both of these things with liim on his travels. The hand of the state is still upon him for good and evil. If he commits treason abroad he will •answer for it in England. The courts of justice will grant liim redress even against the agents of the Crown itself; while the executive will see that no harm befalls him at the liands ■of foreign governments. 1- ^ Although states are established for the protection of their members, it is not necessary that this protection should be absolutely limited to members. In exceptional cases and to a limited extent the state will use its powers for "the defence and benefit of outsiders. War may be waged on behalf of an •oppressed nation, and the state may intervene, in the interests of justice, in a quarrel not its own. Nor will it necessarily refuse to administer justice in it,s courts €'\cn to non-resident aliens. But such external protection is excep'- tional and accidental, and does not pertain to the essence of government. A state is established, not for the defence of all mankind, and not for the main- tenance of right throughout all the earth, but solely for the security of its ■own members, and the administration of its own territory. A state which absolutely refused its pro'teotion to all outsiders would none the less ade- •quately fulfil the essential purposes of a political society. Digitized by Microsoft® 106 THE STATK. [§ 40' § 40. The Constitution of the State. In the definition of a state as a society with a special end' and function, there is implied a permanent and definite organisation — a determinate and systematic form, stracture,. and operation. A body politic is not constituted bj' a tem- porary and casual union of individuals, for the pui-pose of repelling an external enenn-, or of executing judgment on some domestic evildoer. The transition from natural to political society is effected only when the union of individuals lias assumed a certain measure of permanence and organisa- tion, and when their combined operations in pursuit of their common end have become in a certain degree systematic and definite. It is only when a society has acquired such an organisation, whether by way of agreement, custom, forcible- imposition, or otherwise, that it takes on the nature of a body politic or state. It is only then, that there comes into exist- ence the organ which is essential to the performance of those- funotiortion is known as the constitution of the state. The second has no generic title. Constitutional law is, as its name implies, the bod^' of those- legal rules which determine the constitution of the state. It is not possible to draw any hard and fast line between the- constitution and the remaining portions of the state's organi- sation; neither, therefore, is it possible to draw any suoh line between constitutional law and other branches of the legal system. The distinction is one of degree, rather than one of kind, and is drawn for purposes of practical convenience, rather than in obedience to any logical requirement. Th& more important, fundamental, and far-reaching anj- principle or jDractice is, the more likely it is to be classed as constitu- Digitized by Microsoft® § 40] THE .STA'l'E. 107 tional. Conversely, the more special, detailed, and limited in its application, the less likely it is to find a place in any exposition of the law and practice of the constitution. The structure of the supreme legislature and the methods of its action pertain to constitutional law; the structure aud opera- tions of subordinate legislatures, such as those possessed by the colonies, are justly entitled to the same position; but those of such subordinate legislatures as a borough council would by general consent be treated as not sufficient^ important and fundamental to be deemed part of the constitution. So the organisation and powers of the Supreme Court of Judicature, treated in outline and not in detail, pertain to constitutional law; while it is otherwise with courts of inferior jurisdiction, and with the detailed structure and practice of the Supreme Court itself . In some st-ates, though not in England, the distinction between con- stitutional law and the remaining portions of the legal system is accen- tuated and made definite by the embodiment of the former in a special and distinct enactment, the terms of which cannot be altered by the ordinary forms of legislation. Such constitutions are said to be riffid, as opposed to those which are flexible. That of the United State»s of America, for example, is set forth in a document agreed upon by the founders of the Commonwealth as containing all those principles of state structure and action sufficiently important to be deemed funda- mental and therefore constitu^tional. The provisions of this document cannot be altered without the consent of three-fourths of the legis*- latures of the different states. The English constitution on the other hand is flexible; it is defined and set apart in no distinct document, and is not distinguishable from the residue of the law in respect of the methods of its alteration. ' We have defined constitutional law as the body of those le'gal principles which determine the constitution of a state — which determine, that is to say, the essential and fundamental portions of the state's organisation. We have here to face an apparent difficulty and a possible objection. How, it may be asked, can the constitution of a state be determined by law at all ? There can be no law unless there is already a state whose law it is, and there can be no state without a constitution. Digitized by Microsoft® 108 THK STATE. [§ 40 The state and its oonstitutioii are therefore necessarily prior to the law. How then does the law determine the constitu- tion? Is constitutional law in reality law at all? Is not the constitution a pure matter of fact, with which the law hag no concern? The answer is, that the constitution is both a matter of fact and a matter of law. The constitution as it exists dc facto underlies of necessity the constitution as it exists de jwe. Constitutional law involves concurrent constitutional practice. It is merely the reflection, within courts of law, of the external objective reality of the de facto organisation of the state. It is the theory of the constitution, as received by courts of justice. It is the constitution, not as it is in itself, but as it appears when looked at through the 63-6 of the law. The constitution as a matter of fact is logically prior to the constitution as a matter of law. In other words constitu- tional practice is logically prior to constitutional law. There may be a state and a constitution without any law, but thet'e can be no law without a state and a constitution. Xo con- stitution, therefore, can have its source and basis in the law. It has of necessity an extra-legal origin, for there can be no talk of law, until some form of constitution has already ob- tained de facto establishment by way of actual usage and operation. When it is once established, but not before, the law can and will take notice of it. Constitutional facts will be reflected with more or less accuracy in courts of justice as constitutional law. The law toII develop for itself a theory of the constitution, as it develops a theory of most other things which may come in question in the administration of justice. As an illustration of the proposition that a-xevj constitu- tion has an extra-legal origin, we may take the United States of America. The original constituent states achieved their independence by way of rebellion against the lawful authority of the English Crown. Each of these communities thereupon established a constitution for itself, by way of popular consent expressed directly or through representatives. By virtue of what legal power or authority was this done? Before these constitutions were actually established, there was no law in Digitized by Microsoft® § 40] THE STATE. 1 OO these colonies save that of England, and it was not by the authority of this law,, but in open and forcible defiance of it, that these colonial communities set up new states and new constitutions. Their origin was not merely extra-legal; it was illegal. Yet so soon as these constitutions succeeded in ob- taining- de facto establishment in the rebellious colonies, they received recognition as legalh' \-alid from the courts of those colonies. Constitutional law followed hard upon the heels of constitutional fact. Courts, legislatures, and law had alike their origin in the constitution, therefore the constitution could not derive its origin from them. So ako with every constitution that is altered by way of illegal revolution. By what legal authority was the Bill of Rights passed, and by what legal title did William III. assume the Cix)wn? Yet the Bill of Eights is now good law, and the successors of King Willia-m have held the Crown by valid titles. Quod fieri non debet, factum ralet. Constitutional law, therefore, is the judicial theory, reflec- tion, or image of the constitution de facto, that is to say, of constitutional practice. Here, as elsewhere, law and fact may be more or less discordant. The constitution as seen by the eye of the law may not agree in all points with the objective reality. Much constitutional doctrine may be true in law but not in fact, or true in fact but not in law. PoAver may exist de jure but not de facto, or de facto but not de jure. In law. for example, the consent of the Crown is no leae necessary to legislation, than is that of the two houses of Par- liament. Yet in fact the Crown has no longer any power of refusinir its consent. Conversely, the whole system of cabinet government, together with the control exercised by the House of Commons over the executive, is as unknown in law as it is well established in fact. Even in respect of the boundaries of the state's territories the law and the fact may not agree. A rebellious province may have achieved its ch faoto independence, that is to say, it may have ceased to be in the de facto possession and control of the state, long before this fact receives de jure recognition. Nowhere is this discordance between the constitution in. Digitized by Microsoft® 110 THE STATE. ' [§ 40 fact and in law more serious and obvious than in England. A ,-tatement of the strict legal theory of the British oonsti- tutioji would differ curiously from a statement of the actual facts. Similar discrepancies exist, however, in most other states. A complete- account of a constitution, therefore, involves a statement of constitutional custom as well as of con- stitutional law. It involves an account of the organised state as it exists in practice and in fact, as well as of the reflected image of this organisation as it app-ears in legal theory. Although the constitution de jure and the constitution de facto are not necessarily the same, they nevertheless tend towards coincidence. Constitutional law and practice react upon each other, each striving to assimilate the other to itself. The objective facts of state organisation tend to mould legal theory into conformity with themselves. They seek expression a.nd recognition through legislation, or through the law-creating functions of the courts. Conversely, the accepted legal theory ■endeavours to realise itself in the facts. The law, although it neci's.sarily invoh'es a pre-existing constitution, may neverthe- less react upon and influence the constitution from which it springs. It cannot create a constitution ex nihilo, but it may modify to any extent one which already exists. Constitutional practice may alter, ■\^ hile constitutional la-\\- remains the same, and vice versa, but the most familiar and effective way of altering the practice is to alter the law. The will of the body politic, as expressed through the legislature and the courts, -will commonly realise itself in constitutional fact no less than in constitutional theory. § 41. The Government of the State, FoUticxd or ciriJ power is the power vested in any person or body of persons of exercising any function of the state. It is the capacity of evoking and directing the activities of the body politic. It is the ability to make one'.s will effective in any department of governmental action. The aggregate of all the persons or groups of persons who possi^ss any share of this civil power constitutes the Government of the state. Digitized by Microsoft® § 41] THE STATE. Ill They are the agents throug-h whom the state, as a corporate unity, acts and moves and fulfils its end. Legislative, judicial, mid execuNve pomer. — In respect of its subject-matter, civil power is of three kinds, distinguished as legislative, judicdal, and executive; and the government is similarly divisible into three great departments, namely, the legislature, the judicature, and the executive. The functions which pertain to the . first and second of these departments have been already sufficiently explained. The executive is simply the residue of the government, after deducting the legislature and the judicature. Sovereign and subordinate poiver. — In respect of its extent ■civil power, whether legislative, judicial, or executive, is of two kinds, being either sovereign or subordinate. Sovereign or supreme power is that which is absolute and uncontrolled within its own sphere. Within its appointed limits, if any, its exercise and effective operation are not dependent on or subject to the power of any other person. An act of sovereign power is one which cannot be prevented or annulled by any other power recognised by the constitution of the state. Sub- ordinate power, on the other hand, is that which, even in its own sphere of operation, is in some degree subject to external control. There exists some other constitutional power which is superior to it, and which can prevent, restrict, or direct its' exercise, or annul its operation.^ § 42. Independent and Dependent States. States are of two kinds, being either independent or depen- dent. An independent or sovereign state is one which possesses a separate existence, being complete in itself, and not merely a part of a larger whole to whose government it is subject. 1 The conception of sovereignty is made by many writer.^ the central point in their theory of the state. They lay down c-ertain fundamental proposi- tions with respect to the nature of this power: namely, (1) that it.s existence is essential in every state; (2) that it is indivisible, and incapable of being shared between two or more different authorities; and (3) that it is neces- sarily absolute and unlimited in law, that is to say, its sphere of action iri legally inderberminate. A discussion of this difficult and important branch of political theory will Tje found in an Appendix. Digitized by Microsoft® 112 THE STATK. [§ 42 A dependent or non-sovereign state, on the other hand, is one which is not thus compk'te and self-existent, but is merely a constituent jjortion of a greater state which includes both it and others, and to whose government it is subjeqt. The British Empire, the United States of America, and the King- dom of Italy are independent states. But the Commonwealth of Australia, the Dominion of Canada, and the States of Cali- fornia and New York are dependent, for they are not self- existent, but merely parts of the British Empire and of the United States of America respectively, and subject to their control and government. It is maintained by some WTiters that a dei^endent state is not, properly speaking, a state at all — that the constituent and dependent parts of an independent state may be termed colonies, provinces, territories, and so on, but have no valid claim to the name of state. This objection, however, seems unfounded. It is contrary to the received usage of speech, and that usage seems capable of logical justification. Whether a part of a thing is entitled to the same name as the; whole depends on whether the whole and the part pjossess the same essential nature. A part of a rope is itself a rope, if long enough to serve the ordinary purposes of one; but part of a >|liilling is not itself a shilling. Whether, therefore, any territorial division of a state is to be classed as itself a state dep»ends on whether, in itself and in isolation, it possesses and fulfils the essential functions of oire. This in its turn depends on the extent of the autonomy or independent activity Avhioh is permitted to it by the constitution. Speaking generally, we may say that an^- such division which piossesses a separate legislature, judicature, and executive, and is thus separately organised for the maintenance of peace and justice, is entitled to be regarded as itself a state. The Commonwealth of Australia is a true state, though merely a part of the larger state of the British Empire, for it conforms to the definition of a state, as ..i society established and organised for the administration of justice and for external defence. Were it to become independent, it could, without altering its constitution, Digitized by Microsoft® § 42] THE STATE. 113 t or taking upon itself any further function than those which it now possesses, stand alone as a distinct and self-sufficient politi- cal community. But a municipal corporation or a district council has not in itself the nature of a political society, for it does not in itself fulfil the essential ends of one. International law takes account only of independent or sovereign states, for it consists of the rules which regulate the relations of such states to one another. A dependent state is not an international unit, and possesses no inter- national personality. Internationally regarded, its existence is simply a detail of the internal constitution of tire larger and independent state of which it forms a part. This inter- nal structure pertains exclusively to the constitutional law of the state itself, and the law of nations is not concerned with it. The existence of the Dominion of Canada or of the State of Victoria is a constitutional, not an international fact, for in the eye of the law of nations the whole British Empire is a single undivided unit.^ § 43. Unitary and Composite States. States are of two kinds, heing either miitm-y or composite: A unitary or simple State is one which is not made up of terri- torial divisions which are states themselves. A composite state on the other hand is one which is itself an aggregate or g*r0iu,p of constituent states. The British Empire is composite, because many of its territorial divisions are possessed of such autonomy as to be states themselves. Some of these constituent states are also composite in their turn, Australia and Canada, for example, being composed of unitary states such as Queensland and Quebec. 1 In international law, therefore, the word state commonly means an inde- pendent state. This is a convenient place in which to call attention to the variety of allied meanings possessed by the term state. They are the follow- ing: — (a) A political society dependent or independent. (b) An independent political society. (c) The government of a political society. (d) The territory of a political society. Ex'-'ept where the context shows that it is not so, we shall use the term in the first of these senses. S.J. 8 Digitized by Microsofi® 114 THE STATE. [§43 Composite states (whetlier dependent or independent) are of two kinds, which may he distinguished as imperial and federal. The difference is to be found in the nature of that common government which is the essential bond of union between the constituent states. In an imperial state the government of one of the parts is at the same time the common government of the whole. In a federal state, on the contrary, the common government is not that of one of the parts, but a central government in which all the constituent states participate. The constitution of the British Empire is imperial; that of the United States of America is federal. In the former, one of the parts, namely. Great Britain and Ireland, is preferred before the others, as supplying the authority which binds aU of them into a single whole. The government of the United Kingdom possesses a double capacity, local and imperial. In its local capacity it admin- isters the affairs of England, Scotland, and Ireland, just as the government at Sydney administers the affairs of New South Wales. But in another capacity it is the government of the whole empire, and provides the bond of common authority which unites all the constituent states of the empire into a, single body politic. In a federal, as contrasted with an im- perial constitution, there is no such predominance of one of the constituent states. The government of the whole is one in which aU the parts have their allotted shares. The unity of an imperial state is a relation of all the other pai-ts to one of them; the unity of a federal state is a relation of all the parts to a central and common authority. ^ SUMMAEY. Definition of the State. Essential ^ Administration of Justice. Punotions of the State \ „ i ' War. ( Secondary 1 A composite state may be of u, mh;ed nature, being partly imperial and piU-tly federal. A federal state may have dependencies, over whioh it exer- ciises an imperial government — the foreign conquests, for example, of the United States of America. So an imperial state may have dependencies, which are themselves federal states. The Commonwealth of Anstralia is a federal union which is a dependency undor imperial government. Digitized by Microsoft® § 43] THE STATE. 115 Eelations between the two essential functions. The judicial and extrajudicial use of force. Minor differences. The territory of the State. ™, , J! ii, oi i * Citizens or subjects. The members of the State i t> ., , ,. ( Jiesident aliens. Citizenship in its historical aspect. Citizenship and nationality. , „ . t Personal and permanent. Allegiance 1 _ , , , ( Jjocal and temporary. The constitution of the State. Constitutional law. Its nature. Its relation to constitutional fact. The government of the State. Civil power. Jjegislative, judicial, and executive power. Sovereign and subordinate power. Independent and dependent States. Unitary and composite States, imperial and federal States. 8(2) Digitized by Microsoft® 116 ) CHAPTER VI. THE SOURCES OF LAW. § 44. Formal and Material Sources. The exprossion source of law {fmvs juris) has several meanings. A^diioh it is necessary to distinguish clearly. We must distin- guish in the iirst place between the formal and the material sources of the law. A formal source is that from which a rule of law deri^'es its foroe and validity. It is that from whioli the authority of the law proceeds. The material sources, on the other hand, are those from whioh is derived the matter, not the validity of the law. The material source supplies the substance of the rule to which the formal source gives the foroe and nature of law. The formal source of the whole body of the civil law is one, and the same, namely, the will and power of the state as manifested in courts of justice. Whatever rules have the sanction and authority of the body politic in the administra- tion of justice have thereby the force of law; and in such foroe no other rules whatever have any share. The matter of the law may be drawn from all kinds of material sources, hut for its legal validity it must look to the tribunals of the state and to them alone. Cugtomary law, for example, has its material soui'Oe in the usages of those wiio are subject to it; but it has its formal source in the will of the state, no less than statutory law itself. § 45. Legal and Historical Sources. Though the formal source of the \a,^\- is one, its material sources are many, and they are divisible into two classes whioh may be distinguished as legal and historical. The Digitized by Microsoft® § 45] THE SOURCES OF LAW. 117 former are those sources which are recognised as such by the law itself. The latter are those sou,rces which are such in fact, but are nevertheless destitute of legal recognition. This is an important distinction which calls for careful con- sideration. In respect of its material origin a rule of law is ■often of long descent. The immediate source of it may be the decision of an English coui-t of justice. But that court may, have drawn the matter of its decision from the writings of some lawyer, let us say the celebrated Frenchman, Pothier; and Pothier in his turn may have taken it from the compila- tions of the Emperor Justinian, who may ha\e obtained it from the jDraetorian edict. In such a case all these things — the decision, the works of Pothier, the corpus /nrts r-iviJis, and the edictto?n perpefiium — are the successi\o material sources of the rule of English law. But there is a difference between them, for the precedent is the legal source of the rule, ■and the others are merelj- its historical sources. The jorece- •dent is its source not merely in f aot, but in law also ; the others are its sources in fact, but obtain no legal recognition as such. Our law knows ^^Tell the nature and effect of precedents, but it knows nothing of Pothier, or of Tribonian, or of the Urban Praetor. The proposition that every principle embodied in a judicial decision has for the future the force of law is not merely a statement of historical fact as to the growth of English law; it is itself a rule of law. But the proposition that much of the law of Rome lias become incorporated into the law of England is simply a statement of fact, which has in law no relevance or recognition. The legal sources of law are authoritative, the historical are unauthoritative. The former are allowed by the law oonrts as of right; the latter have no such claim; they influence more or less extensively the course of legal development, but they speak with no authority. No rule of laA\' demands their recognition. Thus both the statute-book and the works of Jeremy Bentham are material sources of English law. The historians of that system have to take account of both of them. Much that is now established law has its source in the ponderous volumes of the great law-reformer. Digitized by Microsoft® 118 THE S0URCE3 OF LAW. [§ '^^ Yet there is an essential difference between the two cases. .What the statute-book says becomes law forthwith and ipsa jure; but what Bentham says may or may not beoome law, and if it does, it is by no claim of right but solely through the unconstrained good pleasure of the legislature or the courts. So the deoisionis of English courts are a legal and authorita- tive source of English law, but those of American courts are in 'England merely an historical and unauthoritative source. They are treated with respect by English judges, and are in fact the ground and origin of an appreciable portion of English law, but their operation is persuasive merely, not authorita- tive, and no rule of English law extends recognition to them. The legal sources are the only gates through which new principles can find entrance into the law. Historical sources operate only mediately and indirectly. They are merely the various precedent links in that chain of Which the ultimate link must be some legal source to which the rule of law is directly attached. We are here concerned solely with the legal sources of the law. Its formal souroe is involved in the dfefinition of the law itseK, and ha-s been already sufficiently dealt with. Itsi historical sources pertain to legal history, not to legal theory. Hereafter, when we speak of the sources of law, we shall mean by that term the legal sources exclusively. It may help us to attain a clearer understanding of a eomewhat difficult matter if we attemjDt to reach a definition of these sources from another standpoint. In every pro- gressive community the law undergoes a continuous process. of growth and change. This process of legal evolution does not proceed by haphazard. It is not left to the discretion of the judges to apply one law to-day and another to-morrow,, for the growth of the law is itself a matter governed by the law. Every legal system contains certain rules determining the establishment of new law and the disappearance of old. That is to say, it contains certain rules to this effect: that all new principles which conform to such and such requirements- arc to bo recognised as new principles of law, and applied accordingly in substitution for, or as supplementary to the Digitized by Microsoft® § 45] THE SOURCES OF LAW. 119 old. Thus it is itself a principle of English law that any principle involved in a judicial decision has the force of law. Similar legal recognition is extended to the law-producing effect of statutes and immemorial customs. Rules such as these establish the sources of the law. A source of law, then, is any fact which in accordance with the law determines the. judicial recognition and aooeiptance of any new rule as having the force of law. It is the legal cause of the admittance by the judicature of any new principle as one which will b© obteervcMi for the future in the administration of justicfe. § 46. A List of Legal Sources. We cannot deduce from the nature of law the nature of its soufOes, for th^e are merely contingent, not necessary; they differ in different systems and even in the same system at different periods of its growtli. It is possible, however, to distinguish five souroes whicli in England or elsewhere have possessed predominant influence. These are Legislation, Custom, Precedent, Professional Opinion, and AgTeement. Legislation is the declaration or enunciation of a principle by some adequate authority in the body politic; custom is tbe realisation or embodiment of a principle in a uniformity of practice; precedent is the judicial application of a princaplp to its appropriate facts; professional or expert opinion is the approval or recognition of a principle by the general voice of those whose business it is to know, the law; agreement is the adoption of a principile by the conseijt of those whose interests are affected by it. Such declaration, realisation, application, approval, and adoption determine in each case the judicial recognition as law of the principle so dealt with, and there- fore constitute the sources of the law. Law which has its source in legislation is called statute, enacted, or written law. That which is based on custom is customary law. Precedent produces case-law, and agreement conventional law. That which is created by professional or expert opinion has no recogiaised title, but in analogy to Grerman usage we may call it juristic law {Juriatenrccht). Digitized by Microsoft® 120 THE SOURCES OF LAW. [§46 There are two chief reasons for allowing law-creative ojJeration to these various sources. In the first place there is a presumption that pTinoiples jDroceeding from them are principles of truth and justice, worthy of adoption by the judicature. A statute is an attempt made by the legislature to formulate the rules of right for the use and direction of the judicature. This attempt is not always successful, for law and justice are sometim.es far apart; yet no better device has been discovered, and the courts accept the rules so formulated as authoritative and final. A similar i^resumption of truth and justice is one of the grounds of the operation of precedent also. When one of the superior courts of law has, after solemn argument and full consideration, laid clown a certain principle as one fit to be applied to the case in hand, there is a reasonable piresumption that this decision is correct, and that the principle is a just one fit to be applied to all similar cases in the future, that is to say, fit to receive permanent recogni- tion as a new rule of law. Ras ji(dic€ifa pro verifate accifi- tnrA So also is the case of custom. Customary law has as one of its foundations the presumption that whatever is cus- tomary is just and expedient. The popular conscience em- bodies itself in popular usage, and the law courts accept as authoritative the principles so sanctioaed and approved. Pro- fessional opinion — the opinion of lawyers — is merely an historical, not a legal source of English law. In other systems, liowever, and chiefly in that of Rome, it has shown itself capable of serving as one of the most important of legal sources. Almost all that is of special value in Roman law has this as its origin; the Digest of Justinian consists wholly of extracts from the writings of Roman lawyers. It is clear that one of the grounds for the aUowanoe of such opiinion as a source of law is to be found in a reasonable confidence in the skill and knowledge of the expert. Ctiique in sua arte cre- dendum cM. Finally we may see the same influence at work in the case of the liftli and last source, namely agreement. Every man may be trusted to see to his own interests and to claim his own rights. Whatever rule, therefore, is freely agreed 1 D. 50. 17. 207. Digitized by Microsoft® § 46] THE SOURCES OF LAW. 121 upon by two or more persons as defining their mutual rights and obligations may be confidently accepted by the law courts as a true and just rule between those who have so oonsanted to it. As to them, it is fit and proper to be applied' as law. There is, however, a second ground of not less imjDortance on which the efiicacy of these legal sources rests. They are not merely presumptive evidence of the justice and truth of the principles proceeding from them, but they are the basis of a rational expectation on the part of all persons concerned that these principles will be consistently acted on in the future. Justice demands that such expectations shaU. be fulfilled. Even when a rule does not accurately conform to the ideal standard, it may be a right and reasonable thing to adhere to it, when it has once been formulated. For men act on the faith of it; and to overturn an imperfect rule with all the expectations built upon it will often do more harm than can be counterbalanced by any benefits to be derived from the substitution of a better principle. Thus legislation is an announcement to all the world that in future certain prin- •oiples will be applied in the administration of justice. Forth- with the expectations, dealings, and contracts of all men concerned are based upon the principles so declared, and the disregard of them by the judicature would be a breach of faith and an ill service to the cause of justice. Similarly the decision of a court may not be perfectly wise or just; but whether it is or not, all men expect that like decisions wiU for the future be given in like cases. It is often more important that the course of judicial decision should be uniform and within the limits of human foresight, than that it should be ideally just. So with all the other sources of law. That which has always been customary in the past is entitled for this reason alone to a certain measure of allowance and recognition in the future. That which is approved by the general opinion of the legal pTofession serves so largely as the basis of the actions and expectations of men, that the courts of law will not lightly depart from it. That which all parties interested have agreed to, and which they have declared as -valid law to bind them, may not, for all that, be absolutely, Digitized by Microsoft® 122 THE SOURCES OF LAW. [§ 46 just and reasonable; but they must be held bound by it none tbe less, otherwise there will be no certainty of dealing amooig tmankind . § 47. The Sources of Law as Constitutive and Abrogative. The process of legal e\"olution is threefold. It comprise* in the first place the increase or growth of law — that is to say, the substitution of legal principles for the discretion of oourts, and the transformation of fact into law. It invoives in the second place the opposite process of the decrease of law — the reconquest by the arbitrium jiidicis of domains formerly occupied by legal principle — the transformation of law into fact. Finally it includes the alteration of law — that is to say, the destruction of one legal principle and the substitution of another in its stead. To carry out this threefold process, it is clear that we require instruments of legal development which are capable not merely of creating new law, but of destroying old. It is not sufficient to obtain new law which stands side by side with the old, as a supplement to it; it is necessary to obtain new law which excludes the old, as a substitute for it. We must possess instruments of abrogative, and not merely instru- ments of constitutive power. So far we have considered the sources of law only in respect of this latter operation. We ■have yet to consider to what extent they possess the power of destroying law, as well as of creating it. The conservative virtue of the law has at all times been very great. We find, accordingly, that the constitutive operation of the sources is much more general than the abrogative. It by no means follows that, because a certain fact is capable of giving rise to a new rule, it is equally capable of getting rid of an old one. Legislation, indeed, is pre-eminent in this respect above all other legal sources. Alone among the instruments of legal development, it works with equal facilitj' in both ways; and it is this peculiarity which makes it so efficient a method of legal reform. Digitized by Microsoft® § 47j THE SOURCES OF LAW. 123 In the strict theory of the law, precedent is whollj- consti- tutive, being quite destitute of abrogative power. When the law is already settled, tiie judges have no authority save to obey and administer it. Their power of making new law by way of judicial decision is limited to those vacant spaces where there is as yet no other law which they can apply. Precedents make law, but cannot alter it. Mercantile custom resembles precedent. So long as the ground is vacant — so long as there is no rule of the common law in pari matesrid — the proved custom of merchants will be allowed by the courts as a source of new law. But so soon as from this or any other source principles have been once established in the matter, there is no longer any room for new rules thus arising. Immemorial custom, on the other hand, has full power to derogate from the common law, though the statute law is beyond its operation. Agreement possesses considerable, though not complete, abrogative power. A great pai't of the law is subject to supersession and modification by the consent of all persons interested. Modits et omiventio rincunt legem. It is law only until and unless there is some agreement to the contrary. The residue of the law, however, is peremptory, and not to be thus excluded by consent. Agreements which attempt to derogate from it, and to establish special law in place of it, arc illegal and void. § 48. Sources of Law and Sources of Rights. The sources of law may also serve as sources of rights. By a source or title of rights is meant some fact which is legally constitutive of rights. It is the de faoto antecedent of a legal right just as a source of law is the de facto antecedent of a legal principle. An examination of any legal system will show that to a large extent the same classes of facts which operate as sources of law operate as sources of rights also. The two kinds of sources form intersecting circles. Some facts create law but not rights; some create rights but not law; some create both at once. An Act of Parliament for example is a typical source of law; but there are numerous private acts which are clearly titles of legal rights. Such is an act of divorce, or an act granting a pension for public services, or an act incorporating a company. So in the case of Digitized by Microsoft® 124 THE SOURCES OF LAW. [§ 48 precedent, the judicial decision is a source of rights as between the parties to it, though a source of law as regards the world at large, Eegarded as creative of rights, it is called a judgment; regarded as creative of law, it is called a precedent. &!o also immemorial custom ■does upon occasion give rise to rights as well as to law. In respect of the former operation, it is specifically distinguished as prescription, while as a source of law it retains the generic title of custom. That an agreement operates as a source of rights is a fact too familiar to require illustration. The proposition which really needs emphatic statement in this case is that agreement is not exclusively a title pf rights, but is also operative as a source of law. § 49. Ultimate Legal Principles. All rules of law have historical sources. As a matter of fact and history they have their origin somewhere, tliougli we may not know what it is. But not aU of them have legal sources. Were this so, it would be necessary for the law to proceed ad infinitumi in tracing the descent of its principles. It is requisite that the law should postulate one or more first oauses, whose operation is ultimate, and whose authority is un derived. In other words there must be found in every legal system certain ultimate principles, from which all others are derived, but which arc themselves self -existent. Before there can be any talk of legal sources, there must be already in existence some law which establishes them and gives them their autlrority. The rule that a man may not ride a bicycle on the footpath may have its source in the by-laws of a municipal council; the rule that these by-laws have the force of law has its source in an act of Parliament,. But whence conies the rule that acts of Parliament have the force of law? This is legally ultimate; its source is historical only, not legal. The liistorians of the constitution know its origin, but lawyers must accept it as self -existent. It is the law because it is the law, and for no other reason that it is possible for the law itself to take notice of. Xo statute can confer this power upon Parliament, for this wonld be to assume and act on the verv' power that is to be confei'red. So also the rule that judicial decisions hav(> the force of law is legally ultimate and underived. No statute lays it down.' Digitized by Microsoft® §49] THE SOURCES OF LAW. 125. Lpgal soui'oes ■ It is certainly reoognised by many precedents, but no pre- cedent can confer authority upon precedent. It must first possess authority before it can confer it. If we inquire as to the number of these ultimate prin- ciples, the answer is that a legal system is free to recognisiei any number of them, but is not bound to rectognise more than one. From any one ultimate legal source it is possible, for the whole law to be derived, but one such there must be. A statute for example may at any time give statutory authority to the operation of precedent, ^ and 8.0 reduce -it from an ultimate to a derivative source of law.- 8UMMAET. Q , -, J] 1 ( Formal — source of the authority of the law. ( Material — source of the contents of the law. -y^ . , _ ( Legal — immediate and legally recognised. ( Historical — remote and not legally recognised. ' 1. Legislation — enacted law. 2. Custom — customary law. 3. Precedent — case-law. 4. Professional opinion — juristic law. 5. Agreement — conventional law. Grounds of the recognition of these sources. „ , . J. ( Constitutive — adding new law to old. Operation of sources . =■ ( Abrogative — substituting new law lor old. Extent of abrogative power possessed hy the sources. Eelation between sources of law and sources of rights. J , ... I Ultimate — without legal sources. ( Derivative — drawn from legal sources. ^ In addition to the formal, historical, and legal sources of the law, it is. necessary to note and distlnguisli what may be termed its literary sources, though this is a Continental, rather than an English use of the term source. The literary sources are the sources of our knowledge of the law, or rather the original and authoritative sources of sucli knowledge, as opposed to later commentary or literature. The sources of Roman law are in this sense the compilations of the Emperor Justinian, as contrasted with the works of commentators. So the sources of English law are the statute book, the reports, and the older and authoritative text-books, such as Littleton. The literature, ag opposed to the sources of our law, comprises all modern text- books and commentaries. - In the succeeding chapters we shall consider more particularly three of the legal sources which have been already mentioned, namely, legislation, custom, and precedent. Professional opinion as a source of law pertains to the Roman, ratlier than to the English system, and does not call for special examination here. For an account of it see Bryce, Studies in History and Jurisprudence, II. pp. 255-269. Agreement wUl be considered later, in its aspect as a title of rights, instead of here as a source of law. Digitized by Microsoft® 126 ) CHAPTER VII. LEGISLATION. § 50. The Nature of Legislation. Legislation is that source of law which consists in the declaration of legal rules by a competent authority. It is such an enunciation or promulgation of principles as confers upon them the foroe of law. It is such a declaration of principles as constitutes a legal ground for their recognition as law for the future by the tribunals of the state. Although this is the strict and most usual application of the term legislation, there are two other occasional uses of it which require to be distinguished. It is sometimes used in a wide sense to include all methods of law-making. To legis- late is to make new law in any fashion. Any act done with the intent and the effect of adding to or altering the law is, in this wider sense, an act of legislative authority. As so used, legislation includes all the sources of law, and not merely one of them. " There can be no law," says Austin,^ " without a legislative act." Thus when judges establish a new principle by means of a judicial decision, they may be said to exercise legislative, and not merely judicial power. Yet this is clearly not legislation in the strict sense already defined. The law-creative efficacy of precedent is to be found not in the mere declaration of new principles but in the actual application of them. Judges have in certain cases true legis- lative power — as where they issue rules of court — but in ordinary cases the judicial declaration of the law, una«x)m- panied by the judicial application of it, has no legal authority "whatever. So the act of the parties to a contract, in laying down rules of special law for themsidves to the exclusion of 1 Austin's Jus'isprudeno^, p. 555, 3rd ed. Digitized by Microsoft® § 50"1 LEGISLATION. 127 the oommon law, may be regarded as an exercise of legislative power. But although, they have made law, they have made it by way of mutual agreement for themselves, not by way of authoritative declaration for other persons. The writers who make use of the term in this wide sense divide legislation into two kinds, which they distinguish as direct and indirect. The former is legislation in the narrow sense — the making of law by means of the declaration of it. Indirect legislation, on the other hand, includes all other modes in which the law is made.^ In a third sense legislation includes every expression of the will of the legislature, whether directed to the making of law or not. In this use, every act of Parliament is an instance of legislation, irrespective altogether of its purpose and effect. The judicature, as we have seen, does many things which do not fall within the administration of justice in its strict sense; yet in a wider use the term is ext&nded to include all the activities of the courts. So here, the legis- lature does not confine its action to the making of law, yetj all its functions are included within the term legislation. An act of Parliament may do no more than ratify a treaty with a foreign state, or alter the calendar, or establish a tmiform time throughout the realm, or make some change in the style and title of the reigning sovereign, or alter thei coinage, or appropriate public money, or declare war or make peace, or grant a divorce, or annex or abandon terri- tory. AU this is legislation in a wide sense, but it is nolt that declaration of legal principles with which, as one of the sources of law, we are here alone concerned. Law that has its source in legislation may be most accu- rately termed enaoted law, all other forms being distinguished as unenaoted. The more familiar term, howevei', is statute- law as opposed to the common law;, but this, though suffi- ciently correct for most purposes, is defective, inasmuch as the word statute does not extend to all modes of legislation, but is limited to acts of Parliament. Blackstone and other writers 1 Au,9tiii, p. 548, 3rd ed. Digitized by Microsoft® 128 LEGISLATION. [§ 50 use the expressions written and unwritten law to indicate the distinction in question. Much law, howe^•er, is reduced to writing, even in its inception, besides that which originates in legislation. The terms are derived from the Romans, who meant by jus non scriptum customary law, all other, whether enacted or unenacted, being jus scriptum. We shall see later, that according to the older theory, as we find it in Blackstone and his predecessors, all English law proceeds either from legislation or from custom. The common law was customai-y, and therefore, adopting the Eoman usage, unwritten la^v. All the residue was enacted, and therefore written law.i s 51. Supreme and Subordinate Legislation. Legislatioji is either suijreme or subordinate- The former is that which jjrooeods from the supreme or sovei'eign power in the state, and which is therefore incapable of being repealed, annulled, or controlled by any other legislative authoritj'. Subordinate legislation is that which proceeds from any authority other than the sovereign power, and is therefore dependent for its continued existence and validity on some superior or supreme authority. The legislation of the Im- perial Parliament is supreme, for "what the parliament doth, no authority upon earth can undo."- All other forms of legishrtive activity recognised by the law of England are sub- ordinate. They may be regarded as having their origin in a delegation of the power of Parliament to inferior authorities, which in the exercise of their delegated functions remain sub- ject to the control of the sovereign legislature. The chief forms of subordinate legislation are five in number. (1) Cokmial. — The powers of self-government entrusted to the colonies and other dependencies of the Crown are subject 1 Constat autem jus nostrum aut ex scripto aut ex non scripto. ... Ex non scripto jus venit, quod uaua comprobavit. Just. Inst. 1. 2. 3.; 1. 2. 9. " The municipal law of England may with sufficient propriety be divided into two kinds: the lex non scripta, tlie unwritten or common law; and the lex scripta, the written or statute law." Blackstone, I. 63. - Blackstone, I. 161. Digitized by Microsoft® § Ol] LEGISLATION. 129 to the control of the Imperial legislature. The Parliament at Westminster may repeal, alter, or supersede any colon;ial; enactment, and such enactments constitute, accordingly, the first and most important species o£ subordinate legislation. (2) Executive. — The essential function of the executive is to conduct the administrati\'e departments of the state, but it combines with this certain subordinate legislative powers which have been expressly delegated to it hy Parliament, or pertain to it by the common law. A statute, for example, occasionally entrusts to some department of the executive government the duty of supplementing the statutor}- provi- sions by the issue of more detailed regulations bearing on the same matter. So it is part of the prerogati^'e of the Crown at common law to make laws for the government of terri- tories acquired by conquest, and not }'et possessed of repre- sentative local legislatures. (3) Jmlioial. — In tlie same way, certain delegated legisla- tive powers are possessed by the judioatui'e. The superior courts have the power of making rules for the regulation of their own procedure. This is judicial legislation in the true sense of the term, differing in this respect from the eo-cadled: legislative action of the courts in creating new law by vsay of precedent. (4) 'Mimidpal. — IMunicijjal authorities are entmsted by the law with limited and subordinate powers of establishing special law for the districts under their control. The enaot- ments so authorised are termed by-laws, and this form of legislation may be distinguished as municipal. (5) Auiomymous. — ^AU the kinds of legislation which we have hitherto considered proceed from the state itself, either in its supreme or in one or other of its many subordiuatei departments. But this is not necessarily the case, for legisla- tion is not a function that is essentially limited to the state. The declaration of new principles amounts to legislation nol; because it is the voice of the state, but because it is accepted' by the state as a sufficient legal ground for giving effect tO' those new principles in its courts of justice. The will of th^ state is, indeed, as we have already seen, the one and only S ••'' • Digitized by Microsoft® 130 LEGISLATION. [§ 61 for-mal source of law; but it doas not follow from this that the ivord of the state is the sole form of that nutiterial source of the law which is called legislation. In the allowance of new law the state may hearken to other A'oices than its own. In general, indeed, the power of legislation is far too impor- tant to be committed to any person or body of persons save the incorporate community itself. The great bulk of enacted law is promulgated by the state in its own person. But in exceptional cases it has been found jJossible and exiDedient to entrust this power to private hands. The law gives to oertain groups of private individuals limited legislative authority touching matters which concern themselves. A railway company, for example, is able to make by-laws for the regula- tion of its undertaking. A university may make statutes binding upon its members. A registered company may alter those articles of association by which its constitution and management are determined. Legislation thus effected by jjrivate persons, and the law so created, may be distinguished as autonomic. There is a close resemblance between autonomic law and conventional law, but there is also a real distinction between them. The creation of each is a function entrusted by the state to private persons. But conventional law is the product of agreement, and therefore is law for none except thoee whoi have consented to its creation. Autonomic law, on the con- trary, is the product of a true form of legislation, and is im- posed by superior authority in invites. The act of a general meeting of shareholders in altering the articles of association is an act of autonomous legislation, because the majority has the power of imposing its will in this respect upon a dis- sentient minority. All the shareholders may in fact agree, but the law-creating efficacy of their resolution is independent of any such accidental unanimity. We may say, if we please, that with respect to consenting shareholders the resolution is an agreement, while with respect to dissentients it is an act of legislative authority. The original articles of association, on the other hand, as they stand when the company is first formed, constitute a body of conventional, not autonomic law. Digitized by Microsoft® § 5l] LEGISLATION. 131 Tbey are law for all shareholders hy virtue of their own agreement to become members of the company, and are not the outcome of any subsequent exercise of legislative authority vested in the majority. ^ § 52. Relation of Legislation to other Sources. So great is the superiority of legislation over all other methods of legal evolution, that the tendency of advancing, civilisation is to acknowledge its exclusive claim, and to dis- cai-d the other instruments as relics of the infancy of law. The expressed will of the state tends to obtain reaognition not only as the sole formal source of law, but as its exclu&ivci material source also. Statute-law has already become the type or standai-d, from ^xiiich the other forms are more or less abnormal variations. Nothing is more natural than this from our modern point of view, nothing less natural from that of primitive jurisprudjenoe. Early law is conceived as jus (the principles of justice), rather than as lex (the will of the state). The function of the state in its earlier conception is to enforce the law, not to make it. The rules so to be enforced aa-e those rules of right which are found realised in the im- memorial customs of the nation, or which are sanctioned by religious faith and practice, or which have been divinely revealed to men. It is well known that the earliest codes were the work, not of mortal men, but of the gods.^ That the material contents of the law depend upon the express or tacit will of the state, that principles sanctioned by religion or immemorial usage aje laws only so long as the prince chooses to retain them unaltered, that it is within the powers and functions of political rulers to change and subvert the laws at their own good pleasure, are beliefs whidi mark con- siderable progre-ss along the road of political and legal 1 The mere fact that a person who becomes a shareholder must be taken to have impliedly agreed to be bound not only by the articles as they stand, but by any subsequent modification of them, does not render subsequent modifi- cations conventional instead of legislative in their nature. The immediate source of the new rules is not agreement, but imposition by superioir authority. 3 Plato's Laws, 624. Spencer's Sociology, II. pp. 515 et seq. 9 (2) Digitized by Microsoft® 132 LEGISLATION. [§ 52 development. Until sacli progress has been made, and until the petrifying influence of the primitive alliance of law with religion and immutable custom hais been to some extemt dis- solved, the part played by human legislation in the develop- ment of the legal system is necessarily small, and may be even non-existent. As it is the most powerful, so it is the latest of the instruments of legal growth. In considering the advantages of legislation, it will be con- venient to contrast it specially with its most formidable rival, namely precedent. >So considered, the first virtue of legisla- tion lies in its abrogative power. It is not merely a source of new law, but is equally effective in abolishing that which already exists. But precedent possesses merely constitutive efficacy; it is capable of producing very good law — better in some respects than that which we obtain by way of legislation — but its defoot is that, excej^t in a very imperfect and in- direct manner, its operation is irre\'ersible. What it does, it does onoe for all. It cannot go back upon its footsteps, and do well what it has onoe done iU. Legislation, therefore, is the indispensable instrum'ent, not indeed of legal growth, but of legal reform. As a destructive and reformative agent it has no equi\'alent, and without it all la^v is as that of the Medes and Persians. The second respect in which legislation is superior to pre- cedent is tliat it aUows an advantageous division of labour, which here, as elsewhere, results in increased efficiency. The legislature becomes differentiated from the judicature, the duty of the former being to make law, while that of the latter is to interpret and apply it. Speaking generally, a legal system wiU be best administered, when those who administer it have this as their sole function. Precedent, on the con- trary, unites iu the same hands the business of making the law and that of enforcing it. It is true, however, that legislation doe.s not necessarily involve any such division of functions. It is not of the essence of this form of legal development that it should proceed from a distinct department of the state, whose business it is to give laws to the judicature. It is perfectly Digitized by Microsoft® § 52J i.EGisLATioN. i;j;j possible for the law to develop by a process of true legisla- tion, in the absence of any legislative organ other than the courts of justice themselves. We have already noticed the existence of this judicial legislation, in considering the various forms of subordinate legislative power. The most celebrated instance of it is the case of the Roman praetor. In addition to his pui-ely judicial functions, he possessed the jiis edicendi, that is to say, legislative powers in respect of the matteirs pertaining to his office. It was customary for each praetor at the commencement of his term of office to publish an edictmn containing a declaration of the principles which he intended to observe in the exercise of his judicial functions. Each such edict was naturally identical in its main outlines with that which preceded it, the alterations made in the old law by each successive praetor being for the most part accepted by his successors. By this exercise of legislative power on the part of judicial officers, a very considerable body of new law was in course of time established, distin- guished as the jtis praetnrium- from the older jus cimle. Powers of judicial legislation, similar in kind, though less in extent, are at the present day ^ery generally conferred upon the higher courts of justice. Yet though not theoretically necessary, it is certainly expedient, that at least in its higher forms the function of law-making should be vested in a department of the state superior to and independent of the judicature. A third advantage of statute-law is that the formal de- claration of it is a condition precedent to its application in courts of justice. Case-law, on the contrary, is created and declared in the very act of applying and enforcing it. Legis- lation satisfies the requirement of natural justicie that laws shall be known before they are enforced; but case-law operates retrospectively, being created pro re nata, and applied to facts which are prior in date to the law itself .^ 1 On this and other grounds " judge-made law," as he called it, was the object of constant denunciation by Bentham. " It is the judges," he says in his vigorous way (Works, V. 235), "that make the common law. Do you know now they make it? Just as a man makes laws for his dog. When yooir dog does anything you want to break him of, you wait till he does it and Digitized by Microsoft® lai LEGISLATION. [§ 62 Fourthly, legislation can by way of anticipation make rules for cases that have not yet arisen, whereas precedent must needs wait until the actual concrete instance comes before the courts for decision. Precedent is dependent on, legislation independent of, the accidental course of litigation. So far as precedent is concerned, a point of law must remain unsettled, until by chance the very case arises. Legislation can fill up a vacancy, or settle a doubt in the" legal system, as soon ae the existence of this defect is called to the attention of this legislature. Case-law, therefore, is essentially incomplete, uncertain, and unsympathetic; while if statute-law shows the same defects, it is only through the lethargy or incapacity of the legislature. As a set-off against this demerit of pre- cedent, it is to be observed that a rule formulated by the judicature in view of the actual case to which it is to be applied is not unlikely to be of better workmanship, and more oarefuUy adapted to the ends to be served by it, than one laid down a priori by the legislature. Finally, statute-law is greatly superior to case-law in point of form. The product of legislation assumes the form of abstract propositions, but that of precedent is merged in the concrete details of the actual cases to which it owes its origin. Statute-law, therefore, is brief, clear, easily accessible and knowable, while oase-law is buried from sight and know- ledge in the huge and daily growing mass of the records of bygone litigation. Case-law is gold in the mine — a few giains of the precious metal to the ton of useless matter — while statute-law is coin of the realm ready for immediate use. This very perfection of form, however, brings with it a defect of substance from which case-law is free. Statute-law is embodied in an authoritative form of written words, and this literaiy expression is an essential part of the law itself. It is the duty of the courts to apply the letter of the law. They are concerned with the spirit and reason of it only so far as the spirit and reason have succeeded in finding expres- sion through the letter. Case-law, on the contrary, has no then beat him. This is the way you make laws for your dog, and this is the way the judges make laws for you ajid me.'' Digitized by Microsoft® § 52] LEGISLATION. 135 letter. It has no authoritative verbal expression, and there is no barrier between the courts of justice and the verj- spirit and purpose of the law which they are called on to administer. In interpreting and applying statute-law, the courts are conoerned with -words and their true meaning; in interpreting and applying case-law, they are dealing with ideas and principles and their just and reasonable contents and operai- tion. Statute-law is rigid, straitly bound within the limits of authoritative formulae; case-law, with all its imperfections, has at least this merit, that it remains in living contact with the reason and justice of the matter, and draws from this source a flexibility and a power of growth and adaptation which are too much wanting in the litera scripta of »niaoted law. § 53. Codification. The advantages of enacted law so greatly outweigh its defects ,that there can be no doubt as to the ultimate issue of its rivahy with the other forms of legal development and expression. The whole tendency in modern times is towards the process which, since the days of Bentham, has been known as codification, that is to say, the reduction of the whole corpus juris, so far as practicable, to the form of enacted law. In this respect England lags far behind the Continent. Since the middle of the eighteenth century the process has been going on in European countries, and is now all but com- plete. Xearly everywhere the old medley of civil, canon, customary, and enacted law has given place to codes eon- etructed with more or less skill and success. Even in England, and the other countries to which English law has spread, tentative steps are being taken on the same road. Certain, isolated and well-developed portions of the common law, such as the law of bills of exchange, of partnership, andi of sale, have been selected for transformation into statutoiry, form. The process is one of exceeding difficulty, owing to the complexity and elaboration of English legal doctrine. Many portions of the law are not yet ripe for it, and pre- Digitized by Microsoft® 136 LEGISLATION. [§ 5-i mature codification is worse than none at all. But the final result is not doubtful. Codification must not be understood to involve the total abolition of precedent as a source of law. Case-law -will con- tinue to grow, even when the codes are complete. The old theory, now gradually disajypearing, but still true in most departments of the law, is that the common law is the basis and groundwork of the legal system, legislation being nothing more than a special instrument for its occasional modification or development. Unenacted law is the principal, and enacted law is merely accessory. The activity of the legislature is called for only on special occasions to do that which lies beyond the constructive or remedial efficacy of the common law. Codi- fication means not the total disappearance of case-law, but merely the reversal of this relation between it and statute-la.w. It means that the substance and body of the law shall be enacted law, and that case-law shall be incidental and sup- plementary only. In the most carefully prepared of codes Kubtle ambiguities will come to light, real or apparent in- consistencies will become manifest, and omissions will reveal themselves. No legislative skill can effectually anticipate the complexity and variety of the facts. The function of prece- dent win be to supplement, to interpret, to reconcile, and to develop the principles which the code contains. Out of the code itself, therefore, a body of case-law wiU grow, as a judicial commentary and supplement. It will be expedient from time to time that this supplementary and erplanatory case-law be itself codified and incorporated into successive editions of the oode. But so often as this is done, the process of interpreta- tion wiU begin again with the like results. § 54. The Interpretation of Enacted Law. We have seen that one of the characteristics of enacted law is its embodiment in authoritative formula?. The very words in which it is expressed — the litfij-a scripta — constitute a part of the law itself. Legal authority is possessed by the: letter, no less than by the spirit of the enactment. Otheri Digitized by Microsoft® § 54] LEGISLATION. 137 forms of law (with tlic exception of written conventional law, which in this respect stands by the side of statutory) have nc iixed and authoritative expression. There is in them no letter of the law, to stand between the spirit of the law and its judicial application. Hence it is that in the case of -enacted law a process of judicial interpretation or construction is jieecssiiry, which is not called for in respect of cusitomary or oasr-law. By interpretation or construction is meant the .process by ^\hich the courts seek to ascertain the meaning of the legislature through the medium of the authoritative forms in which it is expi-essed. Interpretatiofi is of two kinds, which Continental lawyers distinguish as grmnnnaticcd and logical. The former is that which regards exclusively the verbal expression of the law. It does not look beyond the litera legis. Logical interpreta- tion, on the other hand, is that whioh departs from thie letter of the law, and seeks elsewhere for some other and more satisfactory- evidence of the true intention of the legislature. It is essential to determine with accuracy the relations which subsist between these two methods. It is necessary to know in what circumstanoes grammatical interpretation is alone legitimate, and when on the contrary it is allowable to accept, instead, the divergent results that may be attainable by way of logical intei-pretation. In other words, we have to determine the relative claims of the letter and the spirit of enacted law. The true principles on this matter seem to be the following. The duty of the judicature is to discover and to act upon the' true intention of the legislature — the mens or ssnlentia legis. The essence of the law lies in its spirit, not in its letter, for the letter is significant only as being the external manifesta- tion of the intention that underlies it. Nevertheless in all ordinary cases the courts must be content to accept the litera legis as the exclusive and conclusive evidence of the semtentia ■legis. Tliey must in general take it a;bsolutely for granted' that the legislature has said what it meant, and meant what, it has said. Ita scripljtm est is the first principle of interpre- tation. .Judges are not at liberty to add to or take from or modify the letter of the law, simply because they have reason Digitized by Microsoft® 138 LEGISLATION. [§ 54r to believe that the true sententia legis is not completely or- correctly expressed by it. That is to say, in all ordinary cases grammatiaal interpretation is the sole form allowable. To this general principle there are two exceptions. There are two cases in which the litera legis need not be taken as conclusive, and in which the sententia legis may be sought from other indications. The first of these cases is that in. which the letter of the law is logically defective, that is to say,, when it fails to express some single, definite, coherent, and complete idea. The logical defects by which the litera legis may be affected are three in number. The first is ambiguity; for a statute, instead of meaning one thing, may mean two or more dif- ferent things. In such case it is the right and duty of the' courts to go behind the letter of the law, and to ascertain. from other sources, as best they caoi, the true intention which has thus failed to attain perfect expression. When a statutory provision is capable of two meanings, it is commonly, though not invariably, the case that one of these is more natural, obvious, and consonant with the ordi- nary use of language than the other. The interpretation of' an ambiguous law is therefore of two kinds, according as it accepts the more natural and obvious meaning, or reijects it in favour of another which conforms better to the intention of the legislature, though worse to the familiar usages of' speech. The former mode of interpretation is termed literal or strict, and the latter may be distinguished as equitable^ The general principle is that interpi'etation must be literal, unless there is some adequate reason to the contrary. Iil the absence of sufficient indications that the legislature ha* used words in some less natural and obvious sense, tlieir- literal and ordinary signification will be attributed to them. The maintenance of a just balance between the competing claims of these two forms of interpretation is one of the^ most important elements in the administration of statute- law. On each side there are dangers to be avoided. Undue- laxity, on the one hand, sacrifices the certaint}" and uni- formity of the law to the arbitrary discretion of the judges Digitized by Microsoft® § 54] LEGISLATION. 139 who administer it; while undue strictness, on the other hand, sacrifioes the true intent of the legislature and the rational development of the law to the tyranny of words. Scire leges, said the Romans, ^ non hoc rsf verba earum fnifre, .serf vim ao potestatem.- A second logical defect of statutory expression is incon- sistency. A law, instead of having more meanings than one, may have none at all, the diff^erent parts of it being repug- nant, so as to destroy each other's significance. In this case it is the duty of the judicature to Jiscertaiii in some other way the true sentenfia legis, and to correct the letter of the law accordingly. Lastly, the law may be logioally defective by reason of its incompleteness. The text, though neither ambiguous nor inconsistent, may contain some lacima which prevents it from expressing any logically complete idea. For example, where there are two alternative oases, the law may make provision for one of them, and remain silent as to the Other. Suoh omissions the courts may lawfully supply by way of logical interpretation. It is to be noted, however, that the omisision must be euoh as to make the statute logioally incomplete. It is not enough that the legislature meant more than it said, and failed to express its whole mind. If what it has said is logically complete — giving expression to a single, intelligible, and complete idea — the courts have no lawful concern with anything else that the legislature may have meant but not said. Their duty is to apply the letter of the law, therefore they may alter or add to it so far as is necessary to make its application possible, but they must do nothing more. It has been already said that there are two cases in which logical interpretation is entitled to supersede grammatical. 1 D. 1. 3. 17. 2 Strict interpretation is an equivocal expression, for it means either literal or narrow. When a provision is ambiguoijs, one of its meaning's may be wider than the other, and the strict (i.e., narrow) sense is not necessarily the strict (i.e., literal) sense. When the equitable interpretation of a law is wider than the literal, it is called extensive; when narrower, it is called restrictive. Digitized by Microsoft® 140 LKCrSLATION. [§ 64 The first of these, namely that of some logical defect in the lit era legis, has been considered. The second is that in which the text leads to a result so unreasonable that it is sellf- evident that the legislature cxjuld not have meant what it lias said. For example, there may be some obvious clerical error in the text, such as a reference to a section by the wrong number, or the omission of a negative in some passage in which it is clearly required. In considering the logical defects of the litera legis, we have tacitly assumt'd that by going behind the defective text it is always possible to discover a logically perfect sententia legis. We have assumed that the whole duty of the courts is to ascertain the true and perfect intention which has received imperfect expression. This is not so, however. In a great number of oases the defects of the litera legis are simply the manifestation of corresponding defects in the sententia. If the legislature speaks ambiguously, it is often because there is no single and definite meaning to be expressed. If the words of the legislature are self-oonitradiotory, it is poesibly due to some repugnancy and confusion in the intention itself. If the text contains omissions which make it logically imper- fect, the reason is more often that the case in question has not occurred to the mind of the legislature, than that there exists with respect to it a real intention which by inadver,- tenoe has not been expressed. What, then, is the rule of interpretation in such oases? May the courts correct and supplement the defective sententi-a legis, as well as the defective litera legis? The answer is that they may and must. If the letter of the law is logically defec- tive, it must be made logically perfect, and it inakes no differ- ence in this respect whether the defect does or does not coirne- spoiid to one in the sententia legis itself. Where there is a genuine and perfect intention lying behind the defective text, the courts must ascertain and give effect to it; where thea-e is none, they must ascertain and give effect to the intention which the legislature presumably would have had, if the ambiguity, inconsistency, or omission had been called to mind. Digitized by Microsoft® § 54] LEGISLATION. 141 This may be regarded as the dor-marvi or lat&nt intention of the legislature, and it is this which must be sought for as a substitute in the absence of an}^ real and conscious intention.^ In the case of the sententm, as fomieriy in that of the liter a legis, it is to be noticed that the only defects which the courts may remedy are logioal defects. That the intention of the legislature is ethically defective, is not a fact with which the judicature has any concern. The sententia legis might have been wiser, juster, or more expedient, had it been wider, op narrower, or other than it actually is. But ,the courts have no authority to detract from it, add to it, or alter it, on that account. It may be that had a certain case been brouglit to the notice of the legislature, the statute would have , been extended to cover it; but so long as it is logically complete and workable without the inclusion of this case, it must stand as it is. If a statute makes a provision as to sheep, whicih in common sense ought to have been extended to goats also, this is the affair of the legislature, not of the courts. To correct the sententia legis on logical grounds is a true process of interpretation; it fulfils the ultimate or dormant, if not the immediate or conscious intention of the legislature. But to correct it on ethical grounds is to assume and exercise legislative power. SUMMAEY. Legislation — Its three senses: .„ . „ , , . ( Direct legislation. 1. All forms oi law-making i -^ ,. , , . , ,. ! indirect legislation. 3. All expression of the will of the legislature. 3. The creation of law by way of authoritative declaration. ( Enacted — Statute — Written. ( Unenacted — Common — Unwritten. 1 In the interpretatioa of contracts, no less than in that of statutes, there is to be noticed this distinction between the real and the latent intention of the parties. The difficulty of construing a contract arises more often from the tact that the partie3 had no clear intention at all as to the particular point, than from the fact that they faRed to express an intention which they actually had. Digitized by Microsoft® 142 • LEGISLATION. [§ 54 r Supreme — by the Imperial Parliament. -r . , ,. J 1. Colonial, ivegislation < i n n x- ° j 12. Executive. ^ Subordinate < 3. Judicial. 4. Municipal. 0. Autonomous. Historical relation of legislation to other sources of law. Superiority of legislation over other sources of law. Codification. / Grammatical — based on the litera legis exclusively. Interpretation | ^-^^^^ ^^^-^ logically ( Ambiguous. ' Logical ' defective. | Inconsistent. i ' Incomplete. \ Litera legis containing self-evident error. Strict and equitable interpretation. JExtensivo and restrictive interpretation. Digitized by Microsoft® ( 143 ) CHAPTER VIII. CUSTOM. § 55. The Early Importance of Customary Law. The importance of custom as a source of law continuously; diminishes as the legal system grows. As an instrument of the development of English law iu particular, it has now almost ceased to operate, partly because it has to a large ex- tent been superseded by legislation and precedent, and -partly heoause of the very stringent limitations imposed upon ita law-creating efficacy, the legal requirements of a valid custom being such as few customs can at the present day conform to. In earlier times, however, it was othenvise. It was long the received and official theory of English la^v that whatever was not the product of legislation had its source in custom. Law was either the written statute-law, or the un-written, common, or customary law. Precedent was not conceived as being itself a legal source at all, for it was held to operate only' as e\idence of those customs from which the common law pro- ceeded. Lex et consuetudo Angliae was the familiar title of our legal system. The common lasv of the realm and the common custom of the realm were synonymous expressions. It may be gravely doubted whether at any time this doctrine -expressed the truth of the matter, but it is clear that it was much truer in the early days of our legajl history, than it sub- sequently became; and it remained the accepted theory long after it had ceased to retain any semblance of the truth. For- some centuries past, the true sources of the great bulk of* our law have been statute and precedent, not statute and custom, and the common law is essentially case-law, not CListomaary law. Yet we find Hale^ in the seventeenth century, and 1 Hale's History of the Common Law, chap. ii. Digitized by Microsoft® 144 CUSTOM. [§ 55 Blackstone in the eighteenth, laying down the older doctrine as still valid. In the words of Blackstone: i " The munici- pal law of England . . may with sufficient propriety T>e divided into two kinds; the lex non scripta, the unwritten, or oommon law; and the lex scripta, the written, or statute law. The lex non scripta, or unwritten law, includes not only general customs, or the common law properly so called; but ajfio the particular customs of certain pai-ts of the kingdom; and likewise those particular laws that are by custom ob- served only in certain courts and jurisdictions." Such lan- guage is an echo of the past, not au accurate account of the facts of the present day. Nevertheless even now custom has- not wholly lost its efficacy. It is still one of the legal sourc€ls of the law of England, and an examination of its nature and operation pertains to modern juridical theory, and not merely to legal histor)' or antiquities. § 56. Reasons for the Reception of Customary Law. The reasons for attributing to custom the force of law have been already briefly indicated in relation to legal sources in general. We have seen that, in the first place, custom is the embodiment of those principles which have commended them- eelves to the national conscience as principles of truth, justice and public utility. The fact that any rule has alreadj- the sanction of custom raist>s a presumption that it deserves to obtain the sanction of law also. Tia trita via tut a. Speaking generally, it is well that the courts of justice, in seeking for those principles of right which it is their dutj' to administer, should be content to accept those which have already in their favour the prestige and authority of long acceptance, rather than attempt the more dangerous task of fashioning a set of principles for themselves by the light of nature. The national conscience may well be accepted by the courts as an authori- tative guide; and of this conscience national custom is the external and visible sign. Custom is to society what law is to the state. Each is the 1 Blackstone, I. 63. Digitized by Microsoft® § 56] CUSTOM. ' 145 exprowjion and realisation, to the measure of men's insight and ability, of the principles of right and justice. The law embodies those principles as they commend themselves to the incorporate oommunity in the exercise of its sovereign power. Custom embodies them as acknowledged and approved not by the power of the state, but by the public opinion of the society at large. Xothing, therefore, is more natural than that, when the state begins to e\olve out of the society, the law of the state should in respect of its material contents be in great part modelled upon and coincident with the customs of the society. When the state takes up its function of a;dj- ministering justice, it accepts as true and valid the rules of right already accepted by the society of which it is itself a product, and it finds those principles already realised in tlie customs of the realm. As those customs develop and alter with chang-e of circumstance and the growth of public en- lightenment, the state is wisely content to allow such develop- ment and modification to reflect themselves in the law which it adminisbers. This influence of custom upon law, however, is oharact>eristio rather of the beginnings of the legal system than of its mature growth. When the state has grown to its full strength and stature, it aOC{uires more self-confidence, and seeks to conform national usage to the law, rather than the law to national usage. Its ambition is then to be the source not; merely of the form, but of the matter of the law also. But in earlier times it has perforce to content itself with conferring the form and nature of law upon the material contents supplied to it by custom. A second ground of the law-creative efiicacy of custom is to be found in the fact that the existence of an established, usage is the basis of a rational expectation of its continuanoa in the future. Justice demands that, unless there is good reason to the oontraiy, men's rational expectations shall, so far as possible, be fulfilled rather than frustrated. Even if customs are not ideally just and reasonable, even if it can be shown that the national oonecience has gone astray in estab- lishing them, even if better rules might be formulated aui.l enforced by the wisdom of the judicature, it may yet be S..T. 10 Digitized by Microsoft® 146 CUSTOM. r§ 56 wise to accept them as they are, rather than to overturn! all those expectations which are based upon established practice. § 57. The Requisites of a Valid Custom. In order that a custom may be valid and operative as a source of law, it must conform to certain requirements laid down by law. The chief of these are the following: — 1. Reasonablmiess . — A custom must be reasonable. Mains Hsus ah-olendus est.'^ The authority of usage is not absolute, but conditional on a certain measure of conformity with justice and public utility. It is not meant by this that the courts are at liberty to disregard a custom whenever they are not satisfied as to its absolute rectitude and wisdom, or whenever they think that a better rule could be formulated in the exercise of their own judgment. This would be to de- prive custom of aU authority, either absolute or conditional. The true rule is that a custom, in order to be depri\ed of legal efficacy, must be so obviously and seriously repugnant to right and reason, that to enforce it as law would do more mischief than that which would result from the overturning of the expectations and arrangements based on its presumed continuance and legal validity. We shall see, when we come to discuss the theory of precedent, how the authority of judicial decisions is, in general, similarly conditional rather than absolute; a precedent which is plainly and seriously unreasonable may be overruled instead of followed. We are told in the old books that a similar rule obtains in respect of the authority of acts of Parliament themselves. It was once held to be good law, that an unreasonable act of Parliament was void. 2 This, indeed, is no longer so; for the law-creating authority of Parliament is absolute. Certain forms of sub- 1 Co. Litt. 141 a; The Case of Tanistry, Dav. Eep. 32; Blackatone, I. 77. - " H any general custom were directly against the law of God, or if any .statute were made directly against it, . . . the custom and statute were void." Doctor and Student, Dial. I. oh. 6. See also Bonham's Case, § Co. Eep. 118 a; Coke's 2nd Inst. 537; Hobart, 87; Blackstone, I. 31; Pollock and ilaitland, History of English Law, I. 491, Ist ed.; Pollock, Juris- prudence, pp. 262-267, 2nd ed. Digitized by Microsoft® § 67] CUSTOM. 147 ordinate legislation, however, are still subject to the rule in question; an unreasonable by-law, for example, is as void and unauthoritative as an unreasonable custom or precedent. 2. Opinio neoessitati». — The second requisite of a valid custom is that which commentators on the civil law term opinio necessitatis.'^ By this is meant the conviction on the part of those who uso a custom that it is obligatory, and not merely optional.- Custom, merely as such, has no legal authority at all; it is legally eifectivc only because and in soi far as it is the expression of an underlying principle of right approved hy those who use it. When it is based on no such ethical conviction or opinio necessitatis — when those who use it hold themselxes free to depart from it if they will — it is of no legal significance. The only customs which are a source of law are those which are observed by the community as determining the rights and duties of its members. 3. Conformity with statute-lair. — The third condition of legal validity is that a custom must not be contrary to an act of Parliament. We shall see that certain forms of custom possess not merely constitutive, but also limited abrogative power, being capable of derogating from the old law, as well as of creating new. But no custo^m of any sort is of an-;- validity as against statute-law. The authority of legislation is in English law higher than that of custom. By no length of desuetude can a statute become invalid, and by no length of contrary usage' can its pvo\isions be modified in the -smallest particular. The common law will yield to- imme- morial usag«, but the enacted law stands for ever.^ It must not be supposed that this rule is one of necessity, derived by logical inference from the nature of things. It is nothing more than a positive principle of the law of England, and a vei/y diSi.Tcnt rule was adopted by Roman law,"'' and by th.o ^•a^ious (Jontinontal systems derived from ' Dernbiu-g, Pandekten., I. sect. 27. 3. - Blackstone, I. 78. Suarez, de Legibus, VII. 14. 7: Ad oonsuetudinem ]iete,''«'ci-rium esso. ut eo animo et int.pntiono servetur, ut jus in postcTiim fiat. ' Blacketune, I. 76. Co. Litt. 113 a. ■* Quaro rocti«^imo otium illud revptiim est, ut \eg(^^ non solum suffragio legislatoris, sed etiam tacito r/jnoensu omnium per de.-iuetudinem abro'^entur. 10 i2'- Digitized by Microsoft® 14« CUSTOM. [§57 it. Thjere the recognised maxim is Lex posterior derogat priwi. The later rule prevails over the earlier, regardless of their respective origins. Legislation has no inherent superiority in this respect over custom. If the enacted law comes first, it can be repealed or modified by later custom; if the cus- tomary law is the earlier, it can be similarly dealt with by later enacted law. " If," says Savigny,^ " we consider cus^ toms and statutes with respect to their legal efficacy, we must' put them on the same level. Customary law may complete, modify, or rei>eal a statute; it may create a new rule, and' substitute it for the statutory rule which it has abolished." So Windscheid : - "The power of customary law is equal to that of statutory law. It may, therefore, not merely eupplei- ment, but also derogate from the existing law. And this is true not merely of rules of customary law inter se, but also of the relations of customary to statute law."^ 4. Immemorial antiquity. — The fourth requisite of the validity of a custom relates to the length of time during which it has been established. Here it is necessary to disi- tinguish between two kinds of customs, namely, those which are germ'al — the customs of the realm, prevailing throughout the whole territory governed by the legal system — and those which are local, being limited to some special part of the realm.* The rule of English law with respect to the neces- sary duration of a custom is that one which is merely local must have existed from time immemwial. In the case of other customs, however, there is no such requirement. It is D. 1. 3. 32. 1. Considerable doubt, however, exists as to tlie true relation between custom and statute in Roman law, owing to a passage in the Code (C. 8. 53. 2.) which, if read literally, oontliots witJi the doctrine expressed in the Digest, and declares custom to be destitute of lej;al effect if contrary to- statute-law. The ingenuity of German jurists has suggested nmnel-ous solutions of the apparent inconsistent, but with no convincing result. See Sa\'ig'iiy'3 System, vol. i. Appendix II. Vangerow, Pandckten, I. sect. 16. Demburg, Pandekten, I. sect. 28. 1 System, sect. 1'8. ~ Vol. i. feet. 18. 2 For the simOar doctrine of Scottish law, see Erskine's Institutes, I. 19. * It is to be noticed that the term custom is often used to mean particular custom exclusively. Custom (meaning local usage having legal validity) is opposed to law (meaning the common law of tlie land) . When we find in the books any proposition laid down as to the legal efficacy or requirements of cuatom, it must be carefully ascertained from the context whether the term does or does not extend to general customs. i Digitized by Microsoft® § 57] CUSTOM. 149 there sufficient that the usage should be definitely established, and its duration is immaterial. A local custom must make up for the limited exteait of its application by the long duratiqu ■of its existence, but other customs derive from their generality such a measure of authority as does not require to be supple- mented by length of days. We shall see later, how the idea of immemorial custom was •derived by the law of England from the canon law, and by the canon from the civil law. Time immemorial, or time whereof the memory of man runs not, means in the oivil an'd canon law, and in the systems derived therefrom, and origin- ally meant in England also, time so remote that no living man can remember it, or give evidence respecting it. Custom was immemorial, when its origin was so ancient that the beginning of it was beyond human memory, eo that no testimony -^vas •available as to a time when it did not as yet exist. ^ In the thirteenth century, however, a very singular change took place in the meaning of the term. The limit of human memory ceased to be a question of fact, and was determimed by a very unreasonable rule of law whioh still remains in force. In consequence of the interpretation put by the judge* upon the Statute of Westminister I., passed in the year 1275, it became an established legal principle that the time of memory reached back as far as the fommencement of the reign of Richard I. and no further. From that day to this the law has remained unaltered. The discordance between the memory of man as it is in fact, and as it is in law, has been steadily growing with the lapse of years, so that at the jTreseut day the law of England imputes to living men a faculty of remem- brance extending back for seven centuries. There is perhaps no more curious example of the conservatism of our law. 2 1 Both in English and foreign law, however, the time of memory was ex- tended by the allowance of trjidition within defined limits. A witness might testify not only to that which he had himself seen, but to that which he had been told by others who spoke of their own knowledge. B. 22. 3. 28. Bracton f. 373 a'. 318 b. By French law time of memory wa.s held to extend for one hundred years. Pothier, De la Prescription, sects. 278-288. - The statute of Westminster I. c. 39, imposed a limitation upon actions for the recovery of land. It provided that no such action should lie, unless the claimant or his predecessor in title had had po?ise?sion of the land claimed at some time 8ubsec|uent to the accession of Richard I. Tlie previous .common Digitized by Microsoft® l'^*^* CUSTOM. [§ 57 The rule, therefore, that a particular custom is invalid unless immemorial means in practice this: that if he who disputes its validity can prove its non-existence at any time between the present day and the twelfth centurj-, it will not receive legal recognition. It is not necessary for the upholder of it to pro\'e affirmati\el\- its existence during the whole of that period. If he can prove that it has existed for a moderate period, say twenty years, from the present day, this will raise a presumption of its immemorial antiquity, which must be rebutted by him who disputes it.^ It is not difficult to understand the reason which induced the law to impose this stringent limitation upon the efficac,^-, of local customs. It was designed in the interests of a uni- form system of common law for the whole realm. Had all' manner of usages been recognised without any such limita- tion, as ha\ ing the force of special law, the establishment and maiutenauoe of a sygtem of common law would have been rendered all but impossible. Customary laws and customary rights, infinitely various and divergent, would have grown up 80 luxuriantly, as to have choked that uniform system of law and rights which it was the purpose of the royal courts of justice to establish throughout the realm. '- laTv rule of limitation for .such actions was no other than the rule as to time immemorial. At common law the claimant had to prove his title and his seisin by tlie testimony of liring: men; therefore he or his predecessors must hare beca in possession within time of human memoi-y. The enactment in question was accordingly construed as laying- down a statutory definition of the terra time of memory, and this supposed statutory definition was accepted by the courts as valid in all departments of the law in which the idea of time immemm'ial was relevant. See Blackstone, II. 31; Littleton, sect. 170. 1 2t. V. Jo/iff e. 2 B. & C. 54; Bn/rnit v. Foot, L. R. 3 Q. B. 497; Lmr- re,we v. Ifitc/:'. L. E. 3 Q. B. 521; 'Simpsoiiv. Wells, L. R. 7 Q. B. 214. - In limiting the requirement of immemorial antiquity to local customs, we have, for the sake of simplicity, 'spoken somewhat more absolutely than the present state of the authorities warrants. The more common, and, it is believed, the better opinion is that the law is as stated in the text. There is, however, some authority for saying' that the same requirement exists in the case of certain general customs also. In Crouch v. Credit Fonder, L. R. 8 Q,. B. 374, it was held that modern mercantile custom was powerless to render an English instrument negotiable, although it is well settled tliat foreign instruments, such as the bonds of foreign governments, may be made negotiable in this way. Gorffier v. 3Ilerille, 3 B. & C. 45. The authority, however, of the case in question is exceedingly doubtful. See Goodiriii v. Jiolifiit.i. L. E. 10 Ex. 337; Brehn-nnnlrwd F.rploratlon Co. v. London Trading Bnitl, (1&98) 2 Q. B. 658; Edehtehi- v. Schider, (1902) 2 K. B. 144; L. Q. R. XV. 130 and 245. There is no doubt that a great part of Digitized by Microsoft® §57] CUSTOM. 151 Origin of the rule as to time of memory. — The requirement of imme- morial antiquity was introduced into the English law courts of tho twelfth or thirteenth century from the canon, law. In two respecta the Canonists developed and rendered more definite the somewhat vague and indeterminate theory of customary law which we find in the writings of the Eoman lawyers. In the first place, clear recognition was accorded to the distinction between jus commime and con-iuelii- dines, the former being the common, general, or written law of the whole Church, while the latter consisted of the divergent local and personal customs which were added, to, or substituted for the jus commune in particular places or in respect of particular persons. This nomenclature, with the conceptions expressed by it, passed from the canon law to the law of England. In the second place the Canonists attempted to supply a defect of the civil law by laying down a fixed rule as to the necessary duration of customs. They determined that no consuetudo was to be held valid, so as to derogate from the jus commune, unless it wasi prae- scripta, that is to say, unless it had endured during the legal period of prescription. Consuetudo praescripta praejudicat juri communi.^ What, then, was the period of prescription thus requiredr" On this point we find no agreement among the doctors, for there were several different forms of prescription known to Roman law, and there was no unanimity among the Canonists in the selection of any one of them as a test of the validity of custom. Many favoured the adoption of the ordinary decennial prescription of Eoman land law, and held that a custom must have endured for ten years at least, but need have lasted no longer.^ Others demanded forty years, since this is the prescrip- tion required as against the Church by the legislation of Justinian.' At one time, however, there was a widely held opinion that the true time of prescription required to enable a custom to derogate from the common law of the Church was time immemorial. Ilia consuetudo praejudicat juri, cuius non exstat memoria hominum.^ This conception of time of memory as a period of prescription was derived from the civil law. Immemorial prescription was there a mode of acquiring servitudes. Ductus aquae cuius origo memoriam \ our mercantile law has been derived from modem mercantile custom, and wo may assume with some confidence that such custom still retains the law- creating efficacy which it formerly possessed. 1 Decretals,.!. 4. 8. Gloss. (Ed. of 1671. Vol. ii. p. 92). Secundum jus canonicum non valet consuetudo, nisi praescripta ait et rationabilis. Decrc- tum, Dist. I. 4. Gloss. (Vol. L p. 3). iVd hoe ergo ut consuetudo juii communi praejudicet, requiritur primo quod rationabilis sit, et quod sit praescripta. Decretals, I. 4. 11. 8. Gloss. (Vol. ii. p. 96). 2 Suarez, De Legibus, VII. 15. 5. ■> Novel. 131. ch. 6. 1 Decretals, I. 4. 11. Gloss. (Vol. il. p. 96). Tlla consuetudo praejudicat juri, quae excedit hominum memoriam. Doerotum, Dist. VIll. c. ".Gloss. '(Vol. i p. 2.5). Digitized by Microsoft® 152 CUSTOM. [§ 57 excessit, jure constituti loco habetur.^ The Canon la-fr aiiopt«d this rule, and made a more extensive use ol it. Immemorial prescription became a supplementary mode of acquisition, available in all cases in which there was no shorter period of prescription to which a claimant might have recourse. From the canon law it passed into the laws of France, Germany, and England. ^ As already stated, then, many Canonists recognised time imme- morial not merely as a period of prescription, but as a condition of the validity of customary law. Suarez, writing at the end of the sixteenth century, tells us, indeed, in the course of an exhaustive examination of the theory of customary law, that in his day this doctrine wa? no longer received. ' Long before Suarez, however, it had established for itself a secure place in the law of England. The canonical principles of consuetudo rationahilis et praescripta and of tempus immemoriale were in the thirteenth century at the latest incorporated in our legal system by those ecclesiastical lawyers who laid the foundations of it. This, indeed, was the only form of prescription which obtained recog- nition from the common law. We find the rule settled with perfect definiteness in the earliest Year Books of Edward I.''' 5. Cmiformity irifh the common laic. — The fifth and last requirement of a \-alid. custom is that, unless immemorial, it must be consistent with the common law. That it must be consistent with statute-law is, as we have already seen, a rule ajjplicable to all customs whatever, whether immemorial or not. That it must be consisti^nt with the common law is a rule applicable onlv to recent customs, and not to tlio~e wliioh have the prostig-e and authority of immemorial antiquity. ^Modern custom possesses constitutive, but no abrogative power; it must operate in the spaces left vacant by the law already established; it may supplement the law, but cannot derogate from it. Immemorial custom, on the other hand, can destroy as well as create, so far as the common law is coneenied; though as against the statute-law it is as powerless as the most ephemeral usage. ^ 1 D. 43. 20. 3. 4. Fossam jure faetam aiit cuius memoria non ex.stat. D. 39. 3. 2. 7. - Pothier, De la Prescription, sects. 278-288; Baudry-Lacantinerie, De la Prescription, sects. 12, 21; Windsclieid, I. sect. 113. -> Suarez, De Legibus, VII. 1.5. 2, .Vliqui enim anticiui immemoriale tempus postulabant, tamen sine fundamento, et ita relicta et antiquata est ilia sententia. 4 Y. B. 20 & 21 Ed. I. 136. As to the histoi-y of immemorial pre.scription see Die Lehre von der unvordenldichen Zeit, by Friedlander, 1843. ■> Littleton (sect. 169) tells us that: Consuetudo ex oerta causa rationabili Digitized by Microsoft® § 57] CUSTOM. 153 The combined effect of the various rules which %ve have con- sidered is to render custom less and less important as a source of new law. As the legal system develops, the sphere within which custom is operative grows gradually smaller. For, in the first place, custom cannot derogate from statute-law, and this latter tends progressively to absorb into itself the whole ■of the common law. In the second place, the requiremeait of immemorial antiquity precludes local custom from operating a.s an instrument of fresh legal growth. Such customs may now be proved and applied for the first time, but they cannot no's^■ for the first time come into existence. In the third place, all recent custom must be consistent with the law as already •established, whether common or statutory. As the law de- velops and completes itself, therefore, there is less and less room left for the constitutive operation of custom. There are fewer vacancies within which customary law may grow. It is for this reason that the growth of general customary law has already all but ceased. Until a comparatively recent date, ■■a. great part of mercantile law was so imperfectly developed as to leave very considerable scope for the operation of mer- cantile custom. The law as to negotiable instruments, for ■example, was chiefly customary law. But at the present day "Our mercantile law is so complete that it is only in compara,- tively rare cases that the custom of merchants has any oppoir'^ tunity of ser\dng as the ground of new principles. § 58. Conventional Custom. Custom which does not fulfil all the requirements hitherto ■considered by us does not necessarily fail of all legal effcot. Uisitata privat commuiiem legem. And to this Coke (113 a) adds by way of •conimentarj' the cajionical maxim: Consuetude praescripta et legitima vinnit legem. In Goochvin v. Roharts, L. R. 10 Ek. at p. 357, it is said: " We must by no means be understood as saying that mercantile usage, ho'wever extensive, should be allowed to prevail if contrai-y to positive law, including iix the latter such usages as having been made the subject of legal decision, and having been sanctioned and adopted by the courts, have become, by such adoption, part of the common law. To give effect to a usage which involves a defiance or disregard of the law would be obviously contrary to a fundamental principle. And we quite agree that this would apply quite as strongly to an attempt to set up a new usage against one which has TDCCome settled and adopted by the common law as to one in conflict with the more ancient rules of the common law itself." See also to the same cfpeofc JEdie V. East India Company, 2 Burr. 1216. Digitized by Microsoft® 154 CUSTOM. [§ 58 It cannot, indeed, operate as a source of law by virtue of its own inherent authority. Yet it may nevertheless become legally operative by being incorporated into agreements, through the taoit consent of those who make them. Customs so operative may be distinguished as conventiomil. It is a rule of English law, as well as of other systems, that where) a oontraet is made in any matter in respect of which an estab- lished custom exists, it must be intei-preted by reference to; tliat custom, and the jDarties must he deemed to have intended (in the absence of any expression of contrarj' intent) to adopt it as one of the terms of their agreement. In GontractibuK faeit-f veniant ea quae sunt moil's et cmsuel.uclmis.'^ For example, if a lease of agricultural land is made in any district in which there are established usages as to the modeL of agriculture and as to the relative rights and liabilities of lajidlor«:I and tenant, the parties raust bie taken to have agreed to those usages as terms of the bargain, unless they have exi- l>THjssl3" or implicitly shown an intention to the contrary. In the sam<_' way, a mercantile contract must be taken to incoi"^ porate any usages of trade which arc relevant to its subjeat- matter. In this manner customs which are not in themselA-es authoritative as sources of law or rights may become indirectly operative through the added authority of agreement. But the law and rights so produced are in reality conventional and not customary. It is sometim(\s not easy to determine whether a custom is operative directly and as such, or only indirectly as aooessory to a oontraet, and the distinction has not always been sufficiently adverted to. § 59. Theories of Customary Law. Si-i far we have been concerned rather with those positive rules of English law which determine the validity and effeQt of custom, than with the abstract theory of the matter. This poition of juridical theory, liowe\er, has been the subject of considerable discussion and difference of opinion, and it is not free from ai>parent difiieulties. Wo have to consider twcv opinions which differ materiall}' from that which is here- 1 Potliicr on Obligation.'^, sect. 95. Digitized by Microsoft® § 59] CUSTOM. 155 accepted as correct. The first of these is a cliaraotcri^tic feature of foreign and more especially of German jurispru- dence, its reception being chiefl}' due to the influence of Puchta and Savigny. It essentially consists in this, that custom is rightlj" to be oonsidored as a formal, and not merely as a; material source of l&v,'. According to this doctrine, custom does itself confer the force and validity of law upon the principles embodied in it. It does not merely provide the material contents which derive their validity as law from the will of the state. It operates directly through its own in.- herent force and authority; not indirectly by reason of its reooguition and allowance by the supreme authority and force of the state. The wiR of the state is not admitted to be the exclusive source of legal validity. It has no jDre-eminencts in this respect above the wiU of the people, as manifested in national usage. Custom is regarded as the expression of the national will and conscience, and as such it confers immedi- ately the authority of law upon all principles approved bj- it. The will of the state is simplj- a special form of the popular will, and these are of equal authority. Customary law, there- fore, has an existence independent of the state. It will be enforced by the state through its cooirts oi justice becauise it is already law; it is not because it will be so enforced, that it is law. Thus it is said by Arndts/ a German jurist of repute; " Customary law contains the ground of its validity in itself. It is law by virtue of its own nature, as an expression of the general consciousness of right, not by virtue of the sanction, express or tacit, of any legislature." So Windscheid:^ "In custom is manifested the conviction of those who use it that such custom is law (Eecht), and this conviction is the source of the authority and validity of customary law. For the ultimate source of all positive law is national reason. . And this -jiational reason can establish law in two different ways, namely, mediately and immediately. Mediately, through representation, it creates law by means of legislation. Immediately, it creates law by means of custom." Notwithstanding the credit of the great names by which this theory is sanctioned, it is rightly and all but unani- moasly rejected by English jurists. Custom is a material, not 1 Enoyklopadie, sect. 20. ^ Pandektcnrecht, I. eoct. 15. Digitized by Microsoft® 156 CUSTOM. [§ 59 a formal source of law. Its only function is to supply the principles to which the will of the state gives legal force. Law is law only because it is applied and enforced by the state, and where there is no state there can be no law. The popular conscience is in itself as powerless to establisli or alter the law of the laud, as i;t is to deal in like fashion with the laws of nature. From custom, as from any other sourc-e, the state may draw the material contents of the rules to which it gives tlie form and nature of law, but from no other source than the will of the state itself can this form or nature b© itself derived. A second theory of customary law is that wliich we maj^ term the Austinian, as having been advanced by Austin, and generally received by his followers. Austin rightly repudi- ates the German theory on the ground, already indicated, that custom is not a formal but merely a material source of law. The rejection of this and other allied confusions of thought is, indeed, one of the great services which he and his school have rendered to legal science. Nevertheless his own theory can- not be regarded as wholly satisfactory. For he in his turn confounds the legal and the historical sources of the law, and erroneously regards custom as one of the latter, rather than as one of the former. He "considers tiiat the true legal source of customary law is to be found in the precedents in which customs receive for the first time judicial recognition and enforcement. Customary law is for him simply a variet\' of case-law. It is case-law in which pre-existing customs have served as the historical sources from wliich the courts have drawn the matter of their decisions. The judges arc eon- ceivi'd as basing their judgments upon custom, just as, on other occasions, they may base them on .1 ustinian s Digest or on the law of nature. It follor^vs from this that a lustom does not acquire the force of law until it has actually eomo to the notice of the courts and received judicial apjiroval and application. If it is never disputed, and tlierefore never requires enforcement, it never acquires the force of hiw at all. "Law styled customary," says Austin,^ "is not to be 1 Austin, p. 555, 3rd ed. An able and forcibledefenee of the .Vii^rinian jiosition -will be found in Brown's Austinian Theory of L:iw, Excur^u^ D, — •' ( 'uctomary Law in Modefpjjg^^.^^^^^^ § 59] CUSTOM. 157 considered a distinct kind of law. It is nothing but judiciary lawv founded on an anterior custom." This opinion, however, seems inconsistent with the estab- lished doctrines of English law as to this m^atter. Custoim; is law not because it has been recognised by the courts, but because it n-ill be so recognised, in accordance with fixed rules- of law, if the occasion arises. Its legal validity is not dependent on the accidents of litigation. A custom does not wait to put on the nature of law until dt has been actually enforced by the courts, any more than an act lof Parliamfent or an agreement is destitute of legal efficacy until it lias. required and received judicial recognition. This recognition may make a custom part of the common law, as being thene- after entitled to judicial notice, but it was part 'of the Zfljw ali-eady. The Austinian theory forgets that the operation of custom is determined by fixed legal principles, just as much a~. the operation of precedent itself. These twi> are co-ordinate legal sources, and each operates independently of the other. Custom does not enter the law through p^eoe- dent, any more than precedent through custom. A custom is taken as the ground of a judicial decision, just as an act of Parliaanent is so taken. In each case the law has been already made, and the judicial decision merely applies it. § 60. Custom and Prescription. The relation between custom and prescription is such a.s to demand attention here, although the theory of the latter will receive fivthsir consideration in another place. Custom is long usage operating as a source of law; prescription is long usage operating" as a source of rights. That all the lands in a certain borough have from time immemorial, on the death of an owner intestate, descended to his youngest son, is a custom, and is the source of a rule of special and customary law ex- cluding in that borough the common law of primogeniture. But that John Styles, the owner of a certain farm, and all his predecessors in title, from time immemorial have used a way over the adjoining farm is a prescription, and is the source of a prescriptive right of way vested in John Styles. Regarded historically, the law of prescription is merely a branch of the law of custom. A prescription was originally conceived as a personal custom, that is to say, a custom limited to a particular person and his ancestors or predecessors in title. It was distinguished from Digitized by Microsoft® 168 CUSTOM. [§ 60 a local custom, which was limited to an individual place, not to an individual person. Local and personal customs were classed as the two species of particular customs, and as together opposed to the general customs of the realm. Coke distinguishes as follows between custom (i.e., local custom) and prescription.^ " In the common law, a pre- scription which is personal is for the most part applied to persons, being made in the name of a certain person and of his ancestors, or those whose estate he hath; or in bodies politique or corporate and their predecessors. And a custome, which is local, is alleged in no person, but layd within some manner or other place." Since prescription and custom were thus regarded as two ,-pecies of the same thing, we find, as might be expected, that they are originally governed by essentiallj' similar rules of law. The requisites of a valid prescription were in essence the same as those of a valid custom. Both must be reasonable, both must be immemorial, both must be con- sistent with statute-law, and so on. It was only by a process of gradual ■difPerentiation, and by the later recognition of other forms, of prescrip- tion not known to the early law, that the difference between the creation of customary law and the creation of prescriptive rights has been brought clearly into view. In the case of custom, for example, the old rule as to time immemorial still subsists, but in the case of prescription it has been superseded by the statutory rules contained in that most unfortunate specimen of legislative skill, the Prescription Act. A prescriptive fight to light, for instance, is now finally acquired by enjoyment for twentj' years. Usage during this period is now an absolute title, instead of, as at common law, merely evidence of usage, •during time of memory. fSmiMAET. Historical importance of customary law. Keason?. for the recognition of customary law. Eequisites of a valid custom: 1. Eeasonableness. 2. Opinio necessitatis. 3. Consistency with statute-law. 4. Immemorial antiquity (unle.-s general). History of this rule. 5. Consistency with the common law (unless immemorial). Conventional customs. Theories of the operation of custom as a source of law: 1. Savigny's — custom a formal source. 2. Austin's — custom an historical source. Eelations between custom and proscription. 1 Co. Lift. 113 b. Digitized by Microsoft® ( 159 ) CHAPTER IX. PRECEDENT. § 61. The Authority of Precedents. The importance of judicial precedents has ahvays been a distinguishing characteristic of English law. The great bwly of the common or unAvritten law is almost entirely the pro- duct of decided eases, accumulated in an immense sericw of reports extending backwards with scarcely a break to the reign of Edward the First at the close of the thirteenth century. Orthodox legal theory, indeed, long professed to regard the common law as customary law, and judicial deci- sions as merely evidence of custom and of the law dorivvJ therefrom. This, however, was never much better than an admitted fiction. In jDractice, if not in theory, the common law in England has been created by the decisions of English judges. Neither Roman law, however, nor any of those modern systems which are founded upon it, allows any such place or authority to precedent. They allow to it no further or other influence than that which is possessed by any other expression of expert legal opinion. A book of reports and a text-book are on the same level. They are both evidences of the law; they are both instruments for the persuasion of judges; but neither of them is anything more.^ English law, on the other hand, draws a sharp' distinction between theni. A judicial precedent s2D<'i.iks in England with authority; it is not merely evidenci' of the law but a source of it; and the courts are bound to follow the law that is so established. It seems clear that we must attribute this feature of English law to the peculiarly powerful and authoritative position 1 The importance of reportod deiisions ha«, tiowever, been increasing^ in both France and < Jermany for some time, and Continental law showa a distinct tendency to follow the ex miple of English in this matter. Digitized by Microsoft® 160 PRECEDENT. [§ 61 which has been at all times oocupied by English judges. From the earliest times the judges of the king's courts have been a small and compact body of legal experts. They have worked together in harmony, imposing their own views of law and justice upon the whole realm, and establishing thereby a single homogeneous system of common law. Of this system they were the creators and authoritative interpreters, and they did their work with little interference either from local custom or from legislation. The centralization and concentration of the administration of justice in the royal courts gave to the royal judges a jjower and prestige which would have been unattainable on any other system. The authority of prece- dents was great in England because of the power, the skill, and the professional reputation of the judges who made them. In England tlie bench has always given law to the bar; in Rom© it was the other way about, for in Eome there was no permanent body of professional judges capable of doing the work that has been done for centuries in England by the royal courts. § 62. Declaratory and Original Precedents. In proceeding to consider the various kinds of precedents and the methods of their operation, we have in the first place to distinguish between those decisions which are creative of the law and those which are merely declaratory of it. A declaratori/ precedent is one which is merely the application of an already existing rule of law; an original precedent is one which creates and applies a new rule. In the former case the rule is applied because it is already law; in the latter case it is law for the future because it is now applied'. In any well-developed system such as that of modern England, declaratory precedents are far In'ore numerous than those of the other class; for on inbst points the law is already settled, and judicial decisions are therefore commonly mere declara- tions of pre-existing principles. Original precedents, how- ever, though fewer in number, are greater in importance. For they alone develojD the law; the others leave it as it was, and their only use is to serve as good CA-idence of it for thto Digitized by Microsoft® § 62] PRECEDENT. 161 future. Unless required for this purpose, a merely declara- tory decision is not perpetuated as an authority in the law reports. When the law is already sufficiently well evidenced, as when it is embodied in a statute or set forth with fulness and clearness in some comparatively modern case, the report- ing of declarator^' decisions is merely a needless addition to the great bulk of our case-law. It must be understood, however, that a declaratory prece- dent is just as truly a source of law as is one belonging to the other class. The legal authority of each is exactly the same. Speaking generally, the authority and legal validity of a precedent do not depend on whether it is, or is not, an accurate statement of previously existing law. Whether it is or is not, it ma^- establish as law for the future that which it now declares and applies as law. The distinction between the two kinds turns solely on their relations to the law of the past, and not at all on their relation to that of the future. A declaratory precedent, like a declaratory statute, is a source of law, though it is not a source of neiv law. Here, as else- where, the mere fact that two sources overlap, and that the same legal principle is established by both of them, does not deprive either of them of its true nature as a legal source. Each remains an independent and self-sufficient basis of the rule. We have already referred to the old theory that the com- mon law is customary, not case-law. This doctrine may be expressed by saying that according to it all precedents are declaratory merely, and that their original operation is not recognised by the law of England. Thus Hale says in his History of the Common Law: — " It is true the decisions of courts of justice, though by virtue of the laws of this realm they do bind as a law between the parties thereto, as to tho particular case in question, till reversed by error or attaint^ yet they do not make a law properly so called: for that only the king and parliament can do; yet they have a great weight and authority in expounding, declaring, and poiblishing what the law of this kingdom isj especially when such decisions hold a consonancy and congruity with resolutions and decisions of former times." ^ 1 Hale's History of tie Common Law, p. S9 (ed. of 1820). S.J. 31 Digitized by Microsoft® 162 PRECEDENT. [§ 62 Hale, however, is evidently troubled in mind a^s to the true 230sition of precedent, and as to the sufficiency of the de- claratory theory thus set 'forth by him, for elsewhere he tells us inconsistently that there are three sources of English law, namely, (1) custom, (2) the authority of Parliament, and (3) " the judicial decisions of courts of justice consonant to one another in the series and succession of time." ^ In the Court of Chancery this declaratory theory never pi-evailed, nor indeed could it, having regard to the known history of the sytem of equity administered by that court. There could be no pretence that the principles of equity were founded either in custom or legislation, for it was a perfectly obvious fact that they had their origin in judicial decisions. The judgments of each Chancellor made law for himself and his successors. " It must not be forgotten," says Sir George Jessel, " that the rules of courts of equity are not, like the rules of the common law, supposed to have been established from time immemorial. It is perfectly well known that they have been established from time to time — altered, improved, and refined from time to time. In many cases we know the names of the Chancellors who invented them. No doubt they were invented for the purpose of securing the better administration of justice, but still they were invented." ^ Both at law and in equity, however, the declaratory theory must be totally rejected if we are to attain to any sound analysis and explanation of the true operation of judicial decisions. We must admit openly that iDreoedents make law as well as declare it. We must admit further that this effect is not merely accidental and indirect, the result of judicial error in the interpretation and authoritative declaration of the law. Doubtless judges have many times altered the law while endeavouring in good faith to declare it. But we must recognise a distinct law-creating power vested in them and openly and lawfully exercised. Original j)recedents are the outcome of the intentional exercise hy the courts of their privilege of developing the law at the same time that they administer it. 1 Hale's History of the Common Law, p. 88. 2 In re Hnllett, 13 Ch. D. at p. 710. Digitized by Microsoft® § 63] PRECEDENT. 163 § 63. Authoritative and Persuasive Pfecedents. Decisions are further divisible into two classes, which may be distinguished as authoritative and persuasive. These two differ in respect of the kind of influence which they exercise upon the future course of the administration of justice. An authoritative precedent is one which judges must foUojW whether they approve of it or not. It is binding upon then; and excludes their judicial discretion for the future. A persuasive precedent is one which the judges are under no obligation to follow, but which they wiU take into considera- tion, and to which they will attach such weight as it secnisi to them to deserve. It depends for its influence upon its own merits, not upon any legal claim which it has to reoog- nitioii. In other words, authoritative precedents are legal sources of law, while persuasive precedents are merely his- torical. The former establish law in pursuance of a definite rule of law which confers upon them that effect, while the latter, if they succeed in establishing law at all, do so indi- rectly, through s'erving as the historical ground of some later authoritative precedent. In themselves they have no legal force or effect. The authoritative precedents recognised by English law are the decisions of the superior courts of justice in England. The chief classes of persuasive precedents are the following: (1) Foreign judgments, and more especially those of American courts.^ (2) The decisions of superior courts in other portions of the British Empire, for example, Irish courts. 2 (3) The judgments of the Privy Council when sitting as the final court of appeal from the Colonies. ^ (4) Judicial ctbcta, that is to say, statements of law which go beyond the occasion, and lay down a rule that is irrelevant 1 Castro V. S., 6 A. O. p. 249; Scaramanga v. Stamp, 5 C. P. D. p. 303. 2 In re Parsons, 45 Ch. D. 62: "Decisions of the Irish Courts, though entitled to the highest respect, are not binding on English judges." 3 In Leash i. Scott, 2 Q. B. D. 376, at p. 380, it is said by the Coarc of Appeal, speaking of such a decision: " We are not bound by its authority, but we need hardly say that we should treat any decision of that tribunal with the greatest respect, and rejoice if we oould agree with it." 11 (2) Digitized by Microsoft® 164 PRECEDENT. [§ 63 or unnecessary for the purpose in hand. We shall see later that the authoritative influence of precedents does not extend to such obiter dicta, but they are not equally destitute of persuasive efficacy. ^ § 64. The Absolute and Conditional Authority of Precedents. Authoritative precedents are of two kinds, for their autho- rity is either absolute or conditional. In the former case the decision is absolutely binding and must be followed without question, however unreasonable or erroneous it may be considered to be. It has a legal claim to implicit and unquestioning obedience. Where, oh the other hand, a pre- cedent possesses merely conditional authority, the courts possess a certain limited power of disregarding it. In all ordinary cases it is binding, but there is one special case in which its authority may be lawfully denied. It may be over- ruled or dissented from, when it is not merely wrong, but so clearly and seriously wrong that its reversal is demanded in the interests of the sound administration of justice. Other- wise it must be followed, even though the court which fol- lows it is persuaded that it is erroneous or unreasonable. The full significance of this rule will require further consideration shortly. In the meantime it is necessary to state what classes of decisions are recognised by English law as absolutely, and what as merely conditionally authoritative. Absolute authority exists in the following cases: — (1) Every court is absolutely bound by the decisions of all courts superior to itself. A court of first instance cannot question a decision of the Court of Appeal, nor can the Court of Aptpeal refuse to follow the judgments of the House of Lords. (2) The House of Lords is absolutely bound by its own decisions. " A decision of this House once given upon a point of law is conclusive upon this House afterwards, and it is 1 Persuasive efficacy, similar in kind though much less in degree, is attri- buted by our courts to the civil law and to the opinions of the commentatore upon it; also to English and American text-books of tlie better sort. Digitized by Microsoft® § 64J PRECEDENT. 165 impossible to raise that question again as if it was res Integra and could be re-argued, and so the House be asked to reverse its own decision." ^■ (3) The Court of Appeal is, it would seem, absolutely bound by its own decisions and by those of older courts of co-ordinate authority, for example, the Court of Exchequer Chamber. 2 In all other cases save these three, it would seem that the authority of precedents is merely conditional. It is to be noticed, however, that the force of a decision depends not merely on the court by which it is given but also on the court in which it is cited. Its authority may be absolute in one court, and merely conditional in another. A decision of the Court of Appeal is absolutely binding on a court of first instance, but is only conditionally binding upon the House of Lords. § 65. The Disregard of a Precedent. In order that a court may be justified in disregarding a conditionally authoritative precedent, two conditions must be fulfilled. In the first place, the decision must, in the opini.on of the court in which it is cited, be a wrong decision; and it is wrong in two distinct cases: first, when it is contrary to. law, and secondly, when it is contrary to reason. It is wrong as contrary to law, when there is already in existence an established rule of law on the point in question, and the decision fails to conform to it. When the law is already settled, the sole right and duty of the judges is to declare and apply it. A precedent must be declaratory whenever it can be, that is to say, whenever there is any law to declare. But in the second place, a decision may be wrong as being contrary to reason. When there is no settled law to declare 1 London Street Tramways Company v. London County Council, (1898) A. C. 375, at p. 379. This is said to be so even when the House or Lorda is equally divided in opinion, so that the judgment appealed from stands unreversed and so authoritative. Beamish v. Beamish, 9 H. L. 0. p. 338; Att.-Gen. v. Dean of Windsor, 8 H. L. C. p. 392. As to the equal division of other courts, see The Vera Cruz, 9 P. D. p. 98. 2 Pledge v. Carr, (1895) 1 Ch. 51; Lavy v. London County Council, (1895) 2 Q. B. at p. 581, per Lindley, L..J. See, however, Mills v. Jennings, 13 C. D. p. 648. Digitized by Microsoft® 166 PKECEDENT. [§ 65 and follow, the courts may make law for the oeoasion. In so doing, it is their duty to follow reason, and so far as thev fail to do so, their decisions are wrong, and the principles involved in them are of defective authority. Unreasonable- ness is one of the vices of a precedent, no less than of a custom and of certain forms of subordinate legislation. It is not enough, however, that a decision should be con- trary to law or reason, for there is a second condition to be fulfilled before the courts are entitled to reject it. If the first condition were the only one, a conditionally authoritative precedent would differ in nothing from one which is merely persuasive. In each case the precedent would be effective only so far as its ,own intrinsic merits commended it to the minds of successive judges. But where a decision is autho- ritative, it is not enough that the court to whicli it is cited should be of opinion that it is wrong. It is necessary in innumerable cases to give effect to precedents notwithstanding that opinion. It does not follow that a principle once estab- lished should be reversed simply because it is not .as perfect and rational as it ought to be. It is often more important that the law should be certain than that it should be ideally perfect. These two requirements are to a great extent incon- sistent with each other, and we must often choose between them. Whenever a decision is depaxbed from, the certainty of the law is sacrificed to its rational development, and the evils of the uncertainty thus produced may far outweigh the very trifling benefit to be derived from the correction of the erroneous doc- trine. The precedent, while it stood unreversed, may have been counted on in numerous cases as definitely establishing the law. Valuable property may have been dealt with in reliance on it; important contracts may have been made on the strength of it; it may have become to a great extent a basis of expectation and the ground of mutual dealings. Justice may therefore imperatively require that the decision, though founded in error, shall stand inviolate none the less. Commmih error facif jus.'' 1 It is to be remembered that the overruling- of a precedent has a retro- spective operation. In this respect it is very different from the repeal or alteration of a statute. Digitized by Microsoft® § 65 J PRECEDEMT. 16T " It is better," said Lord .Eldon, " that the law should be certain than that everv judge should speculate upon improvements in it." 1 It follows from this that, other things being equal, a pre- oedent acquires added authority from the lapse of time. The longer it has stood unquestioned and unreversed, the more harm in the waj" of uncertainty and the disappointment of reasonable expectations will result from its re\-ersal. A decision which might be lawfully overruled without hesita- tion while" yet new, may after the lapse of a number of years acquire such increased strength as to be practically of absolute and no longer of merely conditional authority. This effect of lapse of time has repeatedly received judicial recognition. " Vie^-ed simply as the decision of a court of first instance, the autho- rity of this case, notwithstanding the respect due to the judges who decided it, is not binding upon us; but viewed in its character and practical results, it is one of a class of decisions which acquire a weight and effect beyond that which attaches to the relative position of the court from which they proceed. It constitutes axi authority which, after it has stood for so long a period unchallenged, should not, in the interests of public convenience, and having regard to the protection of private rights, be overruled by this court except upon very special, considerations. For twelve years and upwards the case has continued unshaken by any judicial decision or criticism." ^ " When an old decided case has made the law on a particular subject, the Court of Appeal ought not to interfere with it, because people have considered it as establishing the law and have acted upon it." ^ The statement that a precedent gains in authority with age must be read subject to an important qualification.. Up to a certain point a human being grows in strength as he grows in age; but this is true only within narrow limits. So with the authority of judicial decisions. A moderate lapse of time will give added vigour to a precedent, but after a still 1 SheddoH v. Goodrich, 6 Ves. 497. • Ptigh V. Golden Valley Railway Company, 15 Ch. D. at p. 334. 3 Smith V. Keal, 9 Q. B. D. at p. 352. See also In re JFal/is, 25 Q. B. D. 180; Queen v. Edwards, 13 Q. B. D. 590; Ridsdale v. Clifton, 2 P. D. 306; Fookes v. Beer, 9 A. 0. at p. 630: "We find the law to have been accepted as stated for a great length of time, and I apprehend that it is not now within our province to overturn it." Digitized by Microsoft® 168 PRECEDENT. [§ 65 longer tinn the opjjosite effect may be produced, not indeed directly, but indirectly through the accidental conflict of the ancient and perhaps partially forgotten principle with later decisions. Without having been expressly overruled or in- tentionally departed from, it may become in course of time no longer really (Consistent with the course of judicial decision. In this way the tooth of time will eat away an ancient precedent, and gradually deprive it of all its authority. The law becomes animated by a different spirit and assumes a different course, and the older decisions become obsolete and inoperative. To sum the matter up, we may say that to justify the dis- regard of a conditionally authoritative precedent, it must be erroneous, either in law or in reason, and the circumstances of the case must not be such as to make applicable the maxim. Community, error facit jus. The defective decision must not, by the lapse of time or otherwise, have acquired such added authority as to give it a title to permanent recognition not- withstanding the vices of its origin. The disregard of a precedent assumes two distinct forms, for the court to which it is cited may either overrule it, or merely refuse to follow it. Overruling is an act of superior jurisdiction. A precedent overruled is definitely and for- mally deprived of all authority. It becomes null and void, like a repealed statute, and a new principle is authoritatively substituted for the old. A refusal to follow a precedent, on the other hand, is an act of co-ordinate, not of superior juris- diction. Two courts of equal authority have no pow-er to overrule each other's decisions. Where a precedent is merely not followed, the result is not that the later authority is substituted for the earlier, but that the two stand side by side conflicting with each other. The legal antinomy thus produced must be solved by the act of a higher authority,, whicli will in due time decide between the competing prece- dents, formally overruling one of them, and sanctioning the other as good law. In the meantime the matter remains at laro-e, and the law uncertain. Digitized by Microsoft® § 66] PRECEDENT. 169 § 66. Precedents Constitutive, not Abrogative. We have already seen the falsity of the theory that all precedents are declaratory. We have seen that they possess ■a. distinct and legally recognised law-creating power. This power, however, is purely constitutive and in no degree abro- gative. Judicial decisions may make law, but they cannot alter it, for where there is settled law ah'eady on anj- point the duty of the judges is to apply it without question, and thej- have no authority to substitute for it law of their own making. Their legislative power is strictly limited to supply- ing the vacancies of the legal system, to filling up with new law the gaps which exist in the old, to supplementing the imperfectl}' developed body of legal doctrine. This statement, however, requires two qualifications. In the first place, it must be read subject to the undoubted power of the courts to overrule or disregard precedents in the manner already described. In its practical effect this is equivalent to the exercise of abrogative power, but in legal theory it is not so. The overruling of a precedent is not the abolition of an established rule of law; it is an authoritative denial that the supposed rule of law has ever existed. The precedent is so treated not because it has made bad law, but because it has never in reality made any law at all. It has not conformed to the requirements of legal efficacy. Hence it is that the over- ruling of a precedent, unlike the repeal of a statute, has retro- spective operation. The decision is pronounced to have been bad ab initio. A rejjealed statute, on the contrary, remains valid and applicable as to matters arising before the date of its repeal. The overruling of a precedent is analogous not to the repeal of a statute, but to the judicial rejection of a custom as unreasonable or as otherwise failing to conform to the Tequirements of customary law. In the second place, the rule that a precedent has no abro- gative power must be read subject to the maxim. Quod, fieri non debet, factum valet. It is quite true that judges ought to follow the existing law whenever there is any such law to follow. They are appointed to fulfil the law, not to subvert it. But if by inadvertence or otherwise this rule is broken Digitized by Microsoft® 170 PRECEDKNT. [§ 66 through, and a precedent is established which conflicts with pre-existing law, it does not follow from this alone that this decision is destitute of legal efficacy. For it is a well-known maxim of the law that a thing which ought not to have been done may nevertheless he valid when it is done. If, there- fore, a precedent belongs to the class which is absolutely authoritative, it does not lose this authority simply because- it is contrary to law and ought not to have been made. iSTo. court, for example, will be allowed to disregard a decision of the House of Lords on such a ground; it must be followed without question, whether it is in harmony with prior law or not. So also with those which are merely conditionally authoritative. We have already seen that error is only one of two conditions, both of which are requisite to n^nder allow- able the disregard of such a precedent, and in this respect it makes no difference whether the error consists in a conflict with law or in conflict with reason. It may well be better- to adhere to the new law which should not have been made than to recur to the old law which should not have been dis- placed. § 67. Grounds of the Authority of Precedents. The operation of precedents is based on the legal presump- tion of the correctness of judicial decisions. It is an appli- cation of the maxim. Res judicata pro veritate accipitvr. A matter once formally decided is decided once for all. The courts will listen to no allegation that they have been mis- taken, nor will they reopen a matter once litigated and deter- mined. That which has been delivered in judgment must be- taken for established truth. For in all probability it is true in fact, and even if not, it is expedient that it should be held as true none the less. Expedit reipublicae ut sit finis lifiiim. When, therefore, a question has once been judicialh" con- sidered and answered, it must be answered in the same way in all subsequent cases in which the same question again arises. Only through this rule can that consistency of judicial decision be obtained, which is essential to the proper adminis- tration of justice. Hence the effect of judicial decisions in ex- Digitized by Microsoft® § 67] PKECEUKNT. 1"I eluding the arhiirimn jiidicis for the future, in providing pre- detei-mined answers for the questions calling for consideration in future cases, and therefore in establishing new principles of law. The questions to which judicial answers are required are either questions of law or of fact. To both kinds the maxim', Res judicata pro v&ritate acci/pitiir, is applicable. In the case of questions of law, this maxim means that the court is pre- sumed to have correctly ascertained and applied the appro- priate legal principle. The decision operates, therefore, as proof of the law. It is, or at all events is taken to be, a declaratory precedent. If the law so declared is at all doubt- ful, the precedent will be worth preserving as useful evidence of it. But if the law is already clear and certain, the pre- cedent will be useless; to preserve it would needlessly cumber the books of reports, and it will be allowed to lapse into oblivion . In the case of questions of fact, on the other hand, the presunaption of the correctness of judicial decisions results in the creation of new law, not in the declaration and proof of old. The decision becomes, in a large class of cases, an original precedent. That is to say, the question thus an- swered ceases to be one of fact, and becomes for the future one of law. For the courts are now provided with a prede- termined answer to it, and it is no longer a matter of free judicial discretion. The arhitriwm judicis is now excluded by one of those fixed and authoritative principles which con- stitute the law. For example, the meaning of an ambiguous statute is at first a pure question of fact. When for the first time the question arises whether the word " cattle " as used by the statute includes horses, the court is bound by no authority to determine the matter in one way or the other. The occasion is one for the exercise of common sense and interpretative skill. But when the question has once been decided, it is for the future one of law and no longer one of fact; for it is incumbent on the courts in subsequent cases to act on the maxim Res judicata -pro veritate accvpitur, and to answer the question in the same way as before. Digitized by Microsoft® 1'- PRECEDENT. [§ 67 The operation of original precedents is, therefore, the progressive transformation of questions of fact into questions of law. Ex facto oritur jus. The growth of case-law in- volves the gradual elimination of that judicial liberty to which it owes its origin. In any system in which precedents are authoritative the courts are engaged in forging fetters for their own feet. There is of course a limit to this process, for it is absurd to suppose that the final result of legal development will be the complete transformation of all questions of fact into questions of law. The distinction between law and fact is permanent and essential. What, then, is the limit? To "svhat extent is precedent capable of effecting this absorption of , fact into law? In respect of this law-creating operation of precedents, questions of fact are divisible into two classes. For some of them do, and some do not, admit of being answered on •principle. The former are those the answer to which is capable of assuming the form of a general principle: the latter are those the answer to which is necessarily specific. The former are answered by way of abstraction, that is to say, by the elimination of the immaterial elements in the particular case, the result being a general rule applicable not merely to that single case, but to all others which resemble it in its essential features. The other class of questions con- sists of those in which no such process of abstraction, no such elimination of immaterial elements, as will give rise to a general principle, is possible. The answer to them is based on the circumstances of the concrete and individual case, and therefore produces no rule of general application. The operation of precedent is limited to one only of these classes of questions. Judicial decisions are a source of law only in the case of those questions of fact which admit of being- answered on principle. Thes<3 only are transformed by de- cision into questions of law, for in this case only does the judicial decision give rise to a rule which can be adopted for the future as a rule of law. Those questions which belong to the other class are permanently questions of fact, and their judicial solution leaves behind it no permanent results in the form of legal principles. Digitized by Microsoft® § 67] PRECEDENT. 17S For example, the question whether the defendaat did or did not make a certain statement is a qa^estion of fact, which does not admit of any answer save one which is concrete and individual. It cannot be answered on principle. It neces- sarily remains, therefore, a pure question of fact; the decision of it is no precedent, and establishes no rule of law. On the other hand, the question whether the defendant in making such a statement was or was not guilty of fraud or negligence, though it may be equally a question of fact, nevertheless be- longs to the other class of such questions. It may well be possible to lay down a general principle on a matter such as this. For it is a matter which may be dealt with in ahstracto, not necessarily in concreto. If, therefore, the decision is arrived at on principle, it will amount to an original prece- dent, and the question, together with every other essentially resembling it, will became for the future a question of law, jsredetermined by the rule thus established. A precedent, therefore, is a judicial decision which con- tains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi. The concrete decision is binding between the parties to it, but it is the abstract ratf,o decidendi which alone has the force of law jas regands the wojrld at large. " The only use of authorities or decided cases," saysi Sir George Jessel, " is the establishment of some principle, which the judge can follow out in deciding the case before him."^ " The only thing," says the same distinguished judge in another case, " in a judge's decision binding as an authority upon a subsequent judge is the principle upon which the case was decided." ^ This is the true significance pf the familiar contrast between authority and principle. It is often said by judges that inas- much as the matter before them is not covered by authority, they must decide it upon principle. The statement is a sure indication of the impending establishment of an original 1 In re Hallett, 13 Cli. D. at p. 712. 2 Osborne v. HowUU, 13 Ch. D. at p. 785. Digitized by Microsoft® l~-i PRECEDENT. [§ 67 precedent. It implies two things: first, that where there is any authority on the point, that is to say, where the question is already one of law, the duty of the judge is simplj' to follow the path so marked out for him; and secondh', that if there is no authority, and if, therefore, the question is one of pure fact, it is his duty, if possible, to decide 'it upon principle, that is to say, to formulate some general rule and to act upon it, thereby creating law for the future. It m.ay be, however, that the question is one which does not admit of being answered either on authority or on principle, and in such a case a specific or individual answer is alone possible, no rule of law being either applied or created. i Although it is the duty of courts of justice to decide questions of fact on principle if they can, they must take care in this formulation of principles to limit themselves to the requirements of the case in hand. That is to say, they must not lay down principles which are not required for the due decision of the particular ease, or which are wider than is necessary for this purpose. ,The only judicial principles nvhich are authoritative are those which are thus relevant in their subject-matter and limited in their scope. All others, .at the best, are of merely pei'suasive efficacy. They are not true ratioues decidendi, and are distinguished from' them under the namt- of dicia or obiter dicta, things said by the way. The prerogative of judges is not to 'make law by formulating and declaring it — this pertains to the legislature — but to make law liy applying it. Judicial declaration, unaccompanied by judi- 'cial application, is of no authority. § 68. The Sources of Judicial Principles. Whence, then, do the courts derive those new principles, -or rationrs decidendi, by which they sujoplement the existing I It is clearly somewhat awlcward to contrast in. this way the terms authority and principle. It is odd to speak of deciding; a case on principle because there is no legal principle on which it can be decided. To avoid misapprehension, it may he advisable to point out that decisions as to irhe meaning of statutes are always general, and therefore establish prece- dents and make law. For such interpretative decisions are necessarily as ircHCral as the statutory provisions interpreted. A question of statutory interpretation is one of fact to begin with, and is decided on principle; -therefore it becomes one of law, and is for the future decided on authority. Digitized by Microsoft® •' § 68] PRECEDENT. 175 law? They are in truth nothing else than the principles of natural justice, practical expediency, and common sense. -Judges are appointed to administer justice — justice according to law, so far as the law extends, but so far as there is no law, then justice according to nature. Where the civil law is defi- cient, the law of nature takes its place, and in so doing puts on its character also. But the rules of natural justice are not always such that any man may know them, and the light of naturi: is often but an uncertain guide. Instead of trusting to their own unguided instincts in formulating the rules of right and reason, the courts are therefore wisely in the habit of seeking guidance and assistance elsewhere. In establishing new principles, they willingly submit themselves to various persuasive influences which, though destitute of legal authority, have a good claim to respect and consideration. They accept a principle, for example, because they find it already embodied in some system of foreign law. For since it is so sanotioned and authenticated, it is presumably a just and reasonable one. In like manner the courts give credence to persuasive pxe- cedents, to judicial dicta, to the opinions of text- writers, and to any other forms, of ethical or juridical doctrine which seem good to them. There is, however, one source of judi- cial principles which is of special importance, and calls for special notice. This is the analogy of pre-existing law. New rules are very often merely analogical extensions of the old. The courts seek as far as possible to make the new law the embodiment and expression of the spirit of the old — of the ratio juris, as the Eoimans called jt. The whole thereby becomes a single and self-consistent body of legal doctrine, containing within itself an element of unity and of harmonious develop- ment. At the same time jt must be remembered that analogy is lawfully followed only as a guide to the rules of natural justice. It has no independent claim to recognition. Wher- ever justice so requires, it is the duty of the courts, in making new law, to depaxt from the ratio juris antiqui, rather than servilely to follow it. It is surprising how seldom we find in judicial utterances any explicit recognition of the fact that in deciding questions on principle, the courts are in reality searching out the rules Digitized by Microsoft® 176 PRECEDENT. [§ 68 and requirements of natural justice and public policj^ The measurf of the prevalence of such ethical over purely techni- cal considerations is the measure in which case-lawl develops into a rational and tolerable system as opposed, to an un- reasoned product of authority and routine. Yet the ofRcial utterances of the law contain no adequate acknowledgment of this dependence on ethical influences. " The very con- siderations," it has been well said, "which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life."i The chief reason of this peculiarity is douhtless to be found in the fictitious declaratory theory of precedent, ,aiid in the forms of judicial expression and i^easoning which this theory has made traditional. So long as judges affect to be looking for and declaring old law, they cannot adequately express the principles ■on which they are in reality making new. § 69. Respective Functions of Judges and Juries. The division of judicial functions between judge and jury creates a difficult}' in the theory of precedent which requires some consideration. It is commonly said that all questions of fact are for the jury, and all questions of law for the judge. Bu( we have already seen that original precedents are answers to questions of fact, transforming them for the future into questions of- law. Are such precedents, then, made by juries instead of by judges? It is clear that they neither are nor can be. No jury ever answers a question on principle; it give.■^ decisions, but no reasons; it decides in concreto,, not in ahsira^to. In this respect the judicial action of juries differs fundamentally from that of judges. The latter decide on principle, whenever this is possible; they formulate the raiio decidendi which underlies their decision ; they strive after the general and the abstract, instead of adhering to the concrete and the individual. Hence it is that the decision of a judge may constitute a precedent, while that of a jur^r cannot. But in composite tribunals, where the jury decides the facts and the judge the law, how does the judge obtain 1 Holmes, The Common Law, p. 35. Digitized by Microsoft® § 6»] PRECEDENT. 177 any opportunity of establishing precedents and creating new law? If the matter is already governed by law, it will of course fall within his province; but if it is not already so governed, is it not a pure question of fact which must be submitted to the jury, to the total destruction of all oppor- tunity of establishing any precedent in respect of it? The truth of the matter is that, although all questions of law are for the judge, it is very far from being true that all questiona of fact are for the jury. There are very extensive and im- portant portions of the sphere of fact which fall within the jurisdiction of the judge, and it is within those portions that the law -creating operation of judicial decisions takes place. No jury, for example, is jcver asked to interpret a statute or, speaking generally, any other written document. Yet unless there is already some authoritative construction in existence, this is pure matter of fact. Hence that great department of case-law which has its origin in the judicial interpretation of statute-law. The general rule — consistently acted on, though seldom expressly acknowledged — is that a judge will not suhmit to a jury any question which he is himself capable of answering on prmcvple. Such a question he answers for himself; for since it can be answered on principle, it pro- vides a fit occasion for the establishment of a precedent and. a new rule of law. It ought to be a 'matter of law, and can only hecome what it ought to be, by. being .kept from the jury and answered in abstracto by the judge. The only ques- tions which go to a jury are those questions of fact which admit of no principle, and are therefore the appropriate subject^nattcr of those concrete and unreasoned decisions which juries give.^ We have said that this rule, though acted on, is not ex- pressly acknowledged. The reason is that judges .are enabled to avoid the acknowledgment through recourse to the declara- tory theory of precedent. As between judge and jury this theory is still in full force and effect, although when the rights 1 On the decision by judges of questions of fact under the guise of ques- tions of law, see Thayer's Preliminary Treatise on the Law of Evidence, pp. 202, 230, 249. S.J. 12 Digitized by Microsoft® 178 PRECEDENT. [§ 69 and privileges of juries are not concerned, the courts are ready enough at the present day to acknowledge the essential truth of the matter. As between judge and jury, questions of fact are withdrawn from the exclusive cognizance of the latter by means of the legal fiction that they are already questions of law. They are treated proleptically as being already that which they are about to become. In a completely developed legal system they would be already true questions of law; the principle for their decision would have been already authori- tatively determined. Therefore the judges make bold to deal with them as being already that which they ought to be, and thus the making of the law by way of precedent is prevented from openly infringing upon tiae rights of juries to decide all questions which have not already been decided by the law. SUMMAEY. -r, J i ( Declaratory — evidence oi old law. Precedents i „ . . , ( Urigmal — sources oi new law. The declaratory theory of precedent. / Authoritative. I ( Foreign decisions. Precedents \ pgj-^^^gj^^ \ Decisions in other parts of the Empire. Privy Council decisions. \ Judicial dicta. / Decisions of superior Court. ^ Absolutely authoritative Decisions of House of Lords. Precedents ( Decisions of Court of Appeal. ' Conditionally authoritative — All others. Conditions of the disregard of a precedent. , -r^ . . ( Contrary to law. 1 . Decision erroneous i .t , ■ I Unreasonable. 2. Rejection of it not mischievous as unsettling the law. Effect of lapse of time on precedents. Distinction between overruling and refusing to follow. Precedents constitutive and not abrogative. Qualifications of the rule. Ground of the authority of precedent. The progressive transformation of fact into law. Mationes decidendi. The determination of questions on principle and on authority. Judicial dicta contrasted with judicial decisions. Sources of judicial principles. Respective functions of judge and jury. Digitized by Microsoft® ( 179 ) CHAPTER X. LEGAL RIGHTS. § 70. Wrongs. We have seen that the law consists of the principles in accord- .ance with which justice is administered by the state, and that the administration of justice consists in the use of the physical force of the state in enforcing rights and punishing the viola- tion of them. The conception of a right is accordingly one ■of fundamental significance in legal theory, and the purpose of this chapter is to analyse it, and to distinguish its various applications. Before attempting to define a right, however, it is necessary to define two other terms which are closely con- nected with it, namely, wrong and duty. A wrong is simply a wrong act — an act contrary to the rule of right and justice. A synonym' of it is injury, in its true and primary sense of injuria (that which is contrary to jus), though by a modem perversion of meaning this term has acquired the secondary sense of harm or damage {dam- num) whether rightful or wrongful, and whether inflicted by human agency or not. Wrongs or injuries are divisible for our present purpose into two kinds, being either moral or legal. A moral or natural wrong is an act which is morally or naturally wrong, being contrary to the rule of natural justice. A legal wrong is an act which is legally wrong, being contrary to the rule ■of legal justice and a violation of the law. It is an act which is authoritatively determined to be wrong by a rule of law, and is therefore treated as a wrong in and for the purposes of the administration of justice by the state. It may or may not bo a wrong in deed and in truth, and conversely a moral wrong may or may not be a wrong in law. Natural and legal 12(2) Digitized by Microsoft® 380 LEGAL RIGHTS. [§ 70 wrongs, like natural and legal justice, form intersecting circles, this discordance between law and fact being partly intentional and partly the result of imperfect historical development. In all ordinary cases the legal recognition of an act as a wrong involves the suppression or punishment of it by the physical force of the state, this being the essential pur]'>ose for which the judicial action of the state is ordained. Wt shall see later, however, that such forcible constraint is not an invariable or essential incident, and that there are other possible forms of effective legal recognition. The essence of a legal wrong consists in its recognition as wrong by the law, not in the resulting suppression or punishment of it. A legal wrong is a violation of justice acc.ordvng to J-aiv. § 71. Duties. A duty is an obligatory act, that is to say, it is an act the opposite of which would be a wrong. Duties and wrongs are correlatives. The commission of a wrong is the breach of a duty, and the performanoe of a duty is the avoidance of a wrong. A synonym of dutj" is obligation, in its widest sense, although in a special and technical application the latter term denotes one particular kind of duty only, as we shall see later. Duties, like wrongs, are of two kinds, being either moral or legal. A moral or natural duty is an act the opposite of which would be a moral or natural wrong. A legal duty is an act the opposite of which would be a legal wrong. It is an act recognised as a duty by the law, and treated as such in and for the purposes of the administration of justice by the state. These two classes are partly coincident and partl,y distinct. A duty may be moral but not legal, or legal but not moral, or both at once. When the law recognises an act as a duty, it commionlT enforces the performanoe of it, or punishes the disregard of it. But this sanction of legal force is in exceptional cases absent. A duty is legal because it is legally recognised, not necessarily because it is legally enforced or sanctioned. There are legal duties of imperfect obligation, as they are Digitized by Microsoft® § 71] LEGAL RIGHTS. 181 called, which will be considered by us at a later stage of our inquiry . § 72. Rights. A right is an interest recognised and protected by a rule' of right. It is any interest, respect for which is a duty, and the disregard of which is a wrong. All that is right or wrong, just or unjust, is so by reason of its effects upon the interests of mankind,^ that is to sa,j, upon the various elements of human well-being, such as life, liberty, health, reputation, and the uses of material objects. If any act is right or just, it is so because and in so far as it promotes some form of human interest. If any act is wron^g or unjust, it is because the interests of men are prejudicially affected by it. Conduct which has no influence upon the interests of any one has no significance either in law or morals. Every wrong, therefore, involves some interest attacked by it, and every duty involves some interest to which it relates, and for whose protection it exists. The converse, however, is not true. Every attack upon an interest is not a wrong, either in fact or in law, nor is respect for every interest a duty, either legal or natural. Many interests exist de facto and not also de jure; they receive no recognition or protec- tion from any rule of right. The violation of them is no "wrong, and respect for them is no duty. For the interests of men conflict with each other, and it is impossible for all to receive rightful recognition. The rule of justice selects some for protection, and the others are rejected. The interests which thus receive recognition and protec- tion from the rules of right are called rights. Every man who has a right to any thing has an interest in it also, but lie may have an interest without having a right. Whether his interest amounts to a right depends on whether there exists with respect to it a duty imposed upon any other ^ This statement, to be strictly correct, must be qualified by a, reference to the interests of the lower animals. It is unnecessary, however, to com- plicat« the discussion at this stage by any such consideration. The interests and rights of bea-sts are moral, not legal. Digitized by Microsoft® 1B2 LEGAL RIGHTS. [§ 72" pcr&on. In other words, a right is an interest the violation of which is a wrong. Every right corresponds to a rule of right, from which it proceeds, and it is from this source that it derives its namie.. That I have a right to a thing means that it is right that I should have that thing. All right is the. right of him for whose benefit it exists, just as all wrong is the wrong of him whosfr interests are affected by it. In the words of Windscheid,^ "Das Recht ist sein Recht geworden." Rights, like wrongs and duties, are either moral ,or legaL A moral or natural right is an interest recognised and pro- tected by a rule of natural justice — an interest the violation- of which would be a moral wrong, and respect for which is a moral duty. A legal right, on the other hand, is an interest recognised and protected by a rule of legal justice — an in- terest the violation of which Avould be a, legal wrong done to. him whose interest it is, and respect for which is a legal dutj'. " Rights," says Ihering,- " are legally protected in- terests." Bentham set the fashion, still followed by many, of denying that there are any such things as natural rights at all. AH rights are legal rights and the creation of the law. " Natural law, natural rights," he says,^ "are two kinds of fictions or' metaf)hors, which play so great a part in books of legisla- tion, that they deserve to be examined by themselves. Rights properljf so called are the creatures of law properly so called; real laws give rise to real rights. Natural rights are the creatures of natural law; they are a metaphor w-hich derives its origin from another metaphor." " In many of the cultivated," says Spencer,* criticising this opinion, "there has been produced a confirmed ^nd indeed contemptuous denial of rights. There are no such things, say they, except such as are conferred by law. Following Bentham, thej affirm that the state is the originator of rights, and that apart from it there are no rights." 1 Pandekt. I. sect. 37. 2 Qcist d. e. E. III. p. 339, 4th ed. •' Theory of Legislation (Dumont, liildreth's trans. 8th ed.), pp. 82 — 84_ See also Works, III. 217. * Principles of Ethic.*, II. p. 63. Digitized by Microsoft® § 72] LEGAL EIGHTS. 1^3 A complete examination of tliis opinion would lead us far into the regions of ethical rather than juridical conceptions, and would here be out of place. It is sufficient to make two obseiTations with respect to the matter. In the first place, he who denies the existence of natural rights must be prepared at the same time to reject natural or moral duties also. Eights and duties are essentially correlati^T, and if a creditor ha^ no natural right to receive his debt, the debtoir is under no moral duty to pay it to him. In the second place, he who rejects natural rights must at the same time be prepared to reject natural right. He must say with tbe Greek Sceptics that the distinction between right and wrong, justice and injustice, is unknown in the nature of things, and a mattei- of human institution merely. If there are no rights save those which the state creates, it logically follows that nothing is right and nothing is wrong save that which the state establishes and declares as such. If natural justice is a truth and not a delusion, the same must be admitted of natu'ral rights. 1 It is to be noticed that in order that an interest should become a legal right, it must obtain not merely legal protection, but also legal recognition. The interests of beasts are to some extent protected by the law, inasmuch as cruelty to animals is a criminal offence. But beasts are not for this reason possessed of legal rights. The duty of humanity so enforced is not conceived by the law as a, duty towards beasts, but merely as a duty va respect of them. There is no bond of legal obligation between mankind and them. The only interest and the only right which the law recognises in such a case is the interest and right of society as a whole in the welfare of the animals belonging to it. He who ill-treats a child violates a duty which he owes to the child, and a right which is vested in him. But he who ill-treats a dog breaks no vinculum juris between him and it, though he disregards the obligation of humane conduct which he owes to society or the state, and the coi-relative right which society or the state possesses. Similarly a man's interests may obtain legal protection as against himself, as when drunkenness or suicide is made a crime. But he has not for this reason a legal right against himself. The duty to 1 The denial of natural rights is not rendered any more defensible by the recognition of other positive rights in addition to the strictly legal rights which are created by the state; for example, rights created by inter- national la^y, or by the so-called law of public opinion. Digitized by Microsoft® 184 LEGAL RIGHTS. [§ 72 refrain from drunkenness is not conceived by the law as a duty owing by a man to himself, but as one owing by him to the community. The only interest which receives legal recognition is that of the society in the sobriety of ita members. Although a legal right is commonly accompanied by the power of instituting legal proceedings for the euforcement of it, this is not invariably the case, and does not pertain to the essence of the conception. As we shall see, there are classes of legal rights which axe not enforceable by any legal process; for example, debts barred by prescription or the lapse of time. Just as there are imperfect and unenforceable legal duties, so there are imperfect and unenforceable legal rights. Rights and duties are necessarily correlative. There can be no right without a corresponding duty, or duty without a corresponding right, any more than there can be a husband without a wife, or a father without a child. For every duty must be a duty towards some person or persons, in whom, therefore, a correlative right is vested. And conversely every, right must be a right (igainst some person or persons, upon whom, therefore, a correlative duty is imposed. Every right or duty involves a vlnrnhnn jiiria or bond of legal obligation, by which two or moro persons are bound together. There can be no duty unless there is some one to whom it is due;; there can be no right unless there is some one from whom it is claimed; and there can be no wrong unless there is some one who is wronged, that is to say, whose right has been violated. We must therefore reject the opinion of those writers who distinguish between relative and; absolute duties, the former being those which have rights corresponding to them, and the latter being those which have none.^ This opinion is held by those who conceive it to be of the essence of a right, that it should be vested in some determinate person, and be enforceable by some form of legal jDrocess instituted by him. On this view, duties towards the public at large or towards intermediate por- tions of the public have no correlative rights; the duty, for example, to refrain from committing a public nuisance. There ' See Austin, Lect. 17. Digitized by Microsoft® § 72] LEGAL RIGHTS. 185 seems no sufficient reason, however, for defining a right in so exclusive a manner. All duties towards the public coiTespond to rights vested in the public, and a public Wrong is necessarily, the violation of a public right. AU duties correspond to rights, though they do not all correspond to private rights vested in determinate individuals. § 73. The Elements of a Legal Right. In every legal right the five following elements are in- volved : — (1) A per&on in whom it is vested, and who may be dis- tinguished as the oiuner of the right, the subjext of it, or the person entitled. (2) A person against whom the right avails, and upon whom the correlative duty lies. He may be distinguished as the person hound, or as the subject of the duty. (3) An act or omission which is obligatory on the person bound in favour of the person entitled. This may l>e termed the content of the right. (4) Some thing to which the act or omission relates, andi -which may be termed the object or subject-matter of the right. (5) A title : that is to say, certain facts or events by reason of which the right has become vested in its owner. Thus if A. buys a piece of land from B., A. is the subject or owner of the right so acquired. The persons bound by the correlative duty are persons in general, for a right of this kind avails against all the world. The content of the right oonsists in non-interference with the purchaser's exclusive use of the land. The object or subject-matter of the right is the land. And finally the title of the right is the conveyance by which it was acquired from its former owner, ^ 1 The terms subject and object are used by different writers in a some- "what confusing variety of senses: — (a) The subject of a right means the owner of it; the object of a right means the thing in respect of which it exists. This is the usage which has teen here adopted: Windscheid, I. sect. 49. (6) The subject of a right means its subject-matter (that is to say, its ■object in the previous sense). The object of a right means the act or Digitized by Microsoft® 186 LEGAL RIGHITS. [§ 73 Ever-}- right, therefore, involves a threefold relation in which the owner of it stands: — (1) It is a right against some person or persons. (2) It is a right- to some act or omission of such person or JDersons. (3) It is a right over or to some thing to which that act or omission relates. An ownerless right is an impossibilitj- . There cannot be a right without a subject in whom it inheres, any more than there can be weight without a heavy body; for rights are merely attributes of persons, and can have no independent existence. Yet although this is so, the ownership of a right may be merely contingent or uncertain. The owner of it may be a person indeterminate. He may even be a person who is not yet born, and may therefore never come into- existence. Although everj^ right has an owner, it need not have a vested and certain owner. Thus the fee simple of land may bo left bj^ will to a person unborn at the death of the testator. To whom does it belong in the meantime? We cannot say that it belongs to no one, for the reasons already indicated. We must say that it is presently owned b}' the unborn person, but that his ownership is contingent on his birth. . Who is the owner of a debt in the interval between the death of the creditor intestate, and the vesting of his estate in an administrator? Roman law in such a case personified the inheritance itself, and regarded the rights contingently belonging to the heir as presently vested in the inheritance by virtue of its fictitious personality. According to English law before the Judicature Act, 1873, the personal property of an intestate, in the interval between death and the grant of letters of administration, was deemed to be vested in the- Judge of the Court of Probate, and it may be assumed tha-t it now vests either in the President of the Probate, Divorce- omission to -wliicli the other party is bound (that is to say, its content) : Austin, pp. 47, 712. (c) Some writers distinguish between two kinds of subjects — active and passive. The active subject is the person entitled; the passive subject is. -the person bound: Baudry-Lacantinerie, Des Biens, sect. 4. Digitized by Microsoft® § 73j LEGAL RIGHTS. 187 and Admiralty Division, or in the Judges of the High Court collectively. But neither the Roman nor the English fiction is essi_'ntial. There is no difficulty in saying that the estate of an intestate is presently owned by an incerta persana,. namely by him who is subsequently appointed the adminisi trator of it. The law, however, abhors a temporary vacuum of vested ownership. It prefers to regard all rights as pre^ sently vested in some determinate person, subject, if need be, to be divested on the happening of the event on which the title of the contingent owner depends. ^ Certain writers define the object of a right with such narrowness that they are forced to the conclusion that .there are some rights which have no objects. They consider that the object of a right means some material thing to which it relates; and it is certainly true that in this 'sense an object is not an essential element in the conception. Others admit that a person, as well as a material thing, may be the object of a right; as in the case of a husband's right in respect of his wife, or a father's in respect of his children. But they go no further, and consequentlj^ deny that the right of reputa- tion, for example, or that of pei'sonal liberty, or the right of a patentee, or a copyright, has any object at all. The truth seems to be, however, that an ohject is an essential element in the idea of a right. A right without an object in respect of which it exists is as impossible as a right without a subject to whom it belongs. A right is, aa we have said, a legally protected interest; and the object of the right is the thing in which the owner has this intenest. It is the thing, material or immaterial, which he desires to keep or to obtain, and which he is enabled to keep or to obtain by means of the duty which the law imposes on other persons. We may illustrate this by classifying the chief kinds of rights by reference to their objects. (l^i Rights over material things. — In respect of their num- ber and variety, and of the great mass of legal rules relating to them, these are by far the most important of legal rights. Their nature is too familiar to require illustration . 1 As to ownerless rights, see Windscheid, I. sect. 49, n. 3. Dernburgf, Pandekten, I. sect. 49. Digitized by Microsoft® 188 LEGAL RIGHTS. [§ 73 (2) Rights in respect of one's own person. — I have a right not to be killed, and the object of this right is my life. I have a right not to be physically injured or assaulted, and' the object of this right is my bodily health and integrity > I have a right not to be imprisoned save in due course of law;; the object of this right is my personal liberty — that is to sa,y, my power of going vifhere I will. I have a right not to be coerced or deceived into acting contrary to my desires or in- terests; the object of this right is my ability to fulfil mj- desires and protect and promote my interests by m}- own activities. (3) The right of neputatioJt. — In a man's reputation, that is to say, in the good opinion that other persons have of him, he has an interest, just as he has an interest in the money in his pockets. In each case the interest hajs obtained legal recog- nition and jDrotection as a right, and in each case the right involves an object in respect of which it exists. (4) Rights in respect of domestic relations. — Every man has an interest and a right in the society, affections, and security of his wife and children. Any person who without just cause interferes with this interest, as by the seduction of his wife or daughter, or by taking away his child, is guilty of a viola- tion of his rights. The wrongdoer has deprived him of some- thing which was his, no less than if he had robbed him of his purse. (5) Rights in respect of other rights. — In many instances a right has another right as its subject-matter. I may have a right against A., that ho shall transfer to nic some right which is now vested in himself. If I contract with him for the sale of a piece of land to mc, I acquire thereby a right against him, that he shall so aut as to make me the owner of certain rights now belonging to himself. By the contract I acquire a right to the right of ownership, and when the con- veyance has been executed, I acquire the right of ownership itself. Similarly a promise of marriage vests in the woman a right to the rights of a Avife; but the marriage vosts in her those rights themselves.^ 1 See as to rights to rights, Windseheid, I. sect. 48 a (Rechte an Itechten). Digitized by Microsoft® § 73] LEGAL EIGHTS. ISG" It is oommonly a question of importance, whether the right acquired by an agreement or other transaction is merely a right to a right, or is one having something else than another right as its immediate object. If I buy a ton of coal or a flock of sheep, the right which I thereby acquire may be of either of these kinds according to circumstances. I may become forth- with the owner of the coal or the sheep; that is to say, my right. may have these material things as its immediate and direct object. On the other hand, I may acquire merely a right against the seller, that he by delivery or otherwise shall make- me the owner of the things so purchased. In this case I acquire a right which has, as its immediate and direct object, nothing more than another right ; though its mediate and indirect object may be said, truly enough, to be the material things purchased by me. (6) Rigliis over immaterial properly. — Examples of these- are patent-rights, copyrights, trade-marks, and commercial good-will. The object of a patent-right is an invention, that is to say, the idea of a new process, irijstrument, or manufacture. The patentee has a right to the exclusive use of this idea. Similarly the object of literary copyright is the form of literary expression produoed by the author of a book. In this he has- a valuable interest by reason of the disposition of the public to purchase copies of the book, and by the Copyright Act this interest has been raised to the level of a legal right. (7) Rights to services. — Finally we have to take account of rights vested in one person to the services of another: the- rights, for example, which are created by a contract between master and servant, physician and patient, or employer and workman. In all such cases the object of the right is the skill, knowledge, strength, time, and so forth, of the person bound. If I hire a physician, I obtain thereby a right to the use and benefit of his skill and knowledge, just as, when I hire a horse, I acquire a right to the use and benefit of his strength and speed. Or we may say, if we prefer it, that the object of a right of personal service is the person of him who is bound to render it. A man may be the subject-matter of rights as well as the Digitized by Microsoft® 1!?0 LEGAL EIGHTS. [§ 73 subject of them. His mind and body constitute an instrument which is capable of certain uses, just as a horse or a steam- engine is. In a law which recognises slavery, the man may be bought and sold, just as the horse or steam-engine may. But in our own law this is not so, and the only right that ran be acquired over a human being is a temporary and limited right to the use of him, created by voluntary agreement with him' — not a permanent and general right of ownership over him. § 74. Legal Rights in a wider sense of the term. Hitherto we have confined our attention to legal rights in the strictest and most proper sense. It is in this sense only that we have regarded them as the correlatives of legal duties, and have defined them as the interests which the law protects by imposing duties with respect to them upon other persons. We have now to notice that the term is also used in a wider and laxer sense, to include any legally recognised interest, whether it corresponds to a legal duty or not. In this generic sense a legal right may be defined as any advantage or benefit which is in any manner conferred upon a person by a rule oif law. Of rights in this sense there are at least three distinct kinds, suificiently important to call for separate classification and discussion. These are (1) Rights (in the strict sense), (2) Liberties, and (3) Powers. Having already sufficiently considered the first of these, we shall now deal briefly with the others. § 75. Liberties. Just as my legal rights (in the strict sense) are the benefits which I derive from legal duties imposed upon other persons, so my legal liljerties ar,e the benefits which I derive from the absence of legal duties imposed ujjon myself. They are the various forms assumed by the interest which I have in doing as I please. They ;ut> the things which I may do without being prevented by the law. The sphere of my legal liberty is that sphere of activity within which the law is content to' leave me alone. It is clear that the term right is often used Digitized by Microsoft® § 75] LEGAL RIGHTS. 191 in a wide sense to include such liberty. I have a right (that is to say, I am ,at libeirty) to do as I please with my awn,;, but I have no right and am not at liberty to interfere with what is another's. I have a right to express my opinions on public affairs, but I have no right to publish a defamatory or seditious libel. I have a right to defend myself against violence, but I have no right to take revenge upon him who has injured me. The interests of unrestrained activity thus recognised and allowed by the law constitute a class of legal rights cleariy distinguishable from those which we have already considered. Rights of the one class are concerned with those things which other persons ought to do for me; rights of the other class are concerned with those things which I may do for myself. The former pertain to the sphere of obligation or compulsion; the latter to that of liberty or free will. Both are legally recognised interests; both are advantages derived from the law by the subjects of the state; but ther are two distinct species of one genus. It is often said that all rights whatsoever correspond to duties; and by those who are of this opinion a different explanation is necessarily given of the class of rights which we have just considered. It is said that a legal liberty is in reality a legal right not to be interfered with by other persons in the exercise of one's activities. It is alleged that the real meaning of the proposition that I have a legal right to express what opinions I please, is that other persons are under a legal duty not to prevent me from expressing them. So that even in this case the right is the correlative of a duty. Now there is no doubt that in most cases a legal liberty of acting is accompanied by a legal right not to be hindered in so acting. If the law allows me a sphere of lawful and innocent activity, it usually takes care at the same time to protect this sphere of activity from alien interference. But in such h. case there are in reality two rights and not merely one; and there are instances in which liberties are not thus accompanied by protecting rights. I may have a legal liberty which involves no such duty of non- interference imposed on others. If a landowner gives me a licence to go upon his land, I have a right to do so, in the sense in which a right means a liberty; but I have no right to do so, in the sense in which a right vested in me is the correlative of a duty imposed upon him. Though I have a liberty or right to go on his land, he has an equal right or liberty to prevent me. The licence has no other efPect than to Digitized by Microsoft® 192 LKGAL EIGHTS. [§ 7& make that lawful which would otherwise be unlawful. The right which. I so acquire is nothing more than an extension of the sphere of mjr rightful activity. So a trustee has a right to receive from! the bene- ficiaries remuneration for his trouble in administering the estate, in the sense that in doing so he does no wrong. But he has no right to receive remuneration, in the sense that the beneficiaries are under any duty to give it to him. So an alien has a right, in the sense of liberty, to enter British dominions, but the executive government has an equal right, in the same sense, to keep him out.^ That I have a right to destroy my property does not mean that it is wrong for other persons to prevent me; it moans that it is not wrong for me so to deal with that which is my own. That I have no right to commit theft does not mean that other persons may lawfully prevent me from committing such a crime, but that I myself act illegally in taking property which is not mine.^ § 76. Powers. Yet another class of legal rights consists of those which are termed powers. Examples of such are the following : the right to make a will, or to alienate property; the power pf sale vested in a mortgagee; a landlord's right of re-entrj-; the right to marr)' one's deceased wife's sister; that power of obtaining in one's favour the judgment of a court of law, which is called a right of action; the right to rescind a con- tract for fraud; a power of appointment; the right of issuing execution on a judgment; the various powers vested in judges and other officials for the due fulfilment of their functions. All these are legal rights — they are legally recognised interests — they are advantages conferred by the law — but they are rights of a different species from the two classes which we have already considered. They resemble liberties, and differ from rights stricto sensu, inasmuch as they have no duties corresponding to them. My right to make a will corresponds to no duty in any one else. A mortgagee's power of sale is not the correlative of any duty imposed upon the mort- gagor; though it is otherwise with his right to receive pay- ment of the mortgage debt. A debt is not the same thing as a 1 Musgroiye v. Toj/, (1891) A. C. 272. 2 On the distinction between liberties and rights, see Bentham's Works, III. p. 217; Starei/ v. Graham, (1899) 1 Q. B. at p. 411, per Ohannell, J.; Allen T. Flood, (18»8) A. C. at p. 29, per Cave, J.; Terry, p. 90; Brawn's Austinian Theory of Law, p. 18fl. Digitized by Microsoft® §76] LEGAL RIGHTS. 193 right of action for its recovery. Tiie former is a right in the strict and proper sense, corresponding to the dut}- of the debtor to pay; the latter is a legal 2>ower, corresponding to the liability of the debtor to be sued. That the two are distinct appears! from the fact that the right of action may bo destroyed (as by prescription) while the debt remains. It is clear, therefore, that a power is not the same thin^ as a right of the first class. Neither is it identical with aj right of the second class, namely, a liberty. That I have a right to make a will docs not mean that in doing so I do nol wrong. It does not mean that I may make a will innocentij;' it means that I can make a will effectively. That I have a right to marry my cousin does not mean that such a mar- riage is legally innocent, but that it is legally valid. It is not a liberty that I have, but a power. That a landlord has a right of re-entry on his tenant does not mean that in re- entering he does the tenant no wrong, but that by so doing he effectively terminates the lease. ^ 'A power may be defined as ability conferred upon a person by the law to determine, by his own will directed to that end, the rights, duties, liabilities, or other legal relations, either of himself or of other jDcrsons. Powers are either public or private. The former are those which are vested in a j^erson as an agent or instrument of the functions of the state; they comprise the various forms of legislative, judicial, and exe- cutive authority. Private powers, on the other hand, are those which are vested in persons to be exercised for their own purposes, and not as agents of tlie state. Power is either ability to determine the legal relations of other persons, or 1 A power is usually combined with a liberty to exercise it; that is to say, the exercise of it is not merely effectual but rightful. This, however, is not necessarily the case. It may be effectual and yet wrongful; as wten, in breach of my agreement, I revoke a licence given by me to enter upon my land. Such revocation is perfectly effectual, but it is a wrongful act, for which I am liable to the licensee in damages. I had a. right (in the sense of power) to revoke the lioemc©, but I had no right (in the sense of liberty) to do so: Wood v. Leadbitter, 13 M. & W. 838; Kerrison V. Smith, (1897) 2 Q. B. 445. The fact that since the fusion of law and equity the rule in Wood v. Leadbitter has little, if any, practical opera- tion (JIurst V. Picture Theatres, Ltd., (1915) 1 K. B. 1) does not destroy its significance as an illustration of the distinction between powers and liberties. S.J. 13 Digitized by Microsoft® 194 LEGAL RIGHTS. [§76 ability to deteniiiiic one's own. The first of these — ^power over other persons — is commonly called authority; the second — power over oneself — is usually termed capacitif.^ These, then, are the three chief classes of benefits, privi- leges, or rights conferred by the law: liberty, when the law allows to mr will a sphere of unrestrained activity; power, when the law actively assists me in making my, will effeotive;, right in the strict sense, when the law limits the liberty of others in my behalf. A liberty is that which I may do inno- cently; a power is that which I can do effectively; a right in the narrow sense is that which other persons ought to do on my behalf. I use my liberties with the acquiescence of the law; I use Tar powers with its active assistance in making itself the instrument of nay will; I enjoy my rights through the control exercised hj it over the acts of others on my behalf .3 3 § 77. Duties, Disabilities, and Liabilities. There is no generic term which is the correlative of right in the wide sense, and includes all the burdens imposed by the « 1 On the distinction between powers and other kinds of rights, see Windscheid, I. sect. 37; Terry, p. 100. 2 This division of rights into rights {stricto sensii), liberties, and powers, is not intended to be exhaustive. These are the most important kinds of advantages conferred by the law, but they are not the only kinds. Thus, the term right is sometimes used to mean an immunity from the legal power of some other person. The right of a peer to be tried by his peers, for example, is neither a right in the strict sense, nor a libeirty, nor a power. It is an exemption from trial by jury — an immunity from the power of the ordinary criminal courts. s A very thorough examination of the conception of a legal right is to be found in Terry's Principles of Anglo-American Law (Philadelphia, 1884), a work of theoretical jurisprudence too little known in England, and characterised by much subtle analysis of l^al conceptions. Rio-hts are there divided (ch. 6, pp. 84 — 13'8i) into four kinds, which the author distinguishes as (1) permissive rights (which we have here termed Jiber- ties), (2) facultative rights (which we have here termed powers), (3) cor- respondent rights (which are so called because they correspond to duties, and which wo have hero termed rights in the strict sense), and (4) pro- tected rights. These jlast I have not recognised as being in truth a ohiss of rights at all. They are, if I understand 'i.Vx. Terry "correctly, not rights but the objects of rights stHcio seii.^u; for example, life, reputa- tion, liberty, property, domestic relations, &c. That is to say, 'tiiey are the things in which a person has an interest, and to which, therefore, he has a right, so soon as, but not until, the law protects that interest by imposing duties in respect of it upon other pei-sons. There is no ri^ht to reputation apart from and independent of the right that otlier persons shall not publish defamatory statements. Digitized by Microsoft® § 77] LEGAL RIGHTS. 195 law, as a right includes 3,11 the benefits conferred by it. These legal burdens are of three kinds, being either Duties, Disa- bilities, or Liabilities . A duty is the absence of liberty; a dis- ability is the absence of power; a liability is the presence either of liberty or of power vested in some one else as against the person liable. Examples of liabilities correlative to liberties are the liability of a trespasser to be forcibly ejected, that of a defaulting tenant ,to have his goods seized for rent, and that of the owner of a building to have his windows darkened or his foundations weakened by the building or excavations of his neighbours. Examples of liabilities cor- relative to powers are the liability of a tenant to have his lease determined by re-entry, that of a mortgagor to have the property sold by the mortgagee, that of a judgment debtor to have execution issued against him, and that of an unfaith- ful wife to be divorced. The most important form of liability is that which eor- resiDonds to the various powers of action and prosecution arising from the different forms of wrongdoing. There is accordingly a narrow sense of the word liability, in which it covers this case exclusively. Liability in this sense is the correlative of a legal remedy. A synonym for it is responsibility. It is either civil or criminal according as it corresponds to a right of action or to a right of prosecution.^ ^ 1 The distinction here drawn between duty and liability may seem to conflict with the common usage, by which certain kinds of duties lare apparently spoken of as liabilities. Thus we say that a man is liable for his debts. This, however, may be construed as meaning that he is liable to be sued for them. W© certainly cannot regard liability as a generic term including all kinds of duty. We do not say that » man is liable not to commit murder, or not to defraud other persons. - Of the three classes of rights or legal interests which I have con- sidered, the first, consisting of those Which are the correlative of duties, are by far the most important. So predominant are they, indeed, that we may regard them as constituting the principal subject-matter of the law, while the others are merely accessory. In future, therefore, I shall use the term right in this narrow and specific sense, except when the context indicates a different tisage; and I ^shall commonly speak of the other forms of rights by their specific designations. 13(2) Digitized by Microsoft® 196 LEGAL RIGHTS. [§ 77 SUMMAEY. The nature of a Wrong. Moral and legal wrongs. The nature of a Duty. Moral and legal duties. The nature of a Eight. Interests. Their protection by the rule of right. Interests and rights. Moral and legal rights. The denial of moral rights. The correlation of rights and duties. No rights without duties. No duties without rights. The elements of a legal right. 1. Person entitled, or owner. 2. Person bound. 3. Content. 4. Object or subject-matter. 5. Title. No rights without owners. No rights without objects. / Objects of rights < 1. Material things. 2. One's own person. 3. Reputation. 4. Domestic relations. 5. Other rights. 6. Immaterial propertj'. 7. Services. Eight* in the generic sense — Any benefit conferred by the law. ( 1. Eights {stricto seiiKv) — correlative to Duties. 2. Liberties — correlative to Liabilities. ( 3. Powers — correlative to Liabilities. / 1. Eights {stricto sensu) — what others must do for me. ' 2. Liberties — what I may do for myself. ' 3. Powers — what I can do as against others. Duties, Liabilities, Disabilities. Digitized by Microsoft® ( 197 ) CHAPTER XI. THE KIXDS OF LEGAL EIGHTS. § 78. Perfect and Imperfect Rights. Recognition by the law in the administration of justice is common to all legal rights ^nd duties, but the purposes and effects of this recognition are different in different cases. All are not recognised to the same end. Hence a division of rights and duties into two kinds, distinguishable as perfect and im- perfect. A perfect right is one which corresponds to a perfect duty; and a perfect duty is one which is not merely recog- nised by the law, hut enfofced. A duty is enforceable when an action or other legal proceeding, civil or criminal, will lie for the breach of it, and when judgment will be executed against the defendant, if need be, through the physical force of the state. ^ Enforceability is the general rule. In all ordinar}' cases, if the law will recognise a right at all, it will not stop short of the last remedy of physical comipulsion against him on whom the correlative duty lies. Ought, in the mouth of the law, commonly means must. In all fully deve- loped legal sj^stems, however, there are rights and duties which, though undoubtedly recognised by the law, yet fall short of this typical and perfect form." 1 The term enforcement is here used in a wide sense to include the main- tenance of a right or duty by any form of compulsory legal procesSj whether civil or criminal. There is a narrower use of the term, in which it includes only the case of civil proceedings. It is in this sense thai I have already defined civU justice as being concerned with the enforcement of rights, and criminal justice as being concerned with the punishment ■of wrongs. As to the distinction 'between recognising and enforcing a right, see Dicey, Conflict of Laws, p. 31, 2nd ed. ^ There is another use of the term imperfect duty wliich pertains to ethics rather than to jurisprudence, and must be distinguished from that adopted in the text. According to many writers, an imperfect duty is one of such a nature that it is not fit for enforcement, but ought properly to be left to the free will of him whose duty it is. A perfect duty, on Digitized by Microsoft® 1^« THE KINDS OF LEGAL RIGHTS. [§ 78 Examples of sucli imperfect legal rights are claims barred by lapse of time; claims unenforceable by action owing to tbe absence of some special form of legally requisite proof (such as a written document); claims against foreign states or sovereigns, as for interest due on foreign bonds; claims unen- forceable by action as exceeding the local limits of a court's jurisdiction, such as claims in respect of foreign land; debts due to an executor from the estate which he administers. In all those cases the duties and correlative rights are imperfect. No action will lie for their maintenance; yet they are, for all that, legal rights and legal duties, for they receive recognition from the law. The statute of limitations, for example, does not provide that after a certain time a debt shall become ex- tinct, but merely that no action shall thereafter be brought for its recovery. Lapse of time, therefore, does not destroy the right, but merely reduces it from the rank of one which is perfect to that of one which is imperfect. It remains valid for all purposes save that of enforcement. In like manner he from whom a chattel is taken wrongfully, and detained for six years, loses all right to sue the taker for its recovery; but he does not cease to be the owner of it. ISTor is his ownership merely an empty title; for in divers ways it may lead him, with the assistance of the law, to the possession and enjoj^ment of his own again. All these cases of imperfect rights are ex- ceptions to the 'maxim, Vbi jus ibi remedium. The customary union between the right and the right of action has been for some special reason severed, but the right survives. For what purposes the law will recogiiise an imperfect right is a question relating to the concrete details of a legal srste-m, and cannot be fully discussed here. We may, however, dis- the other hand, is one which a man not merely augrht to perform, but may be justly compelled to perform., The duty to give alms to the poor is imperfect; that of paying one's debts is perfect. Perfect duties pertain to the sphej'O of justice; imperfect to that of benevolence. The distinction is not ecjuivalent to tliat between legal duties and those which are merely moral. A duty may be a perfect duty of justice, although the actual le^l system takes no notice of it; and conversely an imperfect duty of bene- volence may be luijustty made by law the subject of compulsion. It doe.« not seem possible, however, so to divide the sphere of duty by a hard and fast line. One of the most noteworthy attempts to do so ia to be seen in Spencer's Principles of Ethics. Digitized by Microsoft® § 78] THE KINDS OF LEGAL KIGHTS. 19!^ tinguish the following effects as those o£ greatest imixirtance and most general application. 1 . An imperfect right may be good as a ground of defence, though not as a ground of action. I cannot sue on an informal contract, but if monov is paid or property delivered to mo in pursuance of it, I can successfully defend any claim for 'its recovery. 2. An imperfect right is sufficient to support any security that has been given for it. A mortgage or pledge remains perfectly valid, although the debt secured by it has ceased to be recoverable by action. ^ But if the debt is discharged, instead of becoming merelj' imperfect, the security will dis- appear along with it. 3. An imperfect right may possess the capacity of becoming perfect. The right of action may not be non-existent, but may be merely dormant. An informal verbal contract nia^- become enforceable by action, by reason of the fact that written evidence of it has since come into existence. In like manner part-payment or acknowledgment will raise once more to the level of a perfect right a debt that has been barred by the lapse of time. § 79. The Legal Nature of Rights against the State. A subject may claim rights against the state, no less than against another subject. He can institute proceedings against the state for the det<'rmination and recognition of those rights in due course of law, and he can obtain judgment in his favour, recognising their existence or awarding to him compensation for their infringement. But there can be no enforce7nent of that judgment. What duties the state recognises owing by it to its subjects, it fulfils of its own free will and uncooi- strained good pleasure. The strength of the law is none other than the strength of the state, and cannot be turned or usedi against the state whose strength it is. The rights of the sub- ject against the state arc therefore imperfect. They obtain legal recognition but nn legal enforcement. 1 So: parte Shea, 4 Ch. D. 789; London ^- Midhmd IUihL- ^. MllrheU, (1899) 2 Ch. 161. Digitized by Microsoft® -00 THE KINDS OF LEGAL EIGHTS. [§ 79 The fact that the element of enforcement is thus absent in the case of rights against the state, has induced many writers to deny that these are legal rights at all. But as we have already seen, we need not so narrowlj^; define the term, legal right, as to include only those claims that are legally enforced. It is equally logical and more convenient to in- clude within the term all those things that are legally recog- nised in the administration of justice. All rights against the state are not legal, any more than all i-ights against jiri-^^ate persons are legal. But some of them are; those, namely, which can be sued for in courts of justice, and the existence and limits of which will be judicially determined in accord- ance with fixed jDrinciples of law, redress or compensation being awarded for any violation of them. To hold the con- trary, and to deny the name of legal right or duty in all cases in which the state is the defendant, is to enter upon a grav.e conflict with legal and popular speech and thought. In the language of lawyers, as in that of laymen, a contract with the state is as much a source of legal rights and obligations,, as is a contract between two private persons; and the right of the, holder of consols is as much a legal rig-ht, as is that of a debenture holder in a public company. It is not to the point to say that rights against the state are held at the state's good pleasure, and are therefore not legal rights at all: for all other legal rights are in the same position. They are legal rights not because the state is bound to recognise them, but because it does so. Whether rights against the state can properly be termed legal depends simply on whether judicial proceedings in -which the state is the defendant are properly included within the administration of justice. For if they are rightly so included, the principles by which they are governed are true jDrin- ciples of law, in accordance with the definition of law, and the rights defined by these legal principles are true legal rights. The boundary-line of the administration of justice has been traced in a previous chapter. We there saw sufficient reason for including not only the direct enforcement of justice, but all other judicial functions exercised by courts of justice. Digitized by Microsoft® § 79] THE KINDS OF LEGAL RIGHTS. 201 This is the orclinarj^ use of the term, and it seems o^Den to no logical objection.^ § 80. Positive and Negative Rights. In respect of their <}ontents, rights are of two kinds, beingi either positive or negative. A positive right corresponds to a positive duty, and is a right that he on whom the duty lies shall do some positive act on behalf of the 'person entitled. A negative right corresponds to a negative duty, and is a right that the person bound shall refrain from some act which would operate to the prejudice of the person entitled. The same ■distinction exists in the case of wrongs. A positive wrong or wrong of commission is the breach of a negative dutj' and the violation of a negative right. A negative wrong or wrong of omission is the breach of a positive duty, and the infringe- .ment of a positive right. A negative right entitles the owner of it to the maintenance of the present position of things; a positive right entitles him to an alteration of this position for -his advantage. The former is merely a right not to be harmed; the latter is a right to be positively benefited. The former is a right to retain what one already has; the latter is a right to receive something more than one already has. In the case of a negative right the interest which is its de facto basis is of such a nature that it requires for its adequate :maintenance or protection nothing more than the passive acquiescence of other persons. All that is asked by the owner of the interest is to be left alone in the enjoyment of it. In the case of a positive right, on the other hand, the interest is ■of a less perfect and self-sufficient nature, inasmuch as the person entitled requires for the realisation and enjoyment of his right the active assistance of other persons. In the former case I stand in an immediate and direct relation to the object ■of mv right, and claim from others nothing more than that they shall not interfierc between me and it. Iii the latter case I stand in a mediate and indirect relation to the object, so that I can attain to it only through the active help of others. My; right to the money in my pocket is an example of the first 1 As to rights ■against the .state, see Brown's Austinian Theory of Law, T. 194. Digitized by Microsoft® 202 THE KINDS OF LEGAL KIGHT.S. [§ 80 class ; my right to the money in the pocket of m.y debtor is an instanoe of the second. The distinction is one of practical importance. It is much easier, as Avell as much more necessary, for the law to prevent the infliction of harm than to enforce i>ositive beneficence. Therefore while liability for hurtful acts of commission is the general rule, liabilitj^ for acts of omission is the exception. Generally speaking, all men are bound to refrain from all kinds of positive harm, while only some men are bound in some ways actively to confer benefits on others. No on© is entitled; to do another any manner of hurt, save with special ground of justification; but no one is bound to do another any manner of good save on special grounds of obligation. Every man has a right against every man that the present position of things shall not be interfered with to his detriment; whilst it is only in jDarticular cases and for special reasons that any man has a., right against any man that the present position shall be altered for his advantage. I have a right against every one not to be pushed into the water; if I have a right at all to be pulled out, it is only on special grounds against determinate individuals. § 81. Real and Personal Rights. The distinction between real and personal rights is closely connected but not identical with that between negati^'L■ and positive rights. It is based on a difference in the incidence of" the correlative duties. A real right corresponds to a duty im- posed upon persons in general; a personal right corresponds to a duty imposed upon determinate individuals. A real right is available against the world at large; a personal right is available only against particular persons. The distinction, is one of great prominence in the law, and we maj- take the following as illustrations of it. Aly right to the peaceable occupation of my farm is a real right, for all the world is under a duty towards mc not to interfere with it. But if I grant a lease of the farm to a tenant, my right to receive the rent from him is personal; for it avails exclusively against the liiiant himself. For the same reason my right to the possession and use of the monev in mv purse is real; but mv right to receive Digitized by Microsoft® § 81] THK KINDS OF LEGAL RIOIIT.S. 203 monej- from some one who owes it to me is personal. I liave a real right against every one not to be deprived of my liberty or my reputation; I have a personal right to receive com- pensation from any individual person who has imprisoned ©r defamed me. I have a real right to the use and occu^jation of my own house; I have a personal right to receive accommoda- tion at an inn. A real right, then, is an interest protected against the -world at large; a personal right is an interest protected solely against determinate individuals. The distinction is clearly one of importanee. The law confers upon me a greater ad- vantage in protecting my interests against all persons, than in protecting them only against one or two. The right of a patentee, who has a monopoly as against all the world, is much more valuable than the right of him who purchases the good-will of a business and is protected only against the com- petition of his vendor. If I buy a chattel, it is an impoilant question, whether my interest in it is forthwith protected against every one, or only against him who sells it to me. The main purpose of mortgages and other forms of real security is to supplement the imperfections of a personal right by the superior advantages inherent in a right of the other class. Furthermore, these two kinds of rights are necessarily very different in respect of the modes of their creation and extinction. The indeterminate incidence of the duty which corresponds to a real right, renders impossible many modes of dealing with it which are of importance in the case of personal rights. The distinction which we are now considering is closely connected with that between positive and negative rights. All real rights are negative, and most personal rights are positive, though in a few exceptional cases they are neg'ative. It is not difficult to see the reason for this complete or par- tial coincidence. A real right, available against all other persons, can be nothing more than a right to be left alone by those persons — a right to their passive non-interfereneo. No person can have a legal right to the 'active assistance of all the world. The only duties, therefore, that can be of Digitized by Microsoft® '-^04 THE KINDS OF LEGAL EIGHTS. [§ 81 general incidence are negative. It may be objected to this, tliat though a private person cannot have a positive right against all other persons, yet the state nray have such a right against all its subjects. All persons, for example, may be bound to pay a tax or to send in , census retui'ns. Are not these duties of general incidence, and yet positive? The truth is, however, that the right of the state in all such cases, is personal and not real. The right to receive a tax is not one right, but as many separate rights as there are tax- })iiyers. I£ I owe ten pounds to the state as income tax, the right of the state against me is just as personal as is that of any other creditor, and it does not change its nature because other persons or even all my fellow-citizens owe a similar amount on the like account. My debt is not theirs, nor ^xe their debts mine. The state has not one real right available against all, but an immense number of personal rights, each of which avails against a determinate tax-paj-er. On the other hand, the right of the state that no person shall trespass on a piece of Crown land is a single interest protected against all the world, and is therefore a single real right. The unity of a real right consists in the singleness of its subject-matter. The right of reputation is owe right, corresponding to an in-' finite number of duties; for the subject-matter is one thing, belonging to one jDerson, and j^rotected against all the world. Although all real rights are negative, it is not equally true that all personal rights are positive. This is so, indeed, in the great majority of cases. The merely passive duty of non- interference, when it exists at all, usually binds all persons in common. There are, however, exceptional cases in which this is not so. These exceptional rights, which are both negative and personal, are usually the product of some agreement by which some particular individual has deprived himself of a liberty which is common to all other persons. Thus all trades- men may lawfully complete with each other in the ordinary way of business, even though the result of this competition is the ruin of the weaker competitors. But in selling to another the good-will of my business I may lawfuU)' .deprive myself of this liberty by an express agreement with the pur- Digitized by Microsoft® § 81] THE KINDS OF LEGAL RIGHTS. 205 chaser to that effect. He thereby acquires against ine a right of exemption from competition, and this right is both personal and negative. It is a monopoly, protected not against thc world at large, but against a determinate individual. Such rights belong to an intermediate class of small extent, stand- ing between rights which are both real and negative ion the one side and those whicli are both personal and jjositive on the other. In defining a real right as one availing against the world at large, it is not meant that the incidence of the correlative duty is absolutely universal, but merely that the duty binds persons in genei-al, and that if any one is not bound his case is exceptional. Similarly a personal right is not one available against a single person only, but one available against one or more determinate individuals. The right of the creditor of a firm is personal, though the debt may be due from any number of partners. Even as so explained, however, it can scarcely be denied, that if intended as an exhaustive classifica- tion of all possible cases, the distinction between real and personal rights — between duties of general and of determinate incidence — is logically defective. It takes no account of the possibility of a tliird and intermediate class. Why should there not be rights available against particular classes of persons, as opposed both to the whole community and to persons individually- determined, for example, a right available only against aliens ? An examination, however, of the contents of any actual legal system will reveal the fact that duties of this suggested description either do not exist at all, or are so exceptional that we are justified in classing them as anomalous. As a classifica- tion, therefore, of the rights which actually obtain legal recdgnition, the distinction between real and personal rights may be accepted as valid. The distinction between a real and a personal right is other- wise expressed by the terms right in rem (or in re) and right in personam. These expressions are derived from the com- mentators on the civil and canon law. Literally inteqareted, jus in rem means a right against or in respect of a thing, jus in personam, a right against or in respect of a person. In truth, however, every right is at the same time one in respect of some thing, namelj- its object, and against some person, namely, the person bound. In other words, every right involves not only a real, but also a pei'sonal relation. Yet although these Digitized by Microsoft® 20fci THE KINDS OF LEGAL RIGHTS. [§ 81 two relations are necessarily co-osistent, their relative pro- miiumcf and importance are not always the same. In real rights it is the real relation that stands in the forefront of the juridical conception; such rights are emphatically and conspicuously in rem. In personal rights, on the other hand, it is the personal relation that forms the predominant factor in the conception; such rights are before all things in pei'- soiinm. For this difference there is more than one reason. .In the first place, the real right is a I'olation between the owner and a vague multitude of persons, no one of whom is distinguished from any other; while a personal right is a definite relation between determinate individuals, and the definiteness of this personal relation raises it into prominence. Secondly, the source or title of a real right is commonly to be found in the character of the real relation, while a personjal right generally derives its origin from the personal relation. In other words, if the law confers upon me a real right, it is -commonly because I stand in some special relation to the thing which is the object of the right. If on the contrarj^ it confers on me a personal right, it is commonly because I stand in some special relation to the person who is the subject of the correlative duty. If I have a real right in a material object, it is because I made it, or found it, or first acquired possession of it, or because by transfer or otherwise I have taken the place of some one who did originally stand in somie such relation to it. But if I have a personal right to receive money from another, it is commonly because I have made a contract with him, or have come in some other manner to stand in a special relation to him. Each of these reasons tends to advance the importanoe of the real relation in real rights, and that of the personal relation in personal rights. The former are primarily and pre-eminently in rem : the latter primarily and pre-eminently ill personam. The commonest and most important kind of ju-'t in -per- soncem is that which has been termed by the civilians and canonists jus ad rem. I have a jus ad rem, when I have a right that some other right shall be transferred to me or otlier- Avise vested in me. Jus ad rem is a right to a right. We have Digitized by Microsoft® §81] THE KINDS OF LEGAL RIGHTS. 207 already seen, in the previous chapter, that it is possible for one right to be in this way the subject-matter of another. A debt, a contract to assign property, and a promise of mar- riage are examples of this. It is clear that such a right to a right must be in all cases in personam. The right which is to be transferred, however — the subject-matter of the jus act, rem — may be cither real or personal, though it is more commonly real . I may agree to assign or mortgage a debt, or the benefit of a contract, no less than lands or chattels. An agreennent to assign a chattel creates a jus ad jus in rem ; an agreement to assign a debt or a contract creates a jus ad jus in personam A The terms jus in rem and jus in personam were invented by the commentators on the civil law, and are not found in the original Bouxoes. 'The distinction thereby expressed, however, received adequate recogni- tion from the Roman lawyers. They drew a broad line of demarcation tretween dominium on the one side and ohligatio on the other, the former including real, and the latter personal rights. Dominium is the relation between the owner of a real right (dominus) and the right so vested in him. Ohligatio is the relation between the owner of a personal right {creditor) and the person on whom the correlative duty lies. Ohligatio, in other words, is the legal bond by which two or more determinate individuals are bound together. Our modern, English obligation has lost this specific meaning, and is applied to any duty, whether it corresponds to a, real or to a personal right. It is to be noticed, however, that both dominium and ohligatio are limited by the Bomans to the sphere of what, in the succeeding part of this chapter, we term proprietary rights. A man's right to his personal liberty or reputation, for example, falls neither within the sphere of dominium nor within that of ohligatio. The distin<;tion between real and personal rights, on the other hand, is subject to no such limitation. The terms jus in rem and jus in personam are derived from' the Soman terms actio in rem and actio in personam. An actio in rem was an action for the recovery of dominium; one in which the plaintiff claimed that a certain thing belonged to him and ought to be restored or given up to him. An actio in personam was one for the enforcement of an ohligatio; one in which the plaintiff claimed the payment of money, the performance of a contract, or the protection of some other 1 Some wi-iters treat jus In 'personam and jus ad rem as synonymous terms. It seems better, however, to uae the latter in a narrower sense, as including merely one species, although the most important species, of jura in personam. Savigny, System, sect. 56, n. b. Digitized by Microsoft® 208 THE KINDS OF LEGAL EIGHTS. [§ 81 personal right vested in him as against the defendant. ^ Naturally enough, the right protected by aji actio in rem came to be called jus in rem, and a right protected by an actio in personam, jus in personam^ § 82. Proprietary and Personal Rights. Another important distinction is that between proprietary and persona] rights. The aggregate of a man's proprietary rights constitutes his estate, his assets:, or his propertij in one of the many senses of that most equivocal of legal terms. German jurisprudence is sujDcrior to our own in jDOSsessing a distinct technical term for this aggregate of proprietary rights^ namely, Termogen, the rights themselves being Vermogens- rechte. The French speak in the same fashion of auair or patrimmrte . The sum total of a man's personal rights, on the other hand, constitutes his status or personal condition, ai> opposed to his estate. If he owns land, or chattels, or patent rights, or the good-will of a business, or shares in a company, or if debts are owing to him, all these rights pertain to his estate. But if he is a free man and a citizen, a husband and a father, the rights which he has as such pertain to his status or standing in the law.^ What, then, is the essential nature of this distinction? It lies in the fact that proprietary rights are valuable, and per- sonal rights are not. The former are those which are worth money; the latter are those that are worth none. The former are the elements of a man's loealth ; the latter are merely elements in his 'icell-being. The former possess not merely juridical, but also economic significance; 'while the latter possess juridical significance only. 3 1 Gaius, IV. 2. 2 A personal as opposed to a proprietary rig-ht i.« not to be confounded with a personal as opposed to a real right. It is a misfortune of our legal nomenclature that it is necessary to use tlie word personal in several different senses. The context, however, should in all cases be suificient to indicate the particular signification intended. The more flexible language <}f the Germans enables them to distrnffuish between pei-sonliehe Rechte (as opposed to 'dingliche Sechte or real rights) and Person^nreclite (as opposed to V ermogensrechte or proprietary rightsi). See Dernburg-, Pan- dekten, I. sect. 22, note 7. 3 Ahrens, sect.' 55: Tons les biens, soit materials en eux-memes, soit sus- ceptibles d'etre estimea en a.rgent comme Equivalent (par aestimatio ct eondemnatio pecujiiaria) appartenant a une personne, forment son avoir ou son patrimoine. Digitized by Microsoft® § 82] THE KINDS OF LEGAL RIGHTS. 20tf It makes no difference in this respect, whether a right is jus in rem or jus 'in p&rsonam. Rights of either sort are pro- prietary, and make up the estate of the possessor, if they are of eoonomic value. Thus my right to the money in my pocket is proprietarj^ ; but not less so is my right to the money which I have in the bank. Stock in the funds is part of a man's estate, just as much as land and houses; and a valuable contract, just as much as a valuable chattel. On the other hand, a man's rights of personal liberty, and of reputa- tion, and of freedom from bodily harm are personal, not pro- prietary. They concern his welfare, not his wealth; they are juridical m.erely, not also economic. So also with the rights of a husband and father with respect to his wife and children. Rights such as these constitute his legal status, not his legal estate. If we go outside the sphere of private, into that of public law, we find the list of personal rights greatly increased. Citizenship, honours, dignities, and official position in all its innumerable forms pertain to the law of status, not to that of property.^ With respect to the distinction between proprietary and personal rights — estate and status — there are the following supplementary ob- servations to be made: — 1. The distinction is not confined to rights in the strict sense, but is equally applicable to other classes of rights also. A person's o state is made up not merely of his valuable claims against other persons, but of such of his powers and Kberties, as are either valuible in them- selves, or are accessory to other rights which are valuable. A land- lord's right of re-entry is proprietary, no less than his ownership of the land; and a mortgagee's right of sile, no less than the debt secured. A general power of appointment is proprietary, but the power of making a will or a contract is personal. Baudry-Laoantinerie, Dei Biens, Ee3t. 2: Lo patrimoine eit un enasiabl© de droita et de charges appraciables en argent. DernbUrg, Pandekten, I. sect. 22: Vermjjeai isb die Gejimmtheit der geldwerthen Rechte einer Person. Windscheid, I. sest. 42, note: Vermogensrechfce sind die Rschfcs von wirthsohaftiinhem Werth. See also to the same effect Savigny, Syafcam, soot. 58, and Puohta, Insti- tutionem, II. sect. 193. 1 The words statos and estate are in their origin the sa-ne. As to the prc-es of their di re:'entiacion in lejil meanimp, see PoUoilc and IMa t'.and, History of Kngliali Law, II. pp. 10 and 78 (lat el). Tlie other luos of the term property will be considered later, in chapter xx. S.J. 14 Digitized by Microsoft® 210 THE KINDS OF LEGAL RIGHTS. [§ 82 2. The distinction between personal and proprietary rights has its counterpart in that between personal and proprietary duties and lia- bilities. The latter are those which relate to a person's estate, and; diminish the value of it. They represent a loss of money, just as a proprietary right represents the acquisition of it. All others are per- sonal. A liability to be sued for a debt is proprietary, but a Habiiity to be prosecuted for a crime is personal. The duty of fulfilling a, contract for the purchase of goods is proprietary, but the duty of fulfilling a contract to marry is personal. 3. Although the term estate includes only rights (in the generic sense), the term status includes not only rights, but also duties, lia- bilities, and disabilities. A minor's contractual disabilities are part of his status, though a man's debts are not part of his estate. Status is the sum of one's personal duties, liabilities, and disabilities, as well as of, one's personal rights. 4. A person's status is made up of smaller groups of personal rights, duties, liabilities, and disabilities, and each of these constituent groups is itself called a status. Thus the same person may have at the same time the status of a free man, of a citizen, of a husband, of a father, and so on. So we speak of the status of a wife, meaning all the personal benefits and burdens of which marriage is the legal source and title in a woman. In the same way we speak of the status of an alien, a lunatic, or an infant. 5. It may be thought that proprietary rights should be defined as those which are transferable, rather than as those which are valuable. As to this, it seems clear that all transferable rights are also proprie- tary; for if they can be transferred, they can be sold, and are there- fore worth money. But it is not equally true that all proprietary • rights are transferable. Popular speech does not, and legal theory need not, deny the name of property to a valuable right, merely because it is not transferable. A pension may be inalienable; but it must be counted, for all that, as wealth or property. Debts were originally incapable of assignment; but even then they were elements of the creditor's estate. A married woman may be unable to alienate her estate; but it is an estate none the less. The true test of a pro- prietary right is not whether it can be alienated, but whether it is equivalent to money; and it may be equivalent to money, though it cannot be sold for a price. A right to receive money or something which can itself be turned into money, is a proprietary right, and is to be reckoned in the possessor's estate, even though inalienable. 6. It is an unfortunate circumstance that the term status is used in a considerable variety of different senses. Of these we may distinguish the following: — (a) Legal condition of any kind, whether personal or proprietary. This is the most comprehensive use of the term. A man's status in this sense includes his whole position in the law— the Digitized by Microsoft® § 82] THE KINDS OF LEGAL EIGHTS. 211 sum total of his legal rights, duties, liabilities, or other legal relations, whether proprietary or personal, or any particular group of them separately considered. Thus we may speak of the status of a landowner, of a trustoi>, of an executor, of a solicitor, and so on. It is much more common, however, to confine the term in question to some particular description of legal condition — some particular kind of status in this wide sense. Hence the other and specific meanings of the term. (b) Personal legal condition; that is to say, a man's legal condi- tion, only so far as his personal rights and burdens are con- cerned, to the exclusion of his proprietary relations. It is in this sense, that we have hitherto used the term. Thus we speak of the status of an infant, of a married woman, of a father, of a public oflScial, or of a citizen," but not of a landowner or of a trustee. (e) Personal capacities and incapacities, as opposed to the other elements of personal status. By certain writers the term status is app'lied not to the whole sphere of personal condition, but only to one part of it, namely that which relates to personal capacity and incapacity. ^ The law of status in this sense would include the rules as to the contractual capacities and incapacities of married women, but not the personal rights and duties existing between her and her husband. So it would include the law as to infant's* contracts, but not the law as to the mutual rights of parent and child. This law of status in the sense of personal capacity is considered as a special branch of the law, introductory to the main body of legal doctrine, on the ground that a knowledge of the dif- ferent capacities of difl'erent classes of persons to acquire rights and to enter into legal relations is pre-supposed in the exposition of those rights and legal relations themselves. It cannot be doubted that there are certain rules which so per- meate the law, that it is necessary in any well-arranged system to dispose of them onoe for all in a preliminary portion of the code, instead of constantly repeating them in connexion with every department of the law in which they are relevant; but it may be doubted whether the rules of personal capacity belong to this capacity. Surely the contractual capacity of a minor is best dealt with in the law of contracts, his capacity to commit a tort in the law of tort, his capacity to commit a crime in the criminal law, his capacity to marry in the law of marriage. Moreover, even if personal capacity is a suit- able subject for separate and introductory treatment in the 1 See Dicey, Conflict of Laws, p. 458, 2nd ed. 14(2) Digitized by Microsoft® 212 THE KINDS OF LEGAL BIGHTS. [§ 82 lawj there seems little justification for confining the term status to this particular branch of personal condition. (d) CoTnpulsory as opposed to conventional personal condition. Status is used by some writers to signify a man's personal legal condition, so far only as it is imposed upon him' by the. law without his own consent, as opposed to the condition which he has acquired for himself by agreement. The posi- tion of a slave is a matter of status, the position of a free servant is a matter of contract. Marriage creates a status in this sense, for although it is entered into by way of consent, it cannot be dissolved in that way, and the legal condition created by it is determined by the law, and cannot be modified by the agreement of the parties. A business partnership, on, the other hand, pertains to the law of contract, and not to that of status. '- 7. The law of persons and the law of things. Certain of the Eoman lawyers, for example Gaius, divided the whole of the substantive law into two parts, which they distinguished as jus quod ad persomas pertinet and jus quod ad res pertinet, terms which are commonly trans- lated as the law of persons and the law of things . There has been much discussion as to the precise significance of this distinction, and it is possible that it was based on no clear and consistent logical analysis at all. Any adequate investigation of the matter would here be out of place, but it is suggested that the true basis of the division is the distinction between personal and proprietary rights, between status and property. The jus quod ad res pertinet is the law of proper)^-, the law of proprietary rights; the jus quod ad personas pertinet is the law of status, the law of personal rights, so far as such rights require separate consideration, instead of being dealt with in con- nexion with those portions of the law of property to which they are immediately related. - § 83. Rights in re propria and Rights in re aliena. Rights may be divided into two kinds, distinguished by the civilians as jura in re propria and jiiru in re aliena. The latter may also be conveniently termed encumbrances, if we use that term in its widest permissible sense. ^ A right in * .^e Maine's Ancient Law, Ch. 5 ad fin. ; Markby's Elements of Law, ^ 178; Hunter's Roman Law, p. 138, 3rd ed. 2 See Savigny, System, § 59. ' The Romans termed them sei-vituten, but tlie Engluh term servitude is used to include one class of fum in re aJiena only, namely the sertritntes praediorutn of Roman law. Digitized by Microsoft® § 83] THE KINDS OF LEGAL RIGHTS. 213 re alima or encumbrance is one which limits or derogates from some more general right belonging to some other person in respect of the same subject-matter. All others axe jura in re propria. It frequently happens that a right vested in one person becomes subject or subordinate to an adverse right vested in another. It no longer possesses its full scope or normal compass, part of it being cut oif to make room for the limiting and superior right which thus derogates from it. Thus the right of a landowner may be subject to and limited by that of a tenant to the temporary use of the property; or to the right of a mortgagee to sell or take possession; or to the right of a neighbouring landowner to the use of a way or other easement; or to the right of the vendor of land in ri't^pect of restrictive covenants entered into by the purchas(>r as to the use of it; for example, a covenant not to build upon it. A right subject to an encumbrance mar be conveniently designated as scr-vicni, while the encumbrance which dero- gates from it may be contrasted as dominant. These expres- sions are derived from, and conform to, Roman usape in the matter of servitudes. The general and subordinate right was spoken of figuratively by the Roman lawyers as being in bondage to the spi'oiul rii>lit which prevailed over and dero- gated from it. The term xa-ritus, thus derived, came to denote the superior right itself rather than the relation between it and the other; just as ohligatio came to denote the right of the creditor, rather than the bond of leo-al subjection under whicli the debtor lay ^ The terms jus in re propria and jus in re, alicna wei'c devised hj the commentators on the civil law, and are not to be found 'in the original sources. Their significance is clcai'. The owner of a chattel has /zr.s in re propria — a right over his own pro- perty; the pledgee or oth(H' oncumbraneer of it has jus in re aliPMa- — a right over the property of some one else. There is nothing to prevent one eneumbrance from being ^ Th« owner of an encumbrancp may be termed the incumbrancer of the servient right or property over which it exists. Digitized by Microsoft® 214 THE KINDS OF LEGAL RIGHTS. [§ 83 itself subject to another. Thus a tenant may 'iubM; that is to say, he may grant a iea,sc of his lease, and so confer upon the sub-lessee a jus in re aliena of which the immediate subject- miatter is itseK taerelj- another right of the same quality. The right of the tenant in such a case is dominant with regard to that of the lando-wncr, but servient with regard to that of the sub-k«sw. So the mortgage© of land may grant a mortgage of his mortgage; that is to say, he may create what is oaUed a sub-mortgage. The mortgage will then be a dominant right in respect of the ownership of the land, but a servient right with respect to the sub-mortgage. So the easements appur- tenant to land are leased or mortgaged along with it; and therefore, though themselves encumbrances, they are them- selves encumbered. Such a series of rights, each limiting and derogating from thi^ one before it, may in theory extend to any length. A right is not to bo classed as encumbered or servient, merely- on account of its natiiral limits and restrictions. Other- wise all rights would fall within this category, since none of them are unlimited in their scope, all being restrained within definite boundaries by the conflicting interests and rights of other persons. All ownership of material things, for example, is limited by the maxim, sic utere tiio ut aliemmi non laedas. Every man must so restrain himself in the use of his propert>% as not to infringe upon the property and rights of others. The law confers no property in stones, sufficiently absolute and un- limited to justifj- their owner in throwing them through his neighbour's windows. No landowner may by reason of his ownership inflict a nuisance upon the public or upon adjoining proprietors. But in these and all similar cases we are dealing merely with the normal and natural boundaries of the right, not with those exceptional and artificial restrictions which are due to the existence of jura in re aliena vested in other persons. A servient right is not merely a limited right, for all are limited; it is a right so limited that its ordinary boundaxiea are infringed. It is a right which, owing to the influence of some other and superior right, is prevented from attaining its normal scopo and dimensions. Until we have first settled the Digitized by Microsoft® § 83] THE KINDS OF LKGAL RIGHTS. 215 natural contents and limits of a riglit, there can be no talk of other rights which qualify and derogate from it. It is essential to an encumbrance, that it should, in the technical language of our law, run with the right encumbered by it. In other words the dominant and the servient rights are necessarily concurrent. By this it is meant tliat an encum- brance must follow the encumbered right into the hands of new owners, so that a change of ownership will not free the right from the burden imposed upon it. If this is not so — if the right is transferable free from the burden — there is no true encumbrance. For the burden is then merely personal to him who is subject to it, and does not in truth limit or derogate from the right itself. This right stiU. exists in its full com- pass, since it can be transferred in its entiretj' to a new owner. For this ri ason an agreement to sell land vests an encumbrance or jus in re aliena in the purchaser; but an agreement to sell a chattel does not. The former agreement runs with the pro- perty, while the latter is non-concurrent. So the fe(.> simple of land may be encumbered by negative agreements, such as a covenant not to build; for speaking generall}', sucli obliga- tions will run with the land into the hands of successive owners. But positive covenants are mereh- personal to the covenantor, and derogate in no way from the fee simple vested in him, which he can convey to another free from any such burdens. Concurrence, however, may exist in different degrees; it may be more or less perfect or absolute. The encumbrance may run with the servient right into the hands of 'Some Oif the successive owners and not into the hands of others. In particular, encumbrances may be concurrent either in law or merelj' in equity. In the latter case the concurrence is im- perfect or partial, since it does not prevail against the kind of owner known in the language of the law as a purchaser for value without notice of the dominant right. Examples of encumbrances running with their servient rights at law are easements, leases, and legal mortgages. On the other hand an agreement for a lease, an equitable mortgage, a restrictive cove- nant as to the use of land, and a trust will run with their respective ser\'ient rights in equitj^ but not at law. Digitized by Microsoft® 216 THE KINDS OF LEGAL RIGHTS. [§ 83 It must be carefully noted that the distinction between jura in re propria and jura in re aliena is not confined to the sphere of real rights or jura in rem. Personal, no less than real rights may be encumbrances of other rights. Personal, no less than real rights may be themselves encumbered. A debtor, for ex- ample, may grant a security over the book debts owing to him in his business or over his shares in a company, as well as over his stock in trade. A life tenancy of money in the p&blic funds is just as possible as a life tenancy of land. There can be a lien over a m.an's share in a trust fund, as well as over a chattel belonging to him. The true test of an encumbrance is not whether the encumbrancer has a jus in rem available against all the world, but whether he has a right which will avail against subsequent owners of the encumbered propertj'. The chief classes of encumbrances are four in number, namely, leases, Servitudes, Securities, and Trusts. In a later chapter we shall consider these more at length, and in the meantime it is sufficient briefly to indicate their nature. 1. A lease is the encumbrance of property vested in one man by a right to the possession and use of it vested in another. 2. A servitude is a right to the limited use of a, piece of land un- accompanied either by the ownership or by the possession of it; for example, a right of way or a right to the passage of light or water across adjoining land. 3. A security is an encumbrance vested in a creditor over the pro- pert}' of his debtor, for tlie purpose of securing the recovery of the debt; a right, for example, to retain possession of a chattel until the debt is paid. 4. A trust is an encumbrance in which the ownership of property is limited by an equitable obligation to deal with it for the benefit of some one else. The owner of the encumbered property is the trustee; the owner of the encumbrance is the beneficiary. § 84. Principal and Accessory Rights. The relation between principal and accessory rights is the reverse of that just considered as existing between servient and dominant rights. For evory right is capable of being affected to any extent by the existence of other rights; 'and the influence thus exercised by one upon another is of two Digitized by Microsoft® § 84] THE KINDS OF LEGAL RIGHTS. 217 kinds, being cither adverse or beneficial. It is adverse, -when one right is limited or qualiiied hy another vested in a different owner. This is the case already dealt with by us. It is beneficial, on the other hand, when one right has added to it a supplementary right vested in the same owner. In this case the right so augmented may be termed the prineipal, while the one so appurtenant to it is the accessory right. Thus a security is accessory to the right secured; a servitude is accessory to the ownership of the land for whose benefit it exists; the rent and covenants of a lease are accessory to the landlord's ownership of the property: covenants for title in a conveyance are accessory to the estate conveyed; and a right of action is accessory to the right for whose enforcement it is provided. A real right may be accessory to a personal: as in the case of a debt secured by a mortgage of land. A personal right may be accessor j^ to a real; as in the case of the covenants of a lease. A real right may bo accessory to a real; as in the case of servitudes appurtenant to land. And finally a per- sonal right may be accessory to a personal; as in the case of a debt secured by a guarantee. A right which is dominant with respect to one right, is often at the same time accessory with respect to another. It limits one right, and at the same time aug-ments another. A typical example is a servitude over land. The owner of Whiteaore has a right of way over the adjoining farm Blackaere to the highway. This right of way is dominant with respect to Black- acre, and accessory with respect to Whiteacre. For the burden of it goes with Blackaere, and the benefit of it with Whiteacre. Blackaere is accordingly called the servient, and Whiteacre the dominant tenement. So a mortgage is a dominant right with respect to the property subject to it, and an aeoossory right with respect to the debt secured by it. In like manner a landlord's right to his rent is dominant with regard to the lease, but accessory with regard to the reversion. This double character, however, is not necessary or universal. A public right of way is an encumbrance of the land subject to it, but it is not accessory to any other land. So a lease is a dominant right which is not at the same time accessory to any principal. Digitized by Microsoft® 218 THE KINDS OF LEGAL RIGHTS. [§ So- § 85. Legal and Equitable Rights. In a former ckapter we considered the distinction between common law and equity. We saw that these two systems of law, administered respectively in the courts of common law and the Court of Chancery, were to a considerable extent dis- cordant. Ono of the results of this discordance was the estab- lishment of a distinction between two classes of rights, dis- tinguishable as legal and equitable. Legal rights are those which were recognised by the courts of common law. Equit- able rights (otherwise called equities) are those which were recognised solely in the Court of Chancery. Notwithstanding tie fusion of law and equity by the Judicature Act, 1873, this distinction still exists, and must be reckoned with as an in- herent part of our legal system. That which would have been merely an equitable right before the Judicature Act is mereb- an equitable right still. Inasmuch as all rights, whether legal or equitable, now obtain legal recognition in all courts, it may be suggested that the distinction is now of no importance. This is not so, however, for in two, respects at least, these two classes of rights. differ in their practical effeets. 1. The methods of their creation and disposition are dif- ferent. A legal mortgage of land must be created by deed, but an equitable mortgage may be created by a writleu agreement or by a mere deposit of title-deeds. A similar distinction exists between a legal and an equitable lease, a legal and an equitable sei-vitude, a legal and an equitable charge on land, and so on. 2. Equitable rights have a more precarious existence than legal rights. Where there are two inconsistent legal rights claimed adversely by different persons over the same thing,. the first in time prevails. Qni prior est tomporc potior psf jure. A similar rule applies to the competition of two inconsistent equitable rights. But when a legal and an equitable right conflict, the legal will prevail over and destroy the equitable, even though subsequent to it in origin, provided that the- owner of tlie legal right acquired it for value and without notice of the prior equity. As between a prior equitable mort- Digitized by Microsoft® § 85] THE KINDS OF LEGAL RIGHTS. 219' gage, for example, and a sufesequeut legal mortgage, prefer- ence will be given to the latter. The maxim is: Where there are equal equities, the law will prevail. This liability to de- struction by conflict with a subsequent legal right is an essen- tial feature and a characteristic defect of all rights which are merely equitable. ^ SUMMAEY. T Tf' li+ i Perfect — enforceable by law. \ Imperfect — recognised by law, but not enforceable. The legal quality of rights against the state. ! Positive — correlative to positive duties and negative wrongs. . , . . Negative — correlative to negative duties and positive wrongs. / Heal — in rem or in re — correlative to duties of inde- ITT ft' hi ) terminate incidence (all negative), I Personal — in personam — correlative to duties of de- terminate incidence ( almost all positive ) . Jiura ad rem. Dominium and ohligatio. f Proprietary — constituting a person's estate or pro- IV. Eights ■ i^'^^y- I Personal — constituting a persons status or personal ^ condition. Other uses of the term status. V T?' lit i "^'^ ^^ propria. \ In re aliena — servitus — encumbrance. The natural limits of rights, distinguished from encum- brances. The concurrence of the encumbrance and the right encum- bered. Encumbrances either real or personal rights. / 1. Leases. Classes of encumbrances 2- Servitudes. I 3. Securities. ' 4. Trusts. VI. Principal and Accessory Eights. Vn. Legal and Equitable Eights. Vm. Primary and Sanctioning Eights. 1 In addition to the distinctions betwe9n different kinds of rights con- sidered in this chapter, there must be borne in mind the important distinc- tion between Primary and Sanctioning Rights, but this has already been anfSciently dealt with in the chapter on the Administration of Justice. Digitized by Microsoft® ( 220 ) CHAPTER XII. OWNERSHIP. § 86. The Definition of Ownership. Ownership, in its most comprehensive signification, denotes the relation between a person and any right that is vested in him. That which a man owns is in all cases a right. When, as is often the case, we speak of the ownership of a material object, this is merely a convenient figure of speech. To own a piece of land means in truth to own a particular kind of right in the land, nam'ely, the fee simple of it . Ownership, in this generic sense, extends to all classes of rights, whether proprietary or personal, in rem or in personam, in re propria or in re aliena. I may own a debt, or a mort-f gage, or a share in a company, or money in the public fund's, or a copyright, or a lease, or a right of way, or the fee simple of land. Every right is owned; and nothing can be owned except a right. Every man is the owner of the rights which are his. Ownership, in its generic sense, as the relation in which a person stands to any right v(^stod in him, is opposed to two other possible relations bctAveen a person and a right. It is opposed in the first place to possession. This very difficult juridical conception will be considered by us in the succeeding chapter. We shall sec that the possession of a liufKt (prfs- srssio juris, Bechisbesitz) is the dc facto relation of continuing exercise and enjoyment, as opposed to the dr jure relation of ownership. A man may possess a right without owning it, as where the wrongful occupant of land makes use of a right of way or other easement appurtenant to it. Or he inay own a right without possessing it. Or finally ownership und posses- Digitized by Microsoft® § SttJ OWNERSHIP. 221 six>n may be united, as indeed thej usually are, the de jure and the de facto relations being co-existent and coincident. The ownership of a right is, in the second place, opposed to the encumbrance of it. The owner of the right is he in whom: the right itself is vested; while the encumbrancer of it is he in whom is vested, not the right itself, but some adverse, domi- nant, and limiting right in respect of it. A. may bathe owner of property, B. the lessee of it, C. the sub-lessee, D. the first miortgagee, E. the second mortgagee, and so on indefinitely. Legal nomenclature, however, does not supply separate names for every distinct kind of encumbrancer. There is no distinc- tive title, for example, by which we may distinguish from the owner of the property him who has an easement over it or the benefit of a covenant which runs with it. Although encumbrance is thus opposed to ownership, every encumbrancer is nevertheless himself the owner of the encum- brance. The mortgagee of the land is the owner of the mort- gage. The lessee of the land is the owner of the lease. The mortgagee of the mortgage is the owner of the sub-mortgage. That is to say, he in whom an encumbrance is vested stands in a definite relation not merely to it, but also to the right encum- bered by it. Considered in relation to the latter, hs is an en- cumbrancer; but considered in relation to the former, he is himself an owner. Ownership is of various kinds, and the following distinc- tions are of sufficient importance and interest to deserve special examination : 1. Corporeal and Incorporeal Ownership. 2. Sole Ownership and Co-ownership. 3. Trust Ownership and Beneficial Ownership. 4. Legal and Equitable Ownership. 5. Vested and Contingent Ownership. § 87. Corporeal and Incorporeal Ownership. Although the true subject-matter of ownership is in all cases a right, a very common form of speech enables us to speak of the ownership of material things. We speak of owning. Digitized by Microsoft® 222 OWNERSHIP. [§ 87 acquiring, or transfemng, not rights in land or chattels, but the land or chattels themselves. That is to say, we identify bv •way of metonymy the right with the material thing which is its object. This figure of speech is no less convenient than familiar. The concrete reference to the material object relieves us from the strain of abstract thought. Eights axe dim abstrac- tions, while material things are visible realities ; and it is easiex to think and speak of the latter than of the former, even though the substitution is a mere fisjure of speech. This device, more- over, is an aid to brevity, no less than to ease of comprehension. This figurative identification of a right with its object is, however, not always permissible. I may be said to own the money in my hand; but as to that which is due to me, I ovwi not the money, but a right to it. In the one case I own thie material coins; in the other the immaterial debt or chose in action. So I own my land, but merely a right of way over the land of my neighbour. If we look, therefore, no deeper than the mere usages of speech, it would seem as if the subject- matter of ownership were sometimes a material object and at other times a right. This, of course, would be a logical ab- surdity. Ownership may conceivably be in all cases a relation to a material object; or it may in all cases be a relation to a right; but it cannot be sometimes the one and sometimes the other. So long as we remember that the ownership of a matexial thing is nothing more than a figurative substitute for the owner- ship of a particular kind of right in that thing, the usage is one of great convenience; but so soon as wc attempt to treat it as -anything more than a figure of speech, it becomes a fertile source of confusion of thought. lu what case, then, do wc use this figure of speech? What is it that determines whether we do or do not identify a right with its object? How is the line drawn between corporeal and incorporeal ownership? The usage is to soma extent arbitrary and uncertain. The application of figurative language is a matter not of logic but of variable practice and opinion. Speaking generally, however, we may say that the ownership of a material thing means the ownersliip' of a jus in re propria in respect of that thing. No man is said to own a piece of land Digitized by Microsoft® § 87] OWNERSHIP. 223 or a ichattel, if his right over it is merely an encumbrance of some more general right vested in some one else. The owner- ship of a jus in re aliena is always incorporeal, even though the object of that right is a corporeal thing. I am' not said to own a chattel, merely because I own a right to have it trans- ferred to me, or because I own a lien over it or a right to the temporary use of it. When, on the other hand, a right is not a mere encumbrance of another right^ — when it is a self -existent jus in re propria — it is identified with the material thing which is its subjeat-. matter. It is not difficult to perceive the origin and reason of this usage of speech. In its full and normal compass a jus in re propria over a material object is a right to the entirety of the lawful uses of that object. It is a general right of use and disposal, all jura in re aliena being merely special and limited rights derogating from it in special respects. It is only this absolute and comprehensive right — this universum jus — that is identified with its object. For it is in some sense coincident with its object, and exhausts the juridical significance of it. It is the greatest right which can exist in respect of the thing, including all lessor rights within itself, and he who owns it may therefore conveniently be said to own the thing itself. We have said that in its full and normal compass corporeal ownership is the ownership of a right to the entirety of the lawful uses of a corporeal thing. This compass, however, may be limited to any extent by the adverse influences of jura in re aliena vested in other persons. The right of the owner of a thing may be all but eaten up by the dominant rights of lessees, mortgagees, and other encumbrancers. His ownership may be reduced to a mere name rather than a reality. Yet he none the less remains the owner of the thing, while all the others own nothing more than rights over it. For he still owns that jus in re propria which, were all encumbrances removed from it, would straightway expand to its normal dimensions as the unioersum jus of general and permanent use. He, then, is the owner of a material object, who owns a right to the general Digitized by Microsoft® 224 OWNERSHIP. [§ 87 or residuary uses of it,^ after the deduction of all special and limited rights of use vested by waj- of encumbrance in other persons.' What, then, is the name of the right which we thus identify, for convenience of speech, with its material object? What shall we call the right which enables the owner of it to say that he owns a piece of land or a chattel? Unfortunately for the lucidity of legal nomenclature, there is, unless we are prepared to use the somewhat awkward Latin term }ii>: hi re propria, no other name for it than oir)icr-■«*) aad tlie distinction between res othr- poralis and res incorporalis are derived from Bomaii Law. Just. Insit. II. 2: — Quaedam praeterea res corpoi-ales sunt, quaedam incorporales. Cor- porales eae sunt, quae sui natura tangi possunt: veluti fundus, homo, vestis, aurum, argentum, et denique aliae re? innumerabiles. Inooa-porales autem sunt, quae tangi non possunt. Qualia sunt ea, quae in jure eon- sistunt: sicut hereditas, u?ufructus, obligationes quoquo modo contractae. ' The same explanation is applicable to the distinction between corporeal and incorporeal property. A person's property consists sometimes of mate- rial objects and sometimes of rights. As to the different uses of the term property, see infra, eh. xx. Digitized by Microsoft® § 89] OWNERSHIP. 227 their customers. It is not correct tp sa^' tliat a right owned by co-owners is divided between them, each of them o^vning a separate part. The right is an undivided unity, wliich is vested at the same time in more than one person . If two part- ners have at their bank a credit balance of lOOOL, there is one debt of lOOOL owing by the bank to both of them at once, not two separate debts of 500Z. due to each of them individuaU|y. Each partner is entitled to the whole sum, just as each would! owe to the bank the whole of the firm's overdraft. The several ownership of a part is a different thing from the oo-owiiership of the whole. So soon as each of two co-owners begins to own a part of the right instead of the whole of it, the co-owner- ship has been dissolved into sole ownership by the process known as partition. Co-ownership involves the undivided integrity of the right owned. Co-ownership, like all other forms of duplicate ownership, is possible only so far as the law makes provision for har- monising in some way the conflicting claims of the different owners inter se. In the case of co-owners the title of the one is rendered consistent with that of the other by the existence of reciprocal obligations of restricted use and enjoyment. Co-ownership may assume different forms by virtue of the different incidents attached to it by law. Its two chief kinds in English law are distinguished as ownership in common and joint ownership. The most important difference between these relates to the effect of the death of one of the co-owners. In ownership in common the right of a dead man descends to his successors like any other inheritable right. But on the death of one of two joint owners his ownership dies with him, and the survivor becomes the sole owner by virtue of this right of survivorship or pis acorescendi. § 90. Trust and Beneficial Ownership. A trust is a very important and curious instance of dupli- cate ownership. Trust property is that which is owned b;y two persons at the same time, the relation between the two- owners being such that one of them is under an obligation to 15 (2) Digitized by Microsoft® 228 OWNERSHIP. [§ 90' use his ownership for the benefit of the otlier. The former is called the trustee, and his ownership is trust-ownership; the latter is called the beneficiary, and his is beneficial ownership. ^ The trustee is destitute of any right of beneficial enjoyment of the trust property. His ownership, therefore, is a matter of form rather than of substance, and nominal rather than real. If we have regard to the essence of the matter rather than to the form of it, a trustee is not an owner at all, but a meiie agent, upon whom the law has conferred the power and imposed the duty of administering the property of another person. la legal theory, however, he is not a mere agent but an owner. He is a person to whom the proporty of some one else is fic- titiously attributed by the law, to the extent that the rights and powers thus vested in a nominal owner shall bo used b^^ him on. behalf of the real owner. As between trustee and beneficiary,, the law recognises the truth of the matter; as between these two,, the property belongs to the latter and not to the former. But as between the trustee and third persons, the fiction prevails. The trustee is clothed with the rights of his beneficiary, and is so enabled to personate or represent him in dealings with the world at large. The purpiOse of trusteeship is to protect the rights and in- terests of persons who for any reason are unable effectively to protect them for themselves. The law vests those rights and interests for safe custody, as it were, in some other person who is capable of guarding them and dealing with them, and who is placed under a legal obligation to use them for the benefit of him to whom the^- in truth belong. Tlie chief classes of persons in whoso behalf the protection of trusteeship is called for are four in number. In the first place, property may belong to persons who are not yet born ; and in order that it may be adl^- quately safeguarded and administered, it is commonly vested in ^ He who owns property for his own use and benefit, without the inter- vention of any trustee, may he termed the direct owner of it, as opposed to a mere trustee on the one hand, and to a bonefioial owner or beneficiary on the other. Thus if A. owns land, and makes a declaration of trust in favour of B., the direct ownership of A. is thereby changed into trust- ownership, and a correlative beneficial owneraMp is acquired by B. If A. then conveys the land to B., the ownership of B. ceases to be merely beneficial, and becomes direct. Digitized by Microsoft® ■§ 90] OWNKKSHIP. 229 -the meantime in trustees, who hold and deal with it on account of its unborn owners. In the second place, similar protection is required for the property of those who lie under some in- capacity in respect of the administration of it, such as infancy, lunacy, or absence. Thirdly, it is expedient that property in which large numbers of persons are interested in common should be vested in trustees. The complexities and difficulties "which arise from co-ownership become so great, so soon as the number of co-owiaers ceases to be small, that it is essential to avoid them; and one of the most effective devices for this pur- pose is that scheme of duplicate ownership which we term a trust. Fourthly, when persons have conflicting interests in the same property (for example, an owner and an encumbrancer, or different kinds of encumbrancers) it is often advisable that the property should be vested in trustees, whose power and duty it is to safeguard the interests of each of those persons against the conflicting claims of the others. A trust is to be distinguished from two other relations which resemble it. It is to be distinguished, in the first place, from a mere contractual obligation to deal with one's property on behalf of some one else. A trust is more than an obligation to use one's property for the benefit of another; it is an obligation to use it for the benefit of another in whom it is already con- ■currently vested. The beneficiary has more than a mere per- sonal right against his trustee to the performance of the obliga- tions of the trust. He is himself an owner of the trust property. That which the trustee owns, the beneficiary owns also. If the latter owned nothing save the personal obligation between the trustee and himself, there avouM be no trust at all. Thus if' a husband gratuitously covenants with his wife to settle certain property upon her, he rem^ains the sole owner of it, until he has actually transferred it in fulfilment of his contract; and in the meantime the wife owns nothing save the contractual obligation created by the covenant. There is therefore no trust. If, on the other hand, the husband declares himself a trustee of the property for his wife,, the effect is very different. Here alsQ he is under a personal obligation to transfer the properity to her, but this is not all. The beneficial ownership of the pro-i Digitized by Microsoft® 2;30 OWNERSHIP. [§ 90 perty passes to the wife forthwith, yet the owiierehip of the husband is not destroyed. It is merely transformed into a trust-ownership consistent with the concurrent beneficial title of his wife. In the second place, a trust is to be distinguished from the relation in which an agent stands towards the property which he administers on behalf of his principal. In substance, indeed, as already indicated, these two relations are identical, but in form and in legal theory they are essentially different. In agency the property is vested solely in the persom on A^■llose behalf the agent acts, but in trusteeship it is vested in the trustee himself, no less than in the beneficiary . A trustee is an agent for the administration of property, who is at the same time the nominal owner of the property so administered by him. A trust is created by any act or event wliicii separates the ^rust- ownersliip of any property from tke beneficial ownership of it, and vests them in different persons. Thus the direct owner of property may declare himself a trustee for some one else, who thereupon becomes the beneficial owner; or the direct owner may transfer the propearf^y to some one else, to hold it in trust for a "third. Conversely, a trust is destroyed by any act or event which reunites in the same hands the two forms of ownership which have become thus separated. The trustee, for example, may transfer the property to the benefirt^iary, who then becomes the direct owner; or the beneficiary may transfer it to his trustee, with the like result. Trust-ownership and beneficial ownership are independent of each other in their destination and disposition. Either of them may be transferred, while the other remains unaffected. The trustee may assign to another, who thereupon becomes a trustee in his stead, while the beneficiary remains the same; or the beneficiary may assign to another, while the trust-ownership remains where it was. In like manner, either kind of ownership may be independently encumbered. The trustee may, in pursuance of the powers of the trust, lease or mortgage the property without the concurrence of the beneficiary; and the beneficiary may deal in the same way Vith his beneficial owner- ship independently of the trustee. Whenever the beneficial ownership has been encumbered, either by the creator of the trust or by the beneficial owner himself, the trustee holds the property not only on behalf of the beneficial owner but also on behalf of the beneficial encumbrancers. That is to say, the rela- tion of trusteeship exists between the trustee and all persons bene- Digitized by Microsoft® § 90] OWNEKSHIP, 231 ficially interested in the property, either as owners or encumbrancers. Thus if property is transferred to A., in trust for B. for life, with remainder to C, A. is a trustee not merely for 0., the beneficial owner, but also for B., the beneficial encumbrancer. Both are beneficiaries of the trust, and between the trustee and each of them there exists the bond of a trust-obligation. ^ § 91. Legal and Equitable Ownership. Closely connected but not identical with the distination between trust and beneficial ownership, is that between legal and equitable ownership. One person may be the legal and another the equitable owner of the same thing at the same time. Legal ownership is that which has its origin in the rules of the common law, while equitable ownership is that which proceeds from rules of equity divergent from the common law . The courts of cOjmmon law refused to recognise equitable owner- ship, and denied that the equitable owner was an owner at all. The Court of Chancery adopted a very different attitude. Here the legal owner was recognised no less than the equitable, but the former was treated as a trustee for the latter. Chancery vindicated the prior claims of equity, not by denying the ex- istence of the legal owner, but by taking from him by means of a trust the beneficial enjoyment of his property. The fusion of law and equity effected by the Judicature Act, 1873, has not abolished this distinction; it has simply extended the doctrines of the Chancery to the courts of common laAV, and as equitable ownership did not extinguish or exclude legal ownership in Chancery, it does not do so now. The distinction between legal and equitable ownership is not identical with that mentioned in a previous chapter as existing between legal and equitable rights. These two forms of ownership would still exist even if all rights v/ere legal. The equitable ownership of a legal right is a different thing from the ownership of an equitable right. Law and equity are discordant not merely as to the existence of rights, but also as to the oionership of the rights which they both reeog- 1 On the nature of trusts see Law Quarterly Review, vol. 28, p. 290 (The Place of Trust in .Jurisprudence, by W. G. Hart). Digitized by Microsoft® 232 OWNERSHIP. [§91 nise. When a debt is verbally assigned by A. to B., A. remains the legal owner of it none the less, but B. becom©^ the equitable owner of it. But there are not for that reason tivo debts. There is only one as before, though it has now two owners. So if A., the legal owner of a share in a com- pany, makes a declaration of trust in favour of B . , B . becomes forthwith the equitable owner of the share; but it is the same share as before, and not another. The thing which he thus equitably owns is a legal right, which is at the same time legally owned by A. Similarly the ownership of au equitable mortgage is a different thing from the equitable o-s\"nership of a legal mortgage. Nor is the distinction between legal and equitable ownership merely equivalent to that between trust and beneficial owner- ship. It is true that, whenever the legal estate is in one man and the equitable estate in another, there is a trust. A legal owner is always a trustee for the equitable owner, if thei-e is one. But an equitable owner m.ay himself be merely a trustee for another person. A man may settle upon trust his equitable interest in a trust fund, or his equitable estate in his mortgaged land. In such a case neither trustee nor beneficiary will have anything more than equitable ownership. If an equitable owner can be a trustee, can a legal owner be a beneficiary? As the law now stands, he cannot. But this is a mere accident of historical development, due to the fact that the courts of common law refused to recognise trusts at all. There is no more theoretical difficultj' in allowing that a trustee and his beneficiary may both be legal owners, than in allowing that they may both be equitable owners. Had the courts of common law worked out a doctrine of trusts for themselves, this twofold legal ownership would have actually existed. The practical importance of the distinction between legal and equitable ownership is the same as that already indicated as pertaining to the distinction between legal and equitable rights. 1 ^ Vide ^upra, § 85. Digitized by Microsoft® § 92] OWNERSHIP. 233 § 92. Vested and Contingent Ownership. Ownorsliip is cithor vested or eoutingent . It is vested wkea the (AviK'i's title is already perfect; it is contingent when his title is as yet imperfect, but is capable of becoming perfect on. the fulfilment of some condition. In the former case he owns the right absolutely; in the latter he owns it mierely condi-> tionally. In the former case the investitive fact from which lie derives the right is oomplefce in all its parts; in tiie latter it is incomplete, by reason of the absence of some necessary element, which is nevertheless capable of being supplied in the future. In the meantime, therefore, his ownership is contin- gent, ajid it will not bec-ome vested until the necessary condition is fulfilled. A testator, for example, may leave property to his wife for her life, and on her death to A., if he is then alive, but if A . is then dead, to B . A . and B . are both owners of the property in question, but their ownership is merely contingent. That of A. is conditional on his surviving the testator's widow; while that of B. is conditional on the death of A. in the widow's lifetime. The contingent oiiMershvp of a right does not necessarily invoh'o its contingent existence. It need not be a contingent right, because it is contingently owned. Shares and other choses in action may have an absolute existence, though the ownership of them may be contingently and alternately in A. and B. Money in a bank 'may bo certainly owing to some one, though it mar depend on acondition, whether it is owing to C. or D. On the other hand, it may be that the right is contingent in respecit of its existence, no less than in respect of its ownership. This is so whenever there is no alternative owner, and when, there- fore, the right will belong to no one unless it becomes vested in the contingent owner by the fulfilment of the condition. It is to be noticed that the contingent ownership of a right is something more than a simple chance or possibility of becoming the owner of it. It is more than a mere spes acquisi- ticmis. I have no contingent ownership of a piece of land merely because I may buy it, if I so wish; or because perad- •venture its owner may leave it to me by his will. Contingent Digitized by Microsoft® 234 OWNERSHIP. [§ 92 ownership is based not upon the mere possibility of future acquisition, but upon the present existence of an inchoate or incomplete title. The conditions on which contingent ownership depends are termed conditions precedent to distinguish them from another kind known as conditions subsequent. A condition precedent is one by the fulfilment of which an inchoate title is completed; a-condition subsequent is one on the fulfilment of which a title already completed is extinguished. In the former case I acquire- absolutely what I have ali'eady acquired conditionally. In the latter case I lose absolutely what I have already lost condi- tionally. A condition precedent involves an inchoate or incom- plete investitive fact; a condition subsequent involves an in- complete or inchoate divestitive fact.^ He who owns property subject to a power of sale or power of appointment vested in some one else, owns it subject to a condition subsequent. His title is comp'lete, but there is already in existence an incom- plete divestitive fact, which may one day complete itself and' cut short his ownership. It is to be noticed that ownership subject to a condition sub- sequent is not contingient but vested. The condition is attached not to the commenoement of vested' ownership, but to the con- tinuance of it. Contingent ownership is that which is not yet vested, but may become so in the future; while ownership subject to a condition subsequent is already vested, but may bt- divested and destroyed in the future. In other words owner- ship subject to a condition subsequent is not contingent but determinable. It is ownership already vested, but liable to- premature determination by the completion of a divestitiva fact which is already present in part. It is clear that two persons may be contingent owners of the- same right at the same time. The ownership of each is alterna- tive to that of the oHher. The ownership of one is destined tO' become vested, while that of the other is appointed to destruc- tion. Similarly the vested ownership of one man may co-exist with the contingent ownership of another. For the event which, 1 On investitive and divestitive facte, see chapter xvi., § 120. Digitized by Microsoft® § 92] OWNERSHIP. 235 in the. f uturt' will vest tlie right in the one, will at the same time divest it from the other. Thus a testator may leave pxopertji to his wife, with a provision that if she marries again, she shall forfeit it in favour of his children. His widow will have the vested ownership of the property, and his children the contin- gent ownership at the same time . Her marriage is a condition subsequent in respect of her own vested ownership, and a con- dition precedent in respect of the contingent ownership of ihe children.! SUMMARY. Ownership — the relation between a person and a right vested in him. -r, . / The three beneficial relations between persons and I'ossession i ■ ut Encumbrance ) s • The kinds of Ownership. 1. Corporeal and incorporeal. The ownership of things and that of rights. The ownership of rights and the right of ownership. Bes corporales and res inoorporales. Different uses of the term res or thing. (a) A material object. (6) The object of a right. Material and immaterial things, (c) The object of ownership. Corporeal and incorporeal things. 2. Sole ownership ajid co-ownership. Joint ownership and ownership in common . 3. Trust and beneficial ownership. The nature of trusts. The purposes of trusts. 4. liegal and equitable ownership. 5. Vested and contingent ownership. Conditions precedent and subsequent. Contingent and determinable ownership. 1 On vested and contingent ownership, see Windsoheid, I. sects. 86 — 95; Dernbnrg, Pandekten, I. 82. 105 — 112; Austin, Lecture 53. Digitized by Microsoft® ( 236 ) CHAPTER XIII. PaSSESSION. § 93. Introduction. In the whole range of legal theory there is no conoeption more difficult than that of possession. The Roman lawyers brought their usual acumen to the analysis of it, and since their day the problem has formed the subject of a voluminous litera- ture, while it still continues to tax the ingenuity of jurists. Nor is the question one of mere curiosity or scientific interest, for its practical importance is not less than its difficulty. The legal consequences which flow from the acquisition and loss of possession are many and serious. Possession, for etram-ple, is evidence of ownership ; tiie possessor of a thing is presumed to be the owner of it, and may put all other claimants to proof of their title. Long possession is a sufficient title even to property which originally belonged to another. The transfer of posses- sion is one of the chief methods of transferring ownership. The first possession of a thing which as yet belongs to no one is a good title of right. Even in respect of jDroperty already owned, the wrongful possession of it is a good title for the wrongdoer, as against all the world except the true owner. Pos- session is of such efficacy, also, that a possessor raa^^ in many cases confer a good title on another, even thoug-h he has none him^self ; as when I obtain a banknote from a thief, or goods from a factor who disposes of them in fraud of his principal. These are some, though only some, of the results which the law attributes to possession, rightful or wrongful. They are suffi- cient to show the importance of this concqjtion, and the necessity of an adequate analysis of" its essential nature. Digitized by Microsoft® § 94] POSSESSION. 237 § 94. Possession in Fact and in Law. It is necessain^ to bear in mind from the out&et the distinotion between possession in fact and possession in law. We have to remember the possibility^ of more or less serious divergences between legal principles and the truth of things. Not every- thing which is recognised as possession by the law need be such in truth and in fact. And conversely the law, by reasons' goodi or bad, m.ay be moved to exclude from the limits of the concep- tion fticts which rightly fall within them. There are thr^ee possible cases in this respect. First, possession may and usually does exist both in fact and in law. The law recognises las possession all that is such in fact, and nothing that is not such in fact, unless thr-re is some special reason to the contrary. Secondly, possession may exist in fact but not in law. Thus the possession by a servant of his master's property is for some purposes not recognised as such by the law, ahd he is then said to have detention or custody rather than possession. Thii-dly, possession may exist in law but not in fact; that is to say, for some special reason the law attributes the advantages and results of possession to some one who as a matter of fact does not possess. The possession thus fictitiouslj- attributed to him is by English lawyers termed constructive. The Roman lawyers distinguished possession in fact as possessio naturalis, and possession in law as pos&essio civilis^ In consequence of this divergence, partly intentional and avowed, partly accidental and unavowed, between the law and the fact of possession, it is impossible that any abstract theory should completely harmonise with the detailed rules to be found in any concrete body of law. Such harmony would be possible only in a legal system which had developed with absolute logical rigour, undisturbed by historical accidents, and unaf- fected by any of those special considerations which in all parts ^ Possession in law is sometimes used in a narrow sense to denote posses- sion which is such in law only and not both in law and in fact — 'thajfc is to say, to denote constructive possession (^possessio fiotitia). In the wider sense it denotes all possession which is reoognised by the law, whether it does or does not at the same time exLst in fact. Digitized by Microsoft® 238 POSSESSION. [§ 94 of the law prevent the inflexible and consistent recognition of general principles. It follows from this discordance between law and fact, that a complete theory of possession falls into two f)arts: first an analysis of the conception itself, and secondly an exposition of the manner in "which it is recognised and applied in the actual legal system. It is with the first of those matters that we are liere alone concerned . It is to be noticed that there are not two idea>i of possession — a legal and a natural. Were this so, we could dispense alto- g-ether with the discussion of possession in fact. There is only one idea, to which the actual rules of law do moire or less im- perfectl}' conform. There is no conc-eption which will include all that amounts to possession in law, and will include nothing else, and it is impossible to frame ai\j definition from wrhich' the concrete law of possession can be logically deduced. Our task is merely to search for the idea which underlies this bodj •of rules, and of which they are the imperfect and partial expres- sion and application. The complexities of the English law are increased by the curious icircumstance that two distinct kinds of legal possession axe recognised in that system. These are distinguished as seisin and possession. To a considerable extent they are governed by different rules and have different effects. I may have seisin of a piece of land but not posses- sion of it, or possession but not seisin, or both at once; and in all those cases I may or may not at the same time have possession in fact. The doctrine of seisin is limited to land; it is one of the curiosities of that most curious of the products of the human intellect, the English law of real property. The doctrine of possession, on the other hand, is common, with certain variations, to land and chattels. The diver- gence between these two forms of possession in law is a matter of legal history, not of legal theory. Extraordinary importance was until a comparatively recent period attributed by our law to the acquisition and retention of seisin by the owner of land. Without seisin Ms right was a mere shadow of owner- ship, rather than the full reality of it. Eor many purposes a man had • only what he possessed — and the form of his possession must be that which amounted to seisin. A dispossessed owner was deprived of his most efEective remedies ; he could neither alienate his estate, nor leave It by his wiU; neither did his heirs inherit it after him. The tendency Digitized by Microsoft® § 94] POSSKSSION. 23!) of modern law is to eliminate the whole doctrine of seisin, as an archaic survival of an earlier process of thought, and to recognise a single form of legal possession. i § 95. Corporeal and Incorporeal Possession. Wo have seen in a former chaptei' that OAvnership is of two kinds, being either corporeal or incoi"poreal. A similar dis- tinction is to be drawn in the case of possession. Corporeal possession is the possrssion of a material object — a house, a farm, a piece of money. Incorporeal possession is the posses- sion of anything other than a material object — ^for example, •a way over another man's land, the access of light to the windows of a house, a title of rank, an olHce of profit, and such like. All these things may be possessed as well as owned. The pK>ssessor may or may not be the owner of them, and the owner of them may or may not be in possession of them. They may have no ov/ner at all, having no existence; de jure, and yet they may be possessed and enjoyed de facto. Corporeal possession is termed in Roman law possessio cor- poris . Incorporeal possession is distinguished as possessio juris, the possession of a right, just as incorporeal ownership is the ownership of a right . The G-ermans distinguish in like fashion between Sachenbesitc, the possession of a material thing, and Rcchtsbesitz, the possession of a right. The significance of this nomenclature and the nature of the distinction indicated by it will be considered by us later. It is a question much debated whether incorporeal posses- sion is in reality true possession at all. Some are of opinion that all genuine possession is corporeal, and that the other is related to it by way of analogy merely. They maintain that there is no single generic conception which includes possessio corporis and possessio juris as its two specific forms. The Roman lawyers speak with hesitation and even inconsistency on the point. They sometimes include both forms under the 1 See, as to the idea of seisin and the consequences attributed to its presence or absence, a series of interesting articles by Maitland in the Tu. Q. R., I. 324, n. 481, IV. 24, 286. See also Lightwood, Possession of dand, pp. 4 — 8. Digitized by Microsoft® 240 POSSESSION. [§ 95- title of pos&RSsio, while at other times they are careful to qualif j incorporeal possession as quasi possessio — soraething which is not true possession, hut is analogous to it. The question is one of no little difficulty, hut the opinion here accepted is tbaf; thci two forms do in truth belong to a single genus. The true idea of possession is wider than that of corporeal possession, just as tlic true idea of ownership is wider than that of coi"poreal ownership. The possession of a right of way is generioally identical with the possession of the land itself, though specifi- cally different from it. This being so, the strictly logical order of exposition involves the analysis, in the first place, of the generic conception, in its full compass, followed by an explanation of the differentia, which distinguishes possessio conporis from possessio juris. We shall, however, adopt a different course, confining our attention in the first place to possessio corporis, and proceeding thereafter to the analysis of possessio juris and to the exposition of the generic idea which comprises both of them. This course is advisable for tAvo reasons. In the first jjlace, the matter is of such difficulty that it is easier to proceed from the specific idea to the generic, than conversely And in the second place, tho conoeiition of corporeal possession is so much more important than that of incorporeal, that it is permissible to treat the latter simply as a supplement to the former, rather than as oo-ordinate with it. § 96. Corporeal Possession. Corporeal possession is clcarl}- some form of continuing relation between a person and a material object. It is equally clear that it is a relation of fact and not one of right. It may be, and commonly is, a title of right; but it is not a right itself. A man may possess a thing in defiance of the law, no less than in accordance with it. Nor is this in an^- way inconsisbent with the proposition, already considered by us, that possession may be such either in law or in fact. A thief has posstession in law, although he has acquired it contrary to law. The law oondejnns his possession as wrongful, but at the same time Digitized by Microsoft® § 96] POSSESSION. 241. recognises that it exists, and attributes to it most, if not all;, of the ordinary consequences of- possession. ^ What, then, is the exact nature of that continuing de facto relation between a person and a thing, which is known as pos- session? The answer is apparently this: The possession of h material object is the continuing exercise of a claim to the ex- clusive use of it. It involves, therefore, two distinct elements, one of which is mental or subjective, the other physical or objective. The one consists in the intention of the possessor with resj)ect to the thing possessed, while the other consists in the external facts in which this intention has realised, embodied, or fulfilled itself. These two constituent elements of possession were distinguished by the Roman lawyers as animus and corpus, and the expressions are conveniently retained by modem writers. The subjective element is called more particularly the animus possidendi, animus sibi habendi, or animus domini. Apiscimur ■possessionem!,, so runs a celebrated sentence of the Roman lawyer Paul,^ corpore et animo, neque per se animo aut per se corpore. Neither of these is sufficient by itself. Posses- sion begins only with their union, and lasts only until one or other of them disappears. No claim or animus, however strenuous or however rightful, will enable a man to acquire or retain possession, unless it is effectually realised or exercised in fact. No mere intent to appropriate a thing will amount to the possession of it. Conversely, the corpus without the animus is equally ineffective. No mere physical relation of person to thing has any significance in this respect, unless it is the out- ward form in which the needful animus or intent has fulfilled and realised itseK. A man does not possess a field because he is walking about in it, unless he has the intent to exclude other persons from the use of it. I may be alone in a room with- money that does not belong to me lying ready to my hand on the table. I have absolute physical power over this money; 1 Possessio is the de faoto relation between the posaesaor and the thing poesessed. Jus possessionis is the right (if any) of which posaegsion ia the source or title. Jus possidendi is the right (if any) which a man has to acquire or to retain possession. 2 D. 41. 2. 3. 1. S.J. 16 Digitized by Microsoft® 242 POSSESSION. [§ 96 I can take it away with me if I please ; but I have no piosses-i sion of it, for I have no such purpose with respect to it. § 97. The Animus Possidendi. We shall consider separately these two elements in the con- ception. And first of the animus possidendi. The intent neces- sary to constitute possession is the intent to appropriate to oneself the exclusive use of the thing possessed. It is an ex- clusive claim to a material object. It is a purpose of usiag* the thing oneself and of excluding the interference of other persons. As to this necessary mental attitude of the possessor there are the following observations to be made. 1. The animus sibi habendi is not necessarily a claim of right. It may be consciously wrongful. The thief has a pos- session no less real than that of a true owner. The possesson of a thing is not he who has, or believes that he has, a righ't to it, but he who intends to act as if be had such a right. Td possession in good faith the law may and does allow spiecdal benefits which are cut off by fraud, but to possession as such — the fulfilment of the self-assertive will of the individual — good faith is irrelevant. 2. The claim of the possessor must be exclusive. Possession involves an intent to exclude other persons from the uses of the thing possessed. A mere intent or claim of unexolusive use cannot amount to possession of the material thing itself, though it may and often does amount to some form of incoT*po[re)ail. possession. He who claims and exercises a right of way over another man's land is in possession of this right of way; but he is not in possession of the land itself, for he has not the necessary animus of exclusion. The exclusion, however, need not be absolute. I may possess my land notwithstanding the fact that some other person, or even the public at large, possesses a right of way over it. For, subject to this right of way, my animus possidendi is still a claim of exclusive use. I intend to exclude all alien linter- ference except such as is justified by the limited and special right of use vested in others. Digitized by Microsoft® § 97] POSSESSION. 243 v3. The animus pmsidemdi need not amount to a claim or intent to use the thing as oivnej-. A tenant, a borrower, or a pledgee may have possession no less real than that of the owner himself. Any degree or form of intended use, however limited in extent or in duration, may, if exclusive for the time being, be sufficient to constitute possession. 4. The animus possidendi need not be a claim on one's own behalf. I may possess a thing either on my own account or on account of another. A servant, agent, or trustee may have true possession, though he claims the exclusive use of the thing on behalf of another than himself.^ 5. The animus possidaidi need not be specific, but may be merely general. That is to say, it does not necessarily involve any continuous or present knowledge of the particular thing possessed or of the possessor's relation to it. A general intent with respect to a class of things is sufficient (if coupled -with the necessary physical relation) to confer possession of the indi- vidual objects belonging to that class, even though their indi- vidual existence is unknown. Thus I possess all the books in my library, even though I may have forgotten the existence of imany of them. So if I set nets to catch fish, I have a general intent and claim with respect to all the fish that come therein ; ' and my ignorance whether there are any there or not does in no way affect my possession of such as are there. So I have a general purpose to possess my flocks and herds, which is sufficient to confer possession of their increase though un- known to me. So if I receive a letter, I have forthwith the animius possidendi with respect to its enclosure; and I do not first acquire possession of the cheque that is inside it, when I open the envelope and see it.^ But if, on the other hand, I buy a cabinet believing it to be empty, whereas it contains ^ It must be remembered that we are speaking of possession in foot. Whether possession in law and the various advantages conferred by it are to 'be attributed to all possessore in fact or only to some of them is a different question with which we are not here concerned. Roman Law, save in exceptional cases, allowed possessio corporis only to those who possessed as owner.^i and on their own behalf. In English law, on the other hand, there ig no such limitation of legal possession; though even here the possession of a seri'ant sometimes fails to obtain legal recognition. " H. v. Mucklow,, 1 Moody C. O. 160. 16(2) Digitized by Microsoft® 244 POSSESSION. [§ 97 iQoney hid in a seci-et drawer, I do not acMjuire poeaessioa of the money until I actually find it; for until then I have no animus with respect to it, either general or specific.^ § 98. The Corpus of Possession. To constitute possession the animus dormni is not in itself sufficient, but must be embodied in a corpus. The claim of the possessor must be effectively realised in the facts; that is to say, it must be actually and continuously exercised. The will is sufficient only when manifested in an appropriate en- vironment of fact, just as the fact is sufficient only when it is the expression and embodiment of the required intent and will.. Possession is the effective realisation in fact of the ani/mus sibi habendi. One of the chief difficulties in the theory of possession is that of determining what amounts to such effective realisation. The true answer seems to be this: that the facts must amount tjo the actual present exclusion of all alien interference with the thing possessed, together with a reasonably sufficient security for the exclusive use of it in the future. Then, and then only, is the animus or self-assertive wiill of the possessor satisfied! and realised. Then, and only then, is there a continuing de 'facto exercise of the claim of exclusive use. Whether this state of facts exists depends on two things: (1) on the relation of the possessor to other persons, and (2) on the relation of the possessor to the thing possessed. We shall consider these two elements of the corpus possession-is separately. § 99. The Relation of the Possessor to other Persons. So far as other persons are concerned, I am in possession of a thing when the facts of the case are such as to create a reasonable expectation that I will not be interfered with in the use of it. I must have some sort of security for their acquiescence and non-interference. "The reality," it has 1 Merr/y v. Green, 7 il. & \V. 623. Digitized by Microsoft® ■§ 99] POSSESSION. 245 ■been well said,i "of de facto domiaion is measured in inverse ratio to the chances of effective opposition." A security for emjoyment may, indeed, be of any degree of goodness or badness, and the prospect of enjoyment may vary from a mere chance up to imoral certainty. At what point in the scale, then, are we to draw the line ? What measure of security is required for possession? We can only answer: Any measure which normally and reasonably satisfies the animus domini. A thing is possessed, when it stands with respect to other persons in such a position that the possessor, having a reasonable confi- dence that his claim to it will be respected, is content to leave it where it is. Such a measure of security may be derived from many sources, of which the following are the most important. 2 1 . The physical fower of the possessor . The physical power to exclude all alien interference (accompanied of course by the needful intent) certainly confers possession; for it consti- tutes an effective guarantee of enjoyment. If I own a purse of money, and lock it up in a burglar-proof safe in my house, I certainly have possession of it. I have effectively realised' my cmimus possidemM, for no one can lay a finger on the thing without my consent, and I have full power of using it myself. Possession thus based on physical power may be looked on ■as the tjrpical and perfect form. Many writers, ho^wever, go so far as to consider it the only form, defining possession as the intention, coupled Avith the physical po'wer, of excluding all other persons from! the use of a material object. We shall see reason to conclude that this is far too narrow a view of the matter. 2. The personal presence of the possessor. This source of securit)^ must be distinguished from that which has just been mentioned. The two commonly coincide, indeed, but not 1 Pollock and Wright, Possession, in the Common La^w, p. 14. ^ " Absolute security for the future," says Dernburg, Pandelrten, I. sect, 169, " 13 not requisite. For it is nob to be had. . . . All that is necessary is tiiat according to the ordinary course of affairs one is able to count on "the continuing enjoyment of the thing." See also I. sect. 178. See also Pollock and Wright, Possession, p. 13: "That occupation is effective which ia sufficient as a rule and for practical purposes to exclude strangers from interfering with the occupier's use and enjoyment." Digitized by Microsoft® 246 POSSESSION. [§ 99 necessarily. Bolts, bars, and stone walls will give me the physical power of exclusion without any personal presence on my part; and on the other hand there may be persoAaJ, presence without any real power of exclusion. A little child has no physical power as against a grown man; yet it pos- sesses the money in its hand. A dying man may retain or acquire possession by his personal presence, but certainly not by any i>hysica.l power left in him. The occupier of a fai^m has probably no real physical power of preventing a trespass upon it, but his personal presence may be perfectly effective in restraining any such interference with his rights. The respect shown to a man's person will commonly extend to all things claimed by him that are in his immediate presence. 3. Secrecy. A third source of Ae 'facto security is secrecy - If a man will keep a thing safe from others, he may hide it; and he will gain thereby a reasonable guarantee of enjoyment and is just as effectively in possession of the thing, as is the strong man armed who keeps his goods in peace. 4. Custom. Such is the tendency of mankind to acquiesce in established usage, that we have here a further and im- portant source of Ac jacto security and possession. Did I plough and sow and reap the harvest of a field last year and the year before? Then unless there is something to the con- trary, I may reasonably expect to do it again this year, and I am in possession of the field. 5. Respect for rightful claims. Possession is a matter of fact and not a matter of right. A claim niay realise itself in the facts whether it is rightful or wrongful. Yet its rightful- ness, or rather a public conviction of its rightfulness, is an im- portant element in the acquisition of possession. A rightful claim will readily obtain that general acquiescence which is essential to de facto securitj-, but a wrongful claim will have to make itself good without any assistance from the law-abiding spirit of the community. An owner will possess his pr6perty on much easier terms than those on which a thief will possesis his plunder. 1 The two forms of security, de facto and de jure, 1- Pollock and Wright, Possession, p. 15: "Physical or de ^aclo posses- sion readily' follows the reputation of title." Digitized by Microsoft® § 99] POSSESSION. 247 tend to coincidenoe. Possession tends to draw ownership after it, and ownership attracts possession. 6. The •manijestaiion of the animus domini. An important element in the de facto security of a claim is the visibility of the claim. Possession essentially consists, it is true, not in the manifestation of the animus, but in the realisation of it. But a manifested intent is nauch more likely to obtain the security of general acquiescence than one which has never assumed a visible form. Hence the importance of such cir- cumstances as entry, apprehension, and actual use.^ 7. The protection aff.orded by the possession of other things. The possession of a thing tends to confer possession of any other thing that is connected with the first or accessory to it. The possession of land confers a measure of security, which may amount to j)ossession, upon all chattels situated upon it. The possession lof a house maj' confer the possession of thei chattels inside it. The possession of a box or a packet may bring with it the possession of its contents. Not necessarily, however, in a,ny of those cases. A man effectually gives delivery of a load of bricks by depositing them' on my land, even in my absence; but he oouid not deliver a >roll of bank!- notes by laying them upon my doorstep'. In the former oaaei the position of the thing is normal and secure; in the latter it is abnormal and insecure. Notwithstanding some judicial dicta to the contrary, it does not seem to be true, either in law or in fact, that the posses- sion of land necessarily confers possesssion of all chattels that are on or under it; or that the possession of a receptacle such as a box, bag, or cabinet, necessarily confers possession of its contents. Whether the possession of one thing will bring with it the possession of another that is thus connected with it depends upon the circumstances of the particular case. A chattel may be upon my land, and yet I shall have no posses- sion of it unless the animus and corpus possessionis both exist. I may have no animus ; as when my neighbour's sheep, with or without my knowledge, stray into my field. There may 1 In the words of Ihering: " Tho visibility of pos^ossion is of decisive importance for ite seearity." Grund des Besitzeaschutzes, p. 190. Digitized by Microsoft® 248 POSSESSION. [§99 be no corpus ; as when I lose a jewel in my garden, and cannot* find it again. There may be neither corpus nor animus; as, when, unknown to me, there is a jar of coins buried somewhere upon my estate. So in the case of chattels, the possesBion pf the receptacle does not of necessity carry with it the pomes-' sion of its contents. As already stated, if I buy a cabine* containing money in a secret drawer, I acquire no possession of the money, till I actually discover it. For I have no animus possidendi with respect to any such contents, but solely with' resp'Bct to the cabinet itseK. That this is so in law, no less than in fact, appears from the follow- ing cases: — In Bridges v. HawheswortW- a parcel of bank-notes was di-opped on the floor of the defendant's shop, where they were found by the plain- tiff, a customer. It was held that the plaintiff had a good title to them as against the defendant. For the plaintiff, and not the defen- dant, was the first to acquire possession of them. The defendant had not the necessary animus, for he did not know of their existence. In B. V. Moore^ a bank-note was dropped in the shop of the pri- soner, who on discovering it, picked it up and converted it to his own use, well knowing that th«?owner could be found. It was held that he was rightly convicted of larceny; from which it follows that he was not in possession of the note until he actually discovered it. In Meirry v. Green^ the plaintiff purchased a bureau at auction, and subsequently discovered money in it, hidden in a secret drawer and belonging to the vendor. The plaintiff thereupon appropriated the money; and it was held that in doing so he committed theft, as he obtained possession of the money not when he innocently bought the bureau, but when he fraudulently abstracted the contents of it. In Cartwright v. Oreen'^ a bureau was delivered for the purpose of repairs to a lOarpenter, who discovered in a secret drawer money which he converted to his own use. It was held that he committed larceny, by feloniously taking the money into his possession. On the other hand the possession of the receptacle may confer posses- sion of the contents, even though their existence is unknown; for there may at the time of taking the receptacle be a general intent to take its contents also. He who steals a purse, not knowing whether there is money in it, steals the money in it at the same time. 1 21 L. J. Q B. 75. 2 L. & C. 1. 3 7 M. & W. 623. * 8 Ves. 405; 7 K. K. 99. Digitized by Microsoft® § 99] POSSESSION. 249 Thus in B. v. Muchlow^ a letter containing a bank-draft was dei- livered by mistake to the prisoner, whose name was identical with that of the person for whom the letter was intended. He reoeived "the letter innocently; but on subsequently opening it and finding that it was not meant for him, he appropriated the draft. It was held that lie was not guilty of larceny. For the innocent possession of the letter brought with it the innocent possession of its contents, and no subse- quent fraudulent dealing with the thing thus innocently obtained could amount to theft. There are, however, certain cases which seem to indicate that the possessor of land possesses whatever is in it or under it. In Elwes v. Brigg Gas Go.^ the defendant company took a lease of land from the plaintiff for the purpose of erecting gas works, and in ihe process of excavation found a prehistoric boat six feet below the surface. It was held that the boat belonged to the landlord, and not to the tenants who discovered it. Ohitty, J., says of the plaintiff: ■"Being entitled to the inheritance . . and in lawful possession, he was in possession of the ground, not merely of the surface, but of everything that lay beneath the surface down to the centre of the earth, and consequently in possession of the boat. ... In my opinion it makes no difference in these circumstances that the plaintiff was not aware of the existence of the boat." So in South Staffordshire Water Co. v. Sharman^ the defendant was ■employed by the plaintiff company to clean out a pond upon their land, and in doing so he found certain gold rings at the bottom of it. It was held that the company was in first possession of these rings, and the defendant, therefore, had acquired no title to them. Oases such as these, however, are capable of explanation on other grounds, and do not involve any necessary conflict either with the theory of possession or with the cases already cited, such as Bridges V. Hawkesworth. The general principle is that the iirst finder of a thing has a good title to it against all but the true owner, even though ihe thing is found on the property of another person (Armory v. Dela- ■mirie,^ Bridges v. Hawkesworth). This principle, however, is sub- ject to important exceptions, in which, owing to the special circum- stances of the case, the better right is in him on whose property the thing is found. The chief of these exceptional oases are the following: — 1. When he on whose property the thing is found is already in pos- session not merely of the property, but of the thing itself;' as ini certain circumstances, even without specific knowledge, he undoubtedly 1 1 Moody C. O. 160. ^ 33 Ch. D. 562. 3 (1896) 2 Q. B. ii. * 1 Smith, Li. C. 10th ed. 343; 1 Strange, 504. Digitized by Microsoft® 250 POSSESSION. [§ 99 may be. His prior possession will then confer a better rigbt as against the finder. If I sell a coat in the pocket of which, unknown to me, there is a purse which I picked up in the street, and the purchasecp of the coat finds the purse in it, it may be assumed with some confldenloe that I have a better right to it than he has, though it does not belong to either of us. 2. A second limitation of the right of a finder is that, if any one finds a thing as the servant or agent of another, he finds it not fbxi himself, but for his employer. If I instruct a carpenter to break open a, locked^ box for me, he must give up to me whatever he finds in it. This seems a, suflBoient explanation of such a case as Sharman's. The rings found at the bottom of the pond were not in the Company's possession in fact; and it seems contrary to other cases to hold that; they were so in law. But though Sharman was the first to obtain pos- session of them, he obtained it for his employers, and could claim no title for himself.^ 3. A third case in which la finder obtains no title is that in which he gets possession only through a trespass or other act of wrongdoin,g. If a trespasser seeks and finds treasure in my land, he must give it up to me, not because I was first in possession of it (which is not the case), but because he cannot be suffered to retain any advantalge derived from his own wrong. This seems a sufficient explanation of Elwes V. Brigg Gas Go. " The boat," says Ohitty, J. ,2 " was embedded in the land. A mere trespasser could not have taken possession of it; he could only have come at it by further acts of trespass involving- spoil and waste of the inheritance." According to the true construction of the lease the tenants, though entitled to excavate and remove soil, were not entitled to remove anything else. They must leave the premises as they found them, save in so far as they were authorised to do otherwise by the terms of their lease. § 100. Relation of the Possessor to the Thing Possessed. The second clement in the corpus possessionis is the relation of the possessor to the thing possessed, the first being 'that; which we have just considered, namely, the relation of the possessor to other persons. To constitute possession the animus dmniin must realise itself in both of those relations. The necessary relation between the possessor and the thing possessed is such as to admit of his making such use of it as 1 See ±'i>r a, criticism of tlie ratio ilecideudi of this case, Clerk and Iiindsell's Law of Torts, Appendix. " 33 Ch. D. 562, at p. .568. Digitized by Microsoft® § lOO] POSSESSION. 251 accords with the nature of the thing and of his claim to it. There must he no barrier between him and it, inconsistent with the nature of the claim he makes to it. If I desire to catch fish, I have no possession of them till I have tliemi securely in my net or on m\- line. Till then my ftmmiiw ckmdni has not been effectively embodied in the facts. Soi possession once gained may bo lost by the loss of my power of using the thing; as when a bird escapes from its cage, or I drop a jewel in the sea. It is not necessary that there should be anything in the nature of physical presence or contact. So far as the physical relation between person and thiag is concerned, I may be in possession of a piece of land at the other side of the world. My power of using a thing is not destroyed by my voluntary absence from it, for I can go to it when I will. Some amoimt of difficulty or even uncertainty in coming to the enjoyment of a thing is not inconsistent with the present possession of it. My cattle have strayed, but thej' will pro-i bably be found. My dog is awaj' from home, but ho will probabl}' return. I have mislaid a book, but it is somewherig within my house and can be found with a little trouble. These things, therefore, I still possess, though I cannot lay my hands 6ti them' at will. I have with respect to them a reasonable and confident expectation of enjoyment. But if a wild bird escapes from its cage, or a thing is hopelessly Inislaid, whether in my house or out of it, I have lost possession of it. Such a toss of the proper relation to the thing itself is very often at the same time the loss of the proper relation to other persons. Thus if I drop a shilling in the street, I lose possession ^on, both grounds. It is very unlikely that I shall find it myse;lf, and it is very likely that some passer-by will discover ^and,' appropriate it. Digitized by Microsoft® ( 262 ) CHAPTER XIV. POSSESSION (continued) . § 101. Immediate and Mediate Possession. One person may possess a thing for and on account of some one else. In such a case the latter is in possession by thes agency of him who so holds the thing on his .behalf. The possession thus held by one man through another may be termed mediate, while that which is acquired or retained directly or personally may be distinguished as immediate or direct. If I go myself to purchase a book, I acquire direct possession of it; but if I send my servant to buy it for Imie, I acquire mediate possession of it through him, until he has brought it to me, when my possession becomes immediate. Of mediate possession there are three kinds. ^ The first is that which I acquire through an agent or servant; that is to say through some one who holds solely on my account and claims no interest of his own. In such a case I undoublKedly acquire or retain possession; as, for example, when I allow my servant to use my tools in his work, or vhen I send !him! to buy or borrow a chattel for me, or when I deposit goods with a Warehouseman who holds them on my account, or when I send toy boots to a shoemaker to be repaired. In all sueh cases, though the inlmediate possession is in the servant, ware- houseman, or artisan, the mediate possession is in me; foTc the immediate possession js held on my account, and my aniimis domini is therefore suffieienth' realised in the facts . 1 The explicit recognition of mediate posvsession (mittelbarer Besitz) in its: fullest extent is a characteristic feature of the G-erman Civil Code (sects. 868- 871) : " If any one possesses a thing as usufructuary, pledgee, tenant, bor- rower, or depositee, or in any similar capacity by virtue of which he is entitled or bound with respect to some other person to keep possession of the thing for a limited time, then that other person has possession of it also Cmediate possession)." See Dernburg, Das burgerliohe Eecht, ITT. sect. 13. Wind- scheid, I. pp. 697-701. Digitized by Microsoft® § lOl] POSSESSION. 253 The aeoond kind of mediate possession is that in which the direct possession is in one who holds both on my account and on his own, but who recognises my superior right to obtain from: him ithe direct possession whenever I choose to demand it. That is to say, it is the case of a borrower, hirer, or tenant at will. I do not lose possessitm of a thiug because I have len,t it to some one who acknowledges my title to it and is prepared' to return it to me on demand, and who in the meantime hblds it and looks after it on my behalf. There is no difference in this respect between entrusting a thing to a servant or agent and entrusting it to a borrower. Through the one, as well as through the other, I retain as regards all other persons a due security for the use and enjoyment of my property. I myself possess whatever is possessed for me on those terms by another .1 There is yet a third form of mediate possession, respleoting which more doubt may exist, but which must be recognised by soimd theory as true possession. It is the case in which the immediate possession is in a person who claims it for himself until some time has elapsed or same condition has been fulfilled, but who acknowledges the title of another for whom; he holds the thing, and to whom he is prepared to deliver it when his own temporary claim has come to an end: as for example when I lend a chattel to another for a fixed time, or deliver it as a pledge to be returned on the payment of a debt. Even in such a case I retain possession of the thing, so far as third persons are concerned. The animlus and the corpus are both present; the anmrns, for I have not ceased, subject to the temporary right of another person, to claim the exclusive use of the thing for myself; the corpus, inasmuch as through the instrumentality of the bailee or pledgee, who is keeping the thing safe for me, I am effectually excluding all other persons 1 In Ancona v. Sogers (1 Ex. D. at p. 292) it is said in the judgfment of the Exchequer Chamber: " There is no doubt that a bailor who has delivered goods to a bailee to keep them on aooount of the bailor, may still treat the goods as being in his own possassiou, and can maintain fcreapase against a wrongdoer who interferes with them. It was argued, however, that this was a mere legal or constructive possession of the goods. . . . We do not agree with this argument. It seems to us that goods which have been delivered to a bailee to keep for the bailor, such as a gentleman's plato delivered to hia baL'ker, or his furniture warehoused at the Pantechnicon, would in a popular sense as well as in a legal sense be said to be still in his possession." Digitized by Microsoft® 254 POSSESSION. [§ 101 from it, and have thereby attained a sufficient security for its enjoyment. In respect of the effective realisation of the animus dovrdni, there seems to be no essential difference between en- trusting a thing to an agent, entrusting it to a bailee at vi^illj and entrusting it to a bailee for a fixed term, or to a creditor by "way of pledge. In all these cases I get the benefit of the immediate possession of another person, who, subject to his own claim, if any, holds and guards the thing en my account. If I send a book to be bound, can my continued possession of it depend on Avhether the binder has or has not a lien over it for the price of the work done by him? If I lend a book to a friend, can my possession of it depend on whether he is to return it on demand or may keep it till to-morrow ? Such dis- tinctions are irrelevant, and in any alternative my possession as against third persons is unaffected. A test of the existence of a true mediate possession in all the- fore- going cases is to be found in the operation of the law of prescription. A title by prescription is based on long and continuous possession. But he who desires to acquire ownership in this way need not retain the immediate possession of the thing. He may let his land to a tenant for a term of years, and his possession will remain unaffected, and pire- ecription will continue to run in his favour. If he desires to acquire a right of way by prescription, his tenant's use of it is equivalent to Ms own. Por all the purposes of the law of prescription mediate pos- session in all its forms is as good as immediate. In Haig v. West i it is said by Lindley, L.J.: "The vestry by their tenants occupied and: enjoyed the lanes as land belonging to the parish. . . . The parielh have in our opinion gained a title to those parish lanes by the Statute of Limitations. The vestry have by their tenants occupied and enjoyed the lanes for more than a century.'' In the case of chattels a further test of the legal recognition of mediate possession' in all its forms is to be found in the law as to delivery by attornment. In Elmore v. Stone^ A. bought a horse from B., a livery stable keeper, and at the same time agreed that it should, remain at livery with B. It was held that by this agreement ithe horse had been effectually delivered by B. to A., though it had re- mained continuously in the physical custody of B. That is to eay, A. had acquired mediate possession, through the direct possession which B. held on his behalf. The case of Marvin v. Wallaoe^ goes still fnr- 1 (1893) 2 Q. B. 30, 31. 21 Taunt. 458: 10 E. B. 578 3 6 El. & B. 726. Digitized by Microsoft® § lOl] POSSESSION. 255 iher. A. bought a horse from' B., and, without any change inj tjhe immediate possession, lent it to the seller to keep and use as a baileq for a month. It was held that the horse had been effectually delivered by B. to A. This was mediate possession of the third kind, being acquired and retained through a bailee for a fixed term. Orompton, J., referring to Elmore v. Stone, says:^ "In the one case we have a bailment of a description different from the original possession; here we have a loan; but in each case the possession of the bailee is the possession of the bailor; it would be dangerous to distinguish between such cases." In all cases of mediate possession two persons are in posees^ sioa of the same thing at the same time. Every mediate pos-i sossor stands in relation to a direct possessor through whomi he holds. If I deposit goods with au agent, he is in possossioni of them as Avell as I. He possesses for me, and I possess through him. A similar duplicate possession exists in the case of master and servant, landlord and tenant, bailor andj haile-e, pledgor and pledgee. In all such cases, however, there is an important distinction to be noticed. Mediate possession exists as against third persons only, and not as against thei immediate possessor. Immediate possession, on the other hand, is valid as against all the world, including the mediate pos^ sessor himseK. Thus if I deposit goods with a warehouse- man, I retain possession as against all other persons; b^ecause as against them I have the benefit of the warehousemsan'a custody. But as between the wo^rehouseman and myself, he is in possession and not I. For as against him I have in no way realised my animus possklendi nor in any way obtained a security of use and enjoyment. So in the case of a pledge, the debtor continues to possess quoad the world at large; but ■ as between debtor and creditor, possession is in the latter. The debtor's possession is mediate and relative; the creditor'^ is immediate and absolute. So also with landlord and tenant, bailor and bailee, master and servant, principal and agenty and all other cases of mediate possession. Here also we may find a test in the operation of prescription. Aa between landlord and tenant, prescription, if it runs at all, will run in favour of the tenant; but at the same time it may run in favour 1 At p. 735. Digitized by Microsoft® 256 POSSESSION. [§ 101 of the landlord as against tHe true owner of the property. I/et u& Buppose, for example, that possession for twenty years will in all cases give a good title to land, and that A. takes wrongful possession of land from X., holds it for ten years, and then allows B. to have the gratuitous use of it as tenant at will. In ten years more A. will have a good title as against X., for, as against him, A. has been continuously in possession. But in yet another ten years B., the tenant, will have a good title as against his landlord. A., for as between these two the possession has been for twenty years in B. To put the matter in a general form, prescription runs in favour of the immediate against the mediate possessor, but in favour of the mediate possessor as against third persons. § 102. Concurrent Possession. It was a maxim of the civil law that two persons could not be in possession of the same thing at the same time. Plur.es ecmdem rem in solidum possidere non possuntA As a general proposition this is true; for exclusiveness is of the essence of possession. Two adverse claims of exclusive use cannot both be effectually realised at the same time. Claims, however, which are not adverse, and which are not, therefore, mutually destructive, admit of concurrent realisation. Hence there are several possible cases of duplicate possession. 1. Mediate and immediate possession coexist in respect of the same thing as already explained. ■2. Two or more persons may possess the same thing in common, just as they may own it in common. This is called oompos&essio by the civilians. 3. Corporeal and incorporeal possession may coexist in respect of the same material object, just as corporeal and iticorporeal ovmership may. Thus A. may possess the land, while B. possesses a right of way over it. For it is not neoeis- sary, as we have already seen, that A.'s claim of exclusive use should be absolute; it is sufficient that it is general. § 103. The Acquisition of Possession. Possession is acquired whenever the two elements of corpus and cmwmis come into coexistence, and it is lost so soon as either of them disappears. The modes of acquisition are twK> 1 D, 41. 2. 3. 5. Digitized by Microsoft® § 103] P0SSKS8I0N. 257 in number, namely Taking and Delivury. Taking is the acquisition of possession witliout tlie consent of the previous, possessor. Tlie thing taken may or rnaj- not have been, already in the possession of some one else, and in either case the taking of it may be either rightful or wrongful. Delivery, on the other hand, is the acquisition of possession -with the consent and co-operation of the previous possessor. It is of two kinds, distinguished by English lawyers as actual and constructive.^ Actual delivery is the transfer of irrtmediate possession; it is such a physical dealing with the thing as transfers it from the hands of one person to those of another. It is of two kinds, according as the mediate possession is or is not retained by the transferor. The delivery of a chattel by way of sale is an example of delivery without an^- reservation of mediate possession; the delivery of a chattel by way of loan or deposit is an instance of the reservation of mediate pos- session on the transfer of immediate. Constructive delivery, on the other hand, is all which is not actual, and it is of three kinds. The first is that which the Roman lawyers termed traditio brevi manu, but which has no recognised name in the language of English law. It con- sists in the surrender of the mediate possession of a thing to him who is alread}- in immediate possession of it. If, for example, I lend a book to some one, and afterwards, while he still retains it, I agree with him to sell it to him, or to make him a present of it, I can effectually deliver it to- him in ful- filment of this sale or gift, by telling him that he may keep it. It is not necessary for him to go through the form of handing it back to me and receiving it a second time from my hands. For he has already the immediate possession of it, and all that is needed for delivery under the sale or gift is the destruction of the animus through which mediate possession is still retained by me. 2 1 Theee terms, however, are not strictly accurate, inasmuch as the so- called constructive delivery is a perfectly real transfer of possession, and involves no element of fiction whatever. 2 For examples of traditio brevi manu, see Winter v. li'intp.r, 4 L. T. (N. S.) 639; Cain v. Moon, (1896-) 2 Q. B. 283; Richer v. roi/pr. L. E. 5 P. C. 461. S.J. 17 Digitized by Microsoft® 258 POSSESSION. [§ 103 ;The second form of constructive delivery is that which the commentators on the civil law have termed constitutum pos- sessoriitm (that is to say, an agreement touching pos'session) . This is the converse of traditio brevi nmnu. It is the transfer of mediate possession, while the immediate possession remains in the transferor. Any thing may be effectualliv delivered by mieans of an agreement that the possessor of it shall for the future hold it no longer on his own account but Ion aoooujit of some one else. No physical dealing with the thing is requisite, because by the mere agreement mediate possession is acquired by the transferee, through the immediate posses- sion retained by the transferor and held on the other's behalf. Therefore, if I buy goods from a warehouseman, they are delivered to me so soon as he has agreed with me that he ^vill hold them as warehouseman on my account. The position is then exactly the same as if I had first taken actual deliveny of them, and then brought them back to the warehouse, and deposited them there for safe custody. ^ The third form of constructive delivery is that which ia known to English lawyers as attornment. ^ This is the trans- fer of mediate possession, while the immediate possession remains outstanding in some third person. The mediate pos- sessor of a thing mjay deliver it by procuring the immediate possessor to agree with the transferee to hold it for the future oai his account, instead of on account of the transferor. Thus if I have goods in the warehouse of A., and sell them to B., I have effectually delivered them to B., so soon as A. has agreed with B. to hold them for him, and no longer for mte. Neither in this nor in any other ca.se of constructive delivery is any physical dealing with the thing required, the change in the anirrMS of the persons concerned being adequate in itself .^ ^ For examples of rujiRiitulum jfossesiorimii. see Eluwrr \. Stoiw. 1 Tiannt. 458; 10 E. E. 578; }In,-rht s. Ifn/lner. 6 El. & Bl. 726. See sitpir/. § 3 01. - Coayliliituin -pofisessorii'.ni, also, niay l>e tinned attornment in a wide sense. ^ Delivoi-y by attornment is provided for by the Sale of Goods Act, 1893, s. 29 (.$) : •' Where the goods at the time of sale are in the possession of a third person, tliere is no delivery by seller to buyer unless and until such third person acknovvledgi?s to the buyer that he holds the goods on his behalf." Digitized by Microsoft® § 104] POSSESSION. 26y § 104. Possession not essentially the Physical Power of Exclusion. According to a widely acoeptied theory the essence of cor- poreal possession is to be found in the physical power of ex- clusion. The corpus possessionis, it is said, is of two kinds, according as it relates to the oommenoement or to the con- tinuance of possession. The corpms required at the com- mencement is the present or actual physical power of using the thing oneself and of excluding all other persons from the use of it. The corpus required for the retention of a possession once acquired may, on the other hand, consist merely in the ability to reproduce this power at will. Thus I acquire pos- session of a horse if I take him by the bridle, or rid© upaa him, or otherwise have him in my immediate personal pre- sence, so that I can pi-evelnt all other persons from interfering with him. But no such immediate physical relation is neces- sary to retain the possession so acquired. I can put the hor&e in my stable, or let him run in a field. So long as I can go. to him when I wish, and reproduce at will the original relation, of physical power, my possession has not ceased. To this view of the matter, however, the following objections may be made.^ 1. Even at the cominenoement a possessor need have no physical power of excluding other persons. What physical power of preventing trespass does a man acquire by making an entry upon an estate which may be some squai'e miles in extent? Is it not clear that he may have full possession of. land that is absolutely unfenoed and unpTotected, lying open to every tr^passer? There is nothing to prevent even a child from acquiring effective possession as against strong men, nor is possession imlpossible on the part of him who lies in his bed at the point of death. If I stretch a net in the sea, do I not acquire the possession of the fish caught in it, so soon as thley 1 Tie tlieory here considered is that which has been made familiar by Savigny's celebrated treatise on Possession (Recht des Besitzes, 1803). The influence of this work was long prodomijiant on the Continent and con- siderable in England, and it still finds no small amount of acceptance. A forcible statement of the objections to Savigny's doctrine is contained in Ihering's Grund des Besitzesschutzes, pp. 160 — 193. 17(2) Digitized by Microsoft® 260 POSSESSION. [§ 104 are caught? Yet every other tisheriaaii that passes by has more power of excludixig me than I have of exoluding him. So if I set traps in the forest, I possess the animals which. I catch in them, though there is neither physical presence nor physical power. If in my absence a vendor deposits a load of stone or timber on my land, do I not forthwith ac-quire possession of it? Yet I have no more physical power over it than any one else has. I may be a hundred miles from my farm, without having left any one in charge of it; but I acquire possession of the' increase of my sheep and cattle. In all such cases the assumption of physical po\\er to ex- clude alien interference is no better than a fiction. The tru':- test is not the physical power of preventing interference, but the improbability of any interference, from whatever source this improbability arises. Possession is the security of enjoy- ment, and there are other means of attaining this security than personal presence or power. It is true that in time of war the possession of a place must be obtained and defended by cannon and bayonets: but in the peaceful intercourse of fellow-citizens under the rule of law, possession can be acquired and retained on much easier terms and in much simpler fashion. The chances of hostile interference are determined by other cc>n- siderations than that of the amount of physical force at the disposal of the claimant. We have to take account of the customs and opinions of the community, the spirit of legality and of resjDect for rightful claims, and the habit of acquies- cence in established facts. We have to consider the nature of the uses of which the thing admits, the nature of the precau- tions which are jjossibly or usually taken in resp)eet of it, the opinion of the community as to the rightfulness of the claim seeking to realise itself, the extent of lawless violence that is common in the society, the oijportunities for interference and the temptations to it, and lastly but not I'xclusively the physical power of the possessor to defend himself against aggression. If. having regard to these circumstances and to such as these, it appears that the animus possideudi has so prospered as to have acquired a reasonable security for its duo- fulfilment, there is true possession, and if not, not. Digitized by Microsoft® § 104j POSSESSION. 261 2. In the second place it is by no means clear how it is posi^ible for possession at its commencement and possession in its continuance to be made up of different elements. How can it be that possession at its inception involves actual physical power of exclusion, while in its continuance it involves merely the power of reproducing this primary relationship? Posses- sion is a continuing de facto relation between a person and a thing. Surely, therefore, it must from begimiing to end have the same essential nature. What is that nature? Savigny's theory affords no answer. It tells us, at the most, how pos- session begins, and how it ceases; but we wish to know what it essentially' and continuously is. 3. Thirdly and lastly, the theory which we are considering is inapplicable to the possession of incorporeal things. Even if it successfully explained the possession of land, it would afford no explanation of the possession of a right of way or other servitude. Here there is neither exclusion nor the power of exclusion. It is, on the contrary, the possessor of the ser- vient land Avho has the physical power of excluding the possessor of the servitude. If I possess an easement of light, what power have I to prevent its infringemient by the building opera- tions of my neighbour ? It is true that this is not a conclusivei objection to Savigny's analysis; for it remains perfectly open to him to rejoin that possession in its proper sense is limited to the possession of corporeal things, and that its extension to incorporeal things is merely analogical and metaphorical. The fact remains, however, that this extension has taken place; and, other things being equal, a definition of possession which succeeds in including both its forms is preferable to one which is forced to reject one of them as improper. § 105. Incorporeal Possession. Hitherto we have limited our attention to the case of cor- poreal possession. We have now to consider incorporeal, and to seek the generic conception which includes both these forms. For I may possess not the land itself, but a way over it, or the access of light from it, or the support afforded by it to m|y Digitized by Microsoft® --"■^ POSSESSION. [§ 106 land which adjoins it. So also I may possess powers, privi- leges, immunities, liberties, offices, dignities, services, mono- polies. All these things may be possessed as well as owned. They may be possessed hy one man, and owned by auothei'. They may be owned and not possessed, or possessed and nob owned. Corporeal possession is, as we have seen, the continuing exercise of a claim to the exclusive use of a material object. Incorporeal possession is the continuing exercise of a claim to anything else. The thing so claimed may be either the non- exclusive use of a material object (for example, a way or other servitude over a piece of land) or some interest or advantage unconnected with the use of material objects (for example a trade-m:ark, a patent, or an office of profit). In each kind of possession there are the same two elements required, namely the animus and the corpus. The anhnus is the claim — the self-assertive will of the possessor . The corpus is the environment of fact in which this claim has realised, embodied, and fulfilled itself. Possession, whether coqDoreal or incorporeal, exists only when the amnms possidendi has succeeded in establishing a continuing practice in conformity to itself. Nor can any practice be said to be continuing, un- less some measure of future existence is guaranteed to it by the facts of the case. The possession of a thing is the de facto condition of its continuous and secure enjoyment. In tlio case of corporeal possession the corpiis possessionis consists, as we have s&en, in nothing more than the continu- ing exclusion of alien interference, coupled with ability to use the thing oneself at will. Actual use of it is not essential. I m,ay lock my watch in a safe, instead of keeping it in my pocket; and though I do not look at it for twenty years, I remain in possession of it none the less. For I have continu- ously exercised my claim to it, by continuously excluding other persons from interference with it. In the case of incorporeal possession, on the contrary, since there is no such claim of exclusion, actual continuous use and enjoyment is essential, as being the only possible mode of exercise. I can acquire and retain possession of a right of way only through actual and Digitized by Microsoft® §105] POSSESSION. ^63 repeated use of it. la the case of iiioorpoiX'al things con- tinuing non-use is inconsistent with possession, though in the case of corporeal things it is consistent with it. Incorporeal possession is commonly called the possession of a right, and corporeal possession is distinguished from it as the possession of a thing. The Roman lawyers distinguish between possessio J2tris and possesfio corporis, and the Germans between R&chtsbesitz and Sachenhesiiz. Adopting this nomenclature, we may define incorporeal possession as the continuing exer- cise of a right, rather than as the continuing exercise of a claim. The usage is one of g-reat convenience, but it must not be mis-i understood. To exercise a right means to exercise a claim as if it ivere a right. There may be no right in reality; and where there «.v a right, it may be vested in some other pi'erson, and not in the possessor. If I posse'ss a wa}' over another's land, it may or may not be a right of way; and even if it is a right of way, it maj' be owned hj some one else, though pos- sessed by me. Similarly a trade-mark or a patent which is possessed and exercised by me may or may not be legally valid; it may exist die facto and not also de, jure ; and even if legally valid, it may be legally vested not in me, but in another. ^ The distinction between corporeal and incorporeal posses- sion is clearly analogous to that between coiporeal and in- corporeal ownership. Corporeal possession, like corporeal ownership, is that of a thing; while incorporeal possession, like incorporeal ownership, is that of a right. Now in the case of ownership we have already seen that this distinction between things and rights is merely the outcome of a figure of speech, by which a certain kind of right is identified with the material thing which is its object. A similar explanation is appli- 1 Bmns rejects the definition of possession as consisting in the continuing' exercise of a right, and defines it as the continuous possibility of exercising a right at -will. " Just as corporeal possession," he says (Eecht des Besitzes, p. 475), " consist-i not in actual dealing with the thing, but only in the power of dealing with it at will, so incorporeal possession consists not in the actual exercise of a right, but in the power of exercising it at will; ajifl it is only because the existence of this power does not become visible as an objective fact until actual exercise of the right has taken place, that such actual exerciae is recognised as an essential condition of the coniinencement of poesession." This, however, seems incorrect. Possession consists not in the power of exercising a claim in the future, hut in the power of conHmniir/ to exercitie il from now onwards. Digitized by Microsoft® 2G4 POSSESSION, [§ 105 cable in the case of possession. The possession of a piece of land means in truth the possession of the exclusive use of it, just as the possession of a right of way over land means the possession of a certain non-exclusive use of it. By metonymy the exclusive use of the thing is identified with the thing itself, though the nan -exclusive use of it is not. Thus we obtain a distinction between the possession of things. and the possession of rights, similar to that between the o\vnership of things and the ownership of rights. ^- In essence, therefore, the two forms of possession are identi- cal, just as the two fomis of ownership arc. Possession in its full compass and generic application means the cant inning exercise of any claimi or right. § 106. Relation between Possession and Ownership. "Possession," says Ihering,^ "is the objective realisation of ownership." It is in fact what ownersliip is in right. Possession is the de facto exercise of a claim ; ownership is the 1 Thus ill the Civil Code of Prance it is said (sect. 2228) : La possession est la d6tention on la jouissance d'une chose ou d'un droit que nous tenons ou que nous exerijons par nous-memes ou par un autre qui la tient ou qui I'exeree en noti'e nom. The definition of the Italian Ci\il Code is similar (sect. 685): " Possession is the detention of a thing or the enjoyment of a right hy any person either personally or through another who detains the thing or exercises the right in his name.'' A good analysis of the generic conception of possession, and of the relation between its two varieties, is to be found in Bandry-Lacantinerie's Traite de Droit Civil (De la Prescription, sect. 199): "Possession is nothing else than the exercise or enjoyment, whether by ourselves or through the agency of another, of a real right which we have or claim to have over a thing. It nmkes no difEcrence whether this right is one of ownership or one of some other description, such as ifsiiafvJ'CfKs, Jifuffi, hnhitniio, or nerrrt}'!^. The old distinction between possession and quasi-possession, which was recognised by Roman law and is still to be found in the doctrine of Pothier, has been rejected, and rightly so. It was in our opinion nothing more than a result of that confusion between the right of ownership and the object of that right, which has been at all times prevalent. Possession is merely the exercise of a right, in reality it is not the thing which we possess, but the right which we have or claim to have over the thing. T^iis is as true of the right of ownership as of the right of servitude and usufruct; and con- sequently the distinction between the possession of a thing and the quasi- popsession or a right is destitute of foundation." See to the same effect Ihering, Grund des Eesitz. p. 15D: "Both forms of possession consist in the -exercise of a right (die Ausiibung eines Eeehts)." Bruns, also, recognises the figure of speech on which the distinction between coi*poreal and incorporeal poascasion is based. Eeeht des Besitzes, p. 477. " Grund des Besitz. p. 179: Der Besitz die Thatsachlichkeit des Eigen- thums. See also at p. 192: Dor Besitz ist die Thatsachlichkeit des Rechts. Digitized by Microsoft® §106] POSSESSION. 265 de jure recognition of one . A thing is owned b^- me when my chiim to it is maintained by the will of the state as expresseid, in the law; it is possessed by one, when ixiy claim to it is main- tained by my own self-assertive will. Ownership is the guaran- tee of the law; possession is the guarantee of the facts. It is ^'ell to have both forms of security if possible; and iiideeidl they normally coexist. But where there is no law, or where the law is against a man, he must content himself with thi© precarious security of the facts. Even when the law is in one's favour, it is well bo haJve the facts on one's side also. Beati possidenies. Possession, therefore, is the de facto coun- tei-part of OAvnership. It is the external form in which rightful claims normally manifest themselves. The separation of these Iavo things is an exceptional incident, due to accident, wrong, or the special nature of the claims in question. Possession Tvithoul: ownership is the body of fact, uninformed by the spirit of right which usually accompanies it. Ownership without possession is right, unaccompanied by that environ- ment of fact in which it normally realises itself. The two things tend mutually to coincide. Ownership strives to realise itself in possession, and possession endeavours to justify itsielf as ownershiiD. The law of prescription determines the process by Avhich, through the influence of time, possession without title ripens into ownership, and ovmership without possession withers away and dies.^ Speaking generally, ownership and j^ossession have the same subject-matter. Whatever may be owned may be possessed, and whatever may be possessed may be owned. This state- 1 In saying that possession is the de facto counterpart of ownership, it is to be remembered that we use both terms in their widest sense, as including both the corporeal and incorporeal forms.. If we confine our attention to corporeal ownership and possession, the correspondence between them is inccmplete. !llany claims constitute corporeal possession if exercised de facto, but incorporeal ownership if recognised de jure. Thus tenants, baUee«, and pledgees have corporeal possession but incorporeal ownership. They possess the land or the chattel, but own merely an encumbrance over it. The ownership of a book means the ownership of the peneral or re^i^uar.f riijlit to it; but tho possession of a book means merely the poi?jsession of an r^rcluf^ive riffht to it for the time beinr/. Thaifc is to say, the figurative usage of speecli is not the same in possession as in o\(Tier- eliip, therefore much corporeal possession is the counterpart of incorporeal ownership. Digitized by Microsoft® 266 POSSESSION. [§ 106: ment, however, is subject to important qualifications. There are claims which may be realised and exercised in fact without receiving any recognition or protection from the law, there being no right vested either in the claimant or in any one else. In such cases there is possession without ownership. For ex- ample, men might possess copyrights, trade-marks, and other forms of monopoly, even though the law refused to defend' those interests as legal rights. Claims to them might be realised de fmto, and attain some measure of security and value from the facts, without any possibility of support fromi the law. Conversely there are many rights wliich can be owned, but which are not capable of being possessed. They are those which may be ter-med transitory . Rights which do not admit of con- tinuing exercise do not admit of possession either. They cannot be exercised without being thereby wholly fulfilled and destroyed; therefore they cannot be possessed. A creditor, for example, does not possess the debt that is due to him; for this is a transitory right which in its very nature cannot survive its exercise. But a man may possess an easement over land, because its exercise and its continued existence are consistent with each other. It is for this reason that obligations gene- rally (that is to say, rights in personam as opposed to rights in. remrt) do not admit of possession. It is to be remembered, however, that repeated exercise is equivalent in this respect to continuing exercise. I may possess a right of way through repeated acts of use, just as I may possess a right of light or support through continuous enjoyment. Therefore even obli- gations admit of possession, provided that they are of such a nature as to involve a series of repeated acts of performance. We may say that a landlord is in possession of his rents, an annuitant of his annuity, a bondholder of his interest, or a master of the services of his servant. ^ 1 Windscheid, II. sect. 464: " If we ask what other rig-hts, in addition t<-. real rights, admit of possession, the answer is that in principle no right is incapable of possession, which is capable of continuing exercise (dauernde AuBtibung)." So Ihering, Grund dcs Besitz. p. 158; "The conception of possession is applicable to all rights which admit of realisation (Thatsaclilichkeit), that 'v> Digitized by Microsoft® § 106] POSSESSION. 267 We may note finally that, although inooqKU'eal possession is possible in fact of all continuing rights, it by no meanjs follows that the recognition of such possession, or the attribu- tion of legal consequenoes to it, is necessary or profitable in law. To what extent incorjDoreal possession exists in law, and what consequences flow from it, ar<' questions which are not her-e relevant, but touch merely the details of the leg-al system. § 107. Possessory Remedies. In English law possession is a good title of right againist any one who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier l>ossessors and except the true owner himself. Many other legal systems, 1 however, go much further than this, and treat possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession, can recover it from an}' person whatever, simply on the ground of his possession. E^^en the true owner, who retakes his own, may be forced in this way to restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed ill due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession,, until deprived of it by a judgment according to law. Legal remedies thus appointed for the protection of pos- session even against ownership are called possessory, while those available for the protection of ownership itself may be distinguished as proprietary. In the modern and medieval civil law the distinction is expressed by the contrasted terms petitoriym (a proprietary suit) and possessorium (a possessory suit) . to say, which admit o{ a oontinuing visible exercise." Ihering defines possession generally (p. 160) as " Thatsachlichkeit der mit dauernder Ausii- bung verbtindenen Eechte." See also Brans, Rccht de-i Besitzes, pp. 479, 481. 1 See for example the German Civil Code, sects. 858, 861, 86-1, and the> Italian Civil Code, sects. 694—697. Digitized by Microsoft® ^«« POSSESSION. [§ 107 This duplication of remedies, with the resulting provisional protection of possession, has its beginnings in Eoman law. It was taken up into the canon law, where it received consider- able extensions, and through the canon law it became a prominent feature of medieval jurisprudence. It is still received in modern Continental systems; but although well known to the earlier law of England, it has been long since rejected by us as cumbrous and unnecessary. There has been much discussion as to the reasons on which this provisional protection of possession is based. It would seem probable that the considerations of greatest weight ai'e the three following. 1. The evils of violent seK-help are deemed so serious that it must be discouraged by taking away all advantages which :any one derives from it. He who helps himself by force even to that which is his own must restore it even to a thief. The law gives him a remedy, and with it he must be content. This reason, how(>ver, can be allowed as valid only in a con- dition of society in which the evils and dangers of forcible self-redress are much more formidable than they are at the present day. It has been found abundantly sufficient to punish violence in the ordinary way as a criminal offence, without- compelling a rightful owner to deliver up to a trespasser pro- perty to which he has no manner of right, and which can be forthwith recovered from him by due course of law. In the case of chattels, indeed, our law has not found it needful to protect possession even to this extent. It seems that an owner who retakes a chattel by force acts within his legal rights. Porcible entry upon land, however, is a criminal offence. 2. A second reason for the institution of possessory remedies is to be found in the serious imperfections of the early proprie- tary remedies. The pirocedure by which an owner recovered his property was cumbrous, dilatory, and inefficient. The path of the claimant was strewn with pitfalls, and he was lucky if he reached his destination without disaster. The part of plaintiff in such an action was one of grave disadvantage, and possession was nine points of the law. No man, therefore, eould be suffered to procure for himself by violence the advan- Digitized by Microsoft® § 107] POSSESSION. 269" tageous position of defendant, and to force his adversary hy such means to assume the dangerous and difficult post of plain- tiff. The original position of affairs must first be restored; possession must first be given to him who had it first; then, and not till then, would the law consent to discuss the titles of the disputants to the property in question. Yet however cogent such considerations may have been in earlier law, they are now of little weight. With a rational system of proce- dure the task of the plaintiff is as easy as that of the defendant. The law shows no favour to one rather than to the other. 3. A third reason for possessory remedies, closely connected with the second, is the difficulty of the proof of ownership- It is easy to prove that one has been in possession of a thing, but difficult (in the absence of any system of registration of title) to prove that one is the owner of it. Therefore it was considered unjust that a man should be allowed by violence to transfer the heavy burden of proof from his own shoulders to^ those of his opponent. Every man should bear his own burden. He who takes a thing by force must restore it to him from' whom he has taken it; let him then prove, if he can, that he is the owner of it; and the law will then give to him what it will not suffer him to take for himself. But English law has long since discovered that it is possible to attain this end in a 'much more satisfactory and reasonable way. It adjusts the burden of proof of ownership with perfect equity, without recourse to any such anomaly as the protection of the possessor against the owner. This it does by the operation of the three follow- ing rules: 1. Prior possession is prima facie proof of title. Even in the ordinarj- proprietary action a claimant need do nothing more than prove that he had an older possession than that of the defendant ; for the law will presume from this prior pos- session a better title. Qyi prior est tempore potior est jure. 2. A defendant is always at liberty to rebut this presump- tion by proving that the better title is in himself. 3. A defendant is not allowed to set up the defence of juf: tertii, as it is called; that is to say, he will not be heard to Digitized by Microsoft® :270 POSSESSION. [§ 107 allege, as against the plaintiff's claim, that neither the plain- tiff nor he himself, but some third person, is the tme owner. Let every man come and defend his own title. As between A. and B. the right of C. is irrelevant. By the joint operation of these three rules the same pur- pose is effected as was sought in more cumbrous fashion by the early duplication of proprietary and possessory remedies. i SUMMARY OP CHAPTEES XIII. AND XIV. _ . I In fact — possessio naturalis. Tossession { -r , . . .,. ( in law — possessio civiiis. -r, ... I Seisin. Possession m Jaw ' ^ ( Possession. T, ■ ( Corporeal — possessio corporis — Saclieinbesitz. Possession j ^ ^ , ■ ■ ■ -o -u^ -u -i I incorporeal — possessio juris — iiechtsbesitz. 'Corporeal possession — the continuing exercise of a claim to the exclu- sive use of a material thing. _, , „ , . ( Animus sibi habendi. Elements ot corporeal possession { „ , \ Corpus. Animus sibi habendi: 1. Not necessarily a claim of right. 2. Must be exclusive. .3. Not necessarily a claim to use as owner. 4. Not necessarily a claim on one's own behalf. ■5. Not necessarily specific. •Corpus — the effective realisation of the animus in a security for en- joyment, lilements of the corpus: 1. A relation of the possessor to other persons, amounting to a security for their non-interference. The grounds of such security: 1. Physical power. i 2. Personal presence. 3. Secrecy. 4. Custom. 5. Eespect for rightful claims. 6. Manifestation of the animus. 7. Protection afforded by other possessions. The rights of a finder. 1 A^,e,- V. Tr/utlorl-. L. K. 1 Q. B. 1; Armorie v. Delaniirie, 1 Stra. .504; 1 Sm. L. C. 10th ed. .343; Bridges v. Jlcnohcinmrth, 21 L. J. Q, B. 7,5. Digitized by Microsoft® § 107] POSSESSION. 271 2. A relation of the possessor to the thing possessed, amount- ing to a security for the use of the thing at will, p ^ . ( Inunediate — without the intervention of another person. I Mediate — through or by means of another person. / 1. Through servants or agents. -,,,., . 1 2. Through bailees or tenants at will. Mediate possession , ° J 3. Through persons claiming temporary posses- sion for themselves. The relation between the mediate and the immediate possessor. 'The exclusiveness of possession. ; Exceptional instances of duplicate possession: 1. Mediate and immediate possession. 2. Possession in common. 3. Corporeal and incorporeal possession. 'The acquisition of possession: I 1. Taking. ' . I Actual. ' 2. Delivery • ( Traditio brevi manu. ' Constructive l Constitutum possessorium. ' Attornment. Possession not essentially the physical power of exclusion. Incorporeal possession: Its nature — the continuing exercise of any claim, save one to the exclusive use of a corporeal thing. Its relation to corporeal possession. The generic conception of possession. The relation between possession and ownership. Possession the de facto exercise of a claim. Ownership the de jv/re recognition of one. The identity of the objects of ownership and possession. Exceptions : 1. Things which can be possessed, but cannot be owned. 2. Things which can be owned, but cannot be possessed. Possessory remedies: 1. Their nature. 2. Their objects. 3. Their exclusion from English law. Digitized by Microsoft® ( 272 ) CHAPTER XV PERSONS. § 108. The Nature of Personality. The purpose of this chapter is to investigate the leg-al concep- tion of personalitj". It is not permissible to adopt the simple dovioe of saying that a person means a human being, for even in the popular or non-legal use of the term there are persons who are not men. Personality is a wider and vaguer term than humanity. Gods, angels, and the spirits of the dead are persons, no less than men are. And in the law this want of coincidence between the class of persons and that of human beings is still more marked. In the law there may be men who arc not persons; slaves, for exa'mple, are destitute of legal personality in anj' system which regards them as incapable of either rights or liabilities. Like cattle, they are things and the objects of rights; not persons and the subjects of them. Conversely there are, in the law, persons who are not men. A joint-stock company or a municipal corporation is a person in legal contemplation. It is true that it is only a fictitious,i not a real person; hut it is not a fictitious man. It is per- sonality, not human nature, that is fictitiously attributed by the law to bodies corporate. So far as legal theory is concerned, a person is any being whom the law regards as capable of rights or duties. Any being that is so capable is a person, whether a human being or not, and no being that is not so capable is a person, levicn though he be a man. Persons are the substances of which rights and duties are the attributes. It is only in this respect that persons possess juridical significance, and this is the exclusive point of view from which personality receives legal recognition. Digitized by Microsoft® § 108] PEKSONS. 273 But we may go one step further than this in the analysis. No being is capable of rights, unless also capable of interests which may be affected by the acts of others. For every right involves an underlying interest of this nature. Similarly no being is capable of duties, unless also capable of acts by which the interests of others may be affected . i To attribute rights and duties, therefore, is to attribute interests and acts as their necessary bases. A person, then, may be defined, for the pur- poses of the law, as any being to whom the laA\' attributes a capability of interests and therefore of rig'hts, of acts and therefore of duties. Persons as so defined are of two kinds, distinguishable as • natural and legal. A natural person is a being to whom the law attributes personalit}' in accordance with reality and truth . Legal persons are beings, real or imaginary, to whom the law attributes personality by way of fiction, when there is none in fact. Natural persons are persons in fact as well as in law; legal persons are persons in law but not in fact.^ § 109. The Legal Status of the Lower Animals. The only natural persons are human beings. Beasts are not persons. They are merely things — often the objects of legal rights and duties, but never the subjects of them. Beasts, like men, are capable of acts and possess interests. Yet their acts are neither lawful nor unlawful; they are not recognised by the law as the appropriate subject-matter either of per- mission or of prohibition. Archaic codes did not scruple, it is true, to punish with death in duo course of law the beast that was guilty of homicide. " 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." ^ A conception such as this pertains to a stage that is long since past; but modem law shows us a relic of it in the rule that the owner of a beast is liable for its, trespasses, just as a master must answer for his servant, or a slave-owner for his slave. ^ This vicarious liability, however, 1 I^al persons are also termed fietihioos, juristic, artificial, or moral. 2 Ejodus X.X!. 28. To the same effect see Plato's Laws, 873. 3 Ellis V. Loftus Iron Company, L.. K. 10 C. P. at p. 13: "In the case- S.J. 18 Digitized by Microsoft® 274 PERSONS. [§ 109 does not involve any legal recognition of tlie personality of the animal whose misdeeds are thus imputed to its owner. A beast is as incapable of legal rights as of legal duties, for its interests receive no recognition from the law. Hominum causa ofrrme jus constitutum.^ The law is made for men, and allows no fellowship or bonds of obligation between them and the lower animals. If these last possess moral rights — as .utili- tarian ethics at least need not scruple to admit — ^those rights are not recognised by any legal system. That which is done to the hurt of a beast may be a wrong to its owner or to the society of mankind, but it is no wrong to the beast. No animal can be the owner of any property, even through the 'medium of a human trustee. If a testator vests property in trustees for the maintenance of his favourite horses or dogs, he will thereby create no valid trust enforceable in any way by or on behalf of these non-human beneficiaries. The only effect of such pro- visions is to authorise the trustees, if they think fit, to expend the property or any part of it in the way so indicated; and whatever part of it is not so spent will go to the testa:fcor's representatives as undisposed of .^ There are, however, two eases in which beasts may be thought to possess legal rights. In the first place, cruelty to animals is a criminal offence, and in the second place, a trust for the benefit of particular classes of animals, as opposed to one for individual animals, is valid and enforceable as a public and charitable trust; for example, a provision for the establish- ment and maintenance of a home for stray dogs or broken-down horses. 3 Are we driven by the existence of these eases to recognise the legal rights and therefore the legal personality of beasts? There is no oocasion for any such confliot with accustomed modes of thought and speech. These duties towards animals are conceived by the law as duties towards society itself. They correspond not to private rights vested in the immediate beneficiaries, but to public rights vested in the com- of animals trespassing on land the mere act of the animal belonging to a. man which lie could not foresee, or which he took all reasonable means of preventing, may be a trespass, inasmuch as the same act if done by himself would have been -i trespass." Cf. .Just. Inst. iv. 9. 1 D. 1. 5. 2. 2 In re Dean, 41 Ch. D. 552. 3 Ibid. p. 557. Digitized by Microsoft® § 109] PERSONS. 275 munity at large — for the community has a rightful interest, legally recognised to this extent, in the well-being even of the dumb animals which belong to it. § 110. The Legal Status of Dead Men. Dead men are no longer persons in the eye of the law. They have laid down their legal personality with their lives, and are now as destitute of rights as of liabilities. Thej- have no rights becausu thej- have no interests. There is nothing that concerns them any longer, " neither have they any more a portion for ever in anything that is done under the sun." They do not even remain the owners of their property until their successors enter upon their inheritance. We have already seen how, in the interval between death and the entering of the heir, Roman law preferred to personify the inheritance itself, rather than attribute any continued legal personality or ownership to the dead man.^ So in English law the goods of an intestate, before the grant of letters of adjministration, have been vested in the bishop of the diocese or in the judge of the Court of Probate, rather than left to the dead until they are in truth acquired by the living. Yet although all a man's rights and interests perish with him, he does when alive concern himself much with that whicli shall become of him and his after he is dead. And the law, without conferring rights upon the dead, does in some degree recognise and take account after a man's death of his desires and interests when alive. There are three things, miora especially, in respect of which the anxieties of living men extend beyond the period of their deajths, in such sort thiat the law will take notice of them. These are a man's body, hia reputation, and his estate. By a natural illusion a living man deems himself interested in the treatment to be awarded to his own dead body. To what extent does the law secure his desires in this matter? A corpse is the property of no one. It cannot be disposed of by will or any other instrument, ^ and no wrong- 1 Hereditas personae vice fungitur. D. 46. 1. 22. Credituni est here- ditatem dominam ease, defuncti locum obtinere. D. 28. 5. 31. 1. - WHUom V. r/illiams, 20 Ch. D. 659. 18 (2) Digitized by Microsoft® 276 PERSONS. [§ 110 ful dealing with it oau amount to thefts The criminal law, ho-wever, secures decent burial for all dead men, and the viola- tion of a grave is a criminal offenoe.^ " Every person dying in this country," it has been judicially declared,^ "has a right to Christian burial." On the other hand the testamentajty directions of a man as to the disposal of his body are without any binding force,* save that by statute he is given the power of protecting it from the indignity of anatomical uses.^ Simi- larly a permanent trust for the maintenance of his tomb is illegal and void, this being a puipose to which no jjroperty can be permanently devoted. ^ Even a temporary trust for this purpose (not offending against the rule against perpetui- ties) has no other effect than that already noticed by us aq attributed to trusts for animals, its fulfilment being lawful but not obligatory.' Property is for the uses of the living, not of the dead. The reputation of the dead receives some degree of protec- tion from the criminal law. A libel upon a dead man will be punished as a misdemeanour — but only when its publication is in truth an attack upon the interests of living persoms. The right so attacked and so defended is in reality not that of the dead, but that of his living descendants. To this extent, and in this manner only, has the maxim De mortpis nil nisi bcmum obtained legal recognition and obligation. ^ By far the most important matter, however, in which the desires of dead mi^u are allowed by the law to regulate thei actions of the living is that of testamentary succession. For many years after a man is dead, his hand may continue to regulate and determine the disposition and enjoyment of the property which he ovnied wihile living. This, however, is a matter which will receive attention more fitly in another place. 1 S. V. liaynes, 2 East, P. C. 652. 2 Fotster v. Dodd, L. R. 3 Q,. B. at p. 77: "Whether in g^round canae- orated or unconsecrated indignities offered to human remains in improperly and indecently dL^interring them, are the ground of an indictment." 3 R. V. Steuyart, 12 Ad. & El. 777. As to the lawfulness of orematioA, see Reg. v. Prica, 12 Q. B. D. 247. 4 Williams V. Williams. 20 Ch. D. 659. !• 2 & 3 Wm. IV. o. 75, s. 7., « In re Vaughan. 33 Ch. D. 187; Eoare v. Osborne, 1 Eq. 587. ' In re Dean. 41 Ch. D. 557. 8 5 Co. Bep. 125 a; R. v. Labcmcliere, 12 Q. B. D. 320; Stephen's Digcrty of a dead man or of a bankrupt. Here, also, English law prefers the process of incorporation. If it chooses to personify at all, it personifies not the fund or the estate, but the body of persons ■who administer it. Yet the other way is equally possible, and may be equally expedient. The choice of the cm^pus into which the law shall breathe the breath of a fictitious personality is a matter of form rather than of substance, of lucid and com- pendious expression rather than of legal principle. § 114. Corporations. We have now to consider more particularly the nature and purposes of the legal conception of incorporation, inasmuch as legal personality goes no further than this in English law. Much of what is said in this special connection, however, will 1 Occasionally in the statute book wo find .so-called corporations whicili are in truth not corporations at all — having no incorporated members — but are merely personified institutions. The Commonwealth Bank of Australia, constituted by an Act of the Federal Parliament of Australia, ia an example. See the Common-wealth Bank Act, 1911, s. 5: "A Commonwealth Bank, to be called the Comn: onwealth Bank of Australia, is hereby established." Sect. 6: "The Bank shall be a body corporate with perpetual succession and a common seal, and may hold land, and may sue and ba suad in its ■corporate name." Digitized by Microsoft® 282 PERSONS. [§ 114- be applicable mutatis mutandis to the other classes of legal persons also. Corporations are of two kinds, distinguished in English law as corporations aggregate and corporations sole. "Persons,'" says Coke,i " are of two sorts, persons natural created of God, and persons incorporate or politique created bj the policy of man (and therefore they are called bodies politique ; and those be of two sorts, viz., either sole, or aggregate of many." A corporation aggregate is an incorporated group of" oo-existing persons, and a corporation sole is an incorporated series of successive persons. The former is that which has several members at a time, while the latter is that w'hich has only one member at a time. Corporations aggTegate are bV far the more numerous and important. Examples are a regis- tered company, consisting of all the shareholders, and a munici- pal corporation, consisting of the inhabitants of the borough. Corporations sole are found only when the successive holders of some public office are incorporated so as to constitute a single, permanent, and legal person. The Sovereign, for ex- ample, is a corporation of this kind at common law, while the Postmaster-General,^ the Solicitor to the Treasury, ^ and the- Secretary of State for War* have been end'pwed by statute with the same nature.^ It is essential to recognise clearly the element of legal fiction involved in both those forms of incorporation, for this has been made by some writers a matter of dispute. A company is in law something different from its shareholders or members.^" 1 Co. Litt. 2 a. "8 Ed. VII. o. 48. s. 33. 3 39 & 40 Vict. u. 18, ». 1. * 18 & 19 Vict. c. 117, s. 2. ^ Corporations Bole are not a. peculiarity of English law. Tlic distinc- tion bet-ween tlie two forms of incorporation is well known to foreign jurists. See Windscheid, I. sect. .57. Vangerow, I. sect. 53. The English law as to corporations sole is extremely imperfect and undeveloped, but the conception itself is perfectly logical, and is capable of serious and profitable uses. Maitland ha.s traced the history of this branch of the law in two articles in the L. Q. K. XVI. p. 335, iind XVIT. p. 131. 6 Savigny, System, sect. 90: "The aggregate of the members who com- pose a corporation differs essentially from the corporation itself." T7te Great Eastern Etf. Co. v. Turner. L. K. 8 Oh. at p. 152: "The Company is a mere abstraction of law." FUferoft's Case. 21 Ch. D. at p. 536: "Tlie corporation is not a mere aggregate of shareholders." Snlnmon v. fln?o»'on ^ Co., (]897) A. C. at p. 51: "The company is at law a different persoa altogether from the subsoriberg to the memorandum." Digitized by Microsoft® § ll'i] PEKSOKS. 28^i Tho properly of the compaoj' is not in law the property of the shai-eholders. The debts and liabilities of the comi>any are not attributed in law to its members. The eompany may bccom<' insolvent, while its members remain rieh. Contracts may be made between the company and a shareholder, as if between two persons entirely distinct from each other. The shareholders may become so reduced in number that there is only one of them left; but he and the company will be dis- tinct persons for all that.^ May we not go further still, and say that a eompany is capable of surviving the last of its members? At common law indeed, a corpora- tion is dissolved by the death of all its members. ^ There is, however, no logical necessity for any such rule, and it does not apply to cor- porations sole, for beings of this sort lead a continuous life, notwith- standing the intervals between the death or retirement of each occupant of the oflBce and the appointment of his successor. Nor is there any reason to suppose that such a, ground of dissolution is known to the trading corporations which are incorporated under the Companies Acts. Being established by statute, they can be dissolved only in manner provided by the statute to which they owe their origin. ^ The repre- sentatives of a deceased shareholder are not themselves members of the company, unless they become registered as such with their own consent. If, therefore, on the death of the last surviving members of a. private company, their executors refuse or neglect to be registered in their stead, the company will no longer have any members. Is it, for that reason, ipso jure dissolved? If not, it is clear that since a company can survive its members and exist without them, it must be something entirely distinct from them.* In all those respects a corporation is essentially different from an unincorporated partnership. A firm is not a person in the eye of the law; it is nothing else than the sum of its individual members. There is no fictitious being, standing over against the partners, as a company stands over against 1 D. 3. 4. 7. 2. Cum ju< omnium in uiiuiu reciderit, ct stet nomc-n univcr«i- tatis. XJniversitas is the generic title of a corporation in Roman law, a title retained to this day in the case of that particular form of corporation which we know as «■ university. ^ Blaclc^tone, I. 483. 3 Liudley on Companies, II. p. 822 (6th ed.): "A company which is incorporated by act of parliament can be dissolved only as therein pro- vided, or by another act of parliament.'' * That a corporation may survive the last of its members is admitted by Savigny (Syetem, sect. 89), and Windscheid (I. sect. €1). Digitized by Microsoft® 284 PERSONS. [§ 114 its shareholders. The property and debts of the firm are nothing else than those of the partners . A change in the list of partners is the substitution of a new firm for the old one, and there is no permanent legal unity, as in the case of the com- pany . There can be no firm which consists of one partner only, as a company may consist of one member. The incorpora- tion of a firm — that process by which an ordinarjr partnership is transmuted into a company — ^effects a fundamental cliange in the legal relations of its members. It is nothing less than the birth of a new being, to whom the \'\-hole business and pro- perty of the partnorshi]> is transfen'ed — a being Avithout soul or body, not visible save to the eye of the law, but of a kin'd whose power and imj>ortance, wealth and activity, are already great, and grow greater every day. In the case of corporations solo, the fictitious nature of their personality is equally apparent. Tlic chief difficulty in ap- prehending the true nature of a corporation of this description is that it bears the same name as the natural person who is its sole member for the time being, and who represents it and! acts for it. Eacli of them is the Sovereign, or the Solicitor to the Treasury, or the Secretary of State for War. Nevertheless under each of these names two persons live. One is a hum'an being, administering for the time being tlie duties and affairs of the office. He alone is visible to the eyes of laymen. Tha other is a mytliical being whom only lawyers know of, amd whom only the eye of the law can perceive. He is tlie true occupant of the office; he never dies or retires; tlie other, the person of flesh and blood, is merely his agent and representa- tive, through whom lie performs liis functions. Tlie living official comes and goes, but this offspring of the law remains the same for over. Tlie doctrine tliat corporations ai'6 personae fictae, though generally received, has not passed uncliallenged. Attempts have been made in recent years^ especially by German jurists, to establish in place of it a new theory which regards corporate personality as a reality, and not a fictitious construction of the law. A corporation, it is said, is nothing more, in law or in fact, than the aggregate of its members con- ceived as a unity, and this unity, this organisation of human beings, is Digitized by Microsoft® § 114] PKRSONS. 285 a real person and a living organism, possessed of a if al will of its own, and capable of actions and of responsibility for them, just as a man is. With respect to this theory it is to be observed that, even if ajvplio- able to corporations aggregate, it must leave corporations sole and the other classes of legal persons to be explained in the older fashion. And even in the case of corporations aggregate it seems impossdble to admit that their personality is anything more than the outcome of metaphor and fiction. A society is not a person, but a number of persons. The so-called will of a company is in reality nothing but the wills of a majority of its directors or shareholders. Ten men do not become in fact one person, because they associate themselves together for one end, any more than two horses become one animal when they draw the same cart. The apparent absurdity of holding that a rich and powerful joint-stock company is a mere fiction of the law, and possesses no real existence, proceeds not from the fiction-theory, but from a misunderstanding of it. No one denies the reality of the company (that is to say, the group of shareholders). What is in truth denied is the reality of its personality. A group or society of men is a very real thing, but it is only a fictitious 'person.^ § 115. The Agents, Beneficiaries, and Members of a Corporation. Although coi-porations axe fictitious persons, the acts and interests, rights and liabilities, attributed to them by the law aro those of real or natural persons, for otherwise the law of corporations would be destitute of an}' relation to actual fact and of any serious purpose. Every corporation, therefore, in- volves in the first place some real person or persons whose interests are fictitiously attributed to it, and in the second place some real person or persons whose acts are fictitiously 1 The leading advocate of this realistic theory is Gierke (Die Genossem- schaftstheorie, 1887. Deutsches Privatrecht, 1895). See also Dernburg, Pandekten, I. sect. 59, ajid Mestre, Les Personnes Morales, 1889. In England it has received sympathetic exposition, if not express support, from Maitland in the Introduetion to his translation of part of Gierke's Genoasen- schaftsrecht (Political Theories of the Middle Ages, 19O0). See also, to tlie same effect, Pollock, Jurisprudence, p. 113, 2nd ed., and L. Q. R. vol. 27, p. 219; Brown, Austinian Theory of Law, Excursus A; 22 L. Q. B. 178, The Legal Personality of a Foreign Corporation, by B. H. Young. Savigny and Windscheid are representative adherents of the older doctrine. For further discussions of this question see Harvard Law Review, vol. xxiv. pp. 253, 347 (Corporate Personality, by A. W. Machen); Law Quarterly Review, vol. xxvii. p. 90 (Legal Pensonality, by Prof. W. M. Geldart); Gray's Nature and Sources of the Law, oh. 2: SaleiUeg, De la personnalitf' juridique. Digitized by Microsoft® 286 PERSONS. [§ 115 imputed to it. A corporation, having neither soul nor body, •cannot act save through the agency of soime representative in the world of real men. For the same reasooi it can hav^ no interests, and therefore no rights, save those which are attributed to it as a trustee for or oitherwise on behalf of ■actual human beings.^ Whatever a company is reputed to do in law is done in fact by the directors or the shareholders as its agents and representatives. Whatever interests, rights, •or property it possesses in law are in fact those of its share- holders, and are held by it for their benefit. Every legal person, therefore, has corresponding to it in the world of natural persons certain agents or representatives by whom it acts, and certain beneficiaries on whose behalf it exists and fulfils its functions. Its representatives ma}' or may not be different persons from its beneficiaries, for these two capacities may or may not be united in the same individuals. The share- holders of a com.pany are not merely the jDersons for whose benefit it exists; they are also those by whom it acts. In the case of a corporation established for charitable pui-poses it is otherwise, for the beneficiaries ma}^ have no share whatever in the management of its affairs. The representatives and beneficiaries of a corporation must not be confounded with its members. These last are, as we have seen, the individuals who form the group or series per- sonified by the law, and who so constitute the corpus or bodjT. ■of the fictitious person thus created. Membership of a cor- poration does not in itself affect in any way the rights or lia- bilities of the m^embers, for it is nothing more than a matter of form. A man's privileges and responsibilities in respect of a corporation depend on whether he is one of its representatives •or beneficiaries, not on whether he is formally accounted by the law as one of its members. Municipal corporations are 1 Tlie relation between a corporation and it's beneficLavies may or may not. -amount t.o a ti'Ltst in the proper sense of the term. A sliare in a company ig not tlie beneficla.1 o-wnership of a certain proportion of the company's pi-operty, but the benefit of a contract made by the shareholder -with the -company, under which he is entitled to be paid a ."iliare of the profits made by the company, and of the surplus assets on its dissolution. A share is a •chose in action — an obligation between the company and the shareholder. ■Colonial Banlc v. Whi'ivncy, U A. C. 426. Digitized by Microsoft® §115] PERSONS. 287 constituted by the incorporation of the inhabitants of boroughs; but if by statute it were declared that they should consist for the future of the mayor, aldermen, and councillors, the change Avould not affect the rights, powers, or liabilities of any human being. The extent to which the three classes of persons with whom; .a corporation is concerned, namely its members, its representa- tives, and its beneficiaries, are coincident and comiprise the same persons, is a matter to be determined as the law thinks fit in the particular ease. The mombers of a corporation may or may not be tho.se by Avhom it acts, and they may or may not 1)6 those on whose behalf it exists. It is worth notice that some or all of the members of a eoi"- poration may be corporations themselves. There is nothing to prevent the shares of a company from being held by other companies. In this case the fiction of incorporation is dupli- cated, and the law creates a fictitious person by the personifica- tion of a group of persons who themselves possess a merely legal and artificial personality § 116. The Acts and Liabilities of a Corporation. When a natural person acts by an agent, the authority of the agent is conferred, and its limits are determined, by the will and consent of the principal. In general only those acts of the agent are imputed by the law to the princijDal, which are witiiin the limits of the agent's authority as thus created and circumscribed. But in the case of a corporation it is neces- sarily otherwise. A legal person is as incapable of conferring authority upon an agent to act on its behalf, as of doing the act in prapria persona. The authority of the agents and repre- sentatives of a corporation is therefore conferred, limited, and ■determined, not by the consent of the principal, but by the law itself. It is the law that determines who shall act for a oorporation, and within what limits his activity must be con- fined. Any act which lies beyond those legally appointed limits will not be imputed to the corporation, even though done in its name and on its behalf. It is said to be ultra vires of the eorporation, and as a corporate act it is null and void. Digitized by Microsoft® 288 PERSONS. [§ 11& Speaking generally, we may say that a corporation can do. those things only which are incidental to the fulfilment of the purposes for which the law created it. All its acts must be directed to its legally appointed end. Thus the memjoran- dum of association of a company must set forth the purposes for which it is established; and even the unanimous consent of the whole body of shareholders cannot effectively enable the company to act beyond the limits so marked out for it» activity. It is well settled in the law of England that a corporatioia may be held liable for wrongful acts, and that this liability extends even to those oases in which malice, fraud, or other wrongful motive or intent is a necessary element. A company may be sued for libel, malicious prosecution, or deceit. ^ Nor is this responsibilit)' civil only. Corporations, no less than men, are within reach of the arm of the criminal law. They may be indicted or otherwise prosecuted for a breach of their statutory duties, and punished by way of fine and forfeiture.^ Although this is now established law, the theoretical basis of the liability of corporations is a matter of some difficulty and debate. For in the first place it may be made a question whether such liability is consistent with natural justioei. To punish a body corporate, either criminally or by the enforce- ment of penal redress, is in reality to punish the beneficiaries on whose behalf its property is held, for the acts of the agents by whom it fulfils its functions. So far, therefore, as the bene- ficiaries and the agents arc different persons, the liabilitj' of bodies corporate is an instance of vicarious responsibility, and it is to be justified on the same principles as are applicable to the vicarious liability of a principal for the unauthorised acts of his agent — principles which will be considered by us at a later gtage of our enquiry. For although the representatives of a corporation are in form and legal theory the agents of that fictitious person, yet in substance and fact they are the agents of the beneficiaries. A company is justly held liable for the 1 Cornjord v. Carlton Bank, (1899) 1 Q. B. 392; (19»0) 1 Q. B. 22. 2 Reg. V. Birmingham and Gloncosier Si/. Coy., 3 Q. B. 223; Reff. v. Great Nortli, of England Si/. Co., 9 Q. B. 315. Digitized by Microsoft® § H6J PERSONS. 289 acts of its directors, because in truth the direotars are the servants of the shareholders . A more serious diifieulty in imposing liability upon bodies corporate arises from the following consideration. The wrong- ful acts so attributed by the law to fictitious persons are in reality the acts of their agents. Now we have already seen that the limits of the authority of those agents are determined by the law itself, and that acts beyond those limits will not be deemed in law to be the acts of the coi-poration . How, then, can an illegal act be imputed to a corpiora tion ? If illegal, it cannot be within the limits of la-wful autliority; and if ndt within these limits, it cannot be the act of the corporatiion., The solution of this diiEculty is twofold. In the first plaoe^ the argument does not extend to wrongful acts of omission, for these are done by the body, politic in person, and not merely by its representatives. No fictitious person can do in person what by law it ought not to do, but it can in person fail to do what in law it ought. And in the second place, the liability of a corporation for the acts of its representatives is a perfectly logical application of the law as to an em'ployer's liability for his servants. The responsibility of a master does not depend on any authority given to his servant to commit the wrongful act. It is the outcome of an absolute rule of law that the employer is himself answerable for all wrongs committed by his servant in the course and process of doing that which he is employed to do. I am liable for the negligence of my servant in driving my carriage, not because I authorised him to be negligent, but because I authorised him to drive the carriage. So in the case of the agents of a corporation: the law imputes to the corporation not only all acts which its agents are law- fully authorised to do, but all unlawful acts which they do in or about the business so authorised. The corporation is respon- sible not only for what its agents do, being thereunto lawfully authorised, but also for the manner in which they do it. If its agents do negligently or fraudulently that which they might have done lawfully and with authority, the law will hold the corporation answerable. ^ 1 As to the liability of corporations, see Salmond's La-w of Torts, 4th ed. S.J. 19 Digitized by Microsoft® 290 PERSONS. [§ 117 § 117. The Uses and Purposes of Incorporation. There is probably nothing Avhich the law can do by the aid of the conception of incorporation, -which it could not do without it. But there are many things which it can by such aid do better and more easily than would othei-wise be possible. Among the various reasons for admitting this fictitious exten- sion of personality, we may distinguish one as of general and fundamental importance, namely, the difficulty which the law finds in dealing with common interests vested in large numbers of individuals and with common action in the management and protection of such interests. The normal state of things — that with which the law is familiar, and tO' Avhich its principles are conformed — is individual ownership. With a single indi- vidual the law knows well how to deal, but common ownership is a source of serious and manifold difficulties. If two persons carry on a partnership, or own and manage property in common, complications arise, with which nevertheless the law can deal without calling in the aid of fresh conceptions. But what if there are fifty or a hundred joint-owners? With such a state of facts legal principles and conceptions based on the type of individual ownership are scarcely competent to deal. How shall this multitude manage its common interests and affairs? How shall it dispose of property or enter into eon- tracts? Wliat if some be infants, or insane, or absent? What shall bo the effect of the bankruptcy or death of an individual member? How shall one of them sell or otherwise alienate his share? How shall the joint and separate debts and lia- bilities of the partners be satisfied out of their property ? How shall legal proceedings be taken by or against so great a number? These questions and such as these arc full of diffi- culty even in the case of a private partnership, if the members are sufficiently numerous. The difficulty is still greater in the case of interests, rights, or property vested not in indi- p. 60; '.Conford v. Carlton Bank, (1899) 1 Q. B. 392; Citizens' Life Assurance Co. V. Brown, (l'904) A. O. 423; Grpen v. London General Omnibus Coy., 7 C. B. (N. S.) 290; Ahrath v. North Eastern Railiraij Coy., 11 A. C. 247, per Baron Bramwell; DernbuTg, Pandekten, I. sect. 66; Windscheid, I. sect. 59; Savigny, System, sects. 94, 95; D. 4. 3. 15. 1. Digitized by Microsoft® § 117] PEESONS. 291 viduals or in definite associations of individuals, but in the public at large or in indeterminate classes of the public. In view of these difficulties the aim of the law has been to reduce, so far as may be, the complex form of collectiviei ■ownership and action to the simple and typical form of indi- vidual ownership and action. The law seeks some instrument for the effective expression and recognition of the elements of unity and permanence involved in the shifting multitude with whose common interests and activities it has to deal. There are two chief devices for this purpose, namely- trustee- ship and incorporation. The objects of trusteeship are various, and many of its applications have a source and significance that are merely historical. In general, however, it is used as & mode of overcoming the difiicultios created by the incapateitj', uncertaintj-, or multiplicity of the persons to whom property belongs. The property is deemed by the law to be vested, not in its true owners, but in one or more determinate individuals of full capacity, who hold it for safe custody on behalf of thoso ■mioertain, incapable, or multitudinous persons to whom it in truth belongs. In this manner the law is enabled to assimilate •collective ownership to the simpler form of individual owner- ship. If the property and rights of a charitable institution or an unincorporated trading association of many members are held in trust by one or two individuals, the difficulties of the problem are greatly reduced. It is possible, however, for the law to take one step further in the same direction. This step it has taken, and has so •attained to the conception of incorporation. This may be regarded from one point of view as merely a development of the conception of trusteeship. For it is plain that so long as a trustee is not required to act, but has merely to serve as a ■depositary of the rights of beneficiaries, there is no necessity; that he should be a real person at all. He may be a mere fiction of the law. And as between the real and the fictitious trustee there are, in large classes of cases, important advantages on the side of the latter. He is one person, and so renders possible a complete reduction of common to individual ownership;] whereas the objections to a single trustee in the case of natural 19 (2) Digitized by Microsoft® 292 PERSONS. [§ 117 persons axe serious and obvious. Tke fictitious trustee, more- over, though not incapable of dissolution, is yet exempt froml the inevitable mortality that afflicts mankind. He embodies and expresses, therefore, to a degree impossible in the case of natural trustees, the two elements of unity and of permanenoe which call for recognition in the case of collective interests. An incorporated company is a permanent unity, standing over against the multitudinous and variable body of shareholders whose rights and property it holds in trust. It is true, indeed, that a fictitious trustee is incapable of acting in the matter of his trust in his proper person. This difficulty, however, is easily avoided by means of agency, and the agents may be several in number, so as to secure that safety which lies in a multitude of counsellors, while the unity of the trusteeship itself remains unaffected.^ We have considered the general use and purpose of incor- IDoration. Among its various special purposes there is one which has assumed very great importance in modern times, and which is not without theoretical interest. Incorporation is used to enable traders to trade with limited liability. As the law stands, he who ventures to trade in propria persona niust put his whole fortune into the business. He must stake all that he has upon the success of his undertaking, and must answer for all losses to the last farthing of his possessions. The risk is a serious one even for him whose business is all his own, but it is far more serious for those who enter into partner- ship with others. In such a case a man may be called upon to answer with his "whole fortune for the acts or defaults of those with whom he is disastrously associated. It is not surprising, therefore, that modem commerce has seized eagerly upon a plan for eliminating this risk of ruin. 1 Tlie purposes of the corporation sole are analogous to those of the corporation aggregate. A corporation sole consists of the successive holders of an office, fictitiously i-egarded by the law as a single person. The object of this device is to avoid the difficulties wliiich are involved in the trans- mission from each offioer to his successor of the property, liabilities, and contracts held, incurred, or made by him in his official capacity. Such property, liabilities, and contracts are imputed by the law to tiie permanent corporation which never diea or retires from office, instead of the individual holders of the office for the time being. Digitized by Microsoft® § 117] PERSONS. 293 Incorporation has proved admirably adapted to this end. Thej, who wish to trade with safety need no longer be so rash as to act in propria persona, for they may act merely as the irrespon- sible agents of a fictitious being, created by them for this purpose with the aid and sanction of the Companies Act. If the business is successful, the gains made by the company will be held on behalf of the shareholders; if unsuccessful, the losses must be borne by the company itseK. For the debts of a cor-- poration are not the debts of its members. Si quid universitati debetur, singulis nom, debetur, nee quod debet universitas singuU debentA The only risk run by its members is that of the loss of the capital with which they have supplied or undertakelni to supply the company for the purpose of enabling it to carry on its business. To the capital so paid or pronuised, the credi- tors of the insolvent corporation have the first claim, but the liability of the shareholders extends no further. The advantages which traders derive from such a scheme of limited liability are obvious. Nor does it involve any necessary injustice to creditors, for those who deal with companies know, or have the means of knowing, the nature of their security. The terms of the bargain are fully disclosed and freely con- sented to. There is no reason in the nature of things why a man should answer for his contracts Avith all his estate, rathor than with a definite portion of it only, for this is wholly a matter of agreement Between the parties. § 118. The Creation and Extinction of Corporations. The birth and d6ath of legal persons are determined not by nature, but by the law. They come into existence at the will of the law, and they endure during its good pleasure. Cor- porations may be established hj royal charter, by statute, by immemorial custom, and in recent years by agreement of their members expressed in statutory forms and subject to statutory provisions and limitations. They are in thpir own nature capable of indefinite duration, this being indeed one of their chief virtues as compared with humanity, but tln'v are not 1 D. 3.4. 7. 1. Digitized by Microsoft® ~^94 PERSONS. [§11^ incapable of destruction. TIio extinction of a body corporate is called its dissolution — the severing of that legal bond by which its members are knit together into a fictitious unity. We have already noticed that a legal person docs not of necessity lose its life with the destruction or disappearance of its corpus or bodily substance. There is no reason why a coiiioration should not continue to live, although the last of its members is dead; and a corporation sole is merely dormant, not extinct, during the interval between two successive occupants of the office. The essence of a body corporate consists in the animus of fictitious and legal personality, not in the corpus of its members.^ § 119. The State as a Corporation. Of all forms of human society the greatest is the state It owns immense wealth and performs functions which in num- ber and importance are beyond those of all other associations. Is it, then, recognised by the law as a j)erson? Is the com- monwealth a body politic and corporate, endowed with legal personality, and having as its members all those who owe allegiance to it and are entitled to its protection? This is the conclusion to which a developed system of law might be ex- pected to attain. But the law of England has chosen another way. The community of the realm is an organised society, but it is no person or body corporate. It owns no property, is capable of no acts, and has no rights nor any liabilities im- puted to it by the liiw. Whatov(n- is said to the contrary is figure of speech, and not the literal language of our law. How, then, are we to account for this failure of the law to make so obvious and useful an application of the conception of incorporation and legal personality? Why has it failed to recognise and express in this way the uni(7\' and permanence of the state? The explanation is to be found in the cxistencie of monarchical government. The real personality of the King, 1 It i-! a somewhat curious circumstaiu-o that the legal persons ereated by one system of law Teceive full recognition ■from other systems. This form of legal fiction haa acquired extra-territorial and international validity. A French corporation ean sue and be sued in an English court of justio." aq if it were a real person. Thn T^n'tnlh Wr-ftt Tndin Co. v. Vnn Mn^r-^^ 1 Str. 611 ; yrinhij V. Vail Oppeii, L. B. 7 Q. P). 293. Digitized by Microsoft® § 119] PERSONS. 295 who is the head of the state, has rendered superfluous any attri- bution of fictitious personality to the state itself. Public pro- perty is in the eye of the laAv the property of the King. Public liabilities are those of the King ; it is he, and he alone, who owes the principal and interest of the national debt. Whatsoever is done by the state is in lai\v done by the King. The public justice administered in tiie law courts is royal justice admin- istered by the King through his servants the judges. The laws are the King's laws, which he enacts with the advice and consent of his Parliament. The executive government of the state ig the .King's government, which he carries on by the hands of his ministers. The state has no army save the King's arm;y, no navy save the King's navy, no revenues save the royal revenues, no territory save the dominions of the King. Treason and other offences against the state and the public interest are in law offences against the King, and the public peace is the King's peace. iThe citizens of the state are not fellow-members of one body politic and corjDorate, but fellow-subjects of one sovereign lord. Insomuch, therefore, as everything which is public in fact is conceived as roy^al by the law, there is no need or place for any incorporate commonwealth, respuhlica, or universitas regni. The King holds in his own hands all the rights, powers and activities of the state. By his agency the state acts, and through his trusteeship it possesses property and exercises rights. For the legal personality of the state itself there is no call or occasion. " ' The King himself, however, is in law no mere mortal man. He has a double capacity, being not only a natural person, ■but a body politic, that is to say, a corporation sole. The visible wearer of the crown is merely the living representative and agent for the time being of this invisible and underlying persona ficta, in whom by our law the powers and prerogatives of the government of this realm are vested. When the King' in his natural person dies, the property real and personal which he owns in right of his crown and as trustee for the state, and the debts and liabilities which in such right and capacity have been incurred by him, pass to his successors in office, and not to his heirs, executors, or administrators. For those rights Digitized by Microsoft® 296 PERSONS. [§ 119 and liabilities pertain to the King who is a corporation sole, and not to the King who is a mortal man.^ In modern times it has become usual to speak of the Crown rather than of the King, when we refer to the King in his public capacity as a body politic. We speak of the property, of "the Crown, when we mean the property which the Kinjg holds in right of his crown. So we speak of the debts due by the Crown, of legal proceedings by and against the Crown, and so on. The usage is one of great convenience, because it avoids a diiRculty which is inherent in all speech and thought concerning corporations sole, the difficulty, namely, of distin- guishing adequately between the body politic and the human being by whom it is represented and whose name it bears. Nevertheless we must bear in mind that this reference to the Crown is a mere figure of speech, and not the recognition by the law of any new kind of legal or fictitious person. Thes Crown is not itself a person in the law. The only legal person is the body corporate constituted by the series of persons by whom the crown is worn. There is no reason of necessity or even of convenience, indeed, iv\'hy this should be so. It is simply the outcome of the resolute refusal of English law to recognise any legal persons other than corporations aggregate and sole. Roman law, it would seem, found no difficulty in treating the treasure-chest of the Emperor (/f.sY-H.s") as pers^ona ficta, and a similar icxcrcise of the legal imagination would not seem diffi- cult in respect of the Crown of England. Just as our law refuses to personify and incorporate the empire as a whole, so it refuses to personify and incorporate the various constituent self-governing states of which the empire is made up. There is no such person known to the law of England as the state or government of India or of Canada. 2 The King or the Crown represents not merely the 1 Calt'iii's Case, 2 State Trials, at p. 624: "The King hath two capa- cities in him: one a natural body, being deaoended of the Wlood roya'l of the realm ; and this body is of the creation of Almighty God, and is subj ect to death, infirmity, and such like: the other is a politick body or capacity, so called because it is framed by the policy of man; and in this capacity the King is esteemed to be immortal, invisiljle, not subject to death, infirmity, infancy." As to the history of this idea see Holdsworth's History of English Law, III. pp. 357—362. 2 Sloman v. Government of N-ew Zealand, 1 C. P. D. 563. This was an actioji brought in. England against the " Governor and Govei'nment of the Digitized by Microsoft® § 119] PERSONS. 297 empire as a whole, but each of its parts; and the result is aj failure of the law to give adequate recognition and expression, to the distinct existence of these parts. ^ The property and) liabilities of the government of India are in law those of the British Crown. The national debts of the colonies are owing by no person known to the law save the King of England. A' oontraot between the governments of two colonies is in law a nullity, unless the King can make contracts with himself. All this would be otherwise, did the law recognise that the depen- dencies of the British Empire were bodies politic and cor- porate, each possessing a distinct personality of its own, and oapable in. its own name and person of rights, liabilities, and activities. Some of the older colonies were actually in this position, being created corporations aggregate by the royal charters to which they owed their origin : for example, Massa- chusetts, Rhode Island, and Connecticut. Even an uninoor- porated colony of the ordinary tj'pe may become incorporate, and so possessed of separate personality, by virtue of its own legislation. 2 In the absence of any such separate incorpora- tion of the different portions of the empire, their separate existence can be recognised in law only by way of that doc- trine of plural personality which we have already considered' in another connection.* Although the King represents the whole empire, it is possible for the law to recognise a different personality in him in respect of each of its coimiponent parts. The King who owns the public lands in New Zealand is not necessarily in the eye of the law the same person who owns the public lands in England. The King, when he borrows money in his capacity as the executive government of Australia, Colony of New Zealand." It failed because there was no such person or body corporate known to tbe law. 1 See Williams v. Howarth, (1905) A. C. 551. 2 The Commonwealth of Australia, for example, and also tlie constituent Australian states are now to be deemed for certain purposes bodies politio and corporate. For by virtue of Australian legislation they can now sua ■and be sued in their own names, and possess other attributes of personality ; "thus an action will now lie at the suit of the State of Victoria against the State of New South Wales. The corporate character thus bestowed upon "these states, howeveir, is concurrent with, and not exclusive of the old common law principle which identifies the state with the King. Public lands in Australia, for example, are still the lands of the Crown, except so far aa "fchey may be expressly vested in the corporate state by statute. * Supra, § 112. Digitized by Microsoft® 298 PERSONS. [§ 119 may be deemed in law a different person from the King who, owes the English national debt. How far this plural persoin- ality of the Cnown is actually recognised by the coimmion law of England is a difficult question which it is not necessany far us here to answer.^ It is sufficient to point o;ut that in the absence of any separate incorporation this is the only effective way of recognising in law the separate rights, liabilities, and activities of the different dependencies of the Crown. SUMMARY. The nature of personality. T, ( Natural. Persons < ^ i Legal. Natural persons — living human beings. The legal status of beasts. The legal status of dead men. The legal status of unborn persons. Double personality. Legal persons. Legal personality based on personification. Personification without legal personality. I 1. Corporations. Classes of Legal persons ■ 2. Institutions. ' 3. Funds or Estates. Corporations — the only legal persons known to English law. Corporations aggregate and corporations sole. The fiction involved in incorporation. The beneficiaries of a corporation. The representatives of a corporation. The members of a corporation. Authority of a corporation's agents. Liability of a corporation for wrongful acts. The purposes of incorporation: 1. Reduction of collective to individual ownership and action. 2. Limited liability. The creation and dissolution of corporations. The personality of the state. 1 It has been expressly recognised by the Higli Court of Australia, so far a?i regards the Comnioriwealth of Australia and the constituont states: Municipal Council of Si/flnei/ v. T/ir C'oiniJiouH\e/ilth, 1 Commonwealth L. E. at p. 231, per (iriffith, C.J.: "It is manifest from the whole scope of the Constitution tliat just as the Commonwealth and State are regarded as distinct and sejiarate soveroigri bodies, . . so the Crown as represent- ing those several bodies is to bo regarded not as one, but as several juristic persons.'' Digitized by Microsoft® ( 299 CHAPTER XVI. TITLES . § 120. Vestitive Facts. We have seen in a former chapter that every right involves a title or source from which it is derived. The title is the de facto antecedent, of which the right is the de jure consequent. If the lav\" confers a right upon one man which it does not confer upon another, the reason is that certain facts are true of him which are not true of the other, and these facts are the title of the right. Whether a right is inborn or acquired, a title is equally requisite. The title to a debt consists in a contract, or a judgment, or other such transaction; but the title to life, libertj-, or reputation consists in nothing more than in being born with the nature of a human being. Some rights the law gives to a man on his first appearance in the world ; the others he must acquire for himself, for the most part not without labour and difficulty. But neither in the one case nor in the other can there bo an^' right without a basis of fact in which it has its root and from which it proceeds. Titles are of two kinds, being either original or derivative. The former are those which create a right de ?iovo ; the latter are those which transfer an already existing right to a new owner. The catching of fish is an original title of the right of ownership, whereas the purchase of them is a derivative title. The right acquired by the fisherman is newly created; it did not formerly exist in any one. But that which is acquired by the purchaser is in legal theory identical with that which is lost by the vendor. It is an old right transferred, not a new one created. Yet in each case the fact which vests the right is equally a title, in the sense already explained. For the essence Digitized by Microsoft® 300 TITLES. [§ 120 of a title is not that it determines the creation of rights de novo, but that it determines the acquisition of rights new or old. As the facts confer rights, so they take them away. All rights are perishable and transient. Some are of feeble vitality, and easily killed by any adverse influence, the bond between them and their owners being fragile and easily severed. Others are vigorous and hardy, capable of enduring and surviving much. But there is not one of them tliat is exempt from possible lextinction and loss . The first and greatest of all is that which a man has in his own life; yet even this the law will deny to him who has himself denied it to others. The facts which thus cause the loss of rights may be called, after Bentham, divestitive facts. This term, indeed, has never been received into the accepted nomenclature of the law, but there seems no better substitute available. The facts which confer rights received from Bentham the corresponding name of irmestitive facts. The term already used by us, namely title, is commonly more convenient, however, and has the merit of being well established in the law.^ As a generic term to include both investitive and divestitive facts the expression: vestitive fact may be permissible. ^ Such a fact is one which determines, positively or negatively, the vesting of a right in its owner. We have seen that titles are of two kinds, being either origi- nal or derivative. In like manner divestitive facts are either extinctive or alienative. The former are those which divest a right by destroying it. The latter divest a right by trans- ferring it to some other owner. The receipt of payment is divestitive of the right of the creditor; so also is the act of the creditor in selling the debt to a third person ; but in the former case the divestitive fact is extinctive, Avhile in the latter it is alienative. ' It is plain that derivative titles and alienative facts are not ' Title meant originally a mark, sign, or inscription; e.g., the title of a book; tituhis s.epiilchri. an epitaph. " PUate wrote a title and put it on the cross": John xix. 19. Thence more specifically it came to mean signs or evidence of right or ownership; e.i/., Hfnlns, a boundary-stone; -tilulns, a. title-deed (Dncange). Thence the gnomid of right or ownership, viz., an investitive fact. " Bentham calls such facts diyposifit-e. Digitized by Microsoft® § 120] TITLES. 301 two different classes of fact, but are merely the same facts looked at from two different points of view.^ The transfer of a right is an event which has a double aspect. It is the acqui-. sition of a right by the transferee, and the loss of it by the transferor. The vestitive fact, if considered with reference ta the transferee, is a derivative title, while from the point of view of the transferor it is an alienative fact. Purchase is a deriva- tive title, but sale is an alienative fact; yet they are merely two different sides of the same event. These distinctions and divisions are exhibited in the fol- lowing Table: T i-i- T^ i f Original Titles. Creatioc of ( '^^t^Tltle!.^'^'^ »^g^*^- Testitive facts. ' ^ Derivative Titles, j Tv^nsi^r of f / Alienative Facts. 3 ° * Divestitive Facts. ) ' Extinctive Facts. Destruction of Eights. These different classes of vestitive facts correspand to the three chief events in the life history of a right, namjely, its creation, its extinction, and its transfer. By an original title a right comes first into existence, being created ex niMlo ; by an extinctive fact it is wholly destroyed; by derivative titles and alienative facts, on the other hand — these being, as we have seen, the same facts viewed from different sides — the ex- istence of the right is in no way affected. The transfer of a right does not in legal theory affect its personal identity; it ia the same right as before, though it has now a different owner. ^ § 121. Acts in the Law. Vestitive facts — ^whether they create, transfer, or extinguish rights — ^are divisible into two fundamentally distinct classes, according as they operate in pursuance of the will of the persons concerned, or independently of it. That is to say, the creation, 1 We may term thiem, with Bentham, translative facts. - We here use the term transfer in its generic sense, as including WtSi; voluntary and involuntary changes of ownership. It has also a specific senae in which it includes only the former. Succession ab intesi^ato, for example, is a transfer of rights in the wide sense, but not in the narrow. Digitized by Microsoft® 302 TITLES. [§121 transfer, aaid extinction of rig-hts are either voluntary or in- voluntary^ In innumerable cases the law allows a man to acquire or lose his rights by a manifestation or declaraition of his will and intent directed to that end. In other cases it ^confers rights upon him, or takes them away without K'gurd tQ any purpose or consent of his at all. If he dies intestate, the law itself wiU dispose of his estate as it thinks fit; but if he leaves a duly executed will in which he expresses his desires in the matter, the law will act accordingly. So if he sells his property, it passes from him in accordance with his declared intent, which the law adopts as its own; but if his goods are taken in execution by a creditor, or vested in a trustee on his bankruptcy, the transfer is an involuntary one, effected in pur- suance ,of the law's purposes, and not of his at all. The distinction between these two classes of vestitive facts may be variously expressed. We may make use, for exampile, of the contrasted expressions act of the party and act of the law. An act of the party is any expression of the will or inten- tion of the person concerned, directed to the creation, transfer, or extinction of a right, and effective in law for that purpose;; such as a contract or a deed of conveyance. An act of the law, on the other hand, is the creation, extinction, or transfer of a right by the operation of the law itself, independent of any consent thereto on the part of him concerned. The expression act of the party is one of some awkwardness, however, and it is more convenient in general to substitute for it the tech- nical term act in the laiv, as contrasted with those acts of the law which we have already defined.^ Acts in the law are of two kinds, which tmay be distin- guished as unilateral and bilateral. A unilateral act is one in which there is only one party whose will is operative; as in the case of testamentary disposition, the exercise of a power of appointment, the revocation of a settlement, the avoidance of a voidable contract, or the forfeiture of a lease for breach of covenant. A bilateral act, on the other hand, is one which 1 Thia nomenclature has been suggested and adopted by Sir Frederick Pollock (Jurisprudence, p. 142, 2nd ed.). Other writers prefer to indicate nets in the law by the term juristic acts. The Germans call them Kechitsg^sohafte. i | ; Digitized by Microsoft® §121] TITLES. 303 involves the consenting wiUs of two or more distinct parties;! as, for example, a contract, a conveyance, a mortgage, or a lease. Bilateral acts in the l&w are called agreements in the wide and generic sense of that term. There is, indeed, a narrow and specific use, in which agreement is synonymous with mn- tract, that is to say, the creation of rights in personam by, way of consent. The poverty of our legal nomenclature is such, however, that we cannot afford thus to use these two terms as synonypious. We shall therefore habitually use agree- ment in the wide sense, to include all bilateral acts in the law, whether they are directed to the creation, or to the transfer, or to the extinction of rights. In this sense conveyances, mortgages, leases, or releases are agreements no ler-as than con- tracts are.i Unilateral acts in the law are divisible into two kinds in respect of their relation to the other party concerned. For in some instances they are adverse to him; that is to say, they take effect not only without his consmit, but notwiith- ^ The use of the terms agreement and contract is curiously unsettled. a. Agreement and contract are often used as synonyms, to mean a bilateral act in the law directed to the creation of an obligation, that is to say a. right in per&oriam. The objection to this usage is that we cannot afford so to waste one of these terms. h. Contract is sometimes used to mean an agreement (in tho preceding sense) enforceable by law. Pollock, Principles of Contract, p. 8, 8th ed. Indian Contract Act, s. 2 (h). This, also, seems the sacriiiceof a useful term to an inadequate purpose. Moreover the distinction does not conform to established usage. We habitually and conveniently speak of void, invalid, or illegal contracts. c. Contract is sometimes used in the wide sense of any bilateral act in the law. This, however, is very unusual, and it is certainly better to use agreement in this sense. Contract, being derived from eontrahere, involves the idea of binding two persons together by the vinc-uhim jtiris of an obligation. An assignment is_not a contract, and a release is the very reverse of a contract. d. There remains the usage suggested and adopted in the text. An agreement is a, bilateral act in the law. Est pactio duorum plu.i'iumve in idem placitum ei consensus. D. 2. 14. 1. 2. A contract, on the other hand, is that particular kind of agreement which is intended to create a right in pei'aonam between the parties. This is the distinction adopted by Sir W. Anson in his work on Contracts, p. 2: "Contract is that form of agreement which directly contemplates and creates an obligation." So Pothier, Traite dcs Obligations, sect. 3; L'espece do convention qui a pour objet de former quolque eigageroent est celle qu'on appelle contrat. Cf. Prench Civil Code, Art. 1101 . The Germans use Vertrag as equivalent to agreement in this sense; while a contract is ohligatori!<'l<,er Vertrag, or Vertrag in a' nar- rower sense. Sovigny, System, sect. 141. Puchta, sect. 271. Dernburg, Pandekten, I. sect. 92. Digitized by Microsoft® 304 TITLES. [§ 121 stanrtgagee and purchaser, but unilateral so far as regards the mortgagor. ^ 1 Middleton v. Pollock, 2 Ch. D. 104; Sluorp v. Jachsm, (1899) A. O. 419, 2 The terms unilateral and bilateral possess another sig-nification distinct from that which is attribul-ed to them in the text. In the sense tliore adopted all agreementa are bilateral, bat there is another sense in which some of them are bilateral and others unilateral. An a^eement is bilateral, Digitized by Microsoft® § 122] TITLES. 305 § 122. Agreements. Of all vestitive facts, acts in the law are the most impor- tant; and among acts in the law, agreements are entitled to the chief place. Unilateral acts are comparative!)' infrequent and unimportant. The residue of this chapter will therefore be devoted to the consideration of the grounds, modes, and conditions of the operation of agreement as aai instrument of the creation, transfer, and extinction of rights. A consider- able portion of what is to be said in this connection will, how- ever, be applicable mutatis mutandis to unilateral acts also. The im.portanoe of agreement as a vestitive fact lies in the universality of its operation. There are few rights which cannot be acquired through the assent of the persons upon whom the correlative duties are to be imposed. There are few rights which cannot be transferred to another by the will of him in whom they are presently vested. There are few which are not extinguished when their owner no longer desires to retain them. Of that great multitude of rights and duties of which the adult member of a civilised community stands possessed, the great majority have their origin in agreements made by him with other men. By agreements of contrary intent he may strip himself almost as destitute of rights audi duties, as when in the scantiest of juridical vesture he made his first appearance before the law. Invito heneficiicm non datitr,^ said the Romans. By what reasons, then, is the law induced to allow this far- reaching operation to the fact of agreement? Why should the mere consent of the parties be permitted in this mannea? to stand for a title of right? Are not rights the subject- matter of justice, and is justice a mere matter of convention varying with the wills of men ? in this latter signification, if there Is something to he done by each paaH;y to it, while it is unilatera.1 if one party is purely passive and free from legal obligation, all the activity and obligation being on the other side. An agrefmept to lend money i£ bilateral, while an agreement to give money is unilateral. 1 D. 50. 17. 69. S..I. 20 Digitized by Microsoft® aoti TITLES. [§ 122 The reasons axe two in number. Agreement is in the first place evidential of right, and in the second place constitutive of it. There is in general no better evidence of the justice oi, an arrangement than the fact that all persons whose interests are affected by it have freely and with full knowledge con- sented to it. Men are commionly good judges of their own interests, and in the words of Hobbes " there is not ordinarily a greater sign of the equal distribution of anything, than that every man is contented with his share." When, therefore, all interests axe satisfied, and every iman is content, the law may safely presume that justice has been done, and that each has received his own. The determination of the law is needed only in default of the agreement of the parties. Hence it is, that he who agrees with another in any declaration of their respective rights and duties will not be suffered to gq back from his word, and will not be heard to dispute the truth of his declaration. The exceptions to this rule are themselviea defined by equally rigid rules; and he who would disclaim a duty which he has thus imposed upon himself, or reclaim a right which he has thus transferred or abandoned, must bring him- self within one of those predetermined exceptions. Otherwise he will be held bound by his own words. This conclusive presumption of the truth of consensual de- clarations of right is, however, only one of the foundations of the law of agreement. Consent is in many cases truly consti- tutive of right, instead of merely evidential of it. It is one of the leading principles of justice to guarantee to men the fulfil- ment of their reasonable expectations. In all matters that are otherwise indifferent, expectation is of predominant influence in the determination of the rule of right, and of all the grounds of rational expectation there is none of such general importance as mutual consent. " The human will," says Aquinas, " is able by way of consent to make a thing just; provided that the thing is not in itself repugnant to natural justice." ^ There is an obvious analogy between agreement and legis- lation — the former being the private and the latter the public 1 Summa, 2. 2. q. 57. art. 2. Digitized by Microsoft® § 122] TITLES. 307 declaration and establishment of rights and duties. By waj^ of legislation the state does for its subjects that which in other cases it allows them to do for themselves hy way of agree- ment. As to the respective spheres of these twto operationis, the leading inaxim is Modus et conventio vincunt legem. Save when the interests of the public at large demand a different! rule, the autonomy of consenting parties prevails over the legislative will of the state. So fax as may be, the state leaveai the rule of right to be declared and constituted by the agree- ment of those concerned with it. So far as possible, it con- tents itself with executing the rules which its subjects hava made for themselves. And in so doing it acts wisely. For in the first place, the administration of justice is enabled in this manner to escape in a degree not otherwise attainable the dis- advantages inherent in the recognition of rigid principles of law. Such principles we must have; but if they are estab- lished fro re nata by the parties themselves, they will possess a measure of adaptability to individual cases which is unat- tainable by the more general legislation of the state itself. Amid the infinite diversities and complexities of human affairs the state wisely despairs of truly formulating the rules of justice. So far as possible, it leaves the task to those who by their nearness to the facts are better qualified for it. It says to its subjects: Agree among yourselves as to what is just in your individual concerns, and I shall enforce ydur agreement as the rule of right., In -the second place, men are commonly better content to bear the burdens which they themselves have taken up, than those placed upon them by the will of a superior. The^i acquiesce easily in duties of their own imposition, and are well pleased with rights of their own creation. The law or , the justice which best commends itself to them is that which they themselves have made or declared. Wherefore, instead of binding its subjects, the state does well in allowing thenn to bind themselves. 20 (2) Digitized by Microsoft® 308 TITLES, [§ 123. § 123. The Classes of Agreements. Agreements are divisible into three classes, for they either create rights, or transfer them, or extinguish them. Those which create rights are themselves divisible into two sub- classes, distinguishable as contracts and grants. A contract is an agreement which creates an obligation or right in personam between the parties to it. A grant is an agreement which creates a right of any other description; examples being grants of leases, easements, charges, patents, franchises, powers, licences, and so forth. An agreement which transfers a right may be termed generioally an assignment. One which extin- guishes a right is a release, dischwge, or surrender. As already indicated, a contract is an agreement intended to create a right mi personam between the contracting parties. No agreement is a contract unless its effect is to bind the parties to each other by the vinculum), juris of a newly created personal right. It commonly takes the form of a promise or set of promises. That is to say, a declaration of the consents ing wills of two persons that one of them shall henceforth be under an obligation to the other naturally assumes the form of an undertaking by the one with the other to fulfil the obligation so created. Not every promise, however, amounts to a contract. To constitute a contract there musit be noit merely a promise to do a certain act, but a promise, exjpresst or implied, to do this act as a legal duty. When I acoepit an invitation to dine at another man's house, I make him a promise, but enter into no contract with him. The reason is that our wills, though consenting, are not directed to the creation of any legal right or to any alteration of our legal relations towards each other. The essential form of a con- tract is not: I promise this to you; but: I agree with you that henceforth you shall have a legal right to demand and receive this from me. Promises that are not reducible to this form are not contracts. Therefore the consent that is requisite for the creation of rights by way of contract is essentially the same as that required for their transfer or extiinction. The essential element in each' case is the express or tacit reference- to the legal relations of the consenting parties. Digitized by Microsoft® §123] TITLES. S09 Taking into account the two divisions of the consensual creation of rights, there are, therefore, four distinct kinds of agreements: — 1. Contracts — creating rights ifi personam. 2. Grants — creating rights of any other kind. 3. Assignments — transferring rights. 4. Releases — extinguishing rights. It often happens that an agreement is of a mix«d nature, and so falls within two or more of these classes at the same time. Thus the sale of a specific chattel is both a contract and an assignment, for it trans- fers the ownership of the chattel and at the same time creates lan obligation to pay the price. So a lease is both a grant and a contract, for it creates real and personal rights at the same time. In all such cases the agreement must be classed in accordance with its chied; or essential operation, its other effects being deemed subsidiary and] incidental. A frequent result of the difference between law and equity, and between legal and equitable rights and ownership, is that the same agreement has one effect in law and another in equity. In law it may be a mere contract, and in equity an assign meat or a grant. Thus a written agreement for the sale of land is in law nothing more than a contract imposing upon the seller a personal obligation to execute a conveyance under seal, but not in itself amounting to a transfer of the ownership of the land. In equity, on the other hand, such an agree- ment amounts to an assignment. The equitable ownership of the land passes under it to the purchaser forthwith, and the vendor holds the legal ownership in trust for him. Similarly a contract to grant a legal lease or mortgage or servitude is itself the actual grant of an equitable lease, mortgage, or servitude. For it is a maxim of Chancery "that equity regards that as already done which ought to be done. § 124. Void and Voidable Agreements. In respect of their legal efficacy agreements are of three) kinds, being either valid, void, or voidable. A valid agreement is one which is fully operative in accordance with the intent of the parties. A void agreement is one which entirely fails to receive legal recognition or sanction, the declared will of the parties being wholly destitute of legal efficacy. A void- able agreement stands midway between these two eases. It is not a nullity, but its operation is conditional and not Digitized by Microsoft® 310 TITLES. [§ 124 absolute. By reason of some defect in its origin it is liable to be destroyed or canoelled at the option of one of the parties to it. On the exercise of this i>ower the agreement not only ceases to have any eificacy, but is deemed to have been void ah initio. The avoidance of it relates back to the making of it. The hypothetical or contingent efficacy which has hitherto been attributed to it wholly disappears, as if it had never existed. In other words, a voidable agreement is one which is void or valid at the election of one of the parties to it. A lease determinable on notice or on re-entry for breach of covenant is not for that reason voidable; because, when determined, it is not destroyed ab initio, but merely from then on wards. 1 Void and voidable agreements maj' be classed together as invalid. The most important causes of invalidity are six in number, namely, (1) incapacity, (2) informality, (3) illegality, (4) error, (5) coercion, and (6) want of consideration. 1. Incapacity. Certain classes of persons are whoUj' or partially destitute of the power of determining their rights and liabilities by way of consent. Thej^ cannot, at least to the same extent as other persons, supersede or supplement the common law by subjecting themselves to conventional law of their own making. In the case of minors, lunatics, and convicts, for example, the common law is peremptory, and not to be derogated from or added to by their agreement. So the agreements of an incorporated company may be invalid because ultra vires, or beyond the capacity conferred upon it by law. 2. Informality. Agreements are of two kinds, which may be distinguished as simple and formal. A simple agreement is one in which nothing is required for its effective operation beyond the manifestation, in whatever fashion, of the consent- ing wills of the parties. A formal agreement, on the other 1 In respect of the efficacy of conferacts, there is a special case which requires a word of notice. A. contract may be neither void nor voidable, but yet urtenforceable. That is to say, no action will lie for the enforce- ment of it. The obligation created by it is imperfect. See ante. § 78. An example is a verbal contract which ought to be in writing undeir thef Statute of Frauds. Digitized by Microsoft® § 124] TITLES. 311 hand, is one in which the law rc-quires not merely that con- sent shall exist, but that it shall be manifested in some par- ticular form, in default of which it is held of no acoou.nt- Thus the intent of the parties may be held efEective only if expressed in writing signed by them, or in Writing authenti- cated by the more solemn form of sealing; or it must be embodied in some appointed form of words; or it must be acknowledged in the presence of witnesses, or recorded by some form of public registration; or it must be accompanied by some formal act, such as the delivery of the subject- matter of the agreement. The leading purpose of all such forms is twofold. They are, in the first place, designed as pre-appointed evidence of the fact of consent and of its terms, to the intent that this method of determining rights and liabilities may be provided with the safeguards of permanence, certainty, and publicity. In the second place their purpose is that all agreements may by their help be the outcome of adequate reflection. -Any necessary formality has the effect of drawing a sharp line between the preliminary negotiations and the actual agree- ment, and so prevents the parties from drifting by inadver- tence into unconsidered consent. 3. Illegality. In the third place an agreement may be invalid by reason of the purposes with which it is made. To a very large extent men are free to agree together upon any miatter as they please; but this autonomous liberty is not absolute. Limitations are imposed upon it, partly in the interests of the parties themselves, and partly on behalf of the public. There is much of the common law which will not suffer itself to be derogated from by any private agreement; and there are many rules which, though they in no way infringe upon the oommon law, cannot be added to it as supplementary. That is to say, there are many matters in which the commlon law ■will admit of no abatement, and many in which it will admit oftto addition, by Vay of conventional law. It is true in great part that Modus et converttio vineunt legem: but over against this principle we must set the qualification, Privatorum Digitized by Microsoft® 312 TITLES. [§ 124 conventio juri p'ublico nan derogat. By jus puhlicum is here meant that part of the law which concerns the public interest^ and which for this reason the agreements of private persons cannot be allowed to infringe upon.^ Agreements which in this way overpass the limits allowed by the law are said in a wide sense to be illegal, or to be void for illegalitJ^ They, may or may not be illegal in a narrower sense, as amounting in their making or in their performance to a criminal or civil wrong. 4. Error or mistake. Error or mistake, as a ground of in- validity, is of two kinds, which are distinguishable as essential and unessential. Essential error is that which is of such a nature as to prevent the existence of any real consent, and therefore of any real agreement. The parties have not in reality meant the same thing, and therefore have not in reality agreed to any thing. Their agreement exists in appearance only, and not in reality. This is the case if A. makes an offer to B. which is accepted in mistake by C; or if A. agreets Jto sell land to B., but A. is thinking of one piece of la4nd, ^andi B. is thinking of another. The effect of error of this kind is to make the agreement wholly void, inasmuch as there is in truth no agreement at all, but only the external semblance and form of one. 2 There is, however, an exception to this rule when the error is due to the negligence of one of the parties and is unknown to the other. For in such a case he who is in fault 'will bo estopped by his own carelessness from raising the defence of essential error, and will be held bound by the agreement in the sense in which the other partj^ understood it.^ Unessential error, on the other hand, is that which does not relate to the nature or contents of the agreement, but only to some external circumstance, serving as one of the induce- ments which led to the making of it; as when A. agrees to buy B.'s horse because he believes it to be sound, whereas it 1 Di. 50. 17. 45. 1. * Cundy v. Lindsai/, 3 A. C. 459; liafflas v. WichHhaiis, 2 H. .t G. 906; FhiUips V. Bioahs, Ltd., (1919) 2 K. B. 243. ' Kinrj V. Smith, (1900) 2 Ch. 425. Digitized by Microsoft® § 124] TITLES. 313 is in reality unsound. This is not essential error, for there is a true consensus ad idem. The parties have agreed to the same thing in the same sense, though one of them would not have made the agreement had he not heen under a mistake. The general rule is that unessential error has no effeot on the validity of an agreement. Neither party is in any way oonoemed in law with the reasons which induced the other to give his consent. That which men consent to they must abide hy, whether their reasons are good or bad. And this is so even though one party is well aware of the eiror of the other. ^ This rule, however, is subject to an important exception, for even unessential error will in general make an agreement voidable at the option of the mistaken party, if it has beeni -caused by the misrepresentation of the other party. He who is merely mistaken is none the less bound by his agreement;; hut he who is misled has a right to rescind the agreement so procured. 2 5. Coercion. In order that consent may be justly allowed &s a title of right, it must be free. It must not be the productt of any form of compulsion or undue influence; otherwise the hasis of its legal operation fails. Freedom, however, is a matter of degree, and it is no easy task to define the boundary line that must be recognised by a rational system of law. We ean only say generally, that there must be such liberty of ■choice as to create a reasonable presumption that the party exercising it has chosen that which he desires, and not merely submitted to that which he cannot avoid. We cannot usefully enter here into any examination of the actual results that have heen worked out in this matter by English law. 6. Want of consideration. A further condition very com- monly required by English law for the existence of fully efficacious consent is that which is known by the technical ' 1 Smith V. Hughes, L. B. 6 Q. B. 597. 2 In addition to the case of .misrepresentation, unessential error affects ■any agreemant -wliich has been expressly or impliedly made conditional on 'the existence of the fact erroneously supposed to exist. A contract of sale, :for example, is conditional on the present existence of the things sold; if it is already destroyed, the contract for the purchase of it is void. Digitized by Microsoft® 314 TITLES. [§ 124 name of consideration. This requirement is, however, almost wholly confined to the law of contract, other forms of agree- ment being generally exempt from it. A consideration in its widest sense is the reason, motive, or inducement, by which a man is moved to bind himself by an agreement. It is not for nothing that he consents to impose an obligation upon himself, or to abandon or transfer a right. It is in consideration of such and such a fact that he agrees to bear new burdens or to forego the benefits which the law already allows him. If he sells his house, the consideration of his agreement is the receipt or promise of the purchase money. If he makes a settlement upon his wife and children, it is in consideration of the natural love and affection which he has for them. If he promises to pay a debt incurred by him before his bankruptcy, the consideration of his promise is the moral obligation which survives his legal indebtedness to his- creditors. Using the term in this wide sense, it is plain that no agreement made with knowledge and freedom by a rational man can be destitute of some species of consideration. All consent must proceed from some efiicient cause. What, then, is meant by saying that the law requires a consideration as a condition of the validity of an agreement? The answer is that the consideration required by the law is a consideration of a kind which the law itself regards as sufficient. It is not enough that it should be deemed sufficient by the parties, for the law has itself authoritatively declared what facts amount to a valid and sufficient consideration for consent, and whiit facts do not. If men are moved to agreement by considera- tions which the law refuses to recognise as good, so much the worse for the agreement. Ex nudo paeto non oritur actio. To bare consent, proceeding from no lawfully sanctioned source, the law allows no operation. What considerations, then, does the law select and approve as sufficient to support a contract? Speaking generally, we 'may say that none are good for this purpose save those which are valuable. By a valuable consideration is meant some- thing of value given by one party in exchange for the promise of the other. By English law no promise (unless under seal Digitized by Microsoft® § 124] TITLES. 315 or of reoord) is binding unless the promisor receives a quid pro quo from the promisee. Contracts which are purely uuIt lateral, all the obligation being on one side, and nothing either given or promised on the other, are destitute of leglal operation. Every valid contract ^ is reducible to the form of a bargain that if I do something for you, you will ,do some- thing for me. The thing thus given by way of consideration must be of some value. That is to say, it must be material to the interests of one or other or both of the parties. It must either involve some gain or benefit to the promisor by way of recompenaa for the burden of his promise, or it must involve some loss or disadvantage to the promisee for which the benefit of the promise is a recompense. Commonly it possesses both of these qualities at once, but either of them is sufficient by itself. Thus- if I promise gratuitously to take care of property which the owner deposits with me, I am bound by that promise, although I receive no benefit in recompense for it, because there is a sufficient consideration for it in the detriment incurred by the promisee in entrusting his property to my guardianship. But if the thing given by way of consideiution is of no value at all,, being completely indifferent to both parties, it is insufficient, and the contract is invalid; as, for example, the doing of some- thing which one is already bound to the other party to do, or the surrender of a claim which is known to be unfounded. In certain exceptional cases, however, considerations which are not valuable are nevertheless accepted as good and suffi- cient by the law. Thus the existence of a legal obligation may be a sufficient consideration for a promise to fulfil it; a& in the case of a promissory note or other negotiable instru- ment given for the amount of an existing debt. At one time it was supposed to be the law that a micrely moral obligation was in the same manner a sufficient basis for a promise of per- formance, and though this, is no longer true as a general pro- position, certain particular applications of the principle stiU survive, while others have but recently been abolished by 1 Witii the exception of contracts under seal and contracts of record, to> which the doctrine of consideration is inapplicable. Digitized by Microsoft® 316 TITLES. [§ 124 statute. Thus a promise made by a discharged bankrupt to pay a creditor in full was until recently a binding contrac't,, because made in consideration of the moral obligation "v^-hioh survives the legal indebtedness of an insolvent. For the same reason, a promise made after majority to pay debts incurred during infancy was binding, until the law was altered in this respect by recent legislation. Similarly a promise to pay a debt harred by prescription is legally vaKd even yet, the considera- tion being the moral (and imperfect legal) obligation which survives the period of prescription. With respect to the rational basis of this doctrine, it is to be noticed that the requirement of consideration is not abso- lute, but conditional on the absence of a certain formality, namelj- that of a sealed writing. Form and consideration ai-e two alternative conditions of the validity of contracts and of certain other kinds of agreements. It may be surmised, therefore, that they are founded on the same reasons and fulfil the same functions. They are intended as a precaution against the risk of giving legal efficacy to unconsidered promises and to the levities of speech. The law selects certain reasons and inducements, which are normally sufficient for reasoned and deliberate consent, and holds valid all agree- ments made on these grounds, even though informal. In all other cases it demands the guarantee of solemn form. There can be little doubt, however, that our law has shown itself too scrupulous in this matter; in other legal systems no such pre- caution is known, and its absence seems to lead to no ill results. Although the doctrine ol consideration, in the form received by English law, is unknown elsewhere, it is simply a modification of a doctrine known to the civil law and to several modern systems, more especially to that of France. Article 1131 of the Prench Civil Code provides that: " L'obligation sans cause, ou sur xme fausse cause, ou sur une cause illicite, ne peut avoir aucun cffet." i Tliis cause or causa is a synonym for consideration, and we find the terms used inter- changeably in the earlier English authorities. ^ There is, however, an 1 Cf. D. 44. 4. 2. 3. Si quis sine causa ab aliquo fuei-it stipiilatus, deinde ex ea stipulationc experiatur, exceptio utique doli mali ci nocebit. See ■ako D. 12. 7. 1. pr. 2 Salmond, Essays in Jurisprudence and Legal History, p. 219. Digitized by Microsoft® § 124] TITLES. 31^ essential diferenoe between the English and the Continental principle. Unlike the former, the latter never rejects any cause or consideration as insufficient. Whatever motive or inducement is enough to satisfy the contracting parties is enough to satisfy the law, even though it is nothing more than the causa liheralitatis of a voluntary gift. By an obligation sans ccmse, or contract without consideration, French law does not mean a contract made without any motive or inducement (for there are none such), nor a contract made from an inadequate motive or inducement (for the law makes no such distinctions), but a contract made for a consideration which has failed — causa non secuta, as the Romans called it. The second ground of invalidity mentioned in the Article cited is the falsity of the con- sideration {falsa causa) . A consideration may be based on a mistake, so that it is imaginary and not real; as when I agree to buy a horsei which, unknown to me, is already dead, or a ship which has been already wrecked, or give a promissory note for a debt which is not truly owing. Finally, a causa turpis, or illegal consideration, is as. fatal to a contract in French and Roman law as in English. In English law the failure of consideration (causa non secuta) and its unreality due to error {causa falsa) are grounds of invalidity, .only when the absence of such failure or error is expressly or impliedly made a condition of the contract. In a contract for the sal© of a chattel, for example, the present existence of the chattel is an implied condition of the validity of the sale.^ SUMMARY. _ .... _, , ( Original Titles. Creation of Investitive Facts ) _. . . or Titles. Vestitive Facts. '■ Divestitive Facts. Rights. ( Derivative Titles. ) Transfer of Alienative Facts. ) ' Extinctive Facts. Destruction of Rights. ( Acts of the law. Vestitive Facts. \ ( Unilateral. Acts in the law. ( Bilateral, or Agreements. I Tlie French law as to the cause or consideration of a contract will ba found in Pothier, Obligations, sects. 42 — 46, and Baudry-Lacantinerie, Obli- gations, sects. 29S — 327. Whether the English doctrine of consideration is historically connected with the causa of the civil law is a matter of dispute, and there is much to be said on both sides. Digitized by Microsoft® 318 TITLES. [§ 124 / 1. Contracts — creating rights in personam. \ 2. Grants — creating rights of other descriptions. Agreements j g Assignments— transferring rights. I 4. Eeleases — extinguishing rights. Orounds of the operation of agreements. Comparison of agreement and legislation. I Valid. Agreements. \ ( Void. ( Invalid. • ( Voidable. The causes of invalidity. - 1. Incapacity. 2. Informality. 3. Illegality. 4. Error. 5. Coercion. 6. Want of consideration. Digitized by Microsoft® ( 319 ) CHAPTEE XVII. LIABILITY. § 125. The Nature and Kinds of Liability. He who commits a wrong is said to be liable or responsiblie for it. Liability or responsibility is the bond of necessity that exists between the wrongdoer and the remedy of the wrong. This vinculvmi juris is not one of mere duty or obligation; it pertains not to the sphere of ought but to that of must. It has its source in the supreme will of the state, vindicating its supremacy by way of physical force in the last resort against the unconforming will of the individual. A man's liability consists in those things which he miiist do or suffer, because he has already failed in doing what he aught. It is the ulti- matum of the law.i The purpose of this chapter and of the two which follow it is to consider the general theory of liability. We shall investigate the leading principles which determine the exist- ence, ' the incidence, and the measure of responsibility for wrongdoing. The special rules which relate exclusively to particular kinds of wrongs will be disregarded as irrelevant to the purpose of our inquiry. ; Liability is in the first place either civil or criminal, and in the second place either remedial or penal. The nature pf these distinctions has been already sufficiently considered in a previous chapter on the Administration of Justice. We there saw that civil liability is liability to civil proceedings, and that a civil proceeding is one whose direct purpose is the enforcement of a right vested in the plaintiff. Criminal 1 We have already seen that the term liability has also a wider sense, in •which it is the correlative of amj legal power or liberty, and not merely of the light of action or prosecution vested in a person wronged. Supra, § 77. Digitized by Microsoft® 320 LIABILITY. [§ 125 liability, on the other hand, is liability to criminal proceedings, and a proceeding of this nature is one whose direct purposio is the punishment of a wrong committed by the defendant.^ We also saw that the law often punishes a wrong by creating and enforcing against the wrongdoer a new obligation; for example, that of paying a 2>ecuniary penalty or damages. In such a case the direct purpose of the proceeding is the en-- foroement of the sanctioning right thus created, though its ulterior purpose is the punishment of the wrong in which this right has its source. Hence the necessity of the further dis- tinction between penal and remedial liability. The former is that ill which the purpose of the law, direct or ulterior, is or includes the punishment of a wrongdoer; the latter is that in which the law has no such purpose at all, its sole intent being the enforcement of the plaintiff's right, and the idea of punish- ment being wholly irrelevant. The liability of a borrower to repay the money borrowed by him is remedial; that of the pub- lisher of a libel to be imprisoned, or to pay damages to the person injured by him, is penal. All criminal liability is penal; civil liability, on the other hand, is sometimes penal and sometimes remedial. ^ g 126. The Theory of Remedial Liability. 'The theory of remedial liability presents little difficult}^. It maj' be laid down as a general principle, that, whenever the law creates a duty, it should enforce the specific fulfilmient of it. The sole condition of the existence of remedial liability, is the existence of a legal duty binding upon the defendant and unfulfilled by him. What a man ought to do by a rule of law, he ought to be made to do by the force of law. In law ought is normally equivalent to must, and obligation and remedial liability are in general co-existent. To this general principle, however, there are the following exceptions: — 1. In the first place, there are duties of imperfect obliga- tion — duties the breach of which gives no cause of action, and creates no liability at all, either civil or criminal, penal or 1 Supra, § 27. 2 Supra, § 34. Digitized by Microsoft® § 126J LIABILITY. 321 remedial. A debt baxred by the statute of limitations, or duo by the Crown, is a legal debt, but the payment of it cannot be compelled by any legal proceedings.^ 2. Secondly, there are many duties which from their nature cannot be specifically enforced after having once been broken. When a libel has already been published, or an assault has already been committed, it is too late to compel the wrong- doer ito perform his duty of refraining from such acts. Wrongs of this description m.ay be termed transitory; once committed, they belong to the irrevocable past. Others, however, are con- tinuing; for example, the non-payment of a debt, the com- mission of a nuisance, or the detention of another's property. In such cases the duty violated is in its nature capable of specific enforcement, notwithstanding the violation of it. 3. In the third place, even when the specific enforoement of fi duty is possible, it may be, or be deemed to be, moria expedient to deal with it solely through the criminal law, or through the creation and enforoement of a subistituted sanc- tioning duty of pecuniary com'pensation . It is only in special cases, for example, that the law will compel the specific per- formance of a contract, instead of the payment of damages for the breach of it. § 127. The Theory of Penal Liability. We now proceed to the main subject of our inquiry, namely, the general principles of penal liability. We have to consider the legal theory of punishment, in its application both to tha criminal law and to those portions of the civil law in which the idea of punishment is relevant and operative. We have already, in a former chapter, dealt with the purposes of punish- ment, and we there saw that its end is fourfold, being deterrent, disabling, retributive, and reformative. The llrst of these purpoees, however, is primary and essential, t'i3 others being merely secondary. In our present investigatioi , "^h^refore, we shall confine our attention to punishment as dete rent. The 1 Supra, § 7a. S.J. 21 Digitized by Microsoft® 322 LUlilLlTY. [§ 127 inquiry -will fall into three divisions, relating (1) to the con- ditions, (2) to the incidence, and (3) to the measure of penal; liability. The general conditions of penal liability are indicated with sufficient accuracy in the legal maxim, A/ctus non faeit reiim, nisi mens sit rea — The act alone does not amount to guilt; it must be accompanied by a guilty mind. That is to say, there are two conditions to be fulfilled before penal responsibility can rightly be imposed, and we may conveniently distinguish these as the material and the formal conditions of liabilitj^ The material condition is the doing of some act by the person; to be held liable. A taian is to be accounted responsible ortly for what he himself does, not for what other persons do, or for events indepelndent of human activity altogether. The for- mal condition, on the other hand, is the mens rea or guilty mind with which the act is done. It is not enough that a man has done some act which on account of its misichievous results the law prohibits; before the law can justly punish the act, an inquiry must be made into thu mental attitude of the doer. For although the act may have been materially or objectively wrongful, the mind and will of the doer may have been innocent; We shall see later that the tnens rea or guilty mind includes two, and only two, • distinct mental attitudes of the doer towards the deed. These are intention and negligence. Generally speaking, a man is penally responsible only for those wrongful acts which he does either wilfully or negtli- gently. Then and only then is the actus accompanied by the mens rea. Then and then only do the two conditions of lia- bility, the material and the formal, co-exist. In this case only is punishment justifiable, for it is in this case alone that it can be effective. Inevitable accident or mistake — the absence both of wrongful intention and of culpable negligence — is in general a sufficient ground of exemption from penal responsibility. Impimitus est, said the Romane, qui sine culpa et dolo 'rriala caM quodam dammum committit.^ 1 Gains, in. 211. Digitized by Microsoft® § 127] LIABILITY. 323 We shall consider separately these two conditionsi of liability, analysing first the conception of an act, and secondly that of mens rea in its two forms of intention and negligence.^ § 128. Acts. The term act is one of ambiguous import, being used in various senses of different degrees of generality. When it is said, however, that an act is one of the essential conditions of liability, we use the term in the widest sense of which it is capable. We mean by it any event which is ^subject to thei control of the human will. Such a definition is, indeed, not ultimate, but it is sufiicient for the purpose of the law. As to the nature of the will and of the control exercised by it, it is not for lawyers to dispute, this being a problem of psychology or physiology, not of jurisprudence. ' (1) Positive and Negative acts. Of acts as so defined tliere are various species. In the first place, they are either positive or negative, either acts of commission or acts of omission. A Avrongdoer either does that which he ought not to do, or leaves jindone that which he ought to do. The term act is oftein used in a narrow sense to include merely positive acts, and is then opposed to omissions or forbearances instead of in- cluding them. This restriction, however, is inconvenient, Adopting the generic sense, we can easily distinguish the two species as positive and negative; but if we restrict the terni to acts of commission, we leave ourselves without a name for the genus, and are compelled to resort to an enumeration of the species. (2) Internal and external acts. In the second place, acts are either internal or external. The former are acts of tha mind, while the latter are acts of the body. In each case the act may be either positive or negative, lying either in bodilyi 1 The distinction between material and foi-mal wrongdoing has long been familiar in moral philosophy. The material badness of an act depends on the actual nature, circumstances, and consequences of it. Its formal bad- ness depends on the state of mind or will of the actor. The madman who Idlla his keeper offends materially but not formally ; so also with him who in invincible ignorance breaks the rule of right. Material without formal -wrongdoing is no ground of culpability. 21 (2) Digitized by Microsoft® 324 LIABILITY, [§ 128 activity or passivity, or in mental activity or passivity. ,Tq think is an internal act; to speak is an external act. To :work out an arithmetical problem in one's head is an act of the (mind; to work it out on paper is an act of the bodjy. [Every external act involves an internal act vsfhich is related' to it; but the converse is not true, for there are many acts of the mind which never realise themselves in acts of the body. ,The term act is very commonly restricted to external acts, but this is inconvenient for the reason already given in respect of the distinction between positive and negative acts. (3) Intentional and unintentional acts. Acts are further distinguishable as being either intentional or unintentional. iThe nature of intention is a matter to which particular atten- tion will be devoted later, and it is sufficient to say here that an act is intended or intentional when it is the outcome of a determination of the actor's will directed to that end. In other words, it is intentional when it was foreseen and desired by the doer, and this foresight and desire realised themjselves in the act through the operation of the will. It is uninften- tional, on the other hand, when, and in so far as, it is not thie result of any determination of the wiU towards a desired issue. In both cases the act may be either internal or extesmal, positive or negative. The term omission, while often used in a wide sense to include all negative acts, is also used in a narrower signification to include merely unintentional nega- tive acts. It is then opposed to a forbearance, which is an intentional negative act. If I fail to keep an appointment through forgetfubaess, my act is unintentional and negative;; that is to say, an omission. But if I remember the appoijit- ment, and resolve not to keep it, my act is intentional and neg'ative; that is to say, a forbearance. The term act is very commonly restricted to intentional acts, but this restriction is inadmissible ia law. Intention is not a necessary condition of legal liability, and therefore cannot be an essential element in those acts which produce such liability. lAn act is an event subject to the control of the wiU; but it is not essential that this control should be actually exercised; there need be no actual determination of the will, for it is Digitized by Microsoft® § 128] LIABILITV. 326 enough that such control or determinajtion is possible. If the control of the "will is actually exercised, the act is intentional;! if the -will is dormant, the act is unintentional; hut in eaohj case, by virtue of the existence o£ the power of control, the event is equally an act. The movements of a man's limbs are acts; those of his heart are not. Not to move his armjs is ian: act; not to move his eaxs is not. To meditate is an act; to dream is not. It is the power possessed by me of determining the issue othei-wise which makes any event imj act, and is thie ground of my responsibility for it. ' Every act is made up of three distinct factors or ooustituenti parts. These are (1) its origin in some mental or bodily ac- tivity or passivity of the doer, (2) its ciroumstcmces, and (3) its consequences. Let us suppose that in practising with a rifle I shoot soome person by accident. The material elements of my act are the following: its origin or primary stage, namigly a series of muscular contractions, by which the rifle is raised] and the trigger pulled; secondly, the circums'tanoes, the chief of which are the facts that the rifle is loaded and in working order, and that the person killed is iu the line of fire; thirdly, the consequences, the chief of which are the fall of the trigger, the explosion of the powder, the discharge of the bullet, its passage through the body of the man killed, and his death. A similar analysis will apply to all acts for which a man is legally responsible. Whatever act the law prohibits as being wrongful is so prohibited in respert of its origin, its circum- stances, and its conscquonccs. For unless it has its origin in some mental or physical activity or passivity of the defen- dant, it is not his act at all; and apart from its circumstanaqs and results it cannot be wrongful. .\-ll acts are, in respect of their origin, indifferent. No bodily motion is in itself illegal. To crook one's finger may be a crime, if the fing-er is in contact with the trigger of a loaded pistol; but in itself it is not a; matter which the law is in any ^^'ay concerned to take notice of. Circumstances and consequences are of two kinds, accord- ing as they are relevant or irrelevant to the question ojf liability. Out of the infinite array of circumstances and the Digitized by Microsoft® 326 LIABILITY. [§ 128 endless chain of consequences the law selects some few fis material. They and they alone are constituent parts of tha wrongful act. AH the others are ii-relevant and without legal significanoe. They have no hearing or influence on the guilt of the doer. It is for the law, at its own good pleasure, to select and define the relevant and material facts in each par-' ticular species of wrong. In theft the hour of the day is irrelevant; in burglary it is material. An act has no natural boundaries, any more than an event or a place has. Its limits must be artificially defined for the purpose in hand for the time being. It is for the law to deter- mine, in each particular case, what circumstances and what consequences shall be counted within the compass of the aot with which it is concerned. To ask what act a man has dome* is like asking in what place he lives. By some writers the term act is limited to that part of the act which we have distinguished as its origin. According to this opinion the only acts, properly so called, are move- ments of the body "An act," it has been said,^ "is alwa;yst a voluntary muscular contraction and nothing else." That is to say, the circumstances and consequences of an act are not part of it, but are wholly external to it. This limitation, how- ever, seems no less inadmissible in law than contrary to the common usag^e of speech. We habitually and rightly include all material and relevant circumstances and consequences under the name of the aot. The aot of the murderer is the shootinlg or poisoning of his victim, not merely the muscular contrac- tions by which this result is effected. To trespass on another man's land is a wrongful act; but the act includes the circutai- stanoe that the land belongs to another man, no less than the bodily m.ove.ment8 by which the trespasser enters upon it.^ It may be suggested that although an act must be taken to 1 Holmes, Common Law, p. 91. So Austin, p. 419: " Tlie bodily move- mentg which immediately follow our desires of them are the only liumaji acts, .strictly and properly so called." 2 It ia unfortunate that there is no recognised name for the origin or initial stage of the act, as contrasted with the totality of it. Bentham calls the former the act and the latter the aotiov. Principles, ch. 8, sect. 2. Works, I. p. 40. But in common usage the^c two terms are synonymous, and to u«e them in tliis special sense would only lead to confusion. Digitized by Microsoft® § 128J LIABILITY. 3<:7 include some of its consequenoes, it does not include all of them, but only those which are direct or immediate. Any such distinction, however, between direct and indirect, proxi- mate and remote consequenoes, is nothing more than an indeterminate difference of degree, and cannot be made the basis of any logical definition. The distinction between an act and its consequenoes, between doing a thing and causing a thing, is a merely verbal one; it is a matter of convenienicie of speech, and not the product of any scientific analysis pf the oonoeptiojis involved. There is no logical distinction between the act of killing a man and the act of doing somie,- thing which results (however remotely) in his death. ^ § 129. Two Classes of Wrongful Acts. Every wrong is an act which is mischievous in the eye of the law — an act to which the law attributes harmful conse- quenoe-s. These consequences, however, are of two kinds, being either actual or merely anticipated. In other words, an act may be mischievous in two ways — either in its actual results or in its tendencies. Hence it is, that legal wrongs are of two kinds. The first consists of those in which the act is wrongful only by reason of accomplished harm which in fact ensues from it. The second consists of those in which the act is wrongful by reason of its mischievous tendencies, as recog- nised bj' the law, irrespective of the actual issue. In the first case there is no wrong or cause of action without proof of actual damage; in the second case it is sufficient to prove the act itself, even though in the event no harm has followed it. For example, if A. breaks his contract with B., it is not necessary for B. to prove that he was thereby disappointed in his reasonable expectations, or otherwise suffered actual loss, for the law takes notice of the fact that breach of contract is an act of mischievous tendency, and therefore treats it as wrongful irrespective of the actual issue. The loss, if any, incurred by B. is relevant to. the measure of damages, but not to the existence of a cause of action. So if I walk across 1 See Salmonrl on Torts, p. 184, 4th ed. Digitized by Microsoft® 328 LIABILITY. [§ 129 another man's field, or publish a libel upon him, I am respon-i sible for the act without any proof of actual harm resulting from it. For trespass and libel belong to the class of aota which are judged wrongful in respect of their tendencies, and' not merely in respect of their results. In other cases, on the contrary, actual damage is essential to the cause of action. Slander, for example, is in general not actionable without proof of some loss sustained by the plaintiff, although libel is actionable per se. So if by negligent driving I expose others to the risk of being run over, I am not deemed guilty of any, wrong until an accident actually happens. The dangerous tendency of the act is not in this case considered a sufficient ground of liability. With respect to this distinction between wrongs which do and those which do not, require proof of actual damage, it is to be noticed that criminal wrongs commonly belong to the latter class. Criminal liability is usually sufficiently estab- lished by proof of some act which the law deems dangerous in its tendencies, even though the issue is in fact harmless. The formula of the criminal law is usually: " H you do this, you will be held liable in all events," and not: "If you do this you will be held liable if any harm ensues." An un- successful attempt is a ground of criminal liability, no leiss than a completed offence. This, however, is not invariably so, for criminal responsibility, like civil, sometimes depends on the accident of the event. If I aan negligent in the us© of firearms, and kill some one in consequence, I am criminally liable for manslaughter; but if by good luck my negligence results in no accomplished mischief, I am free from aU responsibility. As to civil liability, no corresponding general principle can be laid down. In some cases proof of actual damage is required, while in other cases there is no such necessity; and the matter pertains to the detailed exposition of the law, rather than to legal theory. It is to be noted, however, that whenever this requirement exists, it imports into the administration of civil justice an element of capriciousness from which the criminal law is commonly free. In point of criminal responsibility Digitized by Microsoft® § 129] LIABILITY. 5329 men are judged by their acts and by the mischievous tendencies of them, but in point of civil liability they are often judged by the actual event. If I attempt to execute a wrongful puil- pose, I am criminally responsible whether I succeed or not;: but my civil liability will often depend upon the aecident of the result. Failure in a guilty endeavour amounts to inno- oenoe. Instead of saying: "Do this, and you will be held accountable for it," the civil law often says: "Do this if you ■wish, but remember that you do it at your peril, and if evil consequences chance to follow, you will be answerable for them." § 130. Damnum sine Injuria.' Although all wrongs are, in fact or in legal theory, mis-: ehievous acts, the converse is not true. All damage done is not wrongful. There are cases in which the law will suffer a man knowingly and wilfully to inflict harm upon another, and Tvill not hold him accountable for it. Harm of this description — ^inischief that is not wrongful because it does not fulfil even the material conditions of responsibility — is called damnum sine injuria, the term injuria being here used in its true sense of an act contrary to law (in jus), not in its modern and corrupt sense of harm. Cases of damnum sine injuria fall under two heads. There ure, in the first place, instances in which the harm done to the individual is nevertheless a gain to society at large. The wrongs of individuals are such only because, and only so far as, they are at the same time the wrongs of the whole com- munity; and so far as this coincidence is imperfect, the harm •done to an individual is dammum sine injuria. The special result of competition in trade may be ruin to many; but the general result is, oris deem.ed to be, a gain to society as a whole. Competitors, therefore, do each other harm but not injury. So a landowner may do many things on his own land, which are detrimental to the interests of adjoining 'proprietors. He may so excavate his land as to withdraw the support requiredl hy the buildings on the adjoining property; he may prevent the access of light to the windows of those buildings; he may Digitized by Microsoft® 330 LIABILITY. [§ 130 drain away the water which supplies his neighbour's well. These things are harmful to individuals; but it is held to serve the public interest to allow a man, within wide limits, to, do as he pleases with his own. The second head of da^nnum sine injuria includes all those cases in which, although real harm is done to the community, yet owing to its triviality, or to the difficulty of proof, or to any other reason, it is considered inexpedient to attempt its prevention by the law. The mischief is of such a nature that the legal remedy would be worse than the disease. § 131. The Place and Time of an Act. Chiefly, though not exclusively, in consequence of the territorial limits of the jurisdiction of courts, it is often material to determinei the place in which an act is done. In general this inquiry presents no diifioulty. but there are two cases which require special considera- tion. The first is that in which the act is done partly in one place and partly in another. If a man standing on the English side of the Border jBres at and kills a man on the Scottish side, has he committed murder in England or in Scotland? If a contract is made by corre- spondence between a merchant in London and another in Paris, is- the contract made in England or in France? If by false representa- tions made in Melbourne a man obtains goods in Sydney, is the offence of obtaining goods by false pretences committed in Victoria or in New South Wales? As a matter of fact and of strict logic the correctt answer in all these cases is that the act is not done either in th© onel place or in the other. He who in England shoots a man in Scotland commits murder in Great Britain, regarded as a unity, but not in either of its parts taken in isolation. But no such answer is allow- able in law; for, so long as distinct territorial areas of jurisdiction are recognised, the law must assume that it is possible to determine with respect to every act the particular area within which it is committed. What locality, therefore, does the law attribute to acts which thus; fall partly within one territorial division and partly within another ? There are three possible answers. It may be said that the Euct is committed in both places, or solely in that in which it has its commence- ment, or solely in that in which it is completed. The law is free to choose such one of these three alternatives as it thinks fit in .th» particular case. The last of them seems to be that which is adopted for most purposes. It has been held that murder is committed in tho place in which the death oocurs,i and not also in the place in whichl 1 Rc(/. V. Coombes, 1 Lea. Cr. C. 388. Digitized by Microsoft® §131] LIABILITY. 331 the ,act oaysing th^ death, is done/ but the law on these points is ,.not free from doubt.* A contract is made in the place where it is com- pleted, that is to say, where the offer is accepted ^ or the last neceesary signature to the document is affixed.* The offence of obtaining goods by false pretences is committed in the place in which the goods are obtained * and not in the place where the false pretence is made.^ A second case in which the determination of the locality of an act gives rise to difficulty is that of negative acts. In what place does a man omit to pay a debt or to perform a contract.'' The true answer is apparently that a negative act takes place where the corresponding positive act ought to have taken place. An omission to pay a debt occurs in the place where the debt is payable.'' If I make in England a contract to be performed in Prance, my failure to perform it takes place in France and not in England. The presence of a negative act is the abeence of the corresponding positive act, and the positive act is absent from the place in which it ought to have been present. The time of an act. The position of an act in time is determined by the same considerations as its position in space. An act which begins to-day and is completed to-morrow is in truth done neither to-day nor to-morrow, but in that space of time which includes both. But if necessary the law may date it from its commencement, or from its completion, or may regard it as continuing through both periods. For most purposes the date of an act is the date of its completion, just as its place is the place of its completion.^ 1 United States v. Davis, 2 Sumiier, 482. " Reg. Y. Armstrong, 13 Cox, O. 0. 184; lleg. v. Kei/n, 2 Ex. D. 63. 3 Coivan T. O'Connm-, 20 Q. B. D. 640. * Midler f Co.^s Margarine, Limited ^. Inland Revenue Com^nissioners^ (1900) 1 Q. B. 310; (1901) A. C. 217. ■'■ Reg. T. Mlis, (1899) 1 Q. B. 230. * The question is fully discussed in the case of Reg. v. Keyrf, 2 Ex. D. 63, in which the captain ol a German steamer was tried in England for man- slaughter by negligently sinking an English ship in the Channel and drowning one of the passengers. One of the minor questions in the case was that of the place in which the offence was committed. Was it on board the English ship, or on board the German steamer, or on board neither of them? Four of the judges of the Court for Crown Cases Reserved, namely, Denman, J., Bramwell, B., Coleridge, C.J., and Cockburn, C.J., agxeed that if the offence had been wilful homicide it would have been committed on the English ship. Denman, J., and Coleridge, 0..T., applied the same rule to negligent homicide. Cockburn, C.J., doubted as to negligent homicide. Bramwell, 15., said (p. 150): "If the act was wilful, it is done where the will intends it should take effect; alitor when it is negligent." For a further discussion of the matter, see Stephen's History of Cricainal Law, II. pp). 9 — 12, and Oppenhoff's annotated edition of the German Criminal Code (13th ed. 1896), p. 28. The German doctrine is that an act is committed in the place where it is begun. See also Terry, Principles of Anglo-American Law, pp. 598—606, and Edmnndson v. Remler, (1905) 2 Ch. 320. ■' Northey Stone Co. v. Gidn-ey. (1894) 1 Q. B. 99. _ • 8 If the law dates the commission of a wrong from the completion of it, it follows that there are cases in which a man may commit a wrong after Digitized by Microsoft® 332 LIABILITY. [§ 131 A negative act is done at the time at which the corresponding posi- tive act ought to have been done. The date of the non-payment of a d«bt is the day on which it becomes payable. § 132. Mens Rea. We have seen tliat the conditions of penal liability are sufficiently indicated by the maxim, Actus non facit reum, nisi mens sit rea. A maji is responsible not for hie acts im themselves, but for his acts coupled with the mens rea or guilty mind with which he does them. Before' imposing punish- ment, whether civilly or criminally, the law must be satisfied of two things: first, that an act has been done which by reason, of its harmful tendencies or results is fit to be repressed by way of penal discipline; and secondly, that the mental attitude of the doer towards his deed was such as to render punishment eflFective as a deterrent for the future, and therefore just. The first is the material, the second is the formal condition of liability. The mens rea may assume one or other of two dis- tinct forms, namely wrongful intention or culpable negligence. The offender may either have done the wrongful act on purpose, or he may have done it carelessly, and in each case the mental attitude of the doer is such as to make punishment effective. If he intentionally chose the wrong, penal discipline will furnish him with a sjiiflicient motive to choose the right instead for the future. If, on the other hand, he committed the for- bidden act without wrongful intent, but yet for want of sufii- eient caro devoted to the avoidance of it, punishment will be an effective inducement to carefulness in the future. But if his act is neither intentional nor negligent, if he not only did not intend it, but did his best as a reasonable man to avoid it, there can be no good purpose fulfilled in ordinary cases bry; holding him liable for it. his death. If A. excavates his own land so as to cause, after an interval, the subsidence of the adjoining land of B.., there is no wrong done nntfil the subsidence happens: BacTchouse v. JJonomi. 9 H. L. C. 503; Sarlmi Matn Colliery Co. v. Mitchell, 11 A. C. 127. Wliat shall be said, then, if A. is •dead in the meantime? The wrong, it seems, is not done by his sncceesors in title: Hall v. Dvke of Norfolk, (1900) 2 Cli. 493; Gi-eenwell v. Lvip Beecli- bwrn ColUeiy, (1897) 2 Q. B. 165. The law, therefore, must hold either that there is no wrong' at all, or that it is ooniraitted by a man who is dead at the date of its commission. Digitized by Microsoft® § 132 J LIABILITY. 333 Yet there are exceptional oases in which, for sufficient , or insufficient reasons, the law sees fit to break through the rule as to mens rm. It disregards the formal condition of lia- bility, and is satisfied with the material condition aloiie. It holds a man responsible for his acts, independently altogether of any wrongful intention or culpable negligence. Wrongs which are thus indepeoadent of mens rea may be distinguished as wrongs of absolute liahiUty. It follows that in respect of the requirement of mens rea wrongs are of three kinds: (1) Intentional or Wilful Wrongs, in which the mens rea amounts to intention, purpose, or design. (2) Wrongs of Negligence, in which the mens rea assumes the less serious form of mere carelessness, as opposed to wrongful intent. (S) Wrongs of Absolute Liability, in which the mens rea is not required, neither wrongful intent nor culpable negligence being recognised as a necessary condition of responsibility. We shall deal with these three classes of wrongs, and these three forms of liability, in the order mentioned. SUMMAEY. ( Civil ( Biemedial. ^^^ lOrinunar (Penal. Bemedial liability: Specific enforcement the general rule. Bxceptions: il. Non-actionable wrongs. 2. Transitory wrongs. 3. Continuing wrongs in which sanctional enforcement is more expedient than specific. I Its conditions. Penal liability < Its incidence. ' Its measure. , T L-i-i. ( Material — Actus. Oonditiona of penal liability | pormal-J/ens rea. Digitized by Microsoft® 334 LIABILITY. [§ 132 The 'nature of an act: 1. Positive and negative acts. 2., Internal and external acts. 3. Intentional and unintentional acts. The circumstances and consequences of acts. The relation between injuria and damnum. 1. All wrongs are mischievous acts. yj j In which proof of damage is required \ In which such proof is not required. 2. All mischievous acts are not wrongs. Damnum sine injuria. (a) Loss of individual a gain to society at large. (6) Legal remedy inexpedient. The place and time of an act. The formal condition of penal liability. ■,, ( Intention. Miens tea ighai> V. Me.ilovr (1837), 3 Bing. N. C. p. 475. Digitized by Microsoft® §142] INTENTION AND NEGLIGENCE. .;3-59 speed to ten miles, but this additional safety would be at- tained at too great a cost of public convenience, and therefore in neglecting this j)recaution the companies do not fall below the standard of reasonable care and are not guiltj- of negligence. 1 § 143. Degrees of Negligence. We have said that English law recognises only one standard of care and therefore only one degree of negligence. When- ever a person is under a duty to take any care at all, he is bound to take that amount of it which is deemed reasonable under the circumstances; and the absence of this care is cul- pable negligence. Although this is probably a correct state- ment of English law, attempts have been made to establish two or even three distinct standards of care and degrees of negli- gence. So'ine authorities, for example, distinguish between gross negligence (culpa lata) and slight negligence (culpa levis), holding that a person is sometimes liable for the former only, and at other times even for the latter. In some cases we find even a threefold distinction maintained, negligence being either gross, ordinary, or slight. ^ These distinctions are based partly upon Roman law, and partly upon a miis- understanding of it, and notwithstanding some judicial dicta to the contrary we may say with some confidence that no suoh doctrine is known to the law of England. ^ The distinctionss 1 Ford V. Z. # In proceeding to consider the chief instances of this kind of liability we find that the matter falls into three divisions, namely— (1) Mistake of Law, (2) Mistake of Fact, and (3) Accident. § 146. Mistake of Law. It is a principle recognised not only by our own but by other legal systems that ignorance of the law is no excuse for breaking it. Ignorantia juris neminem excused. The rule is also expressed in the form of a legal presumptioa that every- one knows the law. The rule is absolute, and the presump- tion irrebuttable. No diligence of inquiry will avail against it; no inevitable ignorance or error w;ill serve for justifica- tion. Whenever a man is thus held accountable for breaking^ a law which he did not know, and which he could not by 'due care have acquired a knowledge of, the case is one of absolute- liability. The reasons rendered for this somewhat rigorous principle are three in number. In the first place the law is in legal theory definite and knowable; it is the duty of every man to know that part of it which concerns him; therefore innocent and inevitable ignorance of the law is impossible. Men are conclusively presumed to know the law, and are dealt with as if they did know it, because they can and ought to know it. In the second place, even if invincible ignorance of the law is in fact possible, the evidential difficulties in the way of the judicial recognition of such ignorance are insuperable, and for the sake of any benefit derivable therefrom it is not advisable to weaken the administration of justice by making liabilit,y dependent on well-nigh inscrutable conditions touching know- ledge or means of knowledge of the law. Who can say of any, man whether he knew the law, or whether during the course of his past life he had an opportunity of acquiring a knowledge of it by the exercise of due diligence? Thirdly and lastly, the law is in most instances derived from and in harmony with the rules of natural justice. It is a public declaration by the state of its intention to maintain by force those principles of right and wrong which have already a secure place in the m-oral consciousness of men. Digitized by Microsoft® § 146j LIABILITY (continued). ;569 The common law is in great part nothing more than common, honesty and common sense. Therefore although a man may be ignorant that he is breaking the law, he knows very well in most cases that he is breaking the rule of right. If n;ofc to his knowledge lawless, he is at least dishonest and unjust. He has little ground of complaint, therefore, if the law refuses to recognise his ignorance as an excuse, and deals with him according to his moral deserts. He who goes about to harm others when he believes that he can do so within the limits of the law, may justly be required by the law to know thosa limits at his peril. This is not a form of activity that need' be encouraged by any scrupulous insistence on the formal conditions of legal responsibility. It must be admitted, however, that while each of these considerations is valid and weighty, they do not constitute an altogether sufficient basis for so stringent and severe a rule.^ None of them goes the full length of the rule. That the law is knowable throughout by all whom it concerns is an ideal rather than a fact in any system as indefinite and mutable aa our own. That it is impossible to distinguish invincible from negligent ignorance of the law is by no means wholly true. It may be doubted whether this inquiry is materially more difiicult than many which courts of justice undertake without hesitation. That he who breaks the law of the land disre- gards at the same time the principles of justice and honesty is in many instances far from the truth. In a complex legal system a man requires other guidance than that of common sense and a good conscience. The fact seems to be that the rule in question, while in general sound, does not in its fuJJ extent and uncompromising rigidity admit of any sufiicient justification. § 147. Mistake of Fact, In respect of the influence of ignorance or error upon legal liability we have inherited from Roman law a familiar dis- ^ The rule is not limited to civil and criminal liability, but extends to all other departments of the law. It prevents, for example, the recovery of money paid under a mistake of law, though that which is paid under a mistake of fact may be reclaimed. S.J. 24 Digitized by Microsoft® 370 LIABILITY (continued). [§ 147 tinction between law and fact. By reason of his ignorance of the law no man will be excused, but it is commonly said' that inevitable ignorance of faict is a good defence. ^ This, however, is far from an accui'ate statement of English law. It is much more nearly correct to say that mistake of fact is an excuse only within the sphere of the criminal law, while in the civil law responsibility is commonly absolute in this respect. So far as civil liability is concerned, it is a general jDrinciple of our law that he who intentionally interferes with the per- son, property, reputation, or other rightful interests of another does so at his peril, and will not be heard to allege that he believed in good faith and on reasonable grounds in the exist- ence of 'some circumstance which justified his act. If I tres- pass upon another man's land, it is no defence to me that I believed it on good grounds to be m.y own. If in absolutie innocence and under an inevitable mistake of fact I meddle with another's goods, I am liable for all loss incurred by the true owner. 2 If, intending to arrest A., I arrest B. by mistake instead, I am absolutely liable to him notwithstanding the greatest care taken by me to ascertain his identity. If I falsely but innocently make a defamatory statement abouti another, I am liable to him however careful I may have been to ascertain the truth. There are, indeed, exceptions to this rule of absolute civil liability for mistake of fact, but they are not of such number or importance as to cast any doubt on the validity of the general principle. In the criminal law, on the other hand, the matter is other- wise, and it is here that the contrast between mistake of law and mistake of fact finds its true application. Absolute criminal responsibility for a mistake of fact is quite excep- tional. An instance of it is the liability of him who abducta a girl under the legal age of consent. Inevitable mistake as to her age is no defence; he must take the risk. 3 A word may he said as to the historical origin of this failure of English law to recognise inevitable mistake as a ground of exemption 1 Regula est juris quidem ignorantiam ciiique nocere, faeti vero ignoran- tiam non noeere. D. 22. 6. 9. pv. " Hollins V. Fotvler, L. R. 7 H. L. 757; Consolidated Coy. v. Curtis (1892) 1 Q. B. 495. 3 Reg. v. Trince, L. K. 2 C. C. 154. Digitized by Microsoft® § 147] LIABILITY (continued). -571 from civil liability. Ancient modes of procedure and proof were not adapted for inquiries into mental conditions. By the practical diffi- culties of proof early law was driven to attach exclusive importance to overt acts. Tlie subjective elements of wrongdoing were largely beyond proof or knowledge, and were therefore disregarded as far as possible. It was a rule of our law that intent and knowledge were not matters that could be proved or put in issue. " It is common learning/' said one of the judges of King Edward IV.;, " that the intent of a man will not be tried, for the devil himself knoweth not the intent of a man."^ The sole question which the courts would enter- tain was whether the defendant did the act complained of. Whether ho did it ignorantly or with guilty knowledge was entirely immate- rial. This rule, however, was restricted to civil liability. It was early recognised that criminal responsibility was too serious a thing to be imposed upon an innocent man simply for the sake of avoiding a diffi- cult inquiry into his knowledge and intention. In the case of civil liability, on the other hand, the rule was general. The success with which it has maintained itself in modern law is due in part to itsi undeniable utility in obviating inconvenient or even impracticable in- quiries, and in part to the influence of the conception of redress in minimising the importance of the formal condition of penal liability. § 148. Accident. Unlike mistake, inevitable accidient is commonly recognised by our law as a ground of exemption from liability. It is needful, therefore, to distinguish accurately between these two things, for they are near of kin. Every act which is not dome intentionally is don© either accidentally or by mistake. It is done accidentally, when it is unintentional in respect of itai consequences . It is done by mistake, when it is intentional in respect of its consequences, but unintentional in respect of some material circv/mstance. If I drive over a- man in the dark because I do not know that he is in the road, I injure him acci- dentally; but if I procure his arrtest, because I mistake him for some one who is liable to arrest, I injure him not acci- dentally but by mistake. In the former case I did not intend the harm at all, while in the latter case I fully intended it, but falsely believed in the existence of a circumstance which would have served to justify it. So if by insuificient care I allow my 1 Y. B. 17 Edw. IV. 2. 24 (2) Digitized by Microsoft® 372 LIABILITY (continued). [§ 148 cattle to escape into my neighbour's field, their presence there is due to accident; but if I put them there because I wnonglj believe that the field is mine, their presence is due to mistake. In neither case did I intend to wrong my neighbour-, but in the one case my intention failed as to the conseq-uenoe, and in the other as to the circumstance. Accident, like mistake, is either culpable or inevitable. It is culpable when due to negligence, but inevitable when the avoidance of it would have required a degree of care exceed- ing the standard demanded by the law. Culpable accident ia no defence, save in those exceptional cases in which wrongful intent is the exclusive and ueoessary ground of liability. Inevitable accident is oommonly a good defence, both in the civil and in the criminal law. To this rule, however, there are, at least in the civil lawi, iniportant exceptions. These are cases in which the law insists that a man shall act at his peril, and shall take his chance of accidents happening. If he desires to keep wild beasts, 1 or to light fires,^ or to construct a reservoir of water,* or to accumulate upon his land any substance which wiU da dajnage to his neighbours if it escapes,* or to erect dangerous structures by which passengers in the highway may come to harm,^ he will do all these things suo periculo (though none of them are pe?- se wrongful) and will answer for all ensuingt damage notwithstanding consummate care. There is one case of absolute liability for accident ^\-hich deserves special notice by reason of its historical origin. Every man is absolutely responsible for the tresi^asses of his cattle. If my horse or my ox escapes from my land to that of anothep man, I am answerable for it without any proof of negligence. ^ Such a rule 'may probably be justified as based on a reasonahle presumption of law, that all such trespasses are the outcome of negligent keeping. Viewed historically, however, the rule 1 Filb-urii V. Aqua.imn Co., 25 Q. B. D. 258. 2 Blade V. Christolmrch Finance Co., (1894) A. O. 48. 3 Rylands v. Fletcher, L. R. 3 H. L. 330. * FicTsard v. Sridth, 10 C. B. N. S. 470. 5 miis V. LoftMs Iron Co., L. U. 10 O. P. 10. Digitized by Microsoft® § 148_j LIABILITY (continued). 373 is worth notice as one of the last relics of the ancient prin^ ciple that a man is answerable for all damage done by his property. In tlie theory of ancient law I am liable for the trespasses of my cattle, not because of my negligent keeping of them, but because of my ownership of them. For the same reason in Roman law a master was liable for the offences of his slaves. The case is really, in its historical origin, one of vicarious liability. In early law and custom vengeance, and its products responsibility and punishment, were not con- ceived as necessarily limited to human beings, but were in certain cases extended to dumb animals and even inanimate objects. We have already cited in another connection the provision of the Mosaic law that " 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." ^ In the LaiifS of Plato it is said:- " If a beast of burden or other animal cause the death of any one . the kinsman of the deceased shall prosecute the slayer for murder, and the wardens of the country shall try the cause; and let the beast when condemned be slain by them, and cast beyond the borders." So in the Lawls of King Alfred:^ "If at their common work," (of wood cutting) " one man slay another unwilfuUy, let the tree be given to the kindred." And by English law until the year 1846 the weapon or other thing which " moved to the death of a man " was forfeited to the King as guilty and accursed.* Here we have the ground of a rule of absolute liability. If a man's cattle or his slaves do damage, they are thereby, exposed to the vengeance of the injured person. But to take destructive vengeance upon them is to impose a penalty upon their oumer. The liability thence resulting probably passed through three stages: first, that of unconditional forfeiture or surrender of the property to the vengeance of the injured person; secondly, that of an option given to the owner between forfeiture and redemption — the actiones naxales of Roman law;5 and thirdly, that of compulsory redemption, or in other words, unconditional compensation. 1 Exodue xxi. 28. 2 Laws, 873. 3 Thorpe, Ancient Law.*! and Institutes of England, I. p. 71, sect. 13. * 9 & 10 Vict. u. 62; Blackstone, I. 300. ^ Inst. Just. 4. 8. and 4. 9. Digitized by Microsoft® 374 LIABILITY (CONTINUKD). [§ 149 § 149. Vicarious Responsibility. Hitherto we have dealt exclusively with the conditioas of liability, and it is needful now to consider its incidence. Normally and naturall}- the person who is liable for a wrong- is he who does it. Yet both ancient and modern law admit instances of yicarious liability in which one man is made answerable for the acts of another. Criminal responsibility, indeed, is never vicarious at the present day, except in very special circumstances and in certain of its less serious forms. ^ In more primitive systems,, however, the impulse to extend vicariously the incidence of liability receives free scope in a manner altogether alien to modern notions of justice. It is in barbarous times considered a very natural thing to make every man answerable for those who are of kin to him. In the Mosaic legislation it is deemed necessary to lay down the express rule that " The fathers shall not be put to death for the children, neither shall the children be put to death for the fathers; every man shall be put to death for his own sin." 2 Plato in his Imws does not deem it needless to emphasise the same principle. ^ Furthermore, so long as punishment is conceived rather as expiative, retributive, and vindictive, than as deterrent and reformative, there seems no reason why the incidence of liability should not be deter- mined by consent, and therefor-e why a guilty man should not provide a substitute to bear his penalty and to provide the needful satisfaction to the law. Guilt must be wiped out by punishment, but there is no reason why the victim should be one person rather than another. Such modes of thought have long since ceased to pervert the law; but that they wore at one time natural is rendered sufficiently evident by their survival in popular theology. Modern civil law recognises vicarious liability in two chief classes of cases. In the first place, masters are responsiible 1 C'hi^Aolin v. Donlton, 22 Q. B. D. 736; Pnrkpr v. A/df,-. (1899) 1 Q. B. 20 • 2 Deut. xxlv. 16. s Laws, 856. On the vicarious rcspousibilitv of the kindred in early law, s«e Lea, Superstition and Force, pp. 13 — '20, 4th ed.. and Tarda, La Philosophie Penale, pp. 136—140. Digitized by Microsoft® § 149] LIABILITY (continued). 375 for the acts of their servants done in the course of their employment. In the second place, representatives of dead men are liable for deeds done in the flesh by those whom they repre- sent. We shall briefly consider each of these two forms. It has been sometimes said that the responsibility of a master for his servant has its historical source in the responsi- bility of an owner for his slave. This, however, is oertainliy not the case. The English doctrine of employer's liability is of comparativelj- recent growth. It has its origin in the legal presumption, gradually become conclusive, that all acts done by a servant in and about his master's business are done by his master's express or implied authority, and are therefore in truth the acts of the master for which he may be justly held respon- sible. ^ No employer will be allowed to say that he did not authorise the act complained of, or even that it was done against his express injunctions, for he is liable none the less. This con- clusive presumption of authority has now, after the manner of such presumptions, disappeared from the law, after having per- manently modified it by establishing the principle of employer's liabilit3^ Historically, as we have said, this is a fictitious extension of the principle. Qui facit per alium jacit per se. Formalljs it has been reduced to the laconic maxim, Respondeat superior. The rational basis of this form of vicarious liability is in the first place evidential. There are such immense dilRculties in the way of proving actual authority, that it is necessary to establish a conclusive presumption of it. A word, a gesture, or a tone may be a sufficient indication from a master to hijs servant that some lapse from the legal standard of care or honesty will be deemed acceptable service. Yet who could prove such a measure of complicity? Who could establish lia- bility in such a case, were evidence of authority required, or evidence of the want of it admitted ? A further reason for the vicarious responsibility of employers is that employers usually arc, while their servants usually are 1 Salmond, Essays in Jurisprudence and Legal liistory, pp. 161 — 163; Wigmore, Eesponsibilitj' for Tortious Acts, Select Essays in Anglo-American Legal History, III. pp. 620 — 537; Street, Foundations of Legal Liability, II. oh. 41—43. I Digitized by Microsoft® •^"6 LIABILITY (continued). [§ 149 not, financially capable of the burden of civil liability. It is felt, probably with justice, that a man who is able to make compensation for the hurtful results of his activities should' not bo enabled to escape from the duty of doing so by delegating the exercise of these activities to servants or agents from whom no redress can be obtained. Such delegation confers upon impecunious persons means and opportunities of mischief which would otherwise be confined to those who are financially com- petent. It disturbs the correspondence which would otherwise exist between the capacity of doing harm and the capacity of paying for it. It is requisite for the efficacy of civil justice that this delegation of powers and functions should be permitted only on the condition that he who delegates them shall remain answerable for the acts of his servants, as he would be for his own. A second form of vicarious responsibility is that of living representatives for the acts of dead men. There is no doubt that criminal responsibility must die with the wrongdoer himself, but with respect to penal redress the question is not free from difficulty. For in this form of liability there is a conflict between the requirements of the two competing principles of punishment and compensation. The former demands the termination of liability with the life of the wrongdoer, while the latter demands its survival. In this dispute the older common law approved the first of those alter- natives. Tlie received maxim was: Actio personalis marihir eimn persona. A man cannot be punished in his grave; there- fore it was held that all actions for penal redress, being in their true nature instruments of punishment, must be brought ag(ainst the living offender and must die with him. Moderii opinion rejects this conclusion, and by various statutory provisions the old rule has been in great part abrogated. It is considered! that although liability to afford redress ought to depend in point of origin upon the requirements of punishment, it should depend in point of continuance upon those of compensation. For when this form of liability has once come into existence, it is a valuable right of the person wronged; and it is expedient Digitized by Microsoft® § 149] LIABILITY (continued). 377 that such rights should be held upon a secure tenure, and should not be subject to extinction by a mere irrelevant accident such as the death of the offender. There is no sufficient reason for drawing any distinction in point of survival between the right of (a creditor to recover his debt and the right of a man .who has been injured by assault or defamation to recover compensa- tion for the loss so suffered by him. lAs a further argument in the same sense, it is to be observed that it is not strictly true that a man cannot be punished after his death. Punishment is effective not at the time it is inflicted, but at the time it is threatened. A threat of evil to be inflicted upon a man's descendants at the expense of hi^s estate will undoubtedly exercise a certain deterrent influejioe upon him; and the apparent injustice of so punishing his de- scendants for the offences of their predecessor is in most cases no more than apparent. The right of succession is merely the right to acquire the dead mlan's estate, subject to all chargies which, on any grounds, and apart altogether from the interests of the successors themselves, may justly be impioeted upon it. There is a second application of the maxim. Actio persoiudis moritur CMTO persona, whicli seems equally destitute of justification. According to the common law an action for penal redress died not merely with the wrongdoer but also with the person wronged. This rule has been abrogated by statute in part only. There can, however, be little doubt that in all ordinary cases, if it is right to punish a person at all, hiia liability should not cease simply by reason of the death of him against whom his offence was committed. The right of the person injured to receive redress should descend to his representatives like any other proprietary interest. § 150. The Measure of Criminal Liability. We have now considered the conditions and the incidence of penal liability. It remains to deal with the measure of it, and here we must distinguish between criminal and civil wrongs, for the principles involved are fundamentally different in the •two cases. In considering the measure of criminal liability it will be Digitized by Microsoft® 378 LIABILITY (continued). [§ 150' convenient to bestow exclusive attention upon the deterrent purpose of the criminal law, remembering, however, that the conclusions so obtained are subject to possible modification by reference to those subordinate and incidental purjjoses of punishment which we thus provisionally disregard. Were men perfectly rational, so as to act invariably in accordance with an enlightened estimate of consequences, the question of the measure of punishment would present no difficulty. A draconian simplicity and severity would be per- fectly just and perfectly effective. It would be possible to act on the Stoic paradox that all offences involve equal guilt, and to visit with the utmost rigour of the law every deviation, however slight, from the appointed waj-. In other words, if the deterrent effect of severitj^ were certain and complete, the best law would be that which by the most extreme and undis- criminating severity effectually extinguished crime. Were human nature so constituted that a threat of burning all. offenders alive would with certainty prevent all breaches of the law, then this would be the just and fitting- penalty for all offences from high treason to petty larceny. So greatly, how- ever, are men moved by the impulse of the moment, rather than by a rational estimate of future good and evil, and so read^" are they to face any future evil which falls short of the inevit-* able, that the utm:ost rigour is sufficient only for the diminution of crime, not for the extinction of it. It is needful, therefore, in judging the merits of the law, to subtract from the sum. of good which results from the partial prevention of offences, the sum of evil which results from the partial failure of pre- vention and the consequent necessity of fulfilling those threats of evil by which the law had hoped to effect its purpose. The perfect law is that in which the difference between the good and the evil is at a maximum in favour of the good, and tlie rules as to the measure of criminal liability are the rules for the attainment of this maximum. It is obvious that it is not attainable by an indefinite increase of severity. To substitute- hanging for imjDrisonment as the punishment for- petty theft would doubtless diminish the frequency of this offence, but it is certain that the evil so prevented would be far outweighed Digitized by Microsoft® § 150] LIABILITY (continued). ■'>7^> by that which the law ^^ould bo called on to inflict in the cases in which its threats proved unavailing. In every crime there are three elements to be taken into account in detei'mining the appropriate measure of punisli- ment. These are (1) the motives to the commission of the offence, (2^ the magnitude of the offence, and (3) the character of the offender. 1. The motive of the offence. Other things being equal, the greater the temptation to commit a crime the greater should be the punishment. This is an obvious deduction from the first principles of criminal liability The object of punishment is to counteract by the establishment of contrary and artificial motives the natural motives which lead to crime. The stronger these natural motives the stronger must be the counteractives which the law supplies. If the profit to be derived froun an act is great, or the passions which lead men to it are violent,, a corresponding strength or violence is an essential condition of the efficacy of repressive discipline. We shall see later, how- ever, that this principle is subject to a very important limita- tion, and that there are many cases in which extreme temptation is a ground of extenuation rather than of increased severity of punishment. 2. The magnitude of the offence. Other things being equal, the greater the offence, that is to say the greater the sum of i;ts evil consequences or tendencies, the greater should be its punishment. At first sight, indeed, it would seem that this consideration is irrelevant. Punishment, it may be thought, should be measured solely by the profit derived by the offender, not by the evils caused to other persons; if two crimes are equal in point of motive, they should be equal in point of punishment, notwithstanding the fact that one of them may be many times more mischievous than the other. This, however, is not so, and the reason is twofold. (a) The greater the mischief of any offence the greater is the punishment which it is profitable to inflict with the hope of preventing it. For the greater this mischief the less is the proportion which the evil of punishment bears to the good of prevention, and therefore the greater is the punish- Digitized by Microsoft® ■380 LIABILITY (cONTINUliD). [§ 150 mcnt which can be inflicted before the balance of good over evil attains its maximum. Assuming the motives of larceny and of homicide to be equal, it may be profitable to inflict capital punishment for the latter offence, although it is cer- tainly unprofitable to inflict it for the former. The increased measure of prevention that would be obtained by such severity would, in view of the comparatively trivial nature of the offence, he obtained at too great a cost. (b) A second and subordinate reason for making punish-' mcnt vary with the magnitude of the offence is that, in those cases in which different offences offer themselves as alter- natives to the offender, an inducement is thereby given for the preferenpe of the least serious. If the punishment of burglary is the same as that of murder, the burglar has obvious motives for not stopping at the lessej? crime. If an attempt is punished as severely as a completed offence, why should any man repenty of his half -executed purposes? 3. The character of the offender. The worse the character or disposition of the offender the more severe should be his punishment. Badness of disposition is constituted either by the strength of the impulses to crime, or by the weakness of the impulses towards law-abiding conduct. One man may be worse than another because of the gTeater strength and pre- valence Avithin him of such anti-social passions as anger, covet- ousness, or malice; or his badness may lie in a deficiency of those social impulses and instincts which are the springs of right conduct in normally constituted men. In respect of all the graver forms of law-breaking, for one man who abstains from them for fear of the law there are thousands who abstain by reason of quite other influences. Their sympathetic in- stincts, their natural affections, their religious beliefs, their love of the approbation of others, their pride and self-respect, render superfluous the threatenings of the law. In the degree in which these impulses are dominant and operative, the dis- position of a man is good; in the degree in which they axe wanting or inefficient, it is bad. In both its kinds badness of disposition is a ground for severity of punishment. If a man's emotional constitution Digitized by Microsoft® § loO] LIABILITY (continued). '^81 is suoh that normal temptation acts uj^ou liim with abnormal force, it is for the law to supply in double measure the counteractive of penal discipline. If he is so made that the natural influences towards well-doing fall below the level of average humanity, the law must supplement them by artificial influences of a strength that is needless in ordinary cases. !A.ny fact, therefore, which indicates depravity of disposi- tion is a circumstance of aggravation, and calls for a penalty in excess of that which would otherwise be appropriate to thia offence. One of the most important of these facts is tha repetition of crime by one who has been already punished. The law rightly imposes upon habitual offenders penalties which bear no relation either to the magnitude or to the profiti of the offence. A punishment adapted for normal men is not appropriate for those who, by their repeated defiance of it, prove their possession of abnormal natm'es. A second case in which the same principle is applicable is that in which the mischief of an offence is altogether disproportionate to any profit to be derived from it by fhe offender. To kill a man from mere wantonness, or merely in order to facilitate the picking of his pocket, is a proof of extraordinary depravity beyond anything that is im'putable to him who commits homi- cide only through the stress of passionate indignation or under the influence of great temptation. A third case is that of offences from which normal humanity is adequately dissuaded by such influences as those of natural affection. To kill one's father is in point of magnitude no worse a crime than any other homicide, but it has at all times been viewed with greater ab- horrence, and by some laws punished with greatei- severity, by reason of the depth of depravity which it indicates in the offender. Lastly it is on the' same principle that wilful offences are punished with greater rigour than those which are due merely to negligence. An additional and subordinate reason for making the measure of liability depend upon the character of the offend/3r is that badness of disposition is commonly accompanied by deficiency of sensibility. Punishment must increase as sensibility dimin- ishes. The more depraved the offender the less he feels the shame of punishment ; therefore the more he must be made tO" ^ 'Digitized by Microsoft® '^82 LIABILITY (continued). [§ 150 feel the pain of it. A certain degree of even physical insensi- bility is said to characterise the more degraded orders of crimi- nals; and the indifference with which death itself is faced' •by those who in the callousness of their hearts have not scrupled to inflict it upon others is a matter of amazement to normally ■constituted men. , We are now in a position to deal Avith a question which we have already touched upon but deferred for fuller considera- tion, namely the apparent paradox involved in the rule that punishment must increase with the temptation to the offence. As a general rule this proposition is true; but it is subject to ■a very important qualification. For in certain cases the tempta- tion to which a man succumbs may be of such a nature as to rebut that ^presumption of bad disposition which would in ordinary circumstances arise Irom the commission of the offence. He may, for example, be driven to the act not by, the strength •of any bad or self -regarding motives, but by that of his social •or sympathetic impulses. In such a case the greatness of the temptation, considered in itself, demands severity of punish- ment, but when considered as a disproof of the degraded dis- position which usually accompanies wrongdoing it demands leniency; and the latter of these two conflicting considerations may be of sufficient importance to outweigh the other. If a man remains honest until he is driven in despair to steal food for his starving children, it is perfectly consistent with the •deterrent theory of punishment to deal with him less severely than with him who steals from no other motive than cupiditj". He who commits homicide from motives of petty gain, or to attain some trivial purpose, deserves to be treated with the utmost severity, as a man thoroughly callous and depraved. But he who kills another in retaliation for some intolerable insult or injury need not be dealt with according to the measure of his temptatidns, but should rath(>r bo excused on account of them . § 151. The Measure of Civil Liability. Penal redress is that form of penal liability in which the law uses the compulsory compensation of the person injured as an instrument for ^he^^^^i^menyjf the offender. It is § lolj LIABILITY (continued). -583 characteristic of this form of punishment that it takes accaunt of one only of the three considerations which, as we ha\'lQ seen, rightly determine the measure of penal responsibility. It is m^easured exclusively by the magnitude of the offence, that is to say, by the amount of loss inflicted by it. It takieis no account of the character of the offender, and so visits hini who does harm through some trivial want of care with as severe a penalty as if his act had been prompted by deliberate jnalice. Similarly it takes no account of the motives of the offence; he who has everything and he who has nothing to gain are equally punished, if the damage done by them is equal. Finally it takes no account of pTobable or intended ■consequences, but solely of those which actually ensue ;, wherefore the measure of a wrongdoer's liability is not the evil which he meant to do, but that which he has sucaeedjed' in doing; and his punishment is determined not by his fault, hut by the accident of the result. If one man is dealt with more severely than another, it is not because he is more guilty, but because he has had the misfortune to be more successful in his wrongful purposes, or less succeslsful in the avoidance of unintended issues. Serious as are these lapses from the due standard of penal ■discipline, it is not to be suggested that this fonm of civil liability is unjustifiable. The use of redress as an instrument of punishment possesses advantages more than sufficient to eounterbalance any such objections to it. More especially it possesses this, that while other forms of punishment, such an imprisonment, are uncompensated evil, penal redress is the gain of him who is wronged as well as the loss of the wrongdoer. Further, this form of remedy gives to the persons injured a ■direct interest in the efficient administration of justice — an interest which is almost absent in the case of the criminal law. It is true, however, that the law of penal redress, taken by itself, falls so far short of the requirements of a rational scheme of punishment that it would by itself bo totally insufficient: In all modern and developed bodies of law its operation is supplemented, and its deficiencies made good, by a co-ordinate system of criminal liability. These two together, combined Digitized by Microsoft® 384 LIABILITY (continued). [§ 151 in due proportions, constitute a very efficient instrument for the maintenance of justice. SUMMARY. Wrongs of absolute liability — Mens rea not required. Exceptional nature of such wrongs. Penal redress justified not as redress but as puoLshment. Mistake of law. Commonly no defence. Seasons for the rule. Criticism of it. Mistake of fact. A defence in criminal but commonly not in civil cases. Accident. Distinction between accident an(^ mistake. Accident and mistake ! .^ ., , , t inevitable. Inevitable accident commonly a defence. Exceptions. The Incidence of Penal Liability. A^icarious liability. 1. Employer's liability. Its rational basis. 2. Liability of representatives of dead men. Its rational basis. The Measure of Penal Liability. 1. CJriminal liability. Eeasons against indiscriminate severity. The end to be attained. The considerations to be taken account of. (a) The motive of the offence. (&) The magnitude of the offence. (c) The character of the offender. 2. Civil liability. Merits and demerits of the use of compulsory compensa- tion as an instrument of punishment. Digitized by Microsoft® ( 385 CHAPTER XX. THE LAW OF PROPERTY. § 152. Meanings of the Term Property. The substantive civil law^ is divisible into three great de- partments, namely the law of property, the law of obliga- tions, and the law of status. The first deals with proprietary rights in rem., the second with proprietary rights in personam, and the third with personal or non-proprietary rights, whether in reon or in personam. In this chapter we shall consider in outline the first of these branches, and we shall then proceed, to deal in the same manner with the law of obligations. The law of status on the other hand is not of such a nature as to require or repay any further consideration from the point of view of general theory. The term property, which we here use as meaning proprie- tary rights in rem, possesses a singular variety of different applications having different degrees of generality. These are the following: — 1. All legal rights. In its widest sense, property includes all a person's legal rights, of whatever description. A man's property is all that is his in law. This usage, however, is obso- lete at the present day, though it is common enough in the older books. Thus Blackstone speaks of the property {i.e., right) which a master has in the person of his servant, and a father in the person of his child. "The inferior," he says,^ " hath no kind of property in the company, care, or assistancte of the superior, as the superior is held to have in those of the ' Substantive law, as opposed to the law of procedure; civil law, as opposed to criminal. ^ Blackstone, III. 143. " The child hath no property in his father or guardian as they have in him." Ibid. S.J. 25 Digitized by Microsofi® 386 THE LAW OF PROPERTY. [§ 152 inferior." So Hobbes says:i "Of things held in propriety, those that are dearest to a man are his own life and limbs; and' in the next degree, in most men, those that concern conjugal affection; and after them riches and means of living." In like manner Locke^ tells us that "every man has a property ii;ii his own person," and he speaks elsewhere^ of a man's right to preserve "his joroperty, that is, his life, liberty, and iestate." 2. Proprietary rights {domiyiiiim and status). In a second and narrower sense, property includes not all a person's righta but only his proprietary as opposed to his personal rights. The former constitute his estate or property, while the latter constitute his status or personal condition. In this sense a man's land, chattels, shares, and the debts due to him are his; property; but not his life or liberty or reputation. In this sense we may oppose to Locke's statement, that a man has a property in his own person, the saying of Ulpian; Dominus m>embrorum sitorum nemo videturA This is probably the most frequent application of the term at the present day, but in the case of a word having so many recognised varieties of usage it is idle to attempt to single out any one of them as exclusiviely correct. They are all of equal authenticity. 3. Proprietary rights in rem {dominium and ohligatio). In a third application, which is that adopted in this chapter, the term includes not even aU proprietary rights, but only those which are both proprietary and real. The law of property is the law of jDroprietary rights in rerri, the law of proprietary i-ights in personam being distinguished from it as the law of obligations. According to this usage a freehold or leasehold estate in land, or a patent or copyright, is property; but a debt or the benefit of a contract is not. 4. Corporeal property (dominium corporif! and dominium juris). Finally, in the narrowest use of the term, it includes nothing more than corporeal property — that is to say, the right of ownership in a material object, or that object itself identified with the right byway of motonyray. Thus jDroperty 1 Leviathan, ch. xxx.; Bng. Wks. III. 329. - Treatise on Civil Government, II. ch. v. sect. 27. -I Ibid. ch. vii. sect. 87. '■ D. 9. 2. 13. pr. Digitized by Microsoft® § io-2] TIIK LAW OF PROPERTY. ;'.87 is defined by Ahrensi as " a material object subject to the immediate power of a person," and Bentham^ considers as metaphorical and improper the extension of the term to include other rights than those which relate to material thinos. § 153. Kinds of Property. All property is, as wo have already seen,^ either corppreal or incorporeal. Corporeal property is the right of ownership in material things; incorporeal property is any other pro- prietary right ill rem. Incorporeal property is itself of two kinds, namely (1) jura in re aliena or encumbrances, A\hether over material or immaterial things (for example, leases, mortgages, and servitudes), and (2) fura in re propria over immaterial things (for example, patents, copyrights, and trade-marks). The resulting threefold division of property appears in the following Table: — Property ; Material ) ^^'"S^ ( Chattels Corporeal property. ''Jura ill re I propria " Jura ill re I aliena \ /Patents Immaterial JCopy^gWs '' Trade -marks i' Lea.ses Servitudes Securities ! (, &o. ) Incoriioreal property. ^ Droit Naturel, II. sect. 55. 2 Principles, p. 231; Works, I. 108. So Puclita, sect. 231: Nur an . . korperliehen Gegenstanden ist Eigenthum moglich. 3 Supra, § 87. 25 ^2) Digitized by Microsoft® 388 THE LAW OF PROPERTY. [§ 154 § 154. The Ownership of Material Things. The owner of a material abject is he who owns a right to the aggregate of its uses. H© who has merely a special and, definitely limited right to the use of it, such as a right of way or other servitude, is not an owner of the thing but merely an encumbrancer of it. The definition, however, must not be misunderstood. Ownership is the right of general use, not that of absolute or unlimited use. He is the owner of a thing who is entitled to all those uses of it which are not specially excepted and cut off by the law. No such right as that of absolute and unlimited use is known to the law. All lawful use is either general (that is bo say, residuary) or specific, the former being ownership, and the latter encumbrance. The limits thus imposed upon an owner's right of use are of two kinds. The first constitute the natural limits of owner- ship. They are the various applications of the maxim: Sic utere tuo id aliemiin non laedas — a legal principle whose func- tion it is to restrain within due bounds the opposing maxim; that a man may do as he pleases with his own. In the interests of the public or of a man's neighbours many uses of the things which are his are wholly excluded from his right of ownership. The second class of restrictions upon an owner's right of use consists of those which flow from the existence of encum- brances vested in other persons. These are artificial limits which may or may not exist. My land may be mortgaged, leased, charged, bound by restrictive covenants, and so on, yet ■ I remain the owner of it none the less . For I am still entitled to the residue of its uses, and whatever right o^ it it is uo't specifically vested in some one else is vested in me. The resi- duary use so left to me may be of very small dimeusio|ns; some encumbrancer may own rights over it much more valuable than mine; but the ownership of it is in me and not in him. Were his right to determine to-moiTow in any manner, my own, relieved from the encumbrance which now weighs it do-svn, would forthwith spring up to its fuU stature and have again its full effect. No right loses its identity because of an en- cumbrance vested in some one else. That which is a right of Digitized by Microsoft® § 154] THE LAW OF PROPERTY. 389 OAvnership when there are no encumbrances, remains a rig-ht of ownership notwithstanding any number of them. Inasmuch as the right of ownership is a right to the aggre- gate of the uses of the thing, it follows that ownership ia necessarily permanent. No person having merely a tem- porary right to the use of a thing can be the owner of .thei thing, however general that right may be vs^hile it lasts. He who comes after him is the owner; for it is to him that the residue of the uses of the thing pertains. It is to be uinder- stood, however, that by a permanent right is meant nothing more than a right which is capable of lasting as long as the thing itself which is its subject-matter, however long or short that duration may be Even as the generality of ownership involves its perma- nence, so its permanence involves the further essential feature of inheritance. The only permanent rights which can be owned by a mortal man are those which can be handed dowm by him to his successors or representatives on his death. All others are temporary, their duration being necessarily limited to the lifetime of him in whom they are vested. The right of ownership, therefore, is essentially an inheritable right. It is capable of surviving its owner for the time hieing. It belongs to the class of rights which are divested by death but are 'not extinguished by it. Summing up the conclusions to which we have attained, we may define the right of ownership in a material thing as the general, permanent, and inheritable right to the uses of that thing. 1 According to the rigour of Englisla legal doctrine there can be no owner of land except the Orown itself. The fee simple of land — the greatest right in it which a subject can possess — is not in. truth owner- ship, but a mere encumbrance upon the ownership of the Orown. It is a tenancy or lease granted to a man and his heirs. It is a temporary 1 The full power of alienation and disposition is an almost invariable element in the right of ownership, but cannot be regarded as essential, or included in the definition of it. A married woman subject to a restraint on anticipation is none the less the owner of her property, though she cannot alienate or encumber it. Austin (p. 817, 3rd ed.) defines the right of ownership aia a " right in- definite in point of user, unrestricted in point of disposition, and unlimited in point of duration, over a determinate thing." Digitized by Microsoft® '^90 THE LAW OF PROPERTY. [§ 154 not a permanent right of user. It will com© to its natural termination on the death of the tenant without leaving an heir or devisee in whom the right may be continued. The land will thereupon revert or escheat to the Crown, that is to say, the Crown's ownership, which has never been divested, but has merely been encumbered by the fee simple, will through the destruction of this encumbrance become once more free and absolute. In the case of chattels it is otherwise. They can he^ owned by the subject no less than by the Crown. It is true that if the owner of them dies intestate without kin, they will go to the Crown as boiut vacantia, just as land will go to the Crown as an escheat.. But between these two processes there is a profound difference in legal theory. In the case of chattels the Crown succeeds to the right which was vested in the dead man; his ownership is continued in the Crown, just as it would have been continued in his next of kin had there been any. But in the ease of escheat, as already said, the right of the dead man has come to an end, and the Crown succeeds to nio right of his, but simply comes into its own again. This distinction, however, between the fee simple of land and the ownership of it is a matter of form rather than of substance. In fact, if not in legal theory, the right of a tenant in fee simple is permanent; for escheat takes place only on an intestacy, and therefore can be pre- vented by the act of the tenant. We are at liberty, therefore, to dis- regard this technicality of real property law, and to speak of the fee simple of land as the ownership of it, the right of the Crown being- viewed, accordingly, not as vested and continuing ownership subject to an encumbrance, but as a contingent right of succession to an intestate owner. § 155. Movable and Immovable Property. 'Among material things the most important distinction is that between movables and immovables, or, to use terms more familiar in English laAv, between chattels and land. In all legal systems these two classes of objects are to soma extent governed by different rules, though in no system is the difference so great as in our own. Considered in its legal aspect, an immovable, that is to say, a piece of land, includes the following elements: — 1. A determinate portion of the earth's surface. 2. The ground beneath the surface down to the centre of the world. All the pieces of land in England meet together in one terminal point at the earth's centre. 3. Possibly the column of space above the surface acH Digitized by Microsoft® § Ijo] the law of property. 391 infinitum. " The earth," says Coke,i " liath in law a great extent upwards, not only of water as hath been said, but of ayre and all other things even up to heaven; for Cujus est solum, ejus est usque ad coelum." The authenticity of thit- doctrine, however, is not wholly beyond dispute. It would prohibit as an actionable trespass all uso of the air-space above the appropriated surface of the earth, at whatever height this use took place, and however little it could affect the interests of the landowner. If a man is carried in a balloon at a distance of half a mile above the ground, does he infringe the rights of those who own the surface? It may bo that the law recognises no right of ownership in the air-space at all, or at least no right of exclusive use, but merely prohibits all acts which by their nature or their proximity interfere with the full enjoyment and use of the surf ace. ^ By the German Civil Code,3 the owner of land owns the space above it, but has no right to prohibit acts so remote from the surface that they in no way affect his interests. 4. All objects which are on or under the surface in its natural state: for example, minerals and natural vegetation. All these are part of the land, even though the}- are in no way physically attached to it. Stones lying loose upon the surface are in the same category as the stone in a quarry. 5. Lastly all objects placed by human agency on or under the surface, with the intention of permanent annexation. These became part of the land, and lose their identitj' as separate movables or chattels; for example, buildings, walls, and fences. Omiie quod inaedificatiir solo cedit, said the Roman law.* Provided that the requisite intent of per- manent annexation is present, no physical attachment to the surface is required. A wall built of stones without mortar or foundations is part of the land on which it stands.^ 1 Co. Lite. 4 a. ~ On this question see PoUock'.s Torfcs, p. 363, lOfch cd. ; Cleric ^; Lind- eell's Torts, p. 362, 6th ed.; Hazeltine's Law of the Air; Pirkerhif/ v. Mudd, 4 Camp. 219; 16 E. V,. 777; Fm/ v. Prrutirc. 1 C. B. 828; IVaiuh- worth BoarrJ of Worls v. Viiitrd Tt'lrq.-npl, Co)/., 13 Q. B. D. 904; AV//» V. LofU'n Iron Coy., L. B. 10 O. P. 10. ' 3 Art. 905. * Inst. Just. 2. 1. 29. See also Gains, 2. 73: Superficies solo oedit. 5 Monti V. Barnei, (1901) 1 K. B. 205. Digitized by Microsoft® 392 THE LAW OF PROPERTY. [§ 15a Coiivoi-scly physical attachment, without the intent of perma- nent annexation, is not in itself enough. Carpets, tapestries, or ornaments nailed to the floor or walls of a house are mat therebj- made part of the house. Money buried in the ground is as much a chattel^ as money in its owner's pocket. - It is clear that the distinction between movables and immovables is in truth and in fact applicable to material objects only. Yet the law has made an unfortunate attempt to apply it to rights also. Eights no less than things are conceived by the law as having a local situation, and as being either movable or permaneatly fixed in a definite locality. The origin of this illogical conception is to be found in the identifi- cation of rights of ownership with the material things which are the objects of them. I am said to own land and chattels, as well as ease- ments, shares, debts, contracts, and pateuts. AU these things aria equally property, and since some of them have a local situation and can be truly classed as movable or immovable, the law has been led by inadvertence to attribute these qualities to all of them. It has recognised in things which are incorporeal certain attributes which in truth pertain to things corporeal only. It has divided the whole sphere of proprietary rights by reference to a distinction which is truly applicable not to rights at all, but to physical objects. Nor isi this merely a peculiarity of English law, for it is found in Continental systems also.^ 1 It is only by slow degrees and with imperfect consistency that our law has worked out an intelligible principle on this matter. The older law seems tj have recognised mere physical attachment as necessary and suffi- ci«n(;, subject to exceptions so numei-oas and important as to deprive the principle its»lt of any rational basis. See, for the modern law on the point, Rolland v. Hodgson, L. &. 7 C. P. 328; Monti v. Barnes, (1901) 1 K. B. 206; In re JJe Falbe, (1901) 1 Ch. 523; (1902) A. G. 157; Elives v. Bricfff Gas Coy., 33 Oh. D. 562. Similar law is contained in Article 95 of the German Civil Code: " Things are not part of the land which ai-e attached to it simply for a temporary purpose." The case of Reynolds v. Ashhy if- Son, (1904) A. C. 466, shows, liowcvcr, that Eng-lish law has not yet succeeded in adopting with consistency any single and intelligible rule. " Unlike a chattel, a piece of land has no natural boundaries. Its separa/- tion from the adjoining land is purely arbitrary and artificial, and it is capable of subdivision and separate ownership to any extent that ma}' be desired. The lines of subdivision are usually vertical, but may be horizontal. The surface of land, for example, may belong to one man and tlie substrata to another. Each story of a house may have a different ownei-. In Th^ Midland Raihray Coy. v. Wright. (1901) 1 Oh. 738, it was held that a right had been acquired by prescription to the surface of land belonging to a railway company, although a tunnel beneath the surface remained the property of the company as having been continuously in its occupation. 3 Baudry-Lacantinerie, Des Biens, sect. 123: "We know that rights, regarded as incorporeal things, are properly speaking neither movables nor immovables. But by a fiction the law classes them as one or the other according to the nature of their subject-matter." See also Dernburg's Pandekten, I. sect. 74. Digitized by Microsoft® § 1-05] , THE LAW OF PROPERTY. 393 On what principle, then, does the law determine whether a right is to be classed as immovable or as movable? The general rule is that « right hap in this respect the same quality as its subject-matter. Every right over an immovable thing, whether it is a right of ownership, or a lease, or a servitude, or a security, or any other 'jus in re aliena, is itself immovable, and every right over a movable thing is itself movable. So far there is no difficulty. What shall we say, however, of those rights which have no material objects at all, such as a copyright, a patent, the good-will of a business, a trade-mark, or the benefit of a contract? The answer is that all such rights are classed by the law as movable. For the class of movable property is residuary, and includes all rights which can make good no claim to be classed las immovable . , The law not merely classifies rights as movable and immovable, but .goes further in the same direction, and attributes local situation to them. It undertakes to say not merely ivhether a right exists, but where it exists. Nor is this a diflScult task in the case of those rights which have determinate material things as their objects. A servitude or other jus in re aliena over a piece of land is situated in law where the land is situated in fact. A right over a chattel is movable pro- perty, and where the chattel goes the right goes also. But where there is no material object at all, what are we to say as to the local situation of the right? Where is a debt situated, or a share in a company, or the benefit of a contract, or a copyright? Such questions can be 'determined only by more or less arbitrary rules based upon analogy, and it is to be regretted that it has been thought needful to ask and: answer them at all. As the law stands, however, it contains several rules based on the assumption that all property which exists muslj exist somewhere,^ and for the application of these rules the deter- mination of the local situation of rights is necessary, even though ii leads into the region of legal fictions. " The legal conception of piro- j)6rty," says Lord Lindley,^ " appears to me to involve the legal con- ception of existence somewhere. ... To talk of property as existing aiowhere is to use language which to me is unintelligible." The leading principle as to the local situation of rights is that they are situated where they are exercised and enjoyed. Eights over material things, therefore, have the same situation as those things themselves. The good-will of a business is situated in the place where ^ For example, the jurisdiction of English courts in the administration of deceased persons' estates depends on the deceased having left property in England. Portions of revenue law and of private international law are also iased on the assumption that all proprietary rights possess a local situation, 3 Inland Revemie Commissioners v. iluller % Co.'s Margarine, Limiteil, (1901) A. 0. at p. 236. Digitized by Microsoft® 394 THE LAW OF PROPERTY. [§ 155 the business is carried on.^ Debts are in general situated in the place where the debtor resides,- since it is there, that the creditor must go to get Ms money. 5 § 156. Real and Personal Property. Derived from and closely connected with the distinction, between immovable and movable projDerty is that between real and personal property. These are two cross divisions of" the whole sphere of proprietary rights. Real property and immovable property form intersecting circles which are very nearly though not quite coincident. The law of real jjroperty is almost equivalent to the law of land, while the law of per- sonal property is all but identical with the law of movables. The partial failure of coincidence is due not to any logical, distinction, but to the accidental course of legal development;; and to this extent the distinction between real and personal property is purely arbitrary and possesses no scientific basis. Real property comprises all rights over land, with such addi- tions and exceptions as the law has seen fit to establish. All other proprietary rights, whether in rem or in personam, pertain to the law of personal property. The distinction between real and personal property has no logical connexion with that between real and -personal rights. There is, how- ever, an historical relation between them, inasmuch as they are both 1 Inland lirrenuc Coniinixsidiiers \. iLnller cf C'o.'x ilm r/nrlne, T.xmitcrl (1901) A. C. at p. 236. 2 Dicey, Conflict of X^aws, p. 310, 2nd ed. 3 There are certain cases, however, whicli liave been deeided on the assumption tliat incorporeal property possesses no local situation at all. For this reason it was held in The Smelting Companii of AnxtrnVia v. Coni- missioners of Inlnml I'freitiii'. (1897) 1 Q. B. 172, that a share of a Nev- South Wales patent, together with the exclusive right of using it within a certain district of that colony, was not property " locally situated out of the United Kingdom " within the meaning- of sect. 59, sub-sect. 1, of the Stamp Act, 1891. "I do not see," says Lopes, L..T., at p. 181, "how a share in a patent, or a licence to use a patent, which is not a visible or tangible thing, can be said to be locally situate anywhere." See, liowever. as to this case, the obsc'rvations of Yaughan Williams, L..T., in Mi'ller tt" Co.'s Marffiii-ini', Liinif.rrf v. Jnlnnd Bci-rnui- Commixxionfrs. (1900) 1 Q. B. at p. 322, and of Lord Lindley on appeal in the House of Lords, (1901) A. C. at p. 237. See further, as to the local situation of incorporeal pro- perty, Drirnihinn Siignr Factories v. Cominiitxioners of Inland lleventte,, (1901) 1 K. B. 34.5; Commiasioncr of Kfnmps v. Hope, (1891) A. C. 476; Atl.-Gen. v. Dimond. 1 C. & J. 356; 35 R. R. 732; Tn re CJnrk. (1904) 1 Oh. 294; Dicey, Conflict of ■ Laws, pp. 309—314, 2nd ed. Digitized by Microsoft® § 156-] THE LAW OF PKOPEKTY. 395 derived from the same source, namely the Roman distinction between actions in rem and actions in personmn. Seal property meant originally that which was recoverable in a real action^ while personal property was that which was recoverable in a personal action, and this Eng- lish distinction between real and personal actions was derived by Bracton and the other founders of our law from the actiones in rem and in pei-sonam of Justinian, though not without important modifi- cations of the Eoman doctrine. ^ In connexion with the distinctions between movable and immovable, and between real and personal property, we must notice the legal signi- ficance of the term chattel. This word has apparently three different meanings in English law: — 1. A movable physical object; for example, a horse, a book, or a shilling, as contrasted with a piece of land. 2. Movable property, whether corporeal or incorporeal; that is to say, chattels in the first sense together with all proprietary rights except those which are classed as immovable. In this usage debts, shares, contracts, and other choses in action are chattels, no less than furniture or stock in trade. So also are patents, copyrights, and other rights in rem which are not rights over land. This double use of the word chattel to indicate both material things and rights is simply an application, within the sphere of movable property, of the metonymy which is the source of the distinction between corporeal and incor- poreal property. 3. Personal property, whether movable or immovable, as opposed to real property. In this sense leaseholds are classed as chattels, because of the special rule by which they are excluded from the domain of real property. § 157. Rights in re propria in immaterial Tilings. The subject-matter of a right of property is either a material or an immaterial thing. A material thing is a physi- cal object; an immaterial thing is anything else which maj be the subject-matter of a right.- It is to things of the former cla*s that the law of property almost wholly relates. In the 1 The matter has been well discussed by ..Mr. T. C Williams in ii. Q. li. IV. 394. 2 Under the head of material things we must class the (/imlities of matter, so far as they are capable in law of being in themselves the obj-eofcs of rights. The qualities which thus admit of separate leg'al appropriation are two in number, namely force and space. Electricity is in law a chattel, which can be owned, sold, stolen, and otherwise rightfully and wrongfully dealt with. 45 & 46 Viab. o. 56, s. 23. Definite portions uf empty space are capable of appropriation and ownership, no less than the material objects with which other portions of space are filled. The interior of my house is as m.uch mine as are the walla and the roof. It is com- monly said that the owner of land owns also the space above the surftice Digitized by Microsoft® 396 THE LAW OF PROPERTY. [§ 157 great majority of cases a right of property is a right to the uses of a material object. It is the chief purpose of this depart- ment of the law to allot to every man his portion in the material instruments of human well-being — to divirk- the earth and the fulness of it among the men who live in it. The only im- material things which are recognised by law as the subject- matter of rights of this description are the various immaterial producti< of human skill and labour. Speaking generally we may say that in modern law every man owns that which he creates. That which he produces is his, and he has an exclusive right to the use and benefit of it. The immaterial product of a man's brains may be as valuable as his land or his goods. The law, therefore, gives him a proprietary right in it, and the un- authorised use of it by other persons is a violation of his owner- ship, no loss than theft or trespass is. These immaterial forms of property are of five chief kinds: — ^ 1. Patents. The subject-matter of a patent-right is an invemtion. He whose skill or labour produces the idea of a new process, instrument, or manufacture, has that idea as his own in law. He alone is entitled to use it and to draw from it the profit inherent in it. 2. Litcrarii copyright. The subject-matter of this right is the lit<'vary expression of facts or thoughts. He to whose skill or labour this expression is due has in it a proprietary right of exclusive use. 3. Artistic copyright. Artistic design in all its various forms, such as drawing, painting, sculpture, and photography, is the subject-matter of a right of exclusive use analogous to literary copyright. The creations of an artist's skill or of a photographer's labour are his exclusive property. The object of this right is not the material thing produced, but the jorm^ usque, ad co/'linn. Whether this is truly so is a doubtful point as the law stands, but there is no theoretical difficulty in allowing the validity of .such a claim to the ownership of empty .space. 1 The distinction formerly noticed by us (§ 88) between corporeal and incorporeal things must not be confounded with the present distinction between material and immat erinl things. The latter is a logical distinction, but the former is a mere artifice of speech. An incorporeal thing is a kind of right, namely any right which is not identified with some materiaJ thing which is its subject-matter. An immaterial thing is not a right but the subject-matter of one. It is any subject-matter of a right except a material object. „. ... , , ... .^^ ' Digitized by Microsoft® § 157] THE LAW OF PROPERTY. 397 impressed upon it by the maker. The picture, in the concrete sense of the material paint and canvas, belongs to him who purchases it; but the picture, in the abstract sense of the artisltio foiin made visible by that paint and canvas, belongs to him^ who made it. The former is material property, the latter ig immaterial. The right in each case is one of exclusive use. The right to the material picture is infringed by destroying it or taking it away. The right to the immaterial picture is infringed by making material pictures which embody it. 4. Musical and dramatic cop [/right. A fourth class of immaterial things consists of musical and dramatic works. The immaterial product of the skill of the musician or the playwright is the subject-matter of a ^proprietary right of exclusive use which is infringed by any unauthorised per- formance or representation. 5. Camimercial good-will; trade-marks and trade-names. The fifth and last species of immaterial things includes com- mercial good-will and the special forms of it known as trade- marks and trade-names. He who by his skill and labour establishes a business acquires thereby an interest in the good- will of it, that is to say, in the established dispiosition of cus- tomers to resort to him. To this good -will he has an exclusive right which is violated by any one who seeks to make use of it for his own advantage, as by falsely representing to the public that ho is himself carrying on the business in question. Special forms of this right of commercial good-will are rights to trade- names and trade-marks. Every man has an exclusive right to the name under which he carries on business or sells his goods — to this extent at least that no one is at liberty to Uhc that name for the purpose of deceiving the public and so in- juring the owner of it. He has a similar right to the exclusive use of the marks which he impresses upon his goods, and by which they are known and identified in the market as his. § 158. Leases. Having now considered the different kinds of rights in re propria which fall within the law of property, we proceed to deal with the various rights in re aliena to which they may be Digitized by Microsoft® ■398 THE LAW OF PKOPERTY. [§ 158 subject. As already stated,i the chief of these are four in number, namely Leases, Servitudes, Securities, and Trusts. The nature of a trust has been sufficiently examined in another connexion,^ and it is necessary here to consider the other three only. 3 And first of leases or tenancies. Although a lease of land and a bailment of chattels are transactions of essentially the same nature, there is no term' which, in its recognised use, is sufficiently wide to include lioth. The term bailment is never applied to the tenancy of land, and although the term lease is not wholly inapplicable in the case of chattels, its use in this connexion is subject to arbitrary limitations. It is necessary, therefore, in the interests of orderly classification, to do some violence to received usage, in adopting the term lease as a generic ex- pression to include not merely the tenancy of land, but aU kinds of bailments of chattels, and all encumbrances of in- ■corporoal property which possess the same essential nature as a tenanc}' of land. A lease, in this generic sense, is that form of encumbrance which consists in a right to the possession and use of property- owned by some other person. It is the outcome of the right- ful separation of ownership and possession. We have seen that possession is the continuing exercise of a right, and that although a right is normally exercised by the owner of it, it may in special cases be exercised by some one else. This separation of ownership and possession may be either rightful or wrongful, and if rightful it is an encumbrance of the owner's title.* The right which is thus encumbered by a lease is usually the ownership of a material object, and more jjarticularly the ■ownership of land. Here as elsewhere the material object is I Supra, § 83. 2 Su,>ra, § 90. ' Encumbrances are not confined to the law of property, but pertain to the law of obligations also. Choses in action may be mortgaged, settled in trust, or otherwise made the eubject-niatter of /«/■« in- re aJieiw, no les? than land and chattels. Much, therefore, of what is to be said here touching the nature of the different forms of encumbrance is equally applicable to the law of rights in perxoiiam. * Possession by way of securHi/ only, e.ff., a pledge, is differentiated by its purpose, however, and falls within the class of securities, not within i:)iat of leases. Digitized by Microsoft® § 158] THE LAW OF PROPERTY. 399 identified in speech with the right itself. We say that the 1a7id is leased, just as we say that the land is owned or pos-' sessed. The lessee of land is he who rightfully possessiss it, but does not own it. The lessor of land is he who owns at, but who has transferred the possession of it to another. En- eumbranco bj^ way of lease is not confined, however, to the right of ownership of a material object. All rights may be leased which can be possessed, that is to say, which admit of continuing exercise; and no rights can be leased which •cannot be possessed, that is to say, which are extinguished by their exercise. A servitude appurtenant to land, such as a right of way, is leased along with the land itself. The owner of a lease may encumber it with a sub-lease. The owner of a patent or copyright may grant a lease of it for a term of years, entitling the lessee to the exercise and use of the right Tjut not to the ownership of it. Even obligations may be encumbered in the same fashion, provided that they admit of continuing or repeated exercise; for example, annuities, shares, money in the public funds, or interest-bearing debts. All these may be rightfully possessed without being owned, -and owned without being possessed, as when they are settled in trust for a tenant for life with remainder to some one else. Is it essential that a lease should be of less duration than the right which is subject to it? This is almost invariably the case; land is leased for a term of years or for life, but not in perpetuity ; the owner ■of a thing owns it for ever, but the lessee of it possesses it for a time. We may be tempted, therefore, to regard this difference of •duration as essential, and to define a lease as a right to the temporary ■exercise of a right vested in some one else. But this is not so. There is no objection in principle to a lease of land in perpetuity, or to a lease of a patent or copyright for the full ■term of its existence. It may be objected that a lease of this description would not be a true lease oi» encumbrance at all, but an assignment of the right itself; that the grantee would become the owner of the right, and not a mere encum- Tsrancer; and in favour of this contention it may be pointed out' that a sub-lease for the whole term is construed in English law' as an, assignment of the term, a sub-lease being necessarily shorter than the term, if only by a, single day.' Whatever the actual rule of English law may be, however, there is 1 Beardman v. Wilson, L. R. i C. P. 57. Digitized by Microsoft® 400 THE LAW OF PROPERTY. [§1'^^ nothing in legal theory to justify us in asserting that any such differ- ence of duration is essential to the existence of a true lease. A lease exists whenever the rightful possession of a thing is separated from the ownership of it; and although this separation is usually temporary, there is no difficulty in supposing it permanent. I may own a perma- nent right to exercise another right, without owning the latter right itself. The ownership may remain dormant, deprived of any right of exercise and enjoyment, in the hands of the lessor. I am not necessarily the owner of a patent, because I have acquired by contract with the owner a right to the exclusive use of it during the whole term of its duration. So far as legal principle is concerned, I may still remain the owner of a lease, although I may have granted a sub-lease to another for the whole residue of the term. To assign a lease and to sub-let it for the whole term are in the intention of the parties and in legal theory two entirely different transactions. The assignment is a substitution of one tenant for another, the assignor retaining no rights whatever. The sub-lease, on the contrary, is designed to leave the original relation of landlord and tenant untouched, the sub-lessee being the tenant of the lessee and not of the original lessor.'- § 159. Servitudes. A servitude is tliat form of encumbrance Avhich consists in a right to the limited use of a piece of land without the possession of it; for example, a right of way over it, a right to the passage of light across it to the windows of a house on the adjoining land, a right to depasture cattle upon it, or a right to derive support from it for the foundations of an adjoining building. - It is an essential characteristic of a servitude that it does not involve the possession of the land over which it exists. This is the difference between a servitude and a lease. A lease of land is the rightful possession and use without the owner- ship of it, while' a servitude over land is the rightful use without either the ownership or the possession of it. There are 1 An example of a lease in perpetuity is the emphyteujsis of Eifj.icris. — As S/'xn Corresponds to jus, so 8s//.i! apparently corre- sponds to fas. While fas, however, preserved its original signification as that which is right by divine ordinance, and never acquired any secondary legal applications or implications, the Greek term proved more flexible, and consequently has to be reckoned with in the present connexion. Th« matter is one of very considerable difiiculty, and no certain conclusions seem possible, but the following order of develop- ment would seem to commend itself as the most probable: — 1. ©£,(Ais divine ordinance, the will of the gods. The term i^ derived , from the Aryan root DHA, to set, place, appoint, or establish, which appears also in Ost^os, a statute or ordinance. * This latter term, how- ^ See Clark, Practical Jui'isprudence, p. 18; Skeat's Etymological English IDictionary, sub viic. Just; Manuel des Antiquites Romaines, vol. 6, part i. ji. 352, note 4; Miller's Data of .Jurisprudence, p. 33. - Xettleship, Contributions to Latin Lexicography, sub voc. J/os. ' Praetical .Jurisprudence, p. .)1. -1 Dike is said to be derived from dik, to show, point out, make knoivii, this being- itself a form of da, to know; hence, practical knowledge, skill, tke icni/ a thing is dojie, ■custom. This suggestion might be considered ingenious, rather tlian convincing, were it not for the singular fact that the Teutonic languages exhibit a precisely similar process of thought. The English sub- i^tantive v:lse means way or manner, and is yet the same word as ii:i-i;ei- "while the Romans, perhaps with a truer legal insight, concerned themselves with the law {jus). When, like Cicero, they write de legihus, it is in imitation of Greek usage. LAW, — Law is by no means the earliest legal term acquired by the English language. Curiously enough, indeed, it would seem not even to be indigenous, but to be one of those additions to Anglo-Saxon speech which are due to the Danish invasions and settlements. Of the earlier terms the commonest, and the most significant for our present purpose, is dom, the ancestor of our modern doom.^ A dorn or dooini is either (1) a law, ordinance, or statute, or (2) a judgment. It does not seem possible to attriblite with any confidence historical priority to either of these senses. In modern EngKsh the idea of judgmeint has completely prevailed over and excluded that of ordinance, but we find no such predominance of either meaning in Anglo-Saxon usage. The word has its source in the Aryan root DHA, to place, set, establish, appoint, and it is therefore equally applicable to the decree of thei judge and to that of the lawgiver. In the laws of King Alfred we find the term in both its senses. " These are the dooms which Almighty God himself spake unto Moses and commanded him to keep." ^ " Judge then not one doom to the rich and another to the poor." ^ In the following passage of the laws of Edgar the laws of the Danes are plainly equivalent to the dooms of the English: "I will that secular right stand among the Danes with as good laws as they best ma|y choose. But with the English let that stand which I and my Witan have added to the dooms of my forefathers." * Doom is plainly cognate to Si^n. The religious implication, how- ever, which, in the Greek term, is general and essential, is, in .the English term, special and accidental. In modern English doom is, like 8£/A/r, the wiU, decree and judgment of Heaven— fate or destiny; but the Anglo-Saxon diom included the ordinances and judgments of 1 See Murray's New English Dictionary, sub voc. Doom. 2 Thorpe, Ancient Laws and Institutes of England, vol. i. p. 55; Laws of King Alfred, sect. 49. ^ Ibid. sect. 43. * Ibid. vol. i. p. 273; Laws of King Edgar, Supplement, sect. 2. In Scottish legal procedure the word doom ia still used in the sense of judg- ment; the death sentence is "pronounced for doom": Miller's Data of Jurisprudence, p. 292. ^ •"'' • Digitized by Microsoft® 466 APPENDIX r. mortal men, no less thaai those of the gods. ®=V«, therefore, acquired the sense of human law only derivatively through the sense of right, and so belongs to the class of jus, not of lex; -while doom, like 9£7/^«, acquired juridical applications directly, and so stands besides lex and Dom, together with all the other Anglo-Saxon legal terms, including, strangely enough, right itself, was rapidly superseded by lagu, which is the modern law. The new term makes its appearance in the tenth century, and the passage cited above from the laws of King Edgar is one of the earliest instances of its use. Lagu and law are derived from the root LAQ-H, to lay, settle, or place. IJaw is that which is laid down. There is a considerable conflict of opinion as to whether it is identical in origin with the Latin lex (leg-). Schmidt and others decide in the afiirmative,i and the probabilities of the case seem to favour this opinion. The resemblance between law and lex seems too close to be accidental. If this is so, the origin of lex is to be found in the Latin lego, not in its later sense of reading, but in its original sense of laying down or setting (as in the derivative lectus), which is also the primary signification of the Greek X£7», the German legen, and the English lay.^ If this is so, then law and lex are alike that which is laid down, just as Oesetz is that which is set (sefoere) . This interpretation is quite consistent with the original possession by lex of a wider meaning than statute, as already explained. We still speak of laying down terms, conditions and propositions, no less than of laying down .commands, rules and laws. Lex, however, is otherwise and variously derived from or connected with ligare, to bind,' legere, to read,* and xt^siv, to say or speak. ^ It is trtie indeed that by several good authorities it is held that the original meaning of lagu and law is that which lies, not that which has been laid or settled' — that which is customary, not that which is established by authority. ^ The root LAGU, however, must contain both the transitive and intransitive senses, and I do not know what evidence there is for the exclusion of the former from' the signification of the derivative law. Moreover, there seems no ground for attributing to lagu the meaning of custom. It seems from the first to have meant the product of authority, not that of use and wont. It is statutum, iiot consuetudo. As soon as w© meet with it, it is equivalent to dom. The analogj' also of lex, gesetz, dom, 9fcr/ioj, and other similar terms is in favour of the interpretation here preferred.' 1 iliinuel des Antiquites Romaines, vol. 6, pt. i. p. 351, n. ' Reo Smith's Latin Dictionary, sub voc. leffo. * Nettleship, sub voc. Lex. i Claris:, p. 31. ■'' Muirhead, Historical Introduction to the Private Law of Eome, p. 19. 6 Slieat, sub voc. Law; Clark, p. 68. ' Much information as to the etymology and early meanings of legal terms is to be found in Miller's Bata of Jurisprudence, passim. See also Walker's Science of International Law, pp. 21 — 25. Digitized by Microsoft® ( 467 ) APPENDIX II. THE THEOEY OP SOVEEEIGNTY. In discussing the theory of the state, w© noticed the distinctioa between soTereign and subordinate power. i The former is that whicb, within its own sphere, is absolute and uncontrolLed, while the latter is that which is subject to the control of some power superior and external to itself. We have now to consider in relation to this distinction a celebrated doctrine which we may term Hobbes's theory of sovereignty. It was not, indeed, originated by the English philosopher, but is due rather to the celebrated Erenoh publicist Bodin, from whom it first received definite recognition as a central element of political doctrine. In the writings of Hobbes, however, it assumes greater prominence and receives more vigorous and clear-cut expression, and it is to his advocacy and to that of his modem followers that its reception in England must be chiefly attributed. The theory in question may be reduced to three fundamental propositions: — 1. That sovereign power is essential in every state; 2. That sovereign power is indivisible; 3. That sovereign power is unlimited and illimitable. The first of these propositions must be accepted as correct, but the second and third would seem to have no solid foundation. The matter, however, is one of very considerable obscurity and com^plexity, and demands careful consideration. 1. Sovereignty essential. It seems clear that every political society involves the presence of supireme power. Por otherwise aU power would be subordinate, and this supposition involves the absurdity of a series of superiors and inferiors ad infinitum. Yet although this is so, there is nothing to prevent the sovereignty which is thus essential from being whoUy or partly external to the state. It is, indeed, only in the case of those states which are both independent and fully sovereign that the sovereignty is wholly internal, no part of it being held or exercised ab extra by any other authority. When a Istate is dependent,, that is to say, merely a separately organised portion of a larger body 1 Supra, § 41. 30 (2) Digitized by Microsoft® 468 APPENDIX II. politic, the sovereign power is vested wholly or in part in the larger •unity, and not in the dependency itself. Similarly when a state, though independent, is only semi-sovei'eign, its autonomy is impaired through the possession and exercise of a partial sovereignty by the superior state. In all oases, therefore, sovereign power is necessarily present somewhere, but it is not in all cases to be found in its entirety within, the borders of the state itself. 2. Indivisible sovereignty . — Every state, it is said, necessarily in- volves not merely sovereignty, but a sovereign, that is to say, on© person or one body of persons in whom the totality of sovereign power is vested. Such power, it is said, cannot be shared between two or more persons. , It is not denied that the single supreme body may be composite, as the English Parliament is. But it is alleged that whenever there are in this way two or more bodies of persons in whom sovereign power is vested, they necessarily possess it as joint tenants of the whole, and cannot possess it as tenants in severalty of different parts. The whole sovereignty may be in A., or the whole of it in B., or the whole of it in A. and B. gointly, but it is impossible that part of it should be in A. and the residue in B. We may test this doctrine by applying it to the British constitution,. We shall find that this constitution in no way conforms to the prin- ciples of Hobbes on this point, but is on the contrary a clear instance of divided sovereignty. The legislative sovereignty resides in the Grown and the two Houses of Parliament, but the executive sove- reignty resides in the Crown by itself, the Houses of Parliament having no share in it. It will be understood that we are here dealing exclu- sively with the law or legal theory of the constitution. The practice is doubtless difierent; for in practice the House of Commons has obtained complete control over the executive government. In practice the ministers are the servants of the legislature and responsible to it. In law they lare the servants of the Crown, through whom the Grown exercises that isovereign executive power which is vested in it by law, independently of the legislature altogether. In law, then, the executive power of the Crown is sovereign, being absolute and uncontrolled within its own sphere. This sphere is not indeed unlimited. There are many things which the Crown cannot do; it cannot pass laws or impose taxes. But what it can do it does with sovereign power. By no other authority in the state can its poweiv be limited, or the exercise of them controlled, or the operation of them annulled. It may he objected by the advocates of the theory in question that the executive is under the control of -the legislature, and that the sum-total of sovereign power is therefore vested in the latter, and is pot divided between it anid the executive. The reply is that the Crown is not merely itself a port of the legislature, but a part without whose consent the legislature cannot exercise any fragment Digitized by Microsoft® APPENDIX II. 469 of its own power. No law passed by the two Houses of Parliament is, operative unless the Crown consents to it. How, then, can the legis- lature control the executive ? Can a man be subject to himself ? A power over a person, which cannot be exercised without that person's consent, is aio power over him at all. A person is subordinate to a body of which he is himself a member, only if that body has power to act notwithstanding his dissent. A dissenting minority, for example, may be subordinate to the whole assembly. But this is not the position of the Crown. The English constitution, therefore, recognises a sovereign execu- tive, no less than a sovereign legislature. Bach is supreme within) its own sphere; and the two authorities are kept from conflict by the fact that the executive is one member of the composite legislature. The supreme legislative power is possessed jointly by the Crown and the two Houses of Parliament, but the supreme executive power is held in severalty by the Crown. When there is no Parliament, that is to say, in the interval between the dissolution of one Parliament and the election of another, the supreme legislative power is non-existent, tut the -supreme executive power is retained unimpaired by the Crown. "■ This is not all, however, for, until the passing of th© Parliament Act,; 1911, the British constitution recognised a supreme judicature, as well as a supreme legislature and executive. The House of Lords in its judicial capacity as a court of final appeal was sovereign. Its judg- ments were subject to no further appeal, and its acts were subject to no control. What it declared for law no other authority known to the constitution could dispute. Without its own consent its judicial " powers could not be impaired or controlled, nor could their operation! be annulled. The consent of this sovereign judicature was no less essential to legislation, than was the consent of the sovereign execu- tive. The House of Lords, therefore, held in severalty the supreme judicial power, while it shared the supreme legislative power with the Crown and the House of Commons. ^ 3. Illimitable sovereignty. Sovereign power is declared by the theory in question to be not merely essential and indivisible, but also illimitable. Not only is it uncontrolled within its own province, but that province is infinite in extent. " It appeareth plainly to my under- standing," says Hobbes,^ " both from reason and Scripture, that th© 1 A.S to the severance of legislative and executive sovereignty in tlie British constitution, see Anson, Law and Custom of the Constitution, Part I. pp. 39—41, 3rd ed. - As to the divisibility of sovereign power, see BryCe's Studies in His- tory and Jurisprudence, II. p. 70: "Legal sovereignty is divisible, i.e., different branches of it may be concurrently vested in different persons or bodies, co-ordinate altogether, or co-ordinate partially only, though acting in different spheres." For a statement of th© contrary opinion see Brown, Austinian Theory of Law, p. 174. 3 Leviathan, ch. 20, Eng. Works, III. 194. Digitized by Microsoft® ^''l^* APPENDIX II. sovereign power, whether placed in one man, £is in monarchy, or ia one assembly of men, as in popular and aristocratical commonwealths, is as great as possibly men can be imagined to make it. . . . And whosoever, thinking sovereign power too great, wiU seek to make it less, must aubjeot himself to the power that can limit it; that is to say, to a greater." So Austin: i "It foUows from ihe essential differ- ence of a positive law and from the nature of sovereignty and inde- pendent political society, that the power of a monarch properly so called or the power of a sovereign number in its collegiate and sove- reign capacity, is incapable of legal limitation. . Supreme power limited by positive law is a flat contradiction in terms." This argument confounds the limitation of power with the subordi- nation of it. That sovereignty cannot within its own sphere be subject to any control is self-evident, for it follows from 'the very definition of this species of power. But that this sphere is necessarily universal is a totally different proposition, and one which cannot be supported. It does not follow that if a pian is free from the constraint of any one stronger than himself, his physical power is therefore infinite. In considering this matter we must distinguish between power in fact and power in law. For here as elsewhere that which is true in law may not be true in fact, and vice versa. A de facto limitation of sovereign power may not be also a de jure limitation of it, and con- versely the legal theory of the constitution may recognise limitations which are non-existent in fact.^ That sovereign power may be, and indeed necessarily is, limited de facto is sufficiently clear. Great as is the power of the government of a modern ftnd civilised state, there are many things which it noti merely ought not to do, but cannot do. They are in the strictest sens© of the term beyond its de facto competence. For the power of a sove- reign depends on and is measured by two things: first, the physical force which he has at his command, and which is the essential instru- ment of his government; and second, the disposition of the members of the body politic to submit to the exercise of this force against them- selves. Neither of these two things is unlimited in extent, therefore the de facto sovereignty which is based upon them is not unlimited either. This is clearly recognised by Bentham.^ " In this mode of limitation," he says, " I see not what there is that need surprise ua. By what is it that any degree of power '(meaning political power) is established ? It is neither more nor less . . . than a habit of and a disposition to obedience. . . . This disposition it is as easy, or I am much mistaken, to conceive as being absent with regard to one sort 1 I. 263. 2 The distinction between de jure or l^al and de facto or practical sove- reignty — ^sovereign power in law and sovereign power in fact — is admirable- expressed and analysed in Bryce's Studies in History and Jurisprudence, II. pp. 49 — 73. ^ Fragment on Government, ch. 4, sects. 35, 36. Digitized by Microsoft® APPENDIX II. 471 of acts, as present with regard to another. Per a body, then, which is in other respects supreme, to be conceived as being with respect to a certain sort of acts limited, all that is necessary is that this sort of acts be in its description distinguishable from every other. These bounds the supreme body in question has marked out to its authority: of such a demarcation, then, what is the effect ? Either none at all, or this: that the disposition to obedience confines itself within these bounds. Beyond them the disposition is stopped from- extending; beyond them the subject is no more prepared to obey the governing body of his own state than that of any other. What difficulty, I say, there should be in conceiving a state of things to subsist, in which the supreme authority is thus limited— what greater difficulty in conceiving it with this limitation, than without any, I cannot see. The two states are, I must confess, to me alike conceivable: whether alike expedient, alike conducive to the happiness of the people, is another question." The follower of Hobbes may admit the de facto, but deny the de jure limitation of sovereign power. He may contend that even if there are many things which the sovereign has no power to do in fact, there is and can be nothing whatever which he has no power to do in law. The law, he may say, can recognise no limitations in that sovereign power from which the law itself proceeds. In reply to this it is to be observed that the law is merely the theory of things as received and operative within courts of justice. It is the reflection and image of the outer world seen and accepted as authentic by the tribunals of the state. This being so, whatever is possible in fact is possible in law, and more also. Whatsoever limitations of sovereign power may exist in fact may be reflected in and recognised by the law. To allow that de facto limitations are possible is to allow the possibility of corresponding limitations de jure. If the courts of justice habitually act upon the principle that certain functions or forms of activity do not, according to the constitution, pertain to any organ in the body politic, and therefore lie outside the scope of sovereign power as recognised by the constitution, then that principle is by virtue of its judicial application a true principle of law, and sovereign power is limited in law no less than in fact. The contrary view is based on that unduly narrow view of the nature of law which identifies it with the command of the sovereign issued to his subjects. In this view, law and legal obligation are co-exten- sive, and the legal limitation of supreme power appears to involve the subjection of the possessor of it to legal obligations in respect to the exercise of it. This, of course, conflicts with the very definition of sovereign power, and is clearly impossible. i That sovereign power 1 We have already seen that the state may and does owe legal duties to its subjects, but that these duties are necessarily imperfect and unenforceable. Supra, § 79. Digitized by Microsoft® 47 ■> APPENDIX II. may be legally controlled within its own province is a self-ooatra- dictory proposition ; that its province may have legally appointed bounds is a distinct and valid principle. There is one application of the doctrine of illimitable sovereignty which is of sufficient importance and interest to deserve special notice. Among the chief functions of sovereign power is legislation. It follows from the theory in question, that in every political society there neoes- .sarily exists some single authority possessed of unlimited legislative power. This power is, indeed, alleged to be the infallible test of sovereignty. In seeking for that sovereign who, according to the doc- trine of Hobbes, is to be found somewhere in every body politic, all that is necessary is to discover the person who possesses the power of making and repealing all laws without exception. He and he alone is the sovereign, of the state, for he necessarily has power over all, and in all, and is subject to none. As to this it is to be observed, that the extent of legislative power depends on and is measured by the recognition accorded to it by the tribunals of the state. Any enactment which the law-courts decline to recognise and apply is by that very fact not law, and lies beyond the legal competence of the body whose enactment it is. And this is so, whether the enactment proceeds from a. borough council or from the supreme legislature. As the law of England actually stands, there are no legal limitations on the legislative power of the Imperial Parlia- ment. No statute passed by it can be rejected as ultra vires by any court of law. This legal rule of legislative omnipotence may be wise or it may not; but it is difScult to see by what process of reasoningi the jurist can demonstrate that it is theoretically necessary. At no very remote period it was considered to be the law of England, that a statute made by Parliament was void if contrary to reason and the law of God.^ The rule has now been abandoned by the courts, but it seems sufficiently obvious that its recognition involves no theoretical absurdity or impossibility, however inexpedient it may be. Yet it clearly involves the limitation of the power of the legislature by a rule of law. To take another example, the most striking illustration of the legislative omnipotence of the English Parliament is its admitted power of extending the term for which an existing House of Commons has been elected. Delegates appointed by the people for a fixed time have the legal power of extending the period of their own delegated authority. It is difficult to see any theoretical objection to a rule of the opposite import. Why should not the courts of law recognise and apply the principle that an existing Parliament is sovereign only during the limited time for which it was originally appointed, and is destitute of any power of extending that time ? And in such a case would not the authority of the supreme legislature be limited by a rule of law ? , 1 For authorities, see § .37. Digitized by Microsoft® APPENDIX II. 473 The exercise of legislative power is admittedly subject to legal •conditions ; why not, then, to legal limitations? If the law can regu- late the manner of the exercise of legislative power, why not also its m,atier? As the law stands. Parliament may repeal a statute in "the same session and in the same manner in which it was passed. "What, then, would be the effect of a statute providing that no statute should be repealed save by an absolute majority in both Houses ? Would it not create good law, and so prevent either itself or any -other statute from being repealed save in manner so provided ? What if it is provided further, that no statute shall be repealed until after ten years from the date of its enactment ? Is such a statutory provi- sion void ? And if valid, will it not be applied by the law-courts, so "that any attempt to repeal either it or any other statute less than ten years old will be disregarded, as beyond the competence of ParUa- anent ? And if a statute can be made unrepealable for ten years, how is it legally impossible that it should be made unrepealable for ever ? Such a rule may be very unwise, but by what argument are we to jrove that it involves a logical absurdity ? In respect of its legislative omnipotence the English Parliament is almost unique in modern times. Most modern constitutions impose 3nore or less stringent limitations upon the powers of the legislature. In the United States of America neither Congress nor any State Xegislature possesses unrestricted powers. They cannot alter the ■constitutions by which they have been established, and those con- stitutions expressly withdraw certain matters from their jurisdiction. Where, then, is the sovereignty vested ? The reply made is that these constitutions contain provisions for their alteration by some otheri authority than the ordinary legislature, and that the missing legisla- tive power is therefore to be found in that body to which the right of altering the constitution has been thus entrusted. In the United States the sovereignty, it is said, is vested not in Congress, but in a, majority of three- fourths of the State I/egislatures; this composite body has absolute power to alter the constitution, and is therefore unbound by any of the provisions of it, and is so possessed of unlimited legislative power. Now, whenever the constitution has thus entrusted absolute powers ■of amendment to some authority other than tl^e ordinary legislatuxo, this is a perfectly valid reply. But what shall we say of a constitu- tion which, while it prohibits alteration by the ordinary legislature, provides no other method of effecting constitutional amendments ? There is no logical impossibility in such a constitution, yet it would be clearly unalterable in law. That it would be amended in defiance of the law cannot be doubted, for a constitution which will not bend will sooner or later break. But all questions as to civil and supreme power are questions as to what is possible within, not without, the Digitized by Microsoft® 474 APPENDIX 11. limits oi the constitution. If there is no constitution w^liioh meets with due observance, there is no body politic, and the theory of poli- tical government is deprived of any subject-matter to which it can apply. The necessary datum of all problems relating to sovereignty is the existence and observance of a definite scheme of organised: structure and operation, and it is with this datum and presupposition that we must discuss the question of the extent of legislative power. Even where a constitution is not wholly, it may be partly unchange- able in law. Certain portions of it may on their origiual establishment be declared permanent and fundamental, beyond the reach even, of' the authority to which in other respects the amendment of the constitu- tion is entrusted. Article V. of the Constitution of the United States of America provides that no State shall be deprived of its equal suffrage in the Senate without its own consent. Having regard to this provision, what body is there in the United States which has vested in it unlimited legislative power ? The same Article provides that cer- tain portions of the Constitution shall be unalterable until the year 1808. What became of sovereign power in the meantime ? ^ 1 As to the possibility of legal limitations of sovereign power, see Jellinek, Das Reoht des modernen Staates, I. pp. 432 — 441; Pollock, Jurisprudence, pp. 270—273, 2nd ed.; Sidgwiek, Elements of Politics, pp. 23—29, 623 — 638; Bryce, Studies in History and Jurisprudence, II. 71. "Legal sovereignty," says Lord Bryce, " may be limited, i.e., the law of any given state may not have allotted to any one ' person or body, or to all the- persons or bodies taken together, who enjoys or enjoy supre-me legislative or executive power, the right to legislate or to issue special orders on every subject whatever." Brown, Austinian Theorj- of Law, pp. 158 — 164. Digitized by Microsoft® ( 475 APPENDIX III. THE MAXIMS OF THE LAW. Lbcal maxims are the proverbs of the law. They have the same merits and defects as other proverbs, being brief and pithy statements of partial truths. They express general principles without the neces- sary qualifications and exceptions, and they are therefore much too absolute to be taken as trustworthy guides to the law. Yet they are not without their uses. Palse and misleading when literally read, these established formulae provide useful means for the expression of leading doctrines of the law in a form which is at the same time brief and intelligible. They constitute a species of legal shorthand, useful to the lawyer, but dangerous to any one else; for they can be read only in the light of expert knowledge of that law of which they are the elliptical expression. The language of legal maxims is almost invariably Latin, for they are commonly derived from the civil law, either literally or by adapta- tion, and most of those which are not to be found in the Eoman sources are the invention of medieval jurists. The following is a list of the more familiar and important of them, together with brief comments and references. 1. Actus non tacit beum nisi mens sit bea. Leges Henrici Primi, V. 28. (Thorpe's Ancient Laws and Institutes of England, I. 511.) Coke's Third Institute, f. 6. The act alone does not make the doer of it guilty, unless it is done with a guilty mind. Material withovrt formal wrongdoing is not a ground of liability. The presence either of wrongful intent or of culpable negligence is a, necessary condition of responsibility. See §§ 127, 132, 145. 2. AdVEESUS EXTEANEOS VITIOSA rOSSESSIO peodesse solet. D. 41. 2. 53. Prior possession is a good title of ownership against all who cannot show a better. In the civil law, however, from which this maxim is derived, it has a more special application, and relates to the conditions of possessory reanedies. See § 161. Digitized by Microsoft® 476 APPENDIX III. 3. Apices juris non sunt jura. 10 Oo. Hep. 126. Cf. D. 17. 1. 29. 4: Non congruit de apdcibus juxis disputare. Legal principles must not be carried to their most extreme conse- quences, regardless of equity and good sense. A principle valid within certain limits becomes false when applied beyond these limits. The law must avoid the falsehood of extremes. See § 10. 4. Cess.-inte ratione legis cessat lex ipsa. In the application of this maxim we must distinguish between cottnmon and statute law. (1) Common law. A legal principle must be read in the light of the reason for which it was established. It must not be carried further than this reason warrants, and if the ratio legis wholly fails, the lav,r will fail also. (2) Statute law. To statute law the maxim has only a limited application, for such law depends upon the authority of the litera legis. It is only when the letter of the law is imperfect, that recourse may be had to the reason of it as a guide to its due interpretatioii. The maxim in question, therefore, is valid only as a rule of restrictive interpretation. The complementary rule of extensive interpretation is, Ubi eadem ratio ibi idem jus. See Vangerow, I. sect. 25. 5. COGITATIONIS POENAM NEMO PATITUE. D. 48. 19. 18. The thoughts and intents of men are not punishable. The law takes notice only of the overt ajid external act. In exceptional cases, how- ever, the opposite maxim is applicable: Voluntas reputatur pro facto —The law takes the will for the deed. See § 137. 6. Communis error facit jus. Coke's Fourth Inst. f. 240. Of. D. 33. 10. 3. 5: Error jus facit. A precedent, even though erroneous, will make valid law, if its authority has been so widely accepted and relied on that its reversal has become inexpedient in the interests of justice. See § 65. 7. Cuius est solum eius est usque ad coelum. Co. litt. 4 a. 9 Oo. Eep. 54. See § 155. 8. De minimis non curat lex. Cio. Eliz. 353. Gf. the medieval maxim of the Civilians: Minima non curat praetor. Dernburg, Pandekten, I. § 140. n. 5. The law takes no account of trifles. This is a maxim which relates Digitized by Microsoft® APPENDIX III. 477 to the ideal, rather than to the actual law. The tendency to attribute undue importance to mere matters of form — the failure to distinguish adequately between the material and the immaterial — is a cbarat- teristic defect of legal systems. See § 10. 9. Ex NUDO PACTO NON ORITUR ACTIO. . Gf. D. 2. 14. 7. 4: Nuda paotio obHgationem non parit. 0. 4. 65. 27: Ex nudo pacto . . actionem jure nostro nasci non potuisse. In English law this maxim expresses the necessity of a legal con- sideration for the validity of a contract. Niidum poictum is pactum sine causa promittendi . In the civil law, however, the maxim means, on the contrary, that an agreement, to become binding, must fall within one of the recognised classes of legally valid contracts. There was no general principle that an agreement, as such, had the foroe of law. See § 124. 10. Ex TURPI CAUSA NOK" ORITUR ACTIO. Cf. D. 47. 2. 12. 1: Nemo de improbitate sua consequitur actionem. An agreement contrary to law or morals can give rise to no right of action in any party to it, either for the enforcement of it, or for the recovery of property parted with in pursuance of it. Of. the maxim: In pari delicto potior est conditio defendentis. See § 124. 11. IgNOEANTIA FACTI EXCUSAT, IGNORANTIA juris NON EXCUSAT. Of. D. 22. 6. 9. pr. Regula est juris quidem ignorantiam cuique nocere, facti vero ignorantiam non nocere. See §§ 146, 147. 12. Impossibilium nulla obligatio est. D. 50. 17. 185. Otherwise: Lex non cogit ad impossibiUa. Impossibility is an excuse for the non -performance of an obligation — a rule of limited application. 13. In jure NON rbmota causa sed proxima spectatur. Bacon's Maxims of the Law, 1. A man is not liable for all the consequences of his acts, but only for those which are natural and probable — that is to say, those which he foresaw or ought to have foreseen. 14. In pari causa potior est conditio possidentis. Cf. D. 50. 17. 128. pr.: In pari causa possessor potior haberi debet. Also D. 20. 1. 10. D. 6. 2. 9. 4. Possession and ownership — fact and right — enjoyment and title — are presumed by the law to be coincident. Every man may therefore keep what he has got, until and unless some one else can prove that he himself has a better title to it. See § 107. Digitized by Microsoft® 478 APPENDIX III. 15. In paei delicto potior est conditio defendeniis. Cj. D. 50. 17. 154: Cum par delictum e.st duorum, semper oneratur petitor. Identical in effect with the maxim: Ex turpi causa non oritur actio. 16. Inter aema leges silent. Cicero, Pro Milone, IV. 10. This maxim has a double application: (1) As between the state and its external enemies, the laws are absolutely silent. No alien enemy has any claim to the protection of the laws or of the courts of justice. He is destitute of any legal standing before the law, and the govern- ment may do as it pleases with him and his. (2) Even as regards the rights of subjects and citizens, the law may be put to silence by necessity in times of civil disturbance. Necessitas non habet legem. Extrajudicial force may lawfully supersede the ordinary parooess and course of law, whenever it is needed for the protection of the state and the public order against illegal violence. See § 36. 17. Invito benepioium non datur. D. 50. 17. 69. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons, or disclaims a right will lose it. See § 122. 18. Juris praeoepta sunt haec: honeste vivbre, alteeum non laedeee, su0m guique thibueee. D. 1. 1. 10. 1. Just. Inst. 1. 1. 3. " These are the precepte of the law: to live honestly, to hurt no one, and to give to every man his own." Attempts have been sometimee made to exhibit these three praecepta jufis as based on a logical division of the sphere of legal obligation into three parts. This, how- ever, is not the case. They are simply different modes of expressing the same thing, and each of them is wide enough to cover the whole field of legal duty. The third of them, indeed, is simply a variant of ithe received definition of justice itself: Justitia est constans et perpetua voluntas jus suum ouique tribuendi. D. 1. 1. 10 pr. Just. Inst. 1. 1. 1. 19. Jus PUBLICUM PEIVATOEUM PACTIS JIUTAEI NON POTEST. D. 2. 14. 38. Cf. D. 50. 17. 45. 1. By jus publicum is meant that portion of the law in which the public interests are concerned, and which, therefore, is of absolute authority and not liable to be superseded by conventional law made by the agreement of private persons. Cf. the maxim: Modus et con- "ventio vincunt legem. See § 124. Digitized by Microsoft® APPENDIX III. 479 20. Modus et conventio vincunt legem. 2 Co. Eep. 73. The common law may in groat measure be excluded by conven- "tional law. Agreement is a source of law between the parties to it. See §§ 11, 122. 21. NeOESSITAS HON HABET LEGEM. Cf. Bacon's Maxims of the Law, 5: Necessitas inducit privilegium. A recognition of the fps necessitatis. See § 139. 22. Neminem oportet legibus esse sapientioebm. Bacon, De Augmentis, Lib. 8. Aph. 58. Of. Aristotle, Rhetoric, I. 15. 12. It is not permitted to be wiser than the laws. In the words of Jlobbes (IJeviathan, ch. 29), " the law is the public Conscience," and every citizen owes to it an undivided allegiance, not to be limited by any private views of justice or expediency. See § 9. 23. Nemo plus juris ad alium teansferrb potest, quam ipse HABEBBT. D. 50. 17. 64. The title of an assignee can be no better than that of his assignor. ■Cf. the maxim: Nemo dat qui non habet. See § 163. 24. Nemo tenetur se ipsum accusare. The law compels no man to be his own accuser or to give any testi- mony against himself — a principle now limited to the criminal law. See § 175. 25. Nemo dat qui non habet. No man can give a better title than that which he himself has, .See § 163. 26. Non omne quod, licet honestum est. D. 50. 15. 144. pr. AU things that are lawful are not honourable. The law is con- strained by the necessary imperfections of its methods to confer many rights and allow many liberties which a just and honourable man will mot claim or exercise. 27. NULLUS VIDETUE DOLO PACEEE, QUI SUO JURE UTITUE. D. 50. 17. 56. A malicious or improper motive cannot make wrongful in law an act which would be rightful apart from such motive. The rule, how- ever, is eubject to important limitations. See § 136. Digitized by Microsoft® 480 APPENDIX III. 28. Qui pacit pee aliuh, facit pee se. Oo. Litt. 268 a. He ■who does a thing by the instrumentality of another is considered as if he had acted in his own person. 29. Qui pbioe est tempoee potior est juee. Cf. 0. 8. 17. 3: Siout prior est tempore, ita potior jure. Where two rights or titles conflict, the earlier prevails, unless there is some special reason for preferring the later. See § 85. 30. Quod fieri non debet, factum valet. 5 Co. Eep. 38. A thing which ought not to have been done may nevertheless be perfectly valid when it is done. The penalty of nullity is not invari- ably imposed upon illegal acts. Por example, a marriage may be- irregularly celebrated, and yet valid; and a precedent may be contrary- to established law, and yet authoritative for the future. See § 66. 31. E.ES judicata pro vebitate accipitue. D. 1. 5. 25. A judicial decision is conclusive evidence intei' partes of the matter- decided. See § 67. 32. Eespondeat superior. Coke's Fourth Inst. 114. Every master must answer for the defaults of his servant as for hia own. .See § 149. 33. Sic utere tuo ut alienuji non laedas. 9 Co. Eep. 59. Every man must so use his own property as not to harm that of another. This is the necessary qualification of the maxim that every man may do as he will with his own. See § 154. 34. SuMMUM jus summa inj.ueia. Cicero, Ite Off. I. 10. 33. The rigour of the law, untempered by equity, is not justice but the^ denial of it. See §§ 10, 13. 35. Supbeficies solo cedit. Gains, 2. 73. Whatever is attached to the land forms part of it. Gf. Just. Inst. 2. 1. 29: Omne quod inaedificatur solo cedit. See § 155. Digitized by Microsoft® APPENDIX III. 481 36. Ubi eadbm eatio, ibi idem jus. This is the complement of the maxim, Oessante ratione legis, cessat lex ipsa. A rule of the common law should 'be extended to all cases to ■which the same ratio applies, and in the case of imperfect statute law extensive interpretation based on the ratio legis is permissible. Sea Vangerow, I. sect. 25. 37. Ubi jus ibi bemedium. Cf. the maxim of the Civilians: Ubi jus non deest nee actio deese debet. Puchta, II. sect. 208, n.b. Whenever there is a right, there should also be an action for its' enforcement. That is to say, the substantive law should determine the ecope of the law of procedure, and not vice versa. Legal procedure should be sufficiently elastic and comprehensive to afford the requisite means for the protection of all rights which the substantive law sees fit to recognise. In early systems this is far from being the case. We there find remedies and forms of action determining rights, rather than rights determining remedies. The maxim of primitive law is rather, Ubi remedium ibi jus. 38. VlGILANTIBUS NON DOEMIENTIBUS JUBA SUBVENIUNT. Cf. D. 42. 8. 24: Jus civile vigilantibus scriptum est. The law is provided for those who wake, not for those who slumber and sleep. He who neglects his rights will lose them. It is on this principle that the law of prescription is founded. See § 162. 39. Volenti non fit injuria. Gf. D. 47. 10. 1.5: Nulla injuria est, quae in volentem fiat. No man who consents to a thing will be Buffered thereafter to com- plain of it as an injury. He cannot waive his right and then complain of its infringement. S.J. 31 Digitized by Microsofi® ( 482 ) APPENDIX IV. THE DIVISIONS OF THE LAW. English law possesses no received and authentic scheme of orderly- arrangement. Exponents of this system have commonly shown them- selves too little careful of appropriate division and classification, and too tolerant of chaos. Yet we must guard ourselves against the oppo- site extreme, for theoretical jurists have sometimes fallen into the contrary error of attaching undue importance to the element of form. They have esteemed too highly both the possibility and the utility of ordering the world of law in accordance with the straitest principles of logical development. It has been said by a philosopher concerning human institutions in general, and therefore concerning the law and its arrangement, that they exist for the uses of mankind, and not in order that the angels in heaven may delight themselves with the view of their perfections. In the classification of legal principles the re- quirements of practical convenience must prevail over those of abstract theory. The claims of logic must give way in great measure to those of established nomenclature and familiar usage; and the accidents of historical development must often be suffered to withstand the rules of scientific order. Among the various points of view of which most branches of the law admit, there are few, if any, which may be wisely adopted throughout their whole extent, and among the various alterna- tive principles of classification, expedience allows of no rigidly ex- clusive and consistent choice. There are few distinctions, however important in their leading applications, which may not rightly, as they fade towards the boundary line, be replaced by others which there possess a deeper significance. We may rest content, therefore, if, within the limits imposed by the needful conformity to received speech and usage, each portion of the law is dealt with in such of its aspects as best reveals its most important characters and rela- tions, and in such order as is most consistent with lucid and concise exposition. 1. The Introdi/tctofy Portion of the Law. The first portion of the corpus juris is of an introductory nature, con- sisting of all those rules which by virtue of their preliminary character Digitized by Microsoft® APPENDIX IV. 483 or of the generality of their application cannot be appropriately rele- gated to any special department. This introduction may be divided into four parts. The first of them is concerned with the sources of law. It comprises all those rules in accordance with Avhich new law obtains recognition and the older law is modified or abrogated. It is iere, for example, that we must look for the legal doctrine as to the operation of precedent, custom, and legislation. The second part of the Introduction deals with the interpretation of law. Here we shall find the rules in accordanoe with which the language of the law is to be construed, and also the definitions of those terms whiah are fitly dealt with here, because common to several departments of the law. In the third place the Introduction comprises the principles of private international law — the principles, that is to say, which deter- mine the occasional exclusion of English law from English courts of justice, and the recognition and enforcement therein of some foreign system which possesses for some reason a better claim to govern the case in hand. Pourthly and lastly, it is necessary to treat as intro- ductory a number of miscellaneous rules which are of so general an application as not to be appropriately dealt with in any special depart- ment of the legal system. 2. Private and Public Law. After the Introduction comes the body of Private Law as opposed to that of Public Law. By general consent this Roman distinction between jus privatum and jus 'publicum is accepted as the most funda- mental division of the corpus juris. Public law comprises the rules which specially relate to the structure, powers, rights, and activities of the state. Private law includes all the residue of legal principles. It comprises all those rules -which specially concern the subjects of the state in their relations to each other, together with those rules which are common to the state and its subjects. In many of its actions and relations the state stands on the same level as its subjects, and submits itself to the ordinary principles of private law. It owns land and chattels, makes contracts, employs agents and servants, and enters into various forms of commercial undertaking; and in respect of all these matters it differs little in its juridical position from its own, subjects. Public law, therefore, is not the whole of the law that is applicable to the state and to its relations with its subjects, but only those parts of it which are different from the private law concerning the subjects of the state and their relations to each other. For this reason private law precedes public in the order' of exposition. The latter presupposes a knowl^ge of the former. The two divisions of public law are constitutional and administrative law. It is impossible, however, to draw any rigid line between these D/g/Y/zi:^/3>mcrosoft® 484 APPENDIX IV. two, for they differ merely in the degree of importaiice pertaining tc their subject-matters. Constitutional law deals with the structure, powers, and functions of the supreme power in the state, together with those of aU the more important of the subordinate departments of government. Administrative law, on the other hand, is concerned with tbe multitudinous forms and iustruments in and through which the lower ranges of governmental activity manifest themselves. 3. Givil and Criminal Law. Within the domain of private law the division which calls for pri- mary recognition is that between civil and criminal law. Oivil law is that which is concerned with the enforcement of rights, while criminal law is concerned with the punishment of wrongs. We have examined and rejected the opinion that crimes are essentially offenoes against the state or the community at large, while civil wrongs are committed against private persons. xi.ccording to H;he acceptance or rejection of this opinion, criminal law pertains either to public or to private law. Our classification of it as private is unaffected by the» fact that certain primes, such as treason and sedition, are offences- against the state. As already explained, logical consistency in the division of the law is attainable only if we are prepared to disregard the requirements of practical convenience. Greater weight is wisely attributed to the fact that treason and robbery are both crimes, than to the fact that the one is an offence against the state and the other an oifence against an individual. Just as the law which is common to both state and subject is con- sidered under the head of private law alone, so "the law which is common to crimes and to civil injuries is dealt with under the head of civil law alone. It is obvious that there is a great body of legal (principles common to the two departments. The law. as to theft in- volves the whole ia,w as to the acquisition of property in chattels', and the law of bigamy involves a considerable portion of the law of marriage. The arrangement sanctioned by usage and convenience is, therefore, to expound first the civil law in its entirety, and there- after, under the title of criminal law, such portions of the law of crime as are not already comprehended in the former department. 4. Suhstmiiive Law and the Lair of Procedure. Civil and criminal law are each divisible into two branches, namely substantive law and the law of procedure, a distinction the nature of which has already been sufficiently considered. 5. Divisions of the Biibstantive Civil Law. The substantive civil law may be conveniently divided, by reference to the nature of the rights with which it is concerned, into three oreat Digitized by Microsoft® APPENDIX IV. 485 branclies, namely the law of property, the law of obligations, and the law of status. The first deals with proprietary rights in rem, the second with proprietary rights in personam, and the third with per- sonal as opposed to proprietary rights. 6. The Law of Property. Although the distinction between the law of property and that of obligations is a fundamental one, which must be recognised in any orderly scheme of classification, there is a great part of the substan- tive civil law which is common to both of these branches of it. Thus the law of inheritance or succession concerns all kinds of proprie- tary rights whether in rem or in personam,. So also with the law of trusts and that of securities. In general the most convenient method of dealing with these common elements is to consider them once for all in the law of property, thu,s confining the law of obligations to those rules which are peculiar to obligations: just as the elements eommon to civil and criminal law are dealt with in the civil law, and those common to private and public law in private law. The law of property is divisible into the following chief branches: (1) the law of corporeal property, namely the ownership of land and chattels; (2) the law of immaterial objects of property, such as patents, trade-marks, and copyrights; (3) the law of encumbrances or jura in re aliena, such as tenancies, servitudes, trusts, and securities; (4) the law of testamentary and intestate succession. 7. The Law of Obligations. The law of obligations comprises the law of contracts, the law of torts, and the law of those miscellaneous obligations which are neither contractual nor delictal. It may be convenient to consider under the same head the law of insolvency, inasmuch as the essential significance of insolvency is to be found in its operation as a method of discharg- ing debts and liabilities. Alternatively, however, this branch of law may be included in the law of property, inasmuch as it deals with ons mode of divesting proprietary rights in general. In the law of obliga- tions is also to be classed the law of companies, this being essentjially a development of the law of the contract of partnership. Under the head of companies are to be comprised all forms of contractual in- corporation, all other bodies corporate pertaining either to public law or to special departments of private law with which they are exclusively concerned. The general doctrine as to corporations is to be found in the introductory department of the law. 8. The LoMj of Status. The law of status is divisible into two branches dealing respectively with domestic and extra-domestic status. The first of these is the law Digitized by Microsoft® 486 APPENDIX IV. of family relations, and deals with the nature, acquisition, and Io.^^ of all those personal rights, duties, liabilities, and disabilities which are involved in domestic relationship. It falls into three divisions, con- cerned respectively with mai-riage, parentage, and guardianship. The second branch of the law of status is concerned with all the personal rights, duties, liabilities, and disabilities, which are external to the law of the family. It deals, for example, with the personal status of minors (in relation to others than their parents), of married women (in relation to others than their husbands and children), of lunaticB, aliens, convicts, and any other classes of persons whose personal con- dition is sufficiently characteristic to call for separate consideration.'- There is one class of personal rights which ought in logical strict- ness to be dealt with in the law of status, but is commonly and more conveniently considered elsewhere — those rights, namely, which are called natural, because they belong to all men from their birth, instead of being subsequently acquired: for example, the rights of life, liberty, reputation, and freedom from bodily harm. These are personal rights and not proprietary; they constitute part of a man's status, not part of his estate; yet we seldom find them set forth in the law of status. ^ The reason is that such rights, being natural and not acquired, call for no consideration, except in respect of their violation. They are adequately dealt with, therefore, under the head of civil and criminal wrongs. The exposition of the law of libel, for example, which is contained in the law of torts, involves already the proposition that a man has a right to his reputation; and there is no occasion, therefore, for a bald statement to that effect in the later law of status. 1 No small part of this branch of the law of status, however, may be con- veniently dealt with in connexion with various departments of the law of property and obligations. It may be best, for example, to discuss the con- tractual capacity .of difEerent classes of persons in tlie law of contracts, instead of in the law of tlie personal status of these persons. 2 Blackstone, howe\er, is sufficiently scrupulous in respect of loa'ical arrangement to include them in this dejiartment of the law. Digitized by Microsoft® APPENDIX IV. 48/ SUMMARY. THE DIVISIONS OF THE LAW. I. Introduction / A. Sources of the Law. ) B. Interpretation and Definitions. j C. Private International Law. ' D. Miscellaneous Introductory Principles. 1. Corporeal Property 2. Immaterial Property Property 3. En«um- brances 4. Succession f Laud. I Chattels. Patents. Trade- marks, &c, i' Leases. Servitudes. Trusts. (Securities, &o. I Testamen- s tary. ( Intestate. ' Substantive ( /'Civil Law \ II. Private Law \ Obliga- tions 1. Contracts 2. Torts ( General Part. \ Special Part. ( General Part. ( Special Part. 3. Miscellaneous Obligations. 4. Insolvency. 5. Companies. Status ' Domestic Status Extra -domestic Status ! Marriage. Parentage. Guardian- ship. Infants. Married women. Lunatics. Aliens. Convicts, &c. Procedure 1 Substantive Criminal I v^ Law ' Procedure. I Practice. ( Evidence. I General Part, t Special Part. III. Public Law / Constitutional Law. I Administrative Law. Digitized by Microsoft® ( 488 ) APPENDIX V. THE TEREITOEY OP THE STATE. In Chapter V. § 38, the legal conception of state-territory has been very briefly considered. Territory was there defined as being that portion of the earth's surface which is in the exclusive possesaiotti. and control of the state. Though this definition is perhaps sufficient for the limited purposes of that chapter, the complexities of modem constitutional arrangements and international relations are such as to render necessary for any complete analysis a much more detailed; consideration than that which would have been there appropriate. The purpose of this Appendix is therefore to supplement the brief and general statement contained in Chapter V. by considering the Con- ception of state-territory with special reference to the constitutional structure of the British Empire. The British Empire, if we use that term in its widest permissiible sense, consists of two parts which are essentia,lly different from each other in their constitutional and international signifioanoe. The first part consists of the British Dominions, and the second of the British Protectorates. The British Dominions are themselves divisible into two parts. The first consists of the British realm, that is to say, the United Kingdoan' of Great Britaia and Ireland. The second consists of the British Possessions, that is to say, all the British dominions beyond the seas.^ These possessions are part of the King's dominions, but they are not part of his kingdom or realm. They are dependencies of the realmi, being subordinated to the sovereign authority of the Parliament of Great Britain and Ireland. They resemble the realm inasmuch as they are dominions of the Crown, no less than the realm itself; but on the other hand they resemble the protectorates and are distinct from the realm, inasmuch as they are merely subordinate dependencies and not co-ordinate with the realm in the possession of Imperial sovereignty. The estaBlished classification of the British possessions beyond the ' Interpretation Act, 1889, g. 18. Digitized by Microsoft® APPENDIX V. 489 ■seas is largely a matter of historical development rather than of law. 'They are classified as follows: — 1. The British Islands other than Great Britain and Ireland — that is to say, the Channel Islands and the Isle of Man. These axe not jpart of the realm, but are dependencies of the realm. Legally they are in the same position as colonies, but for historical reasons they are not classified as such. 2. British India, that is to say, that part of India which is a British ■dominion, as opposed to those numerous portions which are still recog- nised as the territory of protected Indian princes and are therefore in law British protectorates. 3. British Colonies, that is to say, all British dominions beyond the seas which possess sepairate local government, other than the British Jslands ajid British India. ^ 4. British Settlements, tha,t is to say, those petty British possessions •which though ajinexed by ,the Crown as part of the Empire have not yet acquired the status of a colony by the establishment of any separate system of local government, and for the government of which by the Orown itself statutory provision has been made by the British Settle- anents Act, 1887. The remainder of the British Empire, after deducting the British ■dominions, consists of the British protectorates. Exaanples are Egypt, Zanzibar, Rhodesia, Bechuanaland, Nigeria, Uganda, Borneo, Tonga, and the numerous Protected Native States of India. The common element which enables the dominions and the protec- torates to be classed together as constituting the British Empire consists in the exercise of external sovereignty by the British Crown. Sovereignty, in this connection, means the authority, power or juris- diction of a state in respect of any territory. External sovereignty jneans exclusive sovereignty ais against all other states external to that territory. It means the exclusion of all such other states from any exercise by them of any I'ight, title or authority over the territory in 'question. It is sovereignty quoad exteros. Internal sovereignty, on the other hand, is power, jurisdiction and authority- claimed and exercised within the territory in respect of the government of thje inhabitants thereof. These two kinds of sovereignty may or Inay not "be combined and exercised concurrently by the same state in respect ■of the same territory. In the case of all British dominions they are po ■combined and exercised. In the case of all such dominions the Orown claims not merely external sovereignty, in, respect of the ©xclusioni of all alien interference on the part of other states, but also internal; sovereignty in lespect of the exercise within the territory of Tinre,- «tricted governing authority. In the case of a protectorate, however, > Interpretation Act, 18.S9, s. 18. Digitized by Microsoft® 490 APPENDIX V. this concurrence of the two kinds of sovereignty does not necessarily exist. Although external sovereignty is essential, internal sove- reignty may or may pot exist; and if it does exist, it may or may not exclude the concurrent exercise of a measure of internal sovereignty by a local government which is still suffered to exist and to exercise- its internal functions. With reference, therefore, to internal sovereignty protectorates are of three kinds: — 1 . The first consists of those protectorates over which 1»he Crown exer- cises external sovereignty only . The internal sovereignty is left wholly to some local government to which the territory is recognised as still belonging, notwithstanding the fact that as against all other states the territory is regarded .as exclusively within British jurisdiction. This is understood, for example, to be the case with the Protected Native States of India. Jlxternally these states are included within, the outer boundaries of the British Empire. They possess no inter- national relation to other states. The internal government of these states, however, is solely in the hands of their own native princes. Whatever authority is exercised over them by the Crown is exercised by way of international relationship and diplomacy only, and not by wajy of constitutional law. 2. The second class of protectorates consists of those in which the Crown exercises not merely exclusive external sovereignty, but also some measure of internal sovereignty, concurrently, however, with some other local state ,to which the territory belongs. This is so, for example, with the protectorates of Egypt and Zanzibar. The internal government of such protectorates is divided between the British Crown and a local ruler who bears an international relation to the Crown and is not merely, like the governor of a colony, an agency of local govern- ment to whom the constitutional law of the Empire has delegated a. portion of the Crown's authority. Some portions of the internal government are exclusively British, while the remaining portions are committed to the local authority, and the boundary-line between the two jurisdictions is drawn as the Crown, in the case of each protec- torate, thinks fit. The authority of the Crown so to exercise internal sovereignty in British protectorates is recognised and regulated by an Act of Parliament known as the Foreign Jurisdiction Act, 1890. Under this Act Orders in Council are issued determining in respect, of each protectorate the organisation, extent and exercise of royal governing authority within that protectorate. 3. The third class of protectorate is that in which the Crown exer- cises not merely external sovereignty, but also exclusive internal sovereignty. The entire government of the protectorate is in British hands. Any system of local government which exists is not, as in. Digitized by Microsoft® APPENDIX V. 491 the second class of protectorates, that of a state recognised as possessing an international relation to the Crown, but is that of a constitutional instrument or agency of the royal authority. Bechuana- land, Rhodesia, Nigeria and certain other African protectorates are examples of this class. The royal authority in such protectorates is exercised by Orders in Council under the Foreign Jurisdiction Act, 1890, in the same manner as in protectorates of the second class. ^ Protectorates of the first and second kind are commonly distinguished as Protected States, in respect of the existence therein of a semi- independent government of international status. Protectorates of the third class, within which there is no such government, are conveniently distinguished as Colonial Protectorates, in respect of the close resem- blance which exists between them and a British colonial possession. I have already said that the essential element common both toi British dominions and to British protectorates is the exercise by the British Crown of an exclusive claim of external sovereignty. Both the King's dominions and his protectorates are held by him in hie- exclusive possession and authority adversus exfmneos. It now remains to inq^uire what is the essential difference between these two portions of the Empire. It is clear from the foregoing observations that thif> distinction cannot be found in the presence or absence of British internal sovereignty. For we have seen that in one class of protec- torate such sovereignty is not exercised, while it is exercised in the other two classes. Neither can the distinction be found in the presence or absence of a semi-independent government recognised as possessing an international as opposed to a constitutional I'elation with the Crown. For we have seen that in the case of a colonial protectorate no such government exists. What, tlien, is the true distinction ? It lies essentially in this, that the constitutional law of the Empire recognises British dominions as British territory, and refuses such recognition to British protectorates. We may put the same distinction in another manner. Internal sovereignty — that is to say, the exercise by a state of its governing- authority or jurisdiction within a territory — is of two kinds, distin- guishable as territorial and extra-territorial. Territorial sovereignty is that which is possessed and exercised by a state within its owii territor'y. Extra-territorial sovereignty is that which is possessed and exercised by a state in territory which is not its own, but is either the territory of some other state or is not that of any state at all. Extra- territorial sovereignty is known in the language of English constitu- tional law as foreign jurisdiction, and is the subject-matter, as already indicated, of the Foreign Jurisdiction Act, 1890. It is jurisdiction ' Examples of Order.s in Council under thi.9 Act may be .seen in Volume V. of the Statutory Rules and Orders Revised (1904). Digitized by Microsoft® 492 APPENDIX V. "within territory which, is foi*eign to tlie Orown, because it does ii(Ot belong to the Orown. It may or may not be the territory of some other state. Within British dominions the jurisdiction, or sovereignty of the Grown is territorial; within British protectorates it is extra-territorial or foreign. The three classes of protectorates may therefore be distinguished as follows: — 1. Protected States, in respect of which the Orown exercises (External sovereignty only, without foreign jurisdiction, the sole internal governing authority being the territorial jurisdiction of the protected state itself. 2. Protected States in respect of which the Crown exercises not only external sovereignty, but also a certain measure of foreign juris- diction, the internal government of the territory being divided 'between the extra-territorial sovereignty of the Orown and the territorial sovereignty of the protected state itself. 3. Colonial Protectorates, in respect of which the Orown exercises not only external sovereignty, but also foreign jurisdiction, and in which there is no local government exercising any concurrent authority by way of territorial sovereignty. A British protectorate may therefore be defined as a territory over which the Crown exercises external sovereignty, and in which any internal sovereignty which may be exercised by the Orown is exercised by way of foreign jurisdiction merely, and not, as in the case of British dominions, by way of territorial sovereignty. It must be noted, however, that foreign jurisdiction is not limited to protectorates. It may be exercised within territories which are not within the external sovereignty of the Orown, and are thei-efore not included within the British Empire at all. By treaty or otherwise the Orown, in common with other European Governments, has acquired a certain measure of internal governing authority within the territories of certain states in which, by reason of their imperfect civilization and development, such jurisdiction is required for the protection of British interests, but in respect of which no external sovereignty is claimed as in the case of protectorates. In China, for example, the Orown, exercises in this manner legislative and judicial authority over resident British subjects. This legislation assumes the form of Orders in Council, ajid the laws so made are judicially administered by British courts sitting within Chinese territory surd there exercising extra- territorial or foreign jurisdiction. This, indeed, is the earliest form of foreign jurisdiction, and it was jprimarily with reference thereto that the Foreign Jurisdiction Acti, 1890, and the earlier Acts for the same purpose were enacted. There Digitized by Microsoft® APPENDIX V. lys. is no legal difference between the internal jurisdiction which the Orowa exercises in China and that which it exercises within the Colonial Protectorate of Beohuanaland or within the protected States of Egypt or Zanzibar. In all these cases equally, the legal basis of the Crowns authority is to be found in the Foreign Jurisdiction Act, and it ia exercised by means of Orders in Council issued under that Act. The foregoing distinctions are indicated in the following tables: — ■ The realm of the United Kingdom. Over British dominions j tj •,• , ( British possessions External / sovereignty 'Without foreign juris- diction With foreign jurisdic- tion concurrent with local territorial Over British _ protectorates -v sovereignty Protected States. With foreign jurisdic- tion exclusive of I Colonial local territorial I protectorates. . sovereignty Internal sovereignty Territorial j jurisdiction j In British dominions. In British protectorates Foreign jurisdiction Concurrent with local territorial ( sovereignty Exclusive of local territorial sovereignty Protected" States. Colonial protec- torates. In independent States: e.y., China. The statement that a British protectorate is not British territory creates no difficulty in the case of protected states as opposed to colonial protectorates. In such states the territory is that of the protected government which exercises internal, territorial sovereignty there, ajid not that of the Crown, which exercises m:erely external sovereignty and some measure of foreign jurisdiction. The right of the Crown over such territory is in the nature not of dominium, but ocE jus in re aliena. What is the meaning, however, of the statement that Digitized by Microsoft® 494 APPENDIX V. a British colonial protectorate is not British territory ? There is no other state to which the territory can be regarded as belonging. The ■whole governing authority of such a protectorate, whether external or internal, is in the hands of the Crown. In respect of the nature and extent of such governing authority, there is no practical or de facto difference between a colonial protectorate and a British colony. If, therefore, the territory of a state is correctly and sufficiently defined as territory over which the state exercises exclusive sovereignty and jurisdiction, the Protectorate of Nigeria is as much British territory as is the Crown Colony of Hongkong. The only solution of this difficulty lies in the recognition in the case of territory, as in the case of so many other legal conceptions, of the distinction between that which exists in fact and that which exista in law. All British territory in fact is not British territory in law. British territory de facto is that in which the Crown does in fact exercise exclusive governing authority. British territory de jure is that which is recognised by the ipse dixit of the law as being British territory. If the law grants no such recognition, the jurisdiction exercised by the Crown is in law foreign or extra-territorial juris- 'diction only, and not territorial sovereignty, even though in fact it differs in no respect from that which is exercised over a British possession. By the law of England the status of British territory is not acquired merely by the de facto exercise of sovereignty jand jurisdiction, however complete or exclusive. The essential legal pre- requisite is the voluntary act of the Crown known as annexation. Before ajiy territory becomes in law British territory, the Crown must in the exercise of the royal prerogative, whether formally or by necessary implication, elect to annex or incorporate that territory as one of the Crown's possessions and as the subject of its territorial sovereignty, and not merely elect to exercise in respect of it that foreign or extra-territorial jurisdiction which is in legal theory distinct from territorial sovereignty, though in fact it is often indistinguish- able from it. The only reason, therefore, why a colonial protectorate is not British territory .a,nd a British possession is the ipse dixit of the Crown and of the law. Stet pro ratione voluntas. Moved by practical considerations, partly of a legal and partly of a political or international nature, the Crown, while willing in effect to exercise over foreign territory such external sovereignty and internal jurisdic- tion as amount in fact to complete and exclusive governing authority, nevertheless refuses to annex it as a British possession and therefore to confer upon it the sta,tus of British territory. The legal differences between a protectorate which is British territory in fsLct but not in law and a British possession which is British territory both in fact and in law are numerous and important. It is sufficient here, by way of illustration, to say that British nationality Digitized by Microsoft® APPENDIX V. 495 is acquired by birth in British territory, and therefore that it is not acquired (speaking generally) by birth in a. British protectorate. Similarly the annexation of foreign territory as British confers British nationality upon the resident subjects of the state from ■which the territory was acquired, whereas the establishment of a British pro- tectorate has no effect in conferring British citizenship on its inhabi- ■fants. Similarly it is commonly held that the acquisition of a neW' British possession, otherwise than by conquest from a civilised state, has the effect of introducing into that possession the English common law; whereas n6 such result follows from the establishment of a protectorate. It may be pointed out in conclusion that the legal conception of state-territory is distinct from that of state-ownership. Nevertheless the two conceptions a,re analogous, not a few legal principles and a :good deal of legal nomenclature being common to both. When we say that certain lands belong to or have been acquired by the Crown', we may mean either that they are the territory of the Crown or that they are the property of the Crown. The first conception pertainsi to the domain of public law, the second to that of private law. 'Territory is the subject-matter of the right of sovereignty or imperium, while property is the subject-matter of the right of ownership or dominium. These two rights may or may not co-exist in the Crown in respect of the same area. Land may be held by the Crown as territory but not as property;, or as property but not as territory, or in both rights at the same time. As property, though not as territory, land may be held by one state within the dominions of another. This ■ distinction between territorial sovereignty and ownership is to some extent obscured by the feudal characteristics of the British constitu- tion. In accordance with the principles of feudal law all England was originally not merely the territory but also the property of the ■Crown ; and even when granted to subjects, those grantees are in legal theory merely tenants in perpetuity of the Crown, the legal ownership •of the land remaining vested in the Crown. So, in accordance with this principle, when a new colonial possession is acquired by the Crown and is governed by English law, the title so acquired is not merely territorial, but also proprietary. When New Zealand became a British possession, it became not merely the Crown's territory, but also the Crown's property, iTnperiiem and dominium being acquired and held concurrently. The old chartered companies of the American colonies held the lands granted to them by the Crown by the same double title, as territory and as property. Those rights, however, were severable. 'The companies might alienate their lands and retain their territories, or might surrender their territories and jura regalia to the Crown, while retaining their lands and proprietary interests. In a British ■protectorate the land, as we have seen, is not the territory of the Digitized by Microsoft® 496 APPENDIX V. Grown, but it or anj' part of it may none the less be Grown land. If the oommon law of England is introduced into a colonial protectorate, all the land in that protectorate may in accordance with feudal principles vest in the Grown, but the protectorate will not for that reason become British territory or -be transformed into one of the- dominions of the Grown. i ' As to the Crown's ownership of land in a protectorate, see /» re Southern. Jtliodesiii. (1919) A. C. 211. Digitized by Microsoft® ( 497 ) INDEX Abeath v. Xorth-Eastern Ev. Co., 290. Accessory rights, distinguished from principal, 216; examples of, 216; rights both accessory and dominant, 217. Accident, distinguished from mis- take, 371; culpable and inevit- able, 372; defence of, 372; absolute liability for, 372. Actio furti, 86, n. Actio in rem and in personam, 207. Actio personalis moritur cum per- sona, 376, 377. Acts, their generic nature, 323 ; posi- tive and negative, 323; internal and external, 323; intentional and unLntentdonal, 324; their circumstances and consequences, 325; place of, 330; time of, 330. Acts in the law, 301 — 304; unilateral and bilateral, 302; two classes of unilateral, 303. See Agree- ments. Acts of the law, 302'. Acts of Parliament, public and private, 30; said formerly to be void if unreasonable, 146. See Legislation, Statute-law. Actus non facit reum, &c., 322, 475. See Mens rea. Administration of justice, necessity of, 11, 65 — 67; logically prior to the law, 12; possible without law, 13 ; origin of, 67 — 70 ; civil and criminal, 70 — 75; specific and sanctional enforcement of rights, 85; penal and remedial proceedings, 88 ; secondary functions of courts of law, 89 — 91 ; an essential function of the state, 93 ; compared with war or the extrajudicial use of force, 94 — 98; element of force usually latent in, 97; not the substitu- tion of arbitration for force, 97. S.J. Aequitas sequitur legem, 34. Agere non valenti non currit prae- soriptio, 411, n. Agreements, a source of law, 31, 54, 123; constitutive and abrogative power of, 123, 307; nature of, 303; different uses of the term, 303; unilateral and bilateral, 304, n.; importance of, .%s a vestitive fact, 305; grounds of operation of, 305 ; compared with legislation, 306; classes of, 308—309; void and voidable, 309; unenforceable, 310, «.; formal and informal, 310; il- legal, 311; effect of error on, 312 ; effect of coercion on, 313 ; want of consideration for, 313 — 317; a title to property, 412 — 416. Ahrens, his Cours de Droit Naturel, 2; on proprietary rights, 208, «. ; his definition of property, 387. Alfred, laws of King, on private^ war, 69, «.; on accidental homi- cide, 373. Alienative facts, 300. Aliens, members of the state if resi- dent in its territory, 100; disabilities of, 101. Allegiance, nature of, 105; perma- nent and temporary, 105. See Citizenship. Allen V. Flood, 192, 342, 343. Analogy, a source of judicial prin- ciples, 175. Ancona v. Rogers, 253. Animals, possess no legal personality, 273; have no legal rights, 274; effect of trusts for, 274; punish- ment of, in early law, 273, 373 ; liability of owner of, 273, 372. Animus possidendi, essential to pos- session, 242; its nature, 242; need not be rightful, 242 ; must bo exclusive, 242 ; need not be a 32 Digitized by Microsoft® 498 INDEX. claim of ownership, 243; need not be on one's own behalf, 243 ; need not be specific, 243. Anson, Sir W., his definition of con- tract, 303, n. Apices juris, 476 . Appeals of felony, abolition of, 69, «. Aquinas, his distinction between jus naturale and jus positdvum, 3, n. ; on equity, 36 ; on the lex aeterna, 42; on agreement as a title of right, 306. Arbitration, international, dependent on the development of intei*- national law, 22. Aristotle, on being- wiser than the laws, 22, 478; on the arbitrium judicis, 26; on law and equity, 36; on the law of nature, 45. Armory «. Delamirie, 249, 270, 408. Arndts, on Juridical Encyklopaedia, 7; on customaiy law, 155. Asher v. Whitlock, 270, 408. Ashford v. Thornton, 69. Assignment. 8ee Transfer. Assumpsit, 435. Attempts, criminal, their nature, 344; dirtinguished from pre- paration, 344; by impossible means, 347. Att.-Gen. v. Dean of Windsor, 165. Att.-Gen. v. Dimond, 394. Attornment, 258. Austin, on general jurisprudence, 6; his definition of law, 47 ; his use of the term legislation, 127; his theory of customary law, 156; on illimitable sovereignty, 470. Autonomous law, the product of autonomous legislation, 129 ; its relation to conventional law, 130. Azo, on equity. 37. Backhouse r. Bonomi, 332. Bacon, Sir F., on being wiser than the laws, 22, «.; on the arbi- trium judicis, 26. Barnet i\ Brandao, 29. Battle, trial by, its origin, 69; its duration in Bnglislh law, 69, ».; a mode of authenticating testi- mony, 450. Baudrv-Ijacantine"ie, on proprietary rights. 208, //.; on ownership. 224, /(.; oil corporeal and incorporeal possession, 264, re. ; on movable and immovable property, 392, n. Beamisli v. Beamish, 1C5. Beardman v. Wilson, 399. Beati possidentes, 265. Beohuanaland Exploration Co. u. London Trading Bank, 150. Beneficial ownership. See Trust. Bentham, his objections to case-law, 133, «.; on natural rights, 182; his us« of the term property, 387 ; on compulsory examina- tion of accused persons, 450, n. ; on the limitationis of sovereign power, 470. Bill of Rights, 109. Bills of Exchange, formerly gov- erned by law merchant, 29. Black i>. Cliristchurch Finance Co., 372. Blackstone, his definition of law, 40 ; on civil and criminal wrongs, 72; on written and unwritten law, 128; on the supremacy of the Imperial Parliament, 128; on customary law, 144; his use of the term property, 385 ; on implied contracts, 433. Blyth r. Birming-ham Water Works, 358. Bodin. his theory of sovereignty, 467. Bona vacantia, 418. Bracton, on equity, 37.' Bridges c. Hawkesworth, 248, 249, 270. Bromage v. Prosser, 342. Brown r. Burdett, 419. Brown, W. Jethro, on customary law, 156, /».; on sovereignty, 474, «. Bruns, his theory of possession, 263, «., 264, n. Br5'ant v. Foot, 150. Bryce, on the sources of law, 49, /;.; on sovereignty, 474. Burlamaqui, on natural law, 8. By-laws, a form of special law, 30; void if unreasonable, 146. Cain- r. Moon, 257. Calvin's case, 278, 296. Canon law, a form of positive law, 3, n. ; on immemorial custom and prescription, ISO — 152; on the distinction between jus com- mune and consuetudines, 151. Cartwright v. Green, 248. Castro V. R., 163. Cessante ratione legis, &c., 476. Digitized by Microsoft® INDEX. 499 Chancery, precedents in, 126. Scv Equity. Charge, a form of lien, eontrastied with mortgage, 106. Chattel, meanings of the term, 39i5. Chisholm v. Doulton, 367, 374. Choae in action, a kind of incorporeal thing, 226; nature of, 423; history of the term, 423. Christian Thomasius, on law of nature, 46. Cicero, on subjection to the law as the means of freedom, 21; on jus and aequitas, 36, 39, n.; on the law of nature, 45. Citizens' Life Assurance -u. Brown, 290. Citizenship, one form of state membership, 99 ; distinction between citizens and subjects, 100, n. ; distinction between citi- zens and aliens, 100; pi-ivileges and liabilities of citizens, 101 ; diminishing importance of, 101 ; modes of acquiring, 100, 103, It.; relation between citi- zenship and nationality, 103. Civil law, the subject-matter of civil jurisprndence, 1; the term partly superseded by positive law, 3 ; different meanings of the term, 3, ii., 484. See Law. Civil wrongs. See Wrongs, Liability. Clark, I, I re, 394. Cochrane i. Moore, 413. Codification, 135. Cogitationis poenam nemo patitur, 346, 476. •Coke, on customary law, 132, «.; on the distinction between custom and prescription, 157; on the personality of unborn children, 277; on corporations aggregate and sole, 281 ; on the ownership of the space above the surface of land, 391. Colonial Bank o. 'WTiinney, 286, 424. Commissioners of Stamps v. Hope, .394. Common law, 32 ; opposed to special law, 33: different uses of the term, 33, 57; opposed to equity, 34 — 38; history of the term, 33. So.e .Tus commune. Communis error facit jus, 166, 168, 476. Compensation, one of the objects of civil justice, 85, 86. See Penal redress. Composite states, 113. Composeessio, 2o6. Conditions precedent and Qubse- quent, 234. See Contingent ownership. Conservatism of tlie law, 24. Consideration, required in simple contracts, 313; its nature, 313; valuable, 314; not valuable, 315; rational grounds of tlie doctrine, 316; compared with the causa of Roman and French law, 316. Consolidated Co. v. Curtis, 370. Constitution of the state, 106 — 110; nature of, 106 ; rigid and flexible constitutions, 107; law and practice of, 107 ; extra-legal origin of, 108; possibility of legally unchangeable, 473. Constitutional law, nature of, 106; its relation to constitutional fact, 107—110. Constitutmn possessorium, 258. Constructive delivery, 257. Constructive intention, 361. Constractive possession, 237. Contingent ownership, 232; distin- guished from vested, 232; dis- tinguished from contingent existence of the right owned, 233; distinguished from spes acquisitionis, 233; distinguished from determinable ownersliip, 234. Contracts. See Agreements. Conventional law, created by agree- ment, 31, 54, 119, 123; reasons for allowance of, 120, 121. Co-ownership, 226. Coppin V. Ooppin, 278. Copyright, its subject-matter, 189; nature and kinds of, 396. Cornford v. Carlton Bank, 288, 290. Corporation of Bradford v. Pickles, 343. Corporations, nature of, 281, ^. ; ag-gregate and sole, 282; ficti- tious nature of, 282; may survive their members, 283, 293; realistic theory of, 284; act through agents, 285; exist on behalf of beneficiaries, 285 ; membership of, 286; may be members of other corporations, 287 ; authority of agents of, 287 ; liability of, 287—289 ; pur- poses of incorporation, 290 — 293; creation and extinction of, 293; foreign, recognised by English law,, 294, ».; the state 32 (2) Digitized by Microsoft® 500 INDEX. not a corporation aggr^ate, 294 — 298; the king a corpora- tion sole, 295 . Corporeal possession, 239. Corporeal property, 221, 223, 386, 396, n. Corporeal things, 225, 396, ii. Corpus possessionis, essential to possession, 241; its nature, 244—251. Correality. See Solidary obligations. Coughlin V. Gillison, 356. Court of Appeal, absolutely bound by its own decisions, 165. Cowan V. O'Connor, 331. Crimes. See Wrongs, Liability. Crouch V. Credit Foneier, 150. Crown of England, claims against, heard in courts of law, 90; not a legal pei-son, 296; the supreme executive, 468. Cujus est solum, ejus est usque ad coelum, 390, 476. Culpa, lata, and levis, 359. Cundy v. Lindsay, 312. Custody distinguished from posses- sion, 237. Custom, local, a source of special law, 29; mercantile, a source of special law, 29; grounds of the operation of, 119—121, 144— 146 ; its relation to prescription, 123, 157; all unenacted law deemed customary in earlier English theory, 128, 144 ;_ im- portance of, gradually diminish- ing, 143; its continued recog- nition, 144; historical relation between law and custom, 144 — 145; general and particular customs, 148; invalid if un- reasonable, 146: invalid if contrary to statute law. 147; unless general must be imme- morial, "l 48 (see Time immemo- rial); mercantile need not be immemorial, 148, 150, u.; unless immemorial, must conform to the common law, 152 ; reasons for gradual disappearance of, as a source of law, 153; conven- tional customs, 153 ; theories of the operation of custom, 154 — 157 ; has no legal validity apart from the will of the state, 155 ; a material not a formal source of law, 156 ; Austin's theory of, 156 ; the relation of custom to prescription, 157 ; local and personal customs, 157. Customarj' law, 55. See Custom. Damages, measure of, 383. Damnum sine injuria, 329. Danubian Sugar Factories v. Com- missioners of Inland Revenue, 394. Darley Main Colliery Co. v. Mitchell, 332. DeFalbe, In re, 392. De minimis non curat lex, 25, 476. De mortuis nil nisi bonum, 276. Dead bodies, not subjects of owner- ship, 275; indignities offered to, a criminal oifence, 276. Dean, lu re, 274, 276. Decisions, judicial. See Precedents. Delivery of possession, actual and constructive, 257 ; traditio brevi manu, 257; con.stitutum posses- sorium, 257; attornment, 258; a mode of transferring owner- ship, 406. Deodands, 373. Dependent states, ,111 — 113. Dernburg, on proprietary rights, 208, H.; on possession, 245, n. Derry v. Peek, 356. Detention, distinguished from pos- session, 237. Determinable ownership, distin- guished from contingent, 234. Dicta, judicial, their nature and authority, 163, 174. Dike, dikaion, meanings and deriva- tion of the terms, 462. Diligence, archaic use of the term to mean care, 349, n. Diogenes Laertius, anecdote of Solon, 81, /(. Disability, defined, and distinguished from liability and duty, 194. Divestitive facts, their nature and kinds, 300, 301. Dolus, meaning of the term. 342; its relation to culpa lata. 359. Dominant rights. Sec Encum- brances. Dominions, British, 488; divisible into two parts, 488i. Dominium, its significance in Roman law, 207. Doom, early legal uses of the term, 465. Doorman v. Jenkins, 359. Droit, distinguislied from loi, 10; ethical and juridical significa- tions of, 52 ; different uses of term, 465; derivation of term, 459. Digitized by Microsoft® INDEX. 501 Droit de suite, 416, /». Duress, 313. Dut. Pope, 338. French law, on time of memory, 152; precedents in, 159, ».; on possession, 264, n. ; on requirement of cause in a contract, 316; possession vaut titre, 415; jurisprudence, 8. Gaius, on natural law, 46. Gautret v. Egerton, 366. George and Eichard, The, 277. German law, as to immemorial pre- scription, 152; as to precedents, 159, n.; as to mediate posses- sion, 252, 52.; as to maliciousi exercise of rights, 344, «.; as to criminal attempts, 345; as to the jus necessitatis, 350, «. Gierke, on the nature of corpora- tionSj 285, n. GlanvUle, on equity, 37, «. Gx)od-will, a form of immaterial property, 397. Goodwin ■u. liobarte, 150, 153. Gorgier v. Mieville, 150. Grant, distinguished fi'om assign- ment, 308. Grant v. Baston, 432, 433. Great Eastern By. Co. r. Tiu-ner, 282. Green -v. London General Omnibus Co., 290. Greenwell i-. Low Beechburn Col- liery, 332. Grill V. General Iron Screw Collier Co., 350, 359. Haig v. West, 254. Hale, on customary law, 143; on precedents, 161 ; on subjects and aliens, 100, n. Hall V. Duke of Norfolk. 332. .Hallett, In re, 162, 173. Heineccius, on natui-al law, 8. Hereditaa jacens, 186, 27.T. HiU, Ex parte. 341. Hinton v. Dibbin, 359. Hoare v. Osborne. 276. Hobbes, his definition of law, 48; men and arms make the force of the laws, 49; on the law lof nature and nations, 59; bellum omnium contra omnes, 65; on the swords of war and justice, 94; on the jus necessitatis, 349; his use of the term property, 386; his definition of an oath,. 451; his theory of sovereignty, 467; as. to limitations of sove- reignty, 469. Holmes, on the sources of judicial principles, 176; his definition of an act, 320; his definition of intention, 335, n. Hooker, on laws as the voices of right reason, 19; his definition of law, 40, 43 : on the law of nature, 43, 46 ; on the im- partiality of the law, 22. House of Lords, absolutely Ixiund by its own decisions, 164; formerly a supreme judicature, 469. Hurst V. Picture Theatres, Ld., 193. HjTpotheca, 405. Ignokaxti.v juris neminem excusat, 368, 477. Ihering, on the imperative theory of law, 54; his definition of a right, 182; on possession, 247, )'., 264, 264, n., 266, )(.: on Savigny's theory of possession, 2.59, n. Illegality, a ground of invalidity of agreements, 311. Immaterial property, 189, 39.3 — 397. Immovables, their nature, 390 — 392; rights classed as, 392, 393. Immunities, distinguished. from rights, liberties, and powers. 194, n. Imperati\e theory of law, 47 — 54; liistorical ai'g'ument against, 49 ; answer to this argument, 49 — 61 ; defects of imperative theory, 61 — 54; no recogniHon of idea of justice, 51 ; no recc^ nition of non-impeiative rules, 52. Imperfect rights, 184, 197—199; their nature, 197: imperfect nature of rights against the state. 199 — 201 : may'serve as a defence. 199: sufiBcient to sup- port se-'>riiii:i,. 267. Phillips r. Homfray. 434. Philo .Tudoeus. on law of nature. 4f. Digitized by Microsoft® INDEX. 507 Physical law, -tl. Pickard u. SmitJi, 372. Plat-o, on tli« offences of animals, 373; on vicarious liability, 374. Pledge o. CaiT, 165. Plures eandeni rem possidere ■ non posaunt, 256. Pollock, Sir F., on the sources of law, 49, H.; his definition of ownership, 224, n. ; on acts in the law, 302, m.; his use of the terms contract and agreement, 303, n. Pollock and Wrisfht, on possession, 245, 246. Positive law, origin of the term, 3, ii.\ improperly used to signify civil law exclusively, 3, n. Possession, distinguished from owner- .ship, 224, 264—267 ; difficulty of the conception, 236; conse- quences of, 236; possession in fact and in law, 237 ; construc- tive, 237 ; possession and deten- tion, 237; possession and seisin, 238; corporeal and incorporeal, 239 : a matter of fact, not of right, 240; corporeal possession defined, 241 ; its two elements, animus and corpus, 241 ; animus possidendi {q.v.), 242; corpus possessionis, 244 — 251 ; possession of land not neces- sarily that of chattels thereon, 247 ; mediate and immediate possession, 252 — 256 ; concur- rent possession, 256; acquisition of possession, 256 — 258 ; Sa- vigny's theory of, 259 — 261 ; in- corporeal, 261 — 264 ; generic nature of possession, 264; pos- session and ownership, 264 — 267 ; possessor^' remedies, 267 — 270 ; possessory titles, 407 ; pos- session a title of ownership, 407 ; delivery of, required tor transJ- fer of property, 413; modes of delivery, 257, 258; constructive delivery, 257. Possessions, British, 488; classifica- tion of, 488. Poesesaorium, opposed to petitorium. 267. Possessory ownership, 407. Possessory remedies, nature of, 267; origin of, 267 ; reasons for, 268 ; rejection of, by English law, 26'9. Pothier, his definition of a contract, 303, n. Power, political, 110; legislative, judicial, and executive, 110; sovereign and subordinate. 111. See Sovereignty. Powers, classed as rig-hts in wide sense, 192; disting-uished from rights in strict sense, 192 ; dis- tinguished from liberties, 193. Practical law, 56. Precedents, reasons for their opera- tion as a source of law, 120, 170; possess no abrogative power, 123, 168; their relation to codified law, 136 ; not originally re- garded as a source of law, 143; their importance in English law, 159; declaratorj' and original, 160 ; declaratory theory of, 161 ; their operation in Chancery, 162; authoritative and persua- sive, 163; classes of persuasive precedents, 163 ; absolute and conditional authority of pre- cedciits, 164; disregard of, when justified, 165; effect of , , lapse of time on, 167 ; distinc- tion betjveen overruling and refusing to follow, 169 ; retro- spective operation of the over- ruling of, 166, 169; transform' questions of fact into questions of law, 171; rationes decidendi, 173; the sources of judicial principles, 174; respective func- tions of judges and juries with reference to, 176. Prescription, its relation to imme- morial custom, 123, 167; periods of, in Homan laM^, 151 ; in Canon law, 151 ; in Englisli law, 152; in Conti- nental law, 152; opei-ation of, in case of mediate possession, 254, 255; origin of term, 408, /(.; nature of, 408: positive 'i and negative. 408; rational basia ' of, 410; what righte subject to, \ 411; perfect and imperfect, 412. Presumptio juris, 445, n. Presumptions, conclusive, 444; re- buttable, 446. Primar)' rights, opposed to sanction- ing, 84. Principal rights, distinguished from accessory, 216. Principle, conti-asted with authority, 173. Private war, its gradanl exclusion by public justice, 69, 70. Digitized by Microsoft® ■508 INDEX, Privy Council, decisions of, noti authoritative in England, 163. Probative force, 440. See Evidence. Procedure, distinguished from sub- stantive law, 437; occasional equivalence of procedural and substantive rules, 439. Proceedings, civil and criminal, 70 — 7.5; specific and sanetional en- forcement of rights, 84 ; forms of sanetional enforcement, 85 — 87; a table of legal proceedings, 87; penal and remedial, 88; secon- dary functions of courts of law, 89 — 91; petitions of right, 90; declarations of rig-ht, 90; judi- cial administration of property, 91; secondary functions in- cluded in civil justice, 91. Professional opinion, as a source of law, 119, 120. Proof, nature of, 441 ; conclusive and presumptive, 44.5 — 447 ; modes of, iu early law, 450. Property, material, 387 — 390; im- material, 395 — 397; corporeal and incorporeal, 221—224, 386; >. different meanings of the term, 38-5—387, 485 ; movable and im- movable, 390—393; real and personal, 394. Proprietary rights, distinguished from perronal, 207 — 212; con- stitute a person's property or estate, 208 ; may be either real or personal, 208 ; subject-matter of the law of things, 211 ; not necessarily transferable, 210. Protectorates, British, 489; classi- fication of, 490, 492. Puchta, his theory of customary law, 154. Pufendorf, his treatise on Natural Law, 2; his relation to modern English jurisprudence, 8 ; his definition of law, 47. Pugh V. Golden Valley Ry. Co., 167. Punishment, purposes of, 75 — 84j detei-rent, 75 ; preventive, 75 ; reformative, 76 — 80; reti-ibutive, 80 — 84; expiative, 83; measure of, 377—382. QuA^I-C0NTB^CTs, 432 — 435; their nature, 432; instances of, 433„ 434; reasons for recognition of, 434. Quasi-possessio, 239. Questions of fact, distinguished from questions of law, 15 — 18; exam- ples of, 15; mixed questions of law and fact, 16; answered by jury, 17; but sometimes by the judge, 17, 177; transfoiination of, into questions of law by judicial decision, 17, »»., 171 — 173; sometimes treated ficti- tiously as questions of law, 178. Questions of law, distinguished from questions of fact, 15 — 18; ex- amples of, 15; wrongly re- garded as including all questions answered by judges instead of juries, 17, n. Qui prior est tempore potior est jure, 218, 269, 480. Quod fieri nou debet factum valet;, 109, 480. R. V. Aeiisteong, 331. E. ('. Birmingham and Gloucester Ry. Co., 288. R. V. "Brown, 347. R. ,.. Collins, 347. R. V. Coombes, 330. R. ('. Dudley, 350. R. ,'. Edwards. 167. R. V. Ellis, 33i. R. V. Great North of England Ey. Co., 288. R. V. Harvey, 338. R. c. .Joliffe, 150. R. r. Keyn, 57, 331. R. ','. Labouchere, 276. R. V. Moore, 248. R. V. Muoklow, 243, 249. R. c. Price, 276. R. ,-. Prince, 367, 370. R. V. Eaynes, 276. R. V. Ring, 347. R. V. Roberts, 346. R. -'. Senior, 277. R. V. Stewart, 276. R. V. Tolson, 367. R. V. West, 277. Raffles V. WicheUiaus, 312. Rationes decidendi, their nature, 173; their sources. 174. Real property, distinguished from personal, 394 ; origin of the dis- tinction, 394. Real rights, 202—207; distinguished from personal, 202 — 207 ; always negative, 203: distinction be- tween real and personal rights not strictly exhaustive, 205; significance of the terms real Digitized by Microsoft® INDEX. 609' and personal, 205; origin of terms in rem and in personam, 207 ; significance of tenn jus ad rem, 206. Kecht, different meanings of tlie tei-m, 459; derivation of, 459; subjective and objective, 460. Redress. See Penal E/edress. Reformation, one of the ends of punishment, 76 — 80. Release, 308, 309. ^Remedial proceedings distinguished from penal, 88. Remedies, legal. See Proceedings. Remoteness of damage, 476. Reputation, the object of a right, 188; of the dead, 276. Res, meaning of the term in Roman law, 211; corporalis and incor- poralis, 225, 226. Res judicata pro veritate aceipitur, 120, 171, 446, 480. Respondeat superior, 375, 480. Responsibilit}'^. See Liability. Retribution, one of the purposes of punishment, 80; Kant's opinion as to, 82. Revenge, its transformation into criminal justice, 81, 83. Reynolds v. Ashby, 392. Richer v. Voyer, 257. Ridsdale v. Clifton, 167. Rights, enforcement of, the object of civil justice, 70, 84 ; primary and sanctioning, 84; specific and sanctional enforcement of, 85 — 87; defined, 181—185; of ani- mals, 181, n.; natural and legal, 182; denial of natural rights by Bentham, 182; corre- lation of rights and duties, 184; alleged distinction between relative and absolute duties, 184; elements of legal rights, 185; the subjects of, 186; the contents of, 185; the objects of, 187; the titles of, 185, 299; rights over one's own person, 1^; right of reputation, 188; rights in respect of domestio relations, 188; rights in respect of other rights, 188; right? over immaterial property, 189; wide and narrow use of the term right, 190; rights in wide sense defined, 190 ; rights distin- gnished from liberties, powersi, and immunities, 190 — 194; per- fect and imperfect rights, 184, 197 — 199; rights against the state, 199; positive and neg'a- tive rights, 201; real and per- sonal, 202 — 207 ; in rem and in personam, 202 — 207 ; ad rt)m, 206; proprietary and personal, 208 — 212; rights of ownersliip and encumbrances, 212 — 216 ; dominant and servient, 213; principal and accessory, 216; legal and equitable, 218; local situation of, 393; in re propria and in re aliena, 212. Rigidity of the law, 23. Rigor juris, opposed to aequitas, 35. Robert's case, 346. Roman law, jus civile, 3, v.; jus commune, 33, ».; jus singulare, 33, II.; aequitas and striatum jus, 36; jus praetoriuai, 38; actio furti, 86, ».; professional opinion as a source of, 121 ; jus scriptum and non .<:cTiptum, 129; relation between custom and enacted law, 147; domi- nium, 207; obligatio, 207, 422; actio in rem, 207 ; res corporales and incorporales, 226, «.; tra- ditio brevi manu, 257; consti- tutum possessorium, 257 ; mali- cious exercise of rights, 342, n . ; noxal actions, 373; emphy- teusis, 400, n. ; traditio as a title to property, 413 ; culpa and dolus, 359. Ey lands v. Fletcher, 372. Sadler v. Great Western Ry. Co., 427. Saga of Burnt Njal, 70. Salomon v. Salomon & Co., 282. Sanctional enforcement of rights, 84—87. Sanctioning rights, 84, 85. Sanctions, nature and kinds of, 11. Savigny, his system of modem Roman law, 8; on the relation between enacted and customary law, 148; his theory of cus- tomary law, 154; his theory of possession, 259 — 261. Searamanga v. Stamp, 163. Scientific law, 41. Scottish law, on the relation between enacted and customary law, 148,77. Securities, 402—406; nature of, 216,, 402; mortgages and liens, 403- See Mortgage. Digitized by Microsoft® 510 INDEX. Seisin, its nature and importanoe in early law, 238. Sententia legis, contrasted with litera legis, 137. 8ee Interpretation. Servient rights, 212. See Encum- brances, i Servitudes, nature of, 216, 400; distinguished from leaseSj 400; public and private, 401 ; ap- purtenant and in ^oss, 401; easements, 402, ri. Shares in companies, nature of, 286, n. Sharp V. Jackson, 304. Sheddon ,-. Goodrich, 167. Sheil, Eor parte, 199. Sic utere tuo ut alienum non laedas, 214, 480. Simpson v. Wells, 150. Sloman v. Government of New Zea- land, 296. Smelting Co. of Australia v. Com- missioners of Inland Kevenue, 394. Smith V. Baker, 434. Smith r. Hug-hes, 313. Smith V. Keal, 167. Solida,ry obligations, 424 — 427 ; their nature, 424; their kinds, 425 — ■ 427. Solon, on making men just, 81, n. ■Sources o1' the law, formal and material, 116; legal and his- torical, 116—119; list of le^al sources, 119 ; grounds of the authority of these sources, 119 — 121 ; constitutive and abro- gative operation of, 122, 123 ; sources of law and sources of rights, 123 ; ultimate legal prin- ciples without legal sources, 124; literary sources of the law, 125, n. South StafEordsliire Water Co. v. Sharman, 249. Southern Rhodesia, In re, 496. Sovereignty, nature of, 111, 467 — 473 ; essential in a state, 467 ; divisibility of, 468, 469; limi- tations oi, 469 — 474; external and internal, 489—493. Space, ownership of, 390, 395, n. Special law, contrasted with common law, 27; kinds of, 29—32 ; local customs, 29; mercantile cus- toms, 29 ; private legislation, 29 ; foreign law, 30 ; conventional law, 31. Specific enforcement of I'ights, 85 : the general rule, 320; not always possible, 321; not always expe- dient, .321. Spencer, H., on the essential func- tions of tlie state, 94, n. ; on the gradual differentiation of these fiuictions, 98, «.; on natural rights, 182. Spinoza, on the rule of reason and of force, 11. Starey v. Graham, 192. State, its will the sole source of law, 49, 117, 155; its nature, 93—98; defined, 99; its essential func- tions, war and the administ.ra- tion of justice, 93 — 98 ; generic identity of these two functions, 94 ; their specific difference, 95 ; secondary differences, 96 — 98 ; secondary functions of the state, 98; its territory, 99, 488—496; non-territorial states, 99 ; mem- bership of the state, 99 ; citizeixs and aliens, 100; personal and territorial idea of the state, 102; its constitution, 106-110; its government, 110; inde- pendent and dependent states, 111 — 113; diffei'ent meanings of the term state, 113, n.; unitary and composite states, 113; im- perial and federal states, 114; rights against the state, 199; legal personality of the state, 294 — 298 ; territory and owner- ship, 495. Status distinguished from estate, 208—212; different uses of the tenn, 210; subject-matter of the law of persons, 212; the law of, 485. Statuf;e-law, the typical form of law in modem times, 131; com- pared with case-law, their rela- tive merits and defects, 132 — 135 ; interpretation of, 136 — 142. See Interpretation. Statutes referred to: Interpretation Act, 30; Judicature Act, 34, 217, 231; Statute of Marl- borough, 70; AVestminster I., 149; Prescription Act, 158; Magna Carta, 96 ; Sale of Goods Act, 258; Lord Campbell's Act, 277; Statute of Uses, 413: Factors Act, 415: Statute of Frauds, 447; Parliament Act, 469. Stephen, Sir J. F., hi^ definition of criminal attemjiti, 345. Digitized by Microsoft® INDEX. 511 Suarez, his distinction between lex poeitiva and lex naturalis, 3, ■«.; on opinio necessitatis in cus- tomary law, 147, /(.; on time imniemorial, 132. Subject of a right, different uses of the tenn, 185; no rights without subjects, 186. Subjects. See Citizenship. Substantive law, distinguished from procedure, 437. Subtilty of law and lawyers, 26. Succession, 416. See Inheritance. Sumraum jus opposed to aequitas, 3.5. Summum jus summa injuria, 23, 36, 480. Sure'tyship, 402, n. Suzerainty-, 113. Sydney c. The Commonwealth, 298. T.4Vi.nE, .lEi;E>tY, on the uncertainty of natural justice, 21; on men and wolves, 65. Taylor, Ex parte, 341. Territory, of state, 99, 488—496. Ten-y, analysis of rights, 194, n. Text-books, authority of, 164, n. Tharsis Sulphur Co. v. Loftus, 356. Themis, meanings and derivation of the term, 462. Things, different senses of the term, 25 ; material and immaterial, 225, 387: corporeal and incor- poreal, 225, 387; law of, 211; in action and in possession, 423. Things, law of, 211. Thomasius, on the law of nature, 46. Thompson v. London County Council, 427. Time ihimemorial, a requisite of par- ticular customs, 148 — 152; rule derived from canon, through civil law, 149, 150; original meaning of rule, 149; how affected by Statute of West- minster, 149; reason for re- quirement of immemorial anti- quity in custom, 150. Titles, their nature, 185, 299; ori- ginal and derivative, 299, 301 ; origin of term, 300, n. Tort?, their nature, 428—432"; waiver of, 434. Trade-marks, a form of immaterial property, 397. Traditio brevi manu, 257. Transfer of rights, 299, 300, 301, 414. Trial by battle. See Battle. Trusts, a kind of encumbrance, 216; their nature, 227—231; their purposes, 228, 291 ; distinguished from contracts, 229; distin- guished from agency, 230; how created and destroyed, 230; distinguished from the relation between legal and equitable ownership, 232 ; not recognised at common law, 232; for animals, 274; for maintenance of tombs, 276. Turquand, Ex parte, 29. Uei eadem ratio, ibi idem jus, 481. Ubi jus ibi remediura, 198, 481. Ultimate rules of law, without legal sources, 125. Unitary states, 113. United States v. Davis, 331. Universitas, use of the term in Roman law, 283, n. Unus homo plures personas austinet 278. Vaughan, In re, 276. Vaughan fc. Menlove, 358. Vera Cruz, The, 165. Vested ownership, 232 — 236. Vestitive facts, 299 — 301. Vigilantibus non dormientibus, jura subveniunt, 411, 481. Volenti non fit injuria, 481. Watveb of tort,s, 434. Walker v. Great Northern Ry. Co., 277. Wallis, In re, 167. Wandsworth Board of Works v. United Telegraph Co., 391. War, an essential function of the .state, 93 — 98; compared with the administration of justice, 93 — 98; not governed by law, 96 ; private, 70, «. Ward r. National Bank, 426. West Rand Co. -v. Rex, 57. Williams v. Howarth, 297. William.s v. Williams, 275, 276. Wilson V. Brett, 3.59. Digitized by Microsoft® 512 INDEX. Windacheid, on the relation betweem enacted and customary law, 148; his theory of customary law, 155; on the nature ot rights, 182; on proprietary rights, 208, n.; on ownership, 224, n.; on the possession of rights^ 266, n. Winter v. Winter, 257. Witnesses, exclusion of, in early law, 27, 448. Wood V. Leadbitter, 193. Woolsey, on retribution as the essen- tial end of punishment, 82, n. Written and unwritten law, 128. Wrongs, civil and criminal, 71 ; private and public, 72; theaa distinctions not equivalent, 73; historical relation between public wrongs and crimes, 74; definition of, 179; moral and legal, 179. See Liability. LONDON: FEINTED BY 0. P. ROWOETH, 88, FETTER LANE, E.C. Digitized by Microsoft® LIST D. October, 1919. BOOKS FOR LAW STUDENTS. SUBJECT INDEX. Page Admiralty- ... ....4 Banking ---...... 4 Banicruptcy --4, 5 Bills of Exchange ---- --5, 6 Carriers 6 Common Law 6, 7, 8 Companies 8, 9 Conflict of Laws 9 Constitutional Law - 9, 10 Contracts - 10 Conveyancing 11 Criminal Law - 12 Easements ...... -13 Ecclesiastical Law 13 Equity 13, 14 Evidence 15, 16 Examination Quides 17 Insurance Law 17 International Law 18 Jurisprudence 18, 19 Latin .... . . 19,20 Legal flistory 19 Legal Maxims - - -, . . . .19,20 Local Government - 20 Master and Servant 6 Mercantile Law 21 Mortgages - -21 Partnership 21 Personal Property - 22 Procedure 22, 23 Real Property 23, 24 Receivers 25 Roman Law - ... 25, 26 Sale of Goods - - ... .27 Statutes 27 Torts 27, 28 Wills ... 28 SWEET & MAXWELL, LIMITED, ^ ^^^^^^^T^^^Tr Digitized by Microsoft® Suggested Course of Reading for the Bar Examinations. ROMAN LAW. Hunter's Introduction or Kelke's Primer or Epitome, and Shearwood's Roman Law Examination Guide. Advisable also is Sandars' Justinian. CONSTITUTIONAL LAW. Ridges, with Chalmers' Outlines. Thomas's Leading Cases. Dean's Legal History. CRIMINAL LAW AND PROCEDURE. Odgers' Common Law, or Harris's Criminal Law, and Wilshere's Leading Cases. REAL PROPERTY. GooDEVE or Williams (with Wilshere's Analysis). For revision, Kelke's Epitome. CONVEYANCING. Elphinstone's Introduction, and Clark's Students' Precedents. Or Deane & Spurling's Introduction. COMMON LAW. Odgers' Common Law (with Wilshere's Analysis), or Indermaur's Common Law ; Cockle's Leading Cases. Or Carter on Contracts, and Eraser on Torts. EVIDENCE AND PROCEDURE. Odgers' Common Law, Phipson's Manual of Evidence, Cockle on Evidence, Wilshere's Procedure. EQUITY. Snell. For revision, Blyth's Analysis. COMPANY LAW. Smith's Summary. [ 2 ] Digitized by Microsoft® Suggested Course of Reading for the Solicitors' Final Examination. For detailed Courses see ladermaur's Self-Preparation for the Plaal Examination. COMMON LAW. Indermaur's Principles of the Common I.aw. Anson or Pollock on Contracts. RiNGwooD or Salmond on Torts. Smith's Leading Cases, with Indermaur's Epitome. EQUITY. Swell's Principles of Equity. Blyth's Analysis of Snell. White & Tudor's Leading Cases, with Indermaur's Epitome. Strahan on Partnership. Underhill on Trusts. REAL AND PERSONAL PROPERTY AND CONVEYANCING. Williams or Goodeve on Real Property. Williams or Goodeve on Personal Property. Wilshere's Analysis of Williams." Elphinstone's Introduction to Conveyancing. Clark's Students' Precedents. Indermaur's Epitome of Conveyancing Cases. PRACTICE OF THE COURTS. Indermaur's Manual of Practice. BANKRUPTCY. Ringwood's Principles of Bankruptcy. CRIMINAL LAW. Harris's Principles of Criminal Law. Wilshere's Leading Cases. PROBATE, DIVORCE, AND ADMIRALTY. Gibson's Probate, Divorce, and Admiralty. ECCLESIASTICAL LAW. Smith's Summary. COMPANIES. Smith's Summary. [ 3 ] Digitized by Microsoft® NOTICE.— //I consequence ot fluctuation In cost of printing and materials, prices are subject to alteration without notice. ADMIRALTY. SMITH'S Law and Practice in Admiralty. For the use of Students. By Eustace Smith, of the Inner Temple. Fourth Edition. 232 pages. Price los. net. " The book is well arranged, and forms a good introduction to the subject." — Solicitors' Journal. " It is, however, in our opinion, a well and carefully written little work, and should be in the hands of every student who is taking up Admiralty Law at the Final." — Law Students' Journal. " Mr. Smith has a happy knack of compressing a large amount of useful matter in a small compass. The present work will doubtless be received with satisfaction equal to that with which his previous ' Summary ' has been met." — Oxford and Cambridge Undergraduates' Journal. BANKING. RINQWOOD'S Outlines of the Law of Banking. 1906. 191 pages. Price 5s. net. ". . . The book is in a most convenient and portable form, and we can heartily commend the latest production of this well- known writer to the attention of the business community." — Financial Times. BANKRUPTCY. MANSON'S Short View of Bankruptcy Law. By Edward Manson, Barrister-at-Law. Third Edition. [In the press. " It makes a thorough manual for a student, and a very handy book of reference to a practitioner." — Law Magazine. RINQWOOD'S Principles of Bankruptcy. Embodying the Bankruptcy Act, 1914. together with the Unre- pealed Sections of the Acts of 1883, 1890 and 1913 ; Part of the Debtors Act, 1869; The Leading Cases on Bankruptcy and Bills of Sale ; Tlie Deeds of Arrangement Act, 1914, with an Appendix contain- ing the Schedules to the Bankruptcy Act, 1914 ; The Bankruptcy Rules, 1915 ; The Deeds of Arrangement [ 4 ] Digitized by Microsoft® Bankruptcy — continued. Rules, 191 5 ; The Rules as to Administration Orders ; Regulations Issued by the Bankruptcy Judge ; A Scale of Costs, Fees, and Percentages ; The Bills of Sale Acts, 1878, 1882, 1890, and 1891, and the Rules thereunder, etc. By Richard Ringwood, Barrister- at-Law, late Scholar of Trinity College, Dublin. Twelfth Edition. 525 pages. Price 12s. 6d. net. " We welcome a new edition of this excellent student's book. We have written favourably of it in reviewing previous editions, and every good word we have written we would now reiterate and perhaps even more so. . . . In conclusion, we congratulate Mr. Ringwood on this edition, and have no hesitation in saying that it is a capital student's book." — Law Students' Journal. " The author deals with the whole history of a bankruptcy from the initial act of bankruptcy down to the discharge of the bankrupt, and a cursory perusal of his work gives the impression that the book will prove useful to practitioners as well as to students. The appendix also contains much matter that will be useful to practitioners, including the Schedules, the Bankruptcy Rules of 1886, 1890 and 1891, the Rules of the Supreme Court as to Bills of Sale, and various Acts of Parliament bearing upon the subject. The Index is copious." — Accountants' Magazine. BILLS OF EXCHANGE. JACOBS on Bills of Exchang:e, Cheques, Promissory Notes, and Negfotiable Instruments Generally, in- cluding a digest of cases and a large number of representative forms, and a note on I O U's and Bills of Lading. By Bertram Jacobs, Barrister-at-Law. 284 pages. Price 7s. 6d. net. OPINIONS OF TUTORS. " It appears to me to be a most excellent piece of work." "After perusing portions of it I have come to the conclusion that it is a learned and exhaustive treatise on the subject, and I shall certainly bring it to the notice of my pupils." WILLIS'S Negotiable Securities. Contained in a Course of Six Lectures delivered by William Willis, Esq., K.C., at the request of the Council of Legal [ 5 ] Digitized by Microsoft® Bills of Exchange— continued. Education. Third Edition, by Joseph Hurst, Bar- rister-at-Law. 226 pages. Price 7s. 6d. net. " No one can fail to benefit by a careful perusal of this volume." — Irish Law Times. " We heartily commend them, not only to the student, but to everybody — lawyer and commercial man alike." — The Accountant. " Mr. Willis is an authority second to none on the subject, and in these lectures he summarized for the benefit not only of his confreres but of the lay public the knowledge he has gained through close study and lengthy experience." CARRIERS. WILLIAMS' Epitome of Railway Law. Part I'. The Carriage of Goods. Part II. The Carriage of Passengers. By E. E. G. Williams, Barrister-at- Law. 268 pages. Price 5s. net. Bar Final Examination, Special Subjects. (1) Carriage by Land. (2) Master and Servant. Repripted from the Encyclopedia of the Laws of England. 128 pages,- Price 3s. 6d. net. COMMOri LAW. ODQERS on the Common Law of England. By W. Blake Odgers, K.C, LL.D., Director of Legal Educa- tion at the Inns of Court, and Walter Blake Odgers, Barrister-at-Law. 2 vols. 1,474 pages. Price £2 IDS. net. Odgers on the Common Law deals with Contracts, Torts, Criminal Law and Procedure, Civil Procedure, the Covurts, and the Law of Persons. The Student who masters it can pass the following Bar Examina- tions : — (1) Criminal Law and Procedure. (2) Common Law. (3) General Paper— Part A. [ 6 ] Digitized by Microsoft® Common Law — continued. And (with Cockle's Cases and Statutes on Evidence) (4.) Law of Evidence and Civil Procedure. (5.) General Paper— Part III. SOME OPINIONS OF PROFESSORS AND TUTORS, I. The Bar. — "I have most carefully examined the work, and shall most certainly recommend it to all students reading with me for the Bar Examinations." " It appears to me to be an invaluable book to a student who desires to do well in his examinations. The sections dealing with Criminal Law and Procedure are, in my opinion, especially valuable. They deal with these difficult subjects in a manner exactly fitted to the examinations ; and in this the work differs from any other book I know." " I have been reading through Dr. Odgers' Common Law, and find it a most excellent work for the Bar Final, also for the Bar Criminal Law." 2. The Universities. — " I consider it to be a useful and comprehensive work on a very wide subject, more especially from the point of view of a law student. I shall be glad to recommend it to the favourable attention of law students of the University." 3. Solicitors. — The Book for the Solicitors' Final. — "Once the Intermediate is over, the articled clerk has some latitude allowed as to his course of study. And, without the slightest hesitation, we say that the first book he should tackle after negotiating the Intermediate is 'Odgers on the Common Law.' The volumes may seem a somewhat ' hefty task,' but these two volumes give one less trouble to read than any single volume of any legal text-book of our acquaintance. They cover, moreover, all that is most interesting in the wide field of legal studies in a manner more interesting than it has ever been treated before." [ 7 ] Digitized by Microsoft® Common Law — continued. INDERMAUR'S Principles of the Common Law. Intended for the use of Students and the Profession. Twelfth Edition. By John Indermaur and Charles Thwaites, Solicitors. 645 pages. Price £1 net. " Mr. Indermaur renders even law light reading. He not only possesses the faculty of judicious selection, but of lucid exposition and felicitous illustration. And while his works are all thus •characterised, his ' Principles of the Common Law ' especially displays those features." — Irish Law Times. " It seems, so far as we can judge from the parts we have examined, to be a careful and clear outline of the principles of the common law. It is very readable ; and not only students, but many practitioners and the public, might benefit by a perusal of its pages." — Solicitors' Journal. INDERMAUR'S Leading Common Law Cases ; with some short notes thereon. Chiefly intended as a Guide to " Smith's Leading Cases." Ninth Edition, by C. Thwaites, Solicitor. 160 pages. Price 6s. net. COCKLE & HIBBERT'S Leading Cases on the Com- mon Law. By Ernest Cockle and W. Nembhard HiBBERT, LL.D., Barristers-at-Law. [In the press. COMPANIES. KELKE'S Epitome of Company Law. Second Edi- tion. 255 pages. Price 6s. " No clearer or more concise statement of the law as regards companies could be found than is contained in this work, and any student who thoroughly masters it need have no fear of not passing his examination." — Juridical Review. SMITH'S Summary of the Law of Companies. By T. Eustace Smith, Barrister-at-Law. Twelfth Edition, by the Author, and C. H. Hicks 376 pages. Price 7s. 6d. net. " The author of this handbook tells us that when an articled student reading for the final examination, he felt the want of such a work as that before us, wherein could be found the main , principles of a law relating to joint-stock companies. . . Law students may well read it ; for Mr. Smith has very wisely been at the pains of giving his authority for all his statements of the law [ 8 ] Digitized by Microsoft® Companies — continued. or of practice, as applied to joint-stock company business usually transacted in solicitors' chambers. In fact, Mr. Smith has by his little book offered a fresh inducement to students to make them- selves — at all events, to some extent — acquainted with company law as a separate branch of study." — Law Times. " These pages give, in the words of the Preface, ' as briefly and concisely as possible a general view both of the principles and practice of the law affecting companies.' The work is excellently printed, and authorities are cited ; but in no case is the language of the statutes copied. The plan is good, and shows both grasp and neatness, and, both amongst students and laymen, Mr. Smith's book ought to meet a ready sale." — Law Journal. CONFLICT OF LAWS. WESTLAKE'S Treatise on Private International Law, with Principal Reference to its Practice in England. Fifth Edition. By John Westlake, K.C., late Fellow of Trinity College, Cambridge ; Hon. LL.D., Edinburgh; Member of the Institute of International Law ; assisted by A. F. Topham, Bar- rister-at-Law. 433 pages. Price 18s. net. CONSTITUTIONAL LAW AND HISTORY. KELKE'S Epitome of Constitutional Law and Cases. 185 pages. Price 6s. " We think that Bar Students would derive much benefit from a perusal of its pages before dealing with the standard text-books, and as a final refresher." — Law Students' Journal. CHALMERS' Outlines of Constitutional and Adminis- trative Law. By D. Chalmebs (Law and Modern History Tripos, Cambridge), of the Inner Temple, Barrister-at-Law. 271 pages. Price 5s. net. THOMAS'S Leading Cases in Constitutional Law. Briefly stated, with Introduction and Notes. By Ernest C. Thomas, Bacon Scholar of the Hon. Digitized by Microsoft® Constitutional Law and History — continued. Society of Gray's Inn, late Scholar of Trinity College, Oxford. Fourth Edition by C. L. Attenborough, Barrister-at-Law. 151 pages. Price 7s. 6d. net. TASWELL-LANQMEAD'S English Constitutional History. From the Teutonic Invasion to the Present Time. Designed as a Text-book for Students and others. By T. P Taswell-Langmead, B.C.L., of Lincoln's Inn, Barrister-at-Law, formerly" Vinerian Scholar in the University and late Professor of Constitutional Law and History, University College, London. Eighth Edition. By Coleman Phillipson, LL.D. 854 pages, i Price 21s. net. WILSHERE'S Analysis of Taswell-Langmead's Con- stitutional History. By A. M. Wilshere, LL.B., Barrister-at-Law. 115 pages. Price 6s. 6d. net. CONTRACTS. ODQERS on the Common Law. See page 6. WILSHERE'S Analysis of Contracts and Torts, being an Analysis of Books III. and IV. of Odgers on the Common Law. By A. M. Wilshere and Douglas RoBB, Barristers-at-Law. 172 pages. Price 6s. net. It is designed as an assistance to the memory of the Student who has read the parent work. CARTER on Contracts. Elements of the Law of Con- tracts. By A. T. Carter, of the Inner Temple, Barrister-at-Law, Reader to the Council of Legal Education. Fourth Edition. 272 pages. Price 8s. "We have here an excellent book for those who are beginning to read law." — Laiv Magazine. [ 10 ] Digitized by Microsoft® CONVEYANCING. ELPHINSTONE'S Introduction to Conveyancing. By Sir Howard Warburton Elphinstone, Bart. Seventh Edition, by F. Trentham Maw, Barrister- at-Law, Editor of Key and Elphinstone's Precedents in Conveyancing. 694 pages. Price 25s. net. " Incomparably the best introduction to the art of conveyancing that has appeared in this generation. It contains much that is useful to the experienced practitioner." — Law Times. " In our opinion no better work on the subject with which it deals was ever written for students and young practitioners." — Law Notes. " . . from a somewhat" critical examination of it we have come to the conclusion that it would be difficult to place in a student's hand a better work of its' kind." — Law Students' Journal. DEANE & SPURLINQ'S Introduction to Convey- ancing, with an Appendix of Students' Precedents. Third Edition, by Cuthbert Spurling, Barrister-at- Law, in preparation. Complementary to and extending the information in Williams and Goodeve on Real Property. About 200 pages text and 100 pages Precedents. INDERMAUR'S Leading Conveyancing and Equity Cases. With some short notes thereon, for the use of Students. By John Indermaur, Solicitor. Tenth Edition by C. Thwaites. 206 pages. Price 6s. net. " The Epitome well deserves the continued patronage of the class — Students — for whom it is especially intended. Mr. Inder- maur will soon be known as the ' Student's Friend.' " — Canada Law Journal. CLARK'S Students' Precedents in Conveyancing. Collected and Arranged by James W. Clark, M.A., late Fellow of Trinity Hall, Cambridge. Third Edition. 153 pages. Price~6s. net. "Bar students particularly will find this little book a useful adjunct to the books on theoretical and practical conveyancing which they study. It contains all the forms which could fairly be set at a Bar examination." — Law Students' Journal. [ 11 ] Digitized by Microsoft® CRIMINAL LAW AND PROCEDURE. ODQERS on the Common Law. See page 6. HARRIS'S Principles of the Criminal Law. Intended as a Lucid Exposition of the subject for the use of Students and the Profession. Thirteenth Edition. By A. M. WiLSHERE, Barrister-at-Law. 520 pages. Price i6s. net. " This Standard Text-book of the Criminal Law is as good a book on the subject as the ordinary student will find on the library shelves . The book is very clearly and simply written. No previous legal knowledge is taken for granted, and everything is explained in such a manner that no student ought to have much difficulty in obtaining a grasp of the subject. — Solicitors' Journal. " . As a Student's Text-book we have always felt that this work would be hard to beat, and at the present time we have no reason for altering our opinion. " — Lam Times. WILSHERE'S Elements of Criminal and Magisterial Law and Procedure. By A. M. Wilshere, Barris- ter-at-Law. Second edition. 256 pages. Price 8s. net. This book sets outconcisely the essential principles of the criminal law and explains in detail the most important crimes, giving precedents of indictments ; it also gives an outline of criminal procedure and evidence. ^ " An excellent little book for examination purposes. Any student who fairly masters the book ought to pass an y ordinary examination in criminal law with ease. " — Solicitors' Journal. WILSHERE'S Leading Cases illustrating the Crimi- nal Law, for Students. 168 pages. Price 6s. 6d. net. A companion book to the above. " This book is a collection of cases pure and simple, without a commentary. In each ease a short rubric is given, and then follow the material parts of the judge's opinions. The selection of cases has been judiciously made, and it embraces the whole field of criniinal law. The student who has mastered this and its com- panion volume will be able to face his examiners in criminal law without trepidation. "^Scois I^aw Times. [ 12 ] Digitized by Microsoft® EASEMENTS. BLYTH'S Epitome of the Law of Easements. By T. T. Blyth, Barrister-at-Law, 158 pages. Price 6s. net. " The book should prove a useful addition to the student's library, and as such we can confidently recommend it." — Law Ouayterly Review. ECCLESIASTICAL LAW. SMITH'S Law and Practice in the Ecclesiastical Courts. For the use of Students. By Eustace Smith, Barrister-at-Law. Sixth Edition. 219 pages. Price 8s. net. " His object has been, as he tells us in his preface, to give the ' student and general reader a fair outline of the scope and extent of ecclesiastical law, of the principles on which it is founded, of the Courts by which it is enforced, and the procedure by which these Courts are regulated. We think the book well fulfils its object. Its value is much enhanced by a profuse citation of authorities for the propositions contained in it." — Bay Examination Journal. EQUITY. SNELL'S Principles of Equity. Intended for the use of Students and Practitioners. Seventeenth Edition. By H. G. RiviNGTON, M.A. Oxon., and A. C. Foun- TAiNE. 687 pages. Price 21s. net. " In a most modest preface the editors disclaim any intention to interfere with Snell as generations of students have known it. Actually what they have' succeeded in doing is to make the book at least three times as valuable as it ever was before. Illustrations from cases have been deftly introduced, and the whole rendered simple and intelligible until it is hardly recognisable." — The Library. " It has been stated. that this book is intended prirnarily for law students, but it is much too useful a book to be so limited. It is in our opinion the best and most lucid summary of the principles [ 13 ] Digitized by Microsoft® Equity — continued. of the law of equity in a small compass, and should be in every lawyer's library." — Australian Law Times. " ' Snell's Equity ' which has now reached its seventeenth edition, has long occupied so strong a position as a standard work for students that it was not easy to perceive how it could be improved. The new editors have succeeded in achieving this task."— Laiw Journal. BLYTH'S Analysis of Snell's Principles of Equity, with Notes thereon. By E. E. Blyth, LL.D., Solicitor. Eleventh Edition. 270 pages. Price 7s. 6d. net. " This is an admirable analysis of a good treatise ; read with Snell, this little book will be found very profitable to the student." — Law Journal. STORY'S Commentaries on Equity Jurisprudence. Third English Edition. By A. E. Randall. 641 pages. Price 37s. 6d. net. WILSHERE'S Principles of Equity. By A. M. WiLSHERE. [In the press. In this book the author has endeavoured to explain and enable the student to understand Equity. He has incorporated a large number of explanations from the authorities and has tried to make the subject intelligible while at the same time he has as much useful and relevant detail as the larger students' works. It is not a mere " cram " book. KELKE'S Epitome of Leading Cases in Equity. Founded on White and Tudor's Leading Cases in Equity. Third Edition. 241 pages. Price 6s. " It is not an abridgment of the larger work, but is intended to furnish the beginner with an outline of equity law so far as it i« ■ settled or illustrated by a selection o.f cases. Each branch is dealt with in a separate chapter, and we have (inter alia) trusts, mortgages, specific performance and equitable assignments, and equitable implications treated with reference to the cases on the subject." — Laiv Times. INDERiVlAUR'S Epitome of Leading Equity Cases. See page 11. [ 14 ] Digitized by Microsoft® EVIDENCE. COCKLE'S Leading Cases and Statutes on the Law of Evidence, with Notes, explanatory and connective, presenting a systematic view of the whole subject. By Ernest Cockle, Barrister-at-Law. Third Edition. 500 pages. Price 15s. net. This book and Phipson's Manual are together sufficient for all ordinary examination purposes, and will save students the necessity of reading larger works on this subject. By an ingenious use of black type the author brings out the essential words of the judgments and Statutes, and enables the student to see at a glance the effect of each section. " Of all the collections of leading cases compiled for the use of students with which we are acquainted, this book of Mr. Cockle's is, in our opinion, far and away the best. The student who picks up the principles of the English law of evidence from these readable and logical pages has an enormous advantage over a generation of predecessors who toiled through the compressed sentences of Stephen's little digest in a painful effort to grasp its meaning. Mr. Cockle teaches his subject in the only way in which a branch of law so highly abstract can ever be grasped ; he arranges the principal rules of evidence in logical order, but he puts forward each in the shape of a leading case which illustrates it. Just enough of the headnote, the facts, and the judgments are selected and set out to explain the point fully without boring the reader ; and the notes appended to the cases contain all the additional Information that anyone can require in ordinary practice. " — Solicitors' Journal. PHIPSON'S Law of Evidence. By S. L. Phipson, Barrister-at-Law. Sixth Edition. [In the press. " . . . . The work is a happy medium between a book of the type of Stephen's Digest and the large treatises upon the subject, and owing to its excellent arrangement is one that is well suited both to practitioners and students." — Law Times. PHIPSON'S Manual of the Law of Evidence. Second Editk)n. 236 pages. Price 7s. 6d. net. This is an abridgment for students of Mr. Phipson's larger treatise. With Cockle's Cases it will be sufficient for examination purposes. " The way of the student, unlike that of the transgressor, is no longer hard. The volume under review is designed by the author for the use of students. To say that it is the best text-book for students upon the subject is really to understate its usefulness ; as r 15 1 Digitized by Microsoft® Evidence — continued. far as we know there is in existence no other treatise upon evidence which gives a. scientific' and accurate presentment of the subject in a form and compass suitable to students." — Australian Law Times. " We know no book on the subject which gives in so short a space so much valuable information. We readily commend the work both to students and to practitioners, especially those who, not being in possession of the author's larger work, wish to have an up-to-date and explanatory companion to ' Cockle.' " — South African Law Journal. BEST'S Principles of Evidence. With Elementary Rules for conducting the Examination and Cross- Examination of Witnesses. Eleventh Edition. By S. L. Phipson, Barrister-at-La'W'. 620 pages. Price £1 5s. net. " The most valuable work on the law of evidence which exists in any country." — Laiv Times. " There is no more scholarly work among all the treatises on Evidence than that of Best, There is a philosophical breadth of treatment throughout which at once separates the work from those mere collections of authorities which take no account of the 'reason why,' and which arrange two apparently contradictory propositions side by side without comment or explanation." — Law Magazine. MAUDE'S Justices' Handbook on tlie Lav^' of Evidence. By W. C. Maude, Barrister-at-Law. no pages. Price 4s. 5d. net. Though written for the use of ^justices of the peace, bar students will find this book very useful as containing in a small compass a clear outline of the law. WROTTESLEY on the Examination of Witnesses in Court. Including Examination in Chief, Cross- Examination, and Re-Examination. With chapters on Preliminary Steps and some Elementary Rules of Evidence. By F. J. Wrottesley, of the Inner Temple, Barrister-at-Law. 173 pages, Price5s.6d.net. This is a practical book for the law student. It is interesting, and is packed full of valuable hints and information. The author lays down clearly and succinctly the rules which should guide the advocate in the examination of witnesses and in the argument of questions of fact and law, and has illustrated the precepts which he has given by showing how they have been put into actual practice by the greatest advocates of modern times. [ 16 ] Digitized by Microsoft® EXAMINATION GUIDES AND QUESTIONS. SHEARWOOD'S Selection of Questions appearing in the Bar Examinations from 1905 to 1913. Price 3s. 6d. net. SHEARWOOD'S Selection of Questions set at the Bar Examinations from 1913 to 1919. Price 5s. net. INDERMAUR'S Articled Clerk's Guide to and Self- Preparation for the Final Examination. Containing a Complete Course of Study, with Books to Read, List of Statutes, Cases, Test Questions, &c., and intended for the use of those Articled Clerks who read by themselves. Seventh Edition. By Charles Thwaites, Solicitor. 120 pages. Price 6s. net. " His advice is practical and sensible : and if the course of study he recommends is intelligently followed, the articled clerk will have laid in a store of legal knowledge more than sufficient to carry him through the Final Examination." — Solicitors' Journal. A New Guide to the Bar. Containing the Regula- tions and Examination Papers, and a critical Essay on the Present Condition of the Bar of England. By LL.B., Barrister-at-Law. Fourth Edition. 204 pages. Price 5s. A Guide to the Lejfal Profession and London LL.B. Containing the latest Regulations, with a detailed description of all current Students' Law Books, and suggested courses of reading. Price is. net. INSURANCE LAW. HARTLEY'S Analysis of the Law of Insurance. By D. H. J. Hartley, Barrister-at-Law. 119 pages. Price 4s. 6d. net. [ 17 ] Digitized by Microsoft® INTERNATIONAL LAW. BENTWICH'S Students' Leading Cases and Statutes on International Law, arranged and edited with notes. By Norman Bentwich, Barrister-at-Law. With an Introductory Note by Professor L. Oppen- HEiM. '247 pages. Price 12s. 6d. net. " This Case Book is admirable from every pomt of view, and may be specially recommended to be used by young students in conjunction with their lectures and their reading of text-books." — Professor Oppenheim. COBBETT'S Leading Cases and Opinions on Inter- national Law, and various points of English Law connected therewith, Collected and Digested from English and Foreign Reports, Official Documents, and other sources. With Notes containing the views of the Text-writers on the Topics referred to, Supple- mentary Cases, Treaties, and Statutes. Third Edition. By Pitt Corbett, M.A., D.C.L. Oxon. Vol. I. "Peace." 409 pages. 15s. net. Vol.11. "War and Neutrality." 579 pages. 15s.net. The two volumes, if taken together, cost 20s. net. " The book is well arranged, the materials well selected, and the comments to the point. Much-will be found in small space in this book." — Laiv Journal. "The notes are concisely written and trustworthy. The reader will learn from them a great deal on the subject, and the book as a whole seems a convenient introduction to fuller and more systematic works." — Oxford Magazine. JURISPRUDENCE. EASTWOOD'S Brief Introduction to Austin's Theory ol Positive Law and Sovereignty. Bv R. A. Eastwood. 72 pages. Price 3s. 6d. net.' Nine out of ten students who take up the study of Jurisprudence are set to read Austin, without any warning that Austin's views [ 18 ] Digitized by Microsoft® Jurisprudence — continued. are not universally held, and that his work ought not now to be regarded alone, but rather in connection with the volume of criticism and counter-criticism to which it has given rise. Mr. Eastwood's book gives a brief summary of the more essential portions of Austin, together with a summary of the various views and discussions which it has provoked. SALMOND'S Jurisprudence; or, Theory of the Law. By John W. Salmond, Barrister-at-Law. Fourth Edition. 527 pages. Price i6s. net. An Analysis of Salmond's Jurisprudence. By R. E. DE Beer. 144 pages. Price 3s. 6d. net. LEGAL HISTORY. EVANS'S Theories and Criticisms of Sir Henry Maine. Contained in his six works, "Ancient Law," "Early Law and Customs," "Early History of In- stitutions," "Village Communities," "International Law," and " Popular Government," which works have to be studied for the various examinations. By Morgan O. Evans, Barrister-at-Law. loi pages. Price 5s. net. LEGAL MAXIMS. BROOM'S Selection of Le^al Maxims, Classified and Illustrated. Eighth Edition. By j. G. Pease and Herbert Chitty. 767 pages. Price £1 los. net. The main idea of this work is to present, under the head of "Maxims," certain leading principles of English law, and to illustrate some of the ways in which those principles have been applied or limited, by reference to reported cases. " It has been to us a pleasure to read the book, and we cannot help thinking that if works of this kind were more frequently studied by the Profession there would be fewer false points taken in argument in our Courts." — Justice of the Peace. Latin for Lawyers. Contains (i) A course in Latin, in 32 lessons, based on legal maxims ; (2) 1000 Latin Maxims, with translations, explanatory notes, cross- [ 19 ] Digitized by Microsoft® Legal Maxims — continued. references, and subject-index ; (3) A Latin Vocabu- lary. 300 pages. Price 7s. 6d. This book is intended to enable the practitioner or student to acquire a working knowledge of Latin in the shortest possible time, and at the same time to become acquainted with the legal maxims which embody the fundamental rules of the common law. COTTERELL'S Latin Maxims and Phrases. Literally translated, with explanatory notes. Intended for the use of students for all legal examinations. By J. N.. CoTTERELL, Solicitor. Third Edition. 82 pages. Price 5s. net. LOCAL GOVERNMENT. WRIGHT & HOBHOUSE'5 Outline of Local Govern- ment and Local Taxation in England and Wales (excluding London). Fourth Edition. With Intro- duction and Tables of Local Taxation. By Rt. Hon. Henry Hobhouse. 219 pages. Price 7s. 6d. net. " The work gives within a very moderate compass a singularly clear and comprehensive account of our present system of local self-government, both in urban and rural districts. We are, in- deed, not aware of any other work in which a similar view is given with equal completeness,*accuracy, and lucidity." — County Council Times. " Lucid, concise, and accurate to a degree which has never been surpassed." — Justice of the Peace. JACOBS' Epitome of the Law relating to Public Health. By Bertram Jacobs, Barrister-at-Law. 191 pages. Price 7s. 6d. Specially written for students. " This little work has the great merit of being an accurate guide to the whole body of law in broad outline, with the added ad- vantage of brmging the general law up to date. The one feature will appeal to the general student or newlv-fledged councillor and the other to the expert who is always the better lor the perusal of an elementary review." — Municipal Officer. [ 20 ] Digitized by Microsoft® MERCANTILE LAW. HURST & CECIL'S Principles of Commercial Law. With an Appendix of Annotated Statutes. Second Edition. By J. Hurst, Barrister-at-Law. 518 pages. Price IDS. 6d. net. SLATERS' Principles of Mercantile Law. By Joshua Slater, Barrister-at-Law. Third Edition. 308 pages. Price 6s. 6d. net. MORTGAGES. STRAHAN'S Principles of the General Law of Mortgages. By J. Andrew Strahan, Barrister-at- Law, Reader of Equity, Inns of Court. Second Edition. 247 pages. Price 7s. 6d. net. " He has contrived to make the whole law not merely consistent, but simple and reasonable. . . Mr. Strahan 's book is ample for the purposes of students' examinations, and may be thoroughly recommended." — Law Journal. " It is a subject in which there is great need for a book which in moderate compass should set forth in clear and simple language the great leading principles. This Mr. Strahan 's book does in a way that could hardly be bettered." — Law Notes. PARTNERSHIP. STRAHAN & OLDHAM'S Law of Partnership. By J. A. Strahan, Reader of Equity, Inns of Court, and N. H. Oldham, Barristers-at-Law. 275 pages. Price IDS. The appendices contain all the English legislation on the subject, the Rules of the Supreme Court, and also sections of certain Indian Acts relating to partnership. " It might almost be described as a collection of judicial statements as to the law of partnership arranged with skill, so as to show their exact bearing on the language used.in the Partner- ship Act of 1890, and we venture to prophesy that the book will attain a considerable amount of fame." — Student's Companion. [ 21 ] Digitized by Microsoft® PERSONAL PROPERTY. WILLIAMS' Principles of the Law of Personal Pro- perty, intended for the use of Students in Con- veyancing. Seventeenth Edition. By T. Cyprian Williams, of Lincoln's Inn, Barrister-at-Law. 655 pages. Price £1 is. net. " Whatever competitors there may be in the field of real pro- perty, and they are numerous, none exist as serious rivals to Williams' Personal. For every law student it is invaluable, and to the practitioner it is often useful." — Law Times. WILSHERE'S Analysis of Williams on Real and Personal Property. By A. M. Wilshere, Barrister- at-Law. 205 pages. Third Edition. Price 6s. net. This book is designed as an assistance to the memory of the student who has read the parent works. It contains a useful appendix of questions. " It will be found a most excellent aid to the student." — Law Students' Journal. KELKE'S Epitome of Personal Property Law. Third Edition. 155 pages. Price 6s. " On the eve of his examination we consider a candidate for the Solicitors' Final would find this epitome most useful." — Law Notes. " An admirable little book ; one, indeed, which will prove of great service to students, and which will meet the needs of the busy practitioner who desires to refresh his memory or get on the track of the law without delay." — Irish Law Journal. QOOD EVE'S Modern Law of Personal Property. With an Appendix of Statutes and Forms. Fifth Edition. Revised and partly re-written by J. H. Williams and W. M. Crowdy, Barristers-at-Law. 461 pages. Price £1 net. PROCEDURE. ODQERS on the Common Law. See page 6. INDERMAUR'S Manual of the Practice of the Supreme Court of Judicature, in the King's Bench and Chancery Divisions. Tenth Edition. [ 22 ] Digitized by Microsoft® Procedure — continued. Intended for the use of Students and the Profession. By Charles Thwaites, Solicitor. 495 pages. Price £1 net. " The arrangement of the book is good, and references are given to the leading decisions. Copious references are also given to the rules, so that the work forms a. convenient guide to the larger volumes on practice. It is a very successful attempt to deal clearly and concisely with an important and complicated subject." — Solicitors' Journal. WILSHERE'S Outlines of Procedure in an Action in the King's Bench Division. With some facsimile forms. For the Use of Students. By A. M. Wilshere, Barrister - at - Law. Second Edition. 127 pages. Price 7s. 6d. net. This forms a companion volume to Wilshere's Criminal Law, and the student will find sufficient information to enable him to pass any examination in the subjects dealt with by the two books. " The author has made the book clear, interesting, and instruc- tive, and it should be acceptable to students." — Solicitors' Journal. WHITE'S Points on Chancery Practice. A Lecture delivered to the Solicitors' Managing Clerks' Association, by Richard White, a Master of the Supreme Court. 76 pages. Price 3s. 6d. net. REAL PROPERTY. WILLIAMS' Principles of the Lavk' of Real Property. Intended as a first book for the use of Students in Conveyancing. 22nd Edition. By T. Cyprian Williams, Barrister -at -Law. 717 pages. Price £1 IS. net. "Its value to the student cannot well be over-estimated." — Law Students' Journal. " The modern law of real property is, as he remarks in his con- cluding summary, a system of great complexity, but under his careful supervision ' Williams on Real Property ' remains one of the most useful text-books for acquiring a knowledge of it." — Solicitors' Journal. [ 23 J Digitized by Microsoft® Real Property — continued. WILSHERE'S Analysis of Williams on Real and Personal Property. Third Edition. 205 pages. Price 6s. net. This book is designed as an assistance to the memory of the student who has read the parent works. It contains a useful appendix of questions. "Read before, with, or after Williams, this should prove of much service to the student. In a short time it is made possible to him to grasp the outline of this difficult branch of the law." — Law Magazine. KELKE'S Epitome of Real Property Law, for the use of Students. Fifth Edition. By Cuthbert Spurling, Barrister-at-Law. 243 pages. Price 8s. 6d. net. " The arrangement is convenient and scientific, and the text accurate. It contains just what the diligent student or ordinary practitioner should carry in his head, and must be very useful for those about to go in for a law examination." — Law Times. QOODEVE'S Modern Law of Real Property. Fifth Edition. By Sir Howard Warburton Elphinstone, Bart., and F. T. Maw, both of Lincoln's Inn, Barris- ters-at-Law. 462 pages. Price 21s. " No better book on the principles of the law relating to real property could well be placed in a student's hands after the first elements relating to the subject have been mastered." — Law Students' Journal. EDWARDS' Compendium of the Law of Property in Land. For the use of Students and the Profession. By W. D. Edwards, Barrister-at-Law. Fourth Edition. 619 pages. Price £1 net. " Mr. Edwards' treatise on the Law of Real Property is marked by excellency of arrangement and conciseness of statement." — Solicitors' Journal. " So excellent is the arrangement that we know of no better compendium upon the subject of which it treats." — Law Times. I 24 ] Digitized by Microsoft® RECEIVERS. KERR on the Law and Practice as to Receivers appointed by the High Court of Justice or Out of Court. Sixth Edition. 346 pages. Price los. 6d. net. ROMAN LAW. KELKE'S Epitome of Roman Law. 255 pages- Price 6s. net. This is a highly condensed summary of all the salient facts of Roman Law throughout its history, taking as its centre the era of Gaius and the Antonines. " One of the safest introductory manuals which can be put into the hands of a student who wishes to get a general knowledge of the subject. In embodying many of the views of Moyle, Sohm, and Poste, it ir more up-to-date than some of the older manuals which are still in traditional use, and much more accurate and precise than some of the elementary works which have appeared more recently." — Law Quarterly Review. KELKE'5 Primer of Roman Law. 152 pages. Price 5$. net. " In this book the author confines himself mainly to the system of Justinian's Institutes, and as a student's guide to that text-book it should be very useful. The summary is very well done, the arrangement is excellent, and there is a very useful Appendix of Latin words and phrases." — 'Law Journal. CAMPBELL'5 Compendium of Roman Law. Founded on the Institutes of Justinian ; together with Examination Questions Set in the University and Bar Examinations (with Solutions), and Definitions of Leading Terms in the Words of the Principal Authorities. Second Edition. By Gordon Campbell, of the Inner Temple, M.A., LL.D. 300 pages. Price I2S. net. HARRIS'S Institutes of Qaius and Justinian. With copious References arranged in Parallel Columns, also Chronological and Analytical Tables, Lists of [ 25 ] Digitized by Microsoft® Roman Law — continued. Laws, &c., &c. Primarily designed for the use of Students preparing for Examination at Oxford, Cambridge, and the Inns of Court. By F. Harris, B.C.L., M.A., Barrister-at-Law. Third Edition. 223 pages. Price 6s. net. " This book contains a summary in English of the elements of Roman Law as contalined in the~ works of Gaius and Justinian, and is so arranged that the reader can at once see what are the opinions of either of these two writers on each point. From the very exact and accurate references to titles and sections given he can at once refer to the original writers. The concise manner in which Mr. Harris has arranged his digest will render it most useful, not only to the students for whom it was originally written, but also to those persons who, though they have not the time to wade through the larger treatises of Poste, Sanders, Ortolan, and others, yet desire to obtain some knowledge of Roman Law." — Oxford and Cambridge Undergraduates' Journal. SALKOWSKl'S Institutes and History of Roman Private Law. With Catena of Texts. By Dr. Car Salkowski, Professor of Laws, Konigsberg. Translated and Edited by E. E. Whitfield, M.A. Oxon. 1076 pages. Price £1 12s. net. HUNTER'S Systematic and Historical Exposition of Roman Law in the Order of a Code. By W. A. Hunter, M.A., Barrister-at-Law. Embodying the Institutes of Gaius and the Institutes of Justinian, translated into English by J. Ashton Cross, Bar- rister-at-Law. Fourth Edition. 1075 pages. [Price £1 I2S. net. HUNTER'S Introduction to the Study of Roman Law and the Institutes of Justinian. Sixth Edition. With a Glossary explaining the Technical Terms and Phrases employed in the Institutes By W. A. Hunter, M.A., LL.D., of the Middle Temple, Barrister-at-Law. 228 pages. Price ids. net. [ 26 ] Digitized by Microsoft® Roman Law— contmiied. SHEARWOOD's Roman Law Examination Guide. By J. A. bHEA.RwooD, Barrister-at-Law. Second Edition. 192 Pages. Price 7s. 6d. CONTENTS. I. Analytical Tables, 2. Historical Slcetcli. 3. Concise Analysis. 4. Questions & Answers. 5. List of Changes by Justinian. 6. Maxims. This is a most useful book for ft^ student of Roman Law. Its utility may be gauged by the fact tVt practically every question set at a Bar Examination since the \,„ok was issued could be answered by a student who had read it, SALE OF GOOD^. WILLIS'S Law of Contract of Sale. Ccm^ained in a Course of Six Lectures delivered by Wilua,^ Willis one of His Majesty's Counsel. At the request of the Council of Legal Education, igo pages. Price 7s. 6d. net. STATUTES. MAXWELL on the Interpretation of Statutes. By Sir Peter Benson Maxwell, late Chief Justice of the Straits Settlements. Fifth Edition. By F. Stroud, Barrister-at-Law. Price £1 5s. net. CRAIES on Statute Law founded on Hardcastle on Statutory Law. With Appendices containing Words and Expressions used in Statutes which have been judicially and statutably construed, and the Popular and Short Titles of certain Statutes, and the Inter- pretation Act, 1899. By W. F. Craies, Barrister-at- Law. Second Edition. 825 pages. Price £j 8s. net. " Both the profession and students will find this work of great assistance as a guide in that difficult branch of our law, namely the construction of Statutes." — Law Times. TORTS. ODQERS on the Common Law. See page 6. WILSHERE'S Analysis of Contracts and Torts, being an Analysis of Books III. and IV. of Odgers on [ 27 ] Digitized by Microsoft® Torts — continued. the Common Law. By A. M. Wilsheee and Douglas RoBB, Barristers-at-Law. 172 pages. Price 6s. net. It is designed as an assistance to the memory of the Student who has read the parent work. FRASER'S Compendium of the Law of Torts. Specially adapted for the use of Students. By H. Fraser, Barrister-at-Law, one of the Readers to the Inns of Court. Ninth Edition. 251 pages. Price 8s. net. " It is a model book for students — clear, succinct, and trustworthy, and showing a practical knowledge of their needs." — Law Journal. RINQWOOD'S Outlines of the Law of Torts. Pre- scribed as a Text-book by the Incorporated Law Society of Ireland. By Richard Ringwood, M.A., of the Middle Temple, Barrister-at-Law. Fourth Edition. 376 pages. Price los. 6d. net. " We have always had a great liking for this work, and are very pleased to see by the appearance of a new Edition that it is appreciated by students. We consider that for the ordinary student who wants to take up a separate work on Torts, this is the best book he can read, for it is clear and explanatory, and has good illustrative cases, and it is all contained in a very modest compass. . This Edition appears to have been thoroughly revised, and is, we think, in many respects irnproved." — Law Students' Journal. " The work is one we well recommend to law students, and the able way in which it is written reflects much credit upon the author." — Law Times. WILLS. STRAHAN'S Law of Wills. By J. A. Strahan, Barrister-at-Law. 167 pages. Price 7s. 6d. net. "We do not know of anything more useful in its way to a student, and it is a book not to be despised by the practitioner." — Law Magazine. MATHEWS' Guide to Law of Wills. By A. G. Mathews, Barrister-at-Law. 402 pages. Price 7s. 6d. net. " Mr. Mathews has produced an excellent and handy volume on a subject bristling with difficulties. , . . There is a scope for a short work of this kind on this subject, and doubtless Mr. Mathews' book will find its way into the hands of many Law Students." — Juridical Review. Eastern Press. Lid., London and Reading. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft®