'"'':' ^ '''*'■'. ; K (5nrnpll Ham ^rl^onl ICibtaty Cornell university Library K 230.H31P7 Principia prima. egum^^^^^^^ 3 1924 017 200 019 PRINCIPIA PEIMA LEGUM OK, AN ENUNCIATION AND ANALYSIS ELEMENTARY PRINCIPLES LAW, IN ITS SEVERAL DEPARTMENTS. BY aEORGE HARRIS, ESQ., P.S.A., or THE MIDDLE TEMPLE, BABRI8TEE-AT-LAW, OTTE OF THE HEGISTEAES OE THE COUET OP BANKEUPTCT, AKB ATJTHOB OE *' THE LIFE OE LOED CHAlfCELLOE HAEDWICEE," ** THE TEUE THEOET OP EEPEESENTATIOH" IJT A STATE,'* AlfD " CITILIZATIOW C0K5IDEEED AS A BCIENCE." "If Iio/m he a Science, and really deserves so suhUme a name, it must be founded on principle, and claim an exalted rank in tJie empire of reason." — SiE William JoifES, H^ PART I. LONDON : STEYENS AND SONS, 26, BELL YARD, LINCOLN'S INN. 9^ 7f LONDON: WILLIAM STETEirS, PEIITTHB, S7, BELL TABD, LiifooLs's iinr. _,^;;r\ uri;,/; M'" '- •■.->•, /o- "'' ^, ^. lcC- , \ ) \lWi\-i^ THE EIGHT HONOtTRABIiE EICHAED LOED WESTBUET, THIS WORK, INIEyDED TO AID IS" THE DBTELOFMENI OF THOSE LEADING PBINOIPLES OF lAW WHICH, ^ AS LOED HIGH CHANCELLOR OP QKEAT BRITAIN, HE HAS SO ABLY EXPOUNDED IS, WITH HIS LOBDSHIF*S KIITD PEBMIBSIOIT, SKtspett&Ilg UrttcateB HIS OSLIOED AKB rAITHFOT. SESTAITT, THE AUTHOR. a 2 Cornell University Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017200019 PREFACE Op the various sciences to wHch the attention of man- kind has been directed, or by which their interests haye been promoted, that of jurisprudence is at once the loftiest as regards its aim, and the noblest as regards the faculties of mind which it engages in its cultiTa- tion. Such a pursuit, however, must necessarily be regulated by certain determinate and unerring princi- ples, to which those who follow it can upon all occasions appeal. And it is the circumstance of it being so regulated, that entitles it to its high rank among those sciences which have occupied the study of the learned, and to the development of which the acutest intellects have been devoted. The main object, therefore, which has been aimed at in the present work, is to trace to its root each principle of law, and to exhibit, as far as possible, the origin of every rule that has been adopted as our guide VI PREFACE. in the science of jurisprudence. These principles, when thus deduced, have been illustrated by the quotation of select passages from the judgments of those distinguished men who have long been regarded as the oracles of jurisprudential wisdom. That these principles are ever most important to be kept in view, as beacons alike to guide us to truth and to guard us against error in the progress of legal investigation, every scientific lawyer will be ready to acknowledge; although, at the same time, every practitioner of experience must be sensible of and lament their neglect. A digest of principles thus effected will surely be as serviceable to direct the student in the attainment of a correct knowledge of the science, as is a record of decisions, or a compendium of statutes. In many cases, the inquiry into first principles is the only correct and absolutely certain mode of apply- ing the rule of law to the point to be decided. Indeed, this process ought in no instance to be departed from, except where a precisely analogous determination can be shown to have been previously effected. In all cases, the decision by rule and by recurrence to primary legal principles is the course which nature and common sense dictate, and by which alone Reason is acknowledged and appealed to, as the real authority by whom the matter is determined. Where, however, the exact point at issue has already been solved by a competent tribunal, reference is had to such prior PREFACE. Vii decision, in order to avoid an unsettling and ques- tioning of the judgment so pronounced. Aliie in the judgment, and in the argument upon a disputed point, but more especially in the former, ought these principles to be kept in view; and the more perfectly any legal axiom is in accordance with reason, the more correct and unerring must it necessarily be. Extraordinary, therefore, it is, that while the digests of decided, cases relating to every branch of the law are so numerous and so elaborately compiled, no complete systematic analysis has as yet been attempted of the first principles of law. In reality, however, the great attention at present paid to the records of cases determined by our courts only renders an inquiry into elementary principles the more essential. In the deduction here attempted to be made of the principles of law of different kinds, recourse has been had, not only to the several able and learned ele- mentary works on the subject, but also to the numerous leading judgments of each land, and occasionally to the doctrines propoimded during the hearing of the cases themselves. In most instances, a reference has been made in the following pages to those various treatises, both ancient and modern, and of foreign countries as well as of our own, which are justly regarded as the chief authorities on different branches of law ; as also to all those judg- VIU PEEFACB. ments by the several courts in this country, in which any great or leading principle has been laid down. And the authority for the rule so established has been carefully cited. Where no such authority is quoted, the author is, of course, himself responsible for the correctness of the principle enunciated. The mere citation of cases already determined, as a ground for making any particular decision, is neces- sarily a process of a very inferior nature to the recurrence to first principles. For while the reports of determined cases are resorted to as a mere register of the opinion of the court, in accordance with which, in order to prevent confusion and uncertainty, it may be desirable, as far as possible, to decide all cases of a corresponding kind, — whenever recurrence to first principles is had, the individual merits of the particular case alone determine the issue. A reference to prior decisions is, perhaps, mainly of use to fix the application of a rule already recognised, more especially when that rule is of a subordinate nature, and to prevent it becoming too fluctuating and uncertain. Although referring to decided cases may occasion- ally serve to elucidate principles of law, yet, in general, it tends rather to direct the application of principles, than either to oiiginate or to elucidate the principles themselves. And where it does elucidate principles, they are ordinarily principles of a subordinate and collateral, rather than those of a leading or primary, character. PREFACE. On tlie general subject of the application of cases, — botli as a guide to the determination of that before the court, and also as contributing to establish or elucidate principles of law, — and the extent to which the ap- plication should be carried, and the value of prece- dents in this respect, the following observations which fell from Lord Chancellor Brougham will be read with interest : — " A very learned judge, the late Mr. Justice Holroyd, said it was his rule never to apply a case to that before him, until he had searched into every comer of the deed, or whatever it might be, out of which the cause arose ; for he had frequently found, in doing so, that there was something in the deed which destroyed that very application of a case on which the parties relied. I most fully concur in that rule, as I do in another rule of the same learned judge, which is, when a statute is referred to, never to be satisfied with anything except the statute itself."* " In questions of this kind,t the light to be derived from decided cases is of less importance than in most others. The object being, in each instance, to ascer- tain the intention of the testator, and the means to be used for this pttrpose being the examination of what he has said, and not conjecture and arguments founded on probability, it is clear that almost everything must depend upon the particular circumstances of each case, * Per Lord Brougham, C, in Brmj v. JBree, 2 CI. & Fin, Aug. 15tli, 1834. + Relating to the construction of wills. PEEFACE. that is, upon the very words of the instruments ; and that the least variation in these may produce a wide difference in the result. The general resemblance of eases may carry us a little way towards a principle, or rule of construction ; but, unless the circumstances are the same, or nearly the same, there will arise as much difficulty in applying the former rule as in making a new one."* In addition to, and independent of, those leading principles already referred to, there are others of a kind inferior and subordinate to, and more or less derivative from, them, which rather relate to and govern separate departments of the subject, than serve generally to regulate it ; and which have been either determined, or interpreted, by particular decisions of the superior courts, when questions of this kind have been submitted to their consideration. Maxims of law, which in their nature are allied to, although they are essentially different from, elementary principles, are also in general applicable rather to subordinate and collateral, than to primary and leading, legal principles. It may be remarked, however, that many cases may claim to be ranked of a "leading" nature as regards the extensive practical importance of the rule which they lay down, and may yet wholly fail to enunciate any grand, leading, or fundamental principle of law. * Per Lord Brougham, C, in Ouy v. Slmrp, 1 Myl. 2 K. 603, July 6, 1833. PREFACE. XI One great difficulty, indeed, in the way of the successful completion of the present undertaking, is the fact that many judgments, by which very important rules are established, do not contain in the expression of them the enunciation of any leading principles ; while, on the other hand, many judgments which do set forth such principles do not tend to establish any very important practical rule. It is, moreover, but fair that I should state that many very important decisions by judges of the highest eminence have been omitted from this work, solely on account of the very technical nature of the proceedings or of. the question involved in the issue, and because no principle of an actually elementary or leading character is enunciated by them. For the same reason, certain other judgments of great value have not been cited, inasmuch as the determination of the question to which they relate was limited to the particular case and circumstances then before the court, and no general independent principle was estabhshed by their means. Nevertheless, in some instances, the desire to adhere to this rule has occasioned considerable perplexity; as, on the one hand, I have been anxious, as much as possible, to keep the principle laid down altogether distinct from the consideration of the intricacies of the individual case ; and, on the other hand, I have been no less desirous that no decision, which established a distinct and definite principle, should be omitted. In PREFACE. certain cases, however, it may be considered that the principle is established inferentially rather than directly; by example, more than by express assertion. Here, of com-se, the rule which I have laid down must be either departed from, or the decision must be altogether omitted. While some men, such as Lord Stowell and Lord Brougham, possess the power of laying down with clearness and force the leading principles of law ap- plicable to all cases alike ; others, as was ordinarily, if not universally, the practice with Lord Eldon, appear to rest satisfied with referring to what the rule is that has already been established by preceding cases, without endeavouring to frame any new principle. Certain other eminent judges, as in the instance of Sir William Grant, appear to have framed only principles to meet the particular case before the court, and which renders their judgments, how valuable soever they may be to the practitioner, much less available for quotation here ; as it is almost impossible to separate the rule enunciated from the particular circumstances of the case; or to perceive fally the force of the former, without fully comprehending all the bearings of the latter. Another point, which requires to be adverted to, is the great difficulty which I have occasionally experienced, and possibly sometimes apprehended where there was no sufficient groimd for so doing, of giving select passages from judgments in such manner as to convey fully PREFACE. Xiii their real and entire meaning, without any omission of what might be construed, or contended to be, context passages ; because I have in certain instances omitted such parts of them as were either entirely technical, or did not affect the meaning of the passages quoted. BeiQg fully alive to the error to be apprehended from this cause, I have used every exertion to avoid it in every instance where an extract or detached passage from a judgment has beien made use of; yet probably the danger alluded to is not greater in the case of an extract from a judgment, than one from a speech or an argument of any kind, or even in that of a quotation from a book. A somewhat perplexing question, connected with the composition of the present work, is the un- certainty as to the precise limit to which the elucida- tion of principles ought to be carried, and the difficulty of defining, in many cases, what constitutes a leading principle, and what is the criterion for excluding those, which cannot fairly claim to be of this rank. I have strenuously endeavoured to adopt what appeared to me to be the correct and desfrable course in a treatise of this description ; which is essentially of an elementary nature only, and intended to elucidate merely leading and primary principles, — not to serve as a guide in the general practice of the profession. I have, con- sequently, not attempted to illustrate or to include every single principle of law relating to each topic which is here embraced, but have sought to deal XIV PREFACE. with those grand, and leading, and fundamental principles alone, which serve to constitute our guiding beacons in the pursuit of the science, and which are, in reality, representative of all the rest. Such a limitation of my undertaking I have found necessary ; and in a mere elementary work this is less calculated to render it incomplete, than in a treatise of a more directly practical nature. These principles are fixed, and certain, and determinate ; and they serve to regulate the entire system. When once discovered, they fluctuate not, either with the changes of society, or the ever-varying and apparently uncertain opinions ex- pressed by the com'ts of law ; although, until so defined, their interpretation and application are ever liable to vary. And as these several principles are all alike founded on reason, and truth, and justice, and all acknowledge the same fundamental axioms, whether propounded by the courts of common, civil, ot criminal law, so they are all here classed together as the constituent and inseparable portions of one stupendous system. Indeed, the tendency among scientific jurists of the present day is rather to fuse into one code our several modes of administering justice, than to separate them and consider them as each independent. It may, perhaps, however, be thought that, in certain cases, a more clear and marked distinction ought to be made between a legal principle in itself, and the object which it seeks to attaia. In reality it PREFACE. XV ^ will, nevertheless, be found, after full examination and consideration, that, in most, if not in all cases, the principle of the law is altogether identical with its object; and that the former consists mainly and essentially in the complete accomplishment and carry- ing out of the latter. The principles of law, which I have here en- deavoured to trace and to enunciate, are the result of the highest efforts of Reason; and in this science, moreover, many of the greatest intellects, which the world has ever produced, have been exercised, and to this pursuit have devoted their vast powers and acquirements. In the following pages wiU be found recorded some of the choicest specimens of, and selections from, these reasonings. The topics on which those vigorous intellects were exerted, are the most important and interesting, and were peculiarly calculated to call forth the fullest exercise of their powers. The noble nature of the science itself is further obvious from the consideration that, through its agency, human conduct is directed; and the investigation of truth, which is the highest object of human reason and ia rela- tion to the most momentous subjects, is attained. The originator and founder of all law is the Deity Himself; and, in the enunciation and application of its principles, the greatest minds have ever been exercised. The importance of the pursuit is attested by the grandeur of its aim ; and its high intellectual character, by the XVI PREFACE. sphere that it opens for the noblest efforts of the reason. So wide, moreover, is the range of its operations, and so vast is its power, that, through the agency of law, the fierce passions of men are successfully controlled, and their strongest desires effectually curbed. That which of all things might appear the most uncertain and the most fluctuating, the claim of manldnd to rights and privileges of various kinds, has been re- duced to fixed rules and determinate principles, and order has prevailed where all seemed rude, and wild, and lawless. The power of the State is employed to enforce the decrees of justice ; and what the conscience declares to be right, the authority of the government enjoins to be performed. Moreover, if, as is undoubt- edly the case, human action is the most important of all operations throughout the universe, the system, which fi^ames laws for the due regulation of that action, must be of all sciences the most valuable. Surely, therefore j a pursuit, which aims at objects of the highest nature, which is regulated by the purest principles, and which engages in its undertaking the noblest mental efforts, is entitled to be ranked among the first of sciences. And even if those who are occupied in the practice of this profession are some- times open to the accusation of not having liberally cultivated their minds, or partaken so extensively of the pleasures of literature as those who are engaged in certain other professions, the exalted natm-e of the PEEPACE. XVU science itself is not diminished by this circumstance, however the mode of carrying it out may suffer. And, on the other hand, this fact serves beyond anything to demonstrate, how arduous and how absorbing is its pursuit. It may possibly, therefore, appear somewhat extra- ordinary that, in a science so noble as the law, and one in which so many powerful and highly cultivated minds have been engaged, the judgments delivered by the leading sages of the profession contain so few aphorisms of a philosophical character, elucidating grand and fundamental principles of morals, which might for ever serve as landmarks for the guidance of mankind at large. This is partly, if not principally, owing to the neglect of first principles already adverted to ; but it arises mainly from the aversion of practical lawyers to deviate more than is necessary from the regular beaten track, to which the course of proceeding in which they are engaged directly conducts them. In certain of these judgments, nevertheless, passages of deep reflection, and of profound philosophical reasoning, will occasionally be found interspersed, embedded as they are in matter of a mere ordinary character, relating only to the immediate topic respecting which a deci- sion is to be pronounced. I am not, indeed, wholly without hope that I have been able to extricate from the mass of dry, though by no means valueless, matter in which they have been so long enveloped, some of those noble efforts of thought, XVlll PREFACE. reason, and eloquence, which emanated from the minds of men who, both for ability and learning, were doubtless among the most distinguished that this country, I might say, that the world, has ever produced. A great deal has been done of late years towards rescuing fr^om oblivion, and presenting t9 our view, the career and character of our most eminent lawyers of ages gone by. In the present work an effort is made to bring to the light, and to make known to many for the first time, what are no less deserving of being recorded than the former, although fallen into almost as great obscurity, the choice passages of the judgments of these great men, — efforts to which mainly they owed their well-merited celebrity, and their claim to be so honourably recorded in those biographies. Unattractive as the study of the law is unfortunately deemed by the generality of mankind, yet among persons of education their course will scarcely be con- sidered to be complete without their having acquired some knowledge of its principles. An acquaintance with the leading judgments of the most distin- guished sages of the law, such as those which will be found in the selections contained in this work, exhibiting as they do the finest specimens of exalted reasoning, by minds of the loftiest power, and upon subjects of paramount interest and importance, cannot fail, if viewed merely as intellectual efforts of the noblest kind, to afford deep interest, as well as much PREFACE, XIX valuable information, to every individual of cultivated intellect. The proceedings of our law courts are among the most attractive intelligence of the day, and the splendid efforts of eloquence and reasoning by our great forensic orators are ever perused with avidity and delight. The sentiments expressed by the judges on the same topics, ought surely to command an equal degree of attention, and are, at any rate, well worthy of regard. For the purpose of rendering the present undertaking as complete as I could, I have not only examined carefully the sentiments of several jurists, both ancient and modern, and of various nations on the Continent, and also of America, as well as our own ; but, with the view of inquiring still more minutely into the first principles of the science, and tracing to its fountain- head each axiom that has been adopted, I have been induced to investigate the theories and the systems of China and of India, and for this purpose to examine carefully the digest of Hindu law prepared under the auspices of the late learned, highly gifted, and accomphshed Sir WilHam Jones, whose acute and accurate perception of the first principles of the science of jurisprudence peculiarly qualified him for the task he undertook. I have also inspected the Gentoo code, translated by Mr. Halbed from a Persian version of the original Sanscrit; which latter that able jurispru- dential writer Mr. Charles Butler pronounced to be, b 2 XX PEEFACE. next to the Bible, "the most valuable present which Eiorope ever received from Asia."* I have been disappointed, however, by discovering that the subtle minds and acute ingenuity of this extraordinary people, appear to have been directed rather to providing for almost every possible variety of practical cases that could, by any contingency, come within the province of their code, than to framing or enunciating any lead- ing principles of jurisprudence, beyond a few common- place maxims, or rather truisms. It is interesting, nevertheless, to observe the mode in which a people, in many respects peculiarly gifted with the qualities essential to jurists, more especially as regards the sagacity, subtlety, and ingenuit}^, which so prominently characterize them, yet circumstanced so very differently to what we of this country are, — have dealt with legal topics generally, and have applied their minds to provide for many of the same exigencies in regard to social life and property which we have experi- enced. In such a case, the coincidences and the conflicts of opinion and decision are alike curious to examine. Considerable difference of opinion does, however, appear to exist among jurists, and among those well qualified to speak on such a subject, as to the relative value of the efforts of the Gentoo legislators, in the way that I have here considered them. One very able and learned judge of the Supreme Court in India, whose ■* Butler's Horas Biblical. PREFACE. XXI friendship I have enjoyed for many years, to whom I had written for his opinion in reference to my present undertaking, replied to me as follows : — " I rejoice that your Principia are progressing, but I do not think that you will derive any assistance from Hindu law, which is more devoid of leading principles than any other system of jurisprudence in the world, if system it can be called. I do not wonder that your search into Sir William Jones's digest proved unavail- ing, nor do I think you would be better off if you were to dive into the treatises of the Hindu lawyers, where you would find plenty of curious disquisitions on such subjects as that the mother abounds in the female, and the father in the male children; but nothing that would suit your Principia. The Life of Sir William Jones will give you a good idea of the wide range of subjects which come under the ken of an Indian judge; but his oriental scholarship, as well as his learning, both legal and general, make him a star of the first magnitude in the Indian judicial sphere." It may seem at first sight difiicult to reconcile these two apparently conflicting opinions of men who both of them appear to be eminently qualified to speak on such a subject. The real truth, as to which both would probably agree, is this: that the code of Hindu laws does not of itself enunciate any distinct elementary principles with regard to the rules that it promulgates; but that, on the other hand, there xxil PBEFACB. are certain distinct elementary principles to be deduced from those laws of considerable intrinsic value, as well as of deep interest to the philosophical student of j ur isprudence . It is alone by demonstrating that the highest efforts of reason are engaged in its investigation, that the law can be entitled not only to be ranked among the sciences, but to be regarded as one of the very first and noblest of them all. In the case, however, of legal reasoning, as I have, when treating on the subject in the body of this work, remarked with regard to legal evidence, the strictest and most perfect exercise of this effort is effected ; while at the same time the very effort itself is qualified, and controlled, and rendered practical, and adapted for ordinary occasions, by the application both to its deductions and conclusions of the rules of common sense. As my object has been not so much to produce a general or complete practical treatise on the law, as to exhibit a view of the leading principles of the science, I have been induced, in the selection of titles, to choose those only which, from the prominent and important natui^e of the su.bjects embraced by them, seemed best calculated to enunciate primary . elements, and which may be considered as constituting the repre- sentatives, as it were, of the various topics to be considered; in preference to those titles which perhaps may at first sight appear of more practical PREFACE. importance, and capable of more extensive application, and whicli have generally been adopted in ordinary legal treatises. As the tourist who wends his way through a country, in pursuit of the picturesque or in search of objects of natural curiosity, adopts a very different course to the traveller whose only aim is to effect a passage to some other land by the easiest route, and who carefully avoids the steeps, and wilds, and intricacies which are the delight of the former ; so in framing a work with the peculiar object of that now in progress, I have followed a line very different to what I should have pursued, had I been merely desirous of producing a practical guide for those who are engaged in the profession, and had not been mainty endeavouring to illustrate the leading elements of the science, of which, indeed, none should be ignorant, who desire with success to follow it practically. In the order, and disposition, and arrangement of the several portions of the present work, I have therefore been principally directed by the desire to effect this end, in com- parative disregard of what might appear to be the orthodox and regular mode of disposing of its several portions, as ordinarily adopted by other writers, whose eminence entitles them to every respect, and generally to be regarded as leading authorities, and the safest guides to follow. Nevertheless, with all the apologies that I am able to make for it, I am fully aware that the undertaking XXIV PREFACE. wlaicli I have attempted is one peculiarly open, and even inviting, to criticism, both from the boldness and, perhaps apparent, presumption of the task, as also from the unprecedented nature of the work, to say- nothing of the imperfect mode, in which the design has been accomplished. Captious censure, even more than fair criticism, may possibly thus be provoked. The author will, however, at all events, have the satisfaction of reflecting that his efforts have called attention to a subject so important ; and it will be consolatory to have a correct mode of attaining the desired object pointed out, even though this should be effected at the expense of proving his own labours to be abortive, or more or less wrongly directed. As the author is fully alive to the difficulty of his undertaking, more especially of its complete accom- plishment, even to the extent of his own imperfect design, and is deeply sensible of the inadequate manner in which this has been carried out, he will always feel grateful for any assistance that may be rendered to him, from whatever quarter, not excepting those who will have the candour and the kindness to point out any errors into which he may have fallen. The gratifying task remains of here acknowledging, and expressing thanks for, the efficient, and able, and generous assistance which has been on all hands tendered to the author in the several departments of his work, and that by some of the most eminent and PREFACE. XXV distill guished ornaments of the bench, as well as by members of the profession, both in the revision of particular judgments, and the valuable suggestions that have been offered to him, vrhich will necessarily confer a value and an authority upon the whole, to which it could not otherwise possess any pretensions. ANALYTICAL TABLE OF CONTENTS. PART I. CoirsTiTtrTioNAi AND Gbneeai Law. Tit. I. Primary Principles as regards tlie Essence and Constitution of Law in general. II. The Object and Intent of Law. III. The Province of Law. IV. The Origia of Civil Government. V. Different Kinds of Government. VI. Authority and Prerogative of the Sovereign. VII. Allegiance to the Sovereign. VIII. The Eight to m.ake Laws, — in whom, vested. IX. The Constitution and Power of Legislative Bodies, and Eepre- sentative Assemblies. X. The Mode of Operation of Laws of each Kind. XI. Variety and Qassiiication of Laws. XII. Laws, Domestic and International. XIII. Laws of Peace and of War. XIV. Piracy and Privateering. XV. Civil and Canon Law. XVI. Common Law. XVII. Statute Law. XVIII. Prohibitory Laws in general. XIX. Civil Liberty. XX. Civil Eank. . XXI. Civil Eulers. XXII. Obligation to Obey Laws. — Subjects and roreignera Eesident. XXYlll ANALYTICAL TABLE OF CONTENTS. Tix. XXIII. Exemptions from Legal Jurisdiction. — Aliens, Infants, Lunatics, and Persons under Duress. XXIV. Conflict of Laws. 1. Public Bodies. 3. Public Persons. 2. Private Bodies. 4. Private Persons. EIGHTS OP PEESOUS. PEOPEETT OF PEESONS, 1. Public Eights. 1. PubHo Property. 2. Private Eights. 2. Private Property. XXV.— 1. Public Bodies. — Corporations of different Kinds. XXVI. — 2. Private Bodies. — Partnerships. XXVIL— 3. Public Persons.— Officers of Justice. XXVIII. — 4. Private Persons. — 1. Professional Men. XXIX.— 2. Tradesmen. XXX. — 3. Parents, — in relation to their Children. XXXI. — 4. Husbands,' — in relation to their Wives, and Mar- riage generally. XXXII. — 5. Guardians, — in relation to their "Wards. XXXIII. — 6. Executors and Administrators. XXXIV.— 7. Trustees. XXXV. — 8. Masters, — in relation to their Servants. XXXVI. — 9. Principals, — in relation to their Agents. PART II. Eights op Peesons. TiTi I. Public Riglits. 1. Constitutional Eights — considered in Part I. 2. Public Privileges — considered hereafter when treating of Crimes, Part IV., and Courts of Judicature, Part V. II. Private Rights. 1. Civil Liberty — considered in Part I. 2. Personal Protection— considered in Parts IV. and V. PART III. Peopeety op Peesons. — Rights in regard to Property. Tit. I. Public Property. 1. National Property of the State. 2. National Eevenues. 3. Public Highways and Navigable Waters. ANAL"XTICA1 TABLE OF CONTENTS. XXIX Til. II. Private Property. 1. Eights of Owners. — 1. Absolute. 3. Limited. 2. Eights of Strangers. — 1, Adverse. 2. Amicable. 1. Holding and Enjoyment of Property. 2. Acquiring and Disposing of Property. 3. Protecting and Preserving Property. I. Holding and Enjoyment of Property. — Varieties of Interest iu Property. 1. Property in Possession. 2. Property in Eeversion. 3. Property in Eemainder. 4. Property held for an Estate in Eee. 5 . Property held for an Estate in Tail. 6. Property held for an Estate for Life. 7. Property held for a Term of Tears. 8. Property held in Entirety. 9. Property held in Shares. — Estates in Joint Te- nancy and Common, Different Kinds of Property. 1. Real. 2. Personal. 3. Mixed. 4. In Gross. 5, Appendant. 6. Appurtenant. 1. Eeal Property. — 1. Freehold. 2. Copyhold. 2. Personal Property. — Chattels of different Kinds. 3. Mixed Property. 4. Property in Gross. B . Property Appendant. 6. Property Appurtenant. Eights regarding Property. 1. Easements. 2. Copyrights. 3. Patents. 4. Good-wills. II. AcftTJIKIlCG AND DISPOSING OE PkOPEETY. -Customs. ■n uiring Property. 1. By Occupancy. 2. By Prescription, 3. By Descent. 4. By Devise. B. By Purchase. 6. By Marriage. — Dower and Courtesy. ^^^ ANALYTICAL TABLE OF CONTENTS. 3. Disposing of Property. 1. By Legal Instruments. 2. By Overt Acts. 1. Nature and Eequisites of Disposing Instruments. Ceremonies for the Execution of Disposing and other Legal Instruments. Interpretation of Disposing and other Legal In- struments. Different Kinds of Legal Instruments. I. W-ills. — 1. Devises. 2. Bequests. II. Deeds. 1. Contracts. Consideration to support Contracts. Promises Express and Implied. 1. Contracts, Absolute. 2. Conditional. 3. General. 4. Special. 2. Conveyances. 1. Absolute. — 1. Purchase Deeds. 2. TrustDeeds. — Conveyances to Uses and upon Trust. G-eneral Principle of the Law of Uses and Trusts. 2. Partial. — Leases. 3. Conditional. — Mortgages. 3. Securities regarding Property. 1. Covenants. 2. Powers. 3. Bonds. 4. Bills and Wotes. 5. Eecognizances. 6. Liens. 4. Eeleases affecting Property. 2. Modes of Disposing of Property by Overt Acts. 1 . By Public Auction. 2. By Private Sale. 3. By Forfeiture. Invalidation and Avoidance of Disposing Acts regarding Property. 1. By Eraud. 2. By Error. ANALYTICAL TABLE OF CONTENTS. XXXI PART IV, Ceimes, — in relation to tte State, to Persons, and to Property. Eights, both as regards person and property, are violated by Ceimes, wbioli are offences against — I. The State., II. Persons, Members of the State. — 1. Public Persons. 3. Private Persons. III. Property belonging to Persons, Members of the State, ©rimes are in Essence — 1. Mala in Se. 2. Mala Prohilita. 3. Mixed. I. Crimes against the State are — 1. Direct. — Treason. 2. Indirect. — AU Breaches of the Law. II. Crimes against Persons. 1. Threats and putting in Pear. 2. Eestraint of Person. 3. Assault and Battery. 4. Maiming. 5. Homicide. III. Crimes against Property. 1. Injuries to Keputation. — Defamation. 2. Fraud. 3. Injury to Property. — Waste, ITuisance. 3. Deprivation of Property. — Eobbery. 4. Destruction of Property. — Killing, Arson. Crimes are distinguishable into — 1. Treasons. 2. Pelonies. 3. Misdemeanours. Negligence ; when, and to what Extent, a Crime. Distributable also into — 1. Offences by One. 2. Offences by Several. — Conspiracy. 1. Principals. 2. Accessories. Eight of Self-defence. Punishments for Crimes are by — 1. Fine and Forfeiture. 2. Imprisonment. XXXn ANALYTICAL TABLE OF CONTENTS. 3. Exile. 4. Penal Servitude. 5. Corporal Infliction. 6. Death. Purgation of Crime is by — 1. Incurring the Penalty. 2. Reversal of the Attainder. 3. Pardon. PART V. Modes op Enfoecing tee Opeeaiion of the Laws. Which are by — • I. Officers of Justice — considered in Part I., Tit. XXVII., and^os^. II. Courts of Judicature. 1. CivU.— 1. Law. 2. Equity. 3. Criminal. 8. Ecclesiastical. 4. Matrimonial. 5. Military. 6. Maritime. 7. Bankruptcy. 1. Officers of Courts. 1. Judges. 2. Jury. 3. Advocates.' 2. Parties in Courts. 1. Civil Courts. — Plaintiff and Defendant. 2. Criminal Courts. — Prosecutor and Prisoner. 3. Froceedings in Courts. 1. Arrest. 2. Process and Pleading. 3. Trial. 4. Evidence. 5. Oaths. — Peijury. 6. Judgment. 7. Damages and Eestitution. 8. Execution. 9. Imprisonment. 10. Costs. 11. Staying Proceedings. 12. Appeal and New Trial. Trial by Arbitration. TABLE OF CASES. A. Abraham v. Bunn, 174 Adams v. Buckland, 204 Addison v. Gandasegin, 229 Alicia Eace, Ee, 141 Anstey v. Manners, 180 Archer v. Hudson, 192 Armstrong v. Armstrong, 116 Atoheson v. Everitt, 76 Atchinson v. Baker, 156, 163 B. Balfour v. WeUand, 209 Barker v. Hodgson, 157 Barlow v. Bateman, 161 Bartlett v. Wood and others, 209 Barwell v. Brooks, 171 Bauerman v. Eadenius, 12 Bayley v. Eimmell, 221 Beaufort, Duke of, v. Berty, 139 Beauraine v. Beauraine, 186 Beeston v. OoUyer, 212, 222 Bentley v, Cooke, 174 Blackburn v. Thompson, 65 Bonbonus, ex parte, 119 Booth V. Booth, 199 Bray v. Bree, ix Brook V. Brook, 180 Broun v. Kennedy, 128 Brucker v. Fromat, 213 Buckland v. Gibbins, 13 Burgess v. Clements, 133 Bush V. Steinman, 215 Butler V. Freeman, 138 Bywater, Doe d., v. Brandling, 76 0. Ca,Uo V. Brouncker, 220 Campbell v. Walker, 207 Oatherwood v. Oaslon, 182 Chalmer v. Bradley, 205 Champion v. Eigby, 128 OhurchiU v. Creek, 76 Coust V. Harris, 118 Cockney v. Anderson, 91 Cooper V. Blade, 234 Corbett v. Poelnitz and Wife, 172 Cox V. The Midland Eailway Company, 232 Crawshay v. Collins, 118 Crawshay v. Maule, 114 Cutts V. Salmon, 128 D. Dalrjrmple v. Dalrymple, 94, 168 Dixon V. Eanken, 214 Doe d. Bywater v. Brandling, 76 Doe d. WiUis v. Martin, 235 E. East India Company v. Hensley, 232 Eliza Ann, The, 66 Ellis V. The Sheffield Gas Consumers Company, 213 Etherington v. Parrott, 170 XXXIV TABLE OF CASES. Eton College D.Wincliester, Bistop of, 76 Evans ■;;. Evans, 176 Parrant v. Blanoliford, 210 Fawcett v. Cash, 212 Eenton v. Pearson, 65 Flad Oyen, The, 47 Forster v. Forster, 179 Fox, The, 54 G. Gordon v. Gordon, 144 Gordon v. Eolt, 218 Gregory v. Piper, 217 Guy V. Sharp, x H. Hall V. Hallet, 197 HaU V. Wright, 158 Hanoke v. Hooper, 129 Hartley «. Eioe, 148 Hartop, ex parte, 229 Hatch V. Hatch, 192 Hawkins v. Day, 194 Hawtayne v. Bourne, 232 Hill V. Turner, 185 Honyman v. Campbell, 154 Hudson V. Hudson, 204 Hunter v. Atkins, 189 Hunter v. Potts, 95 Hutchinson v. The York Newcastle and Berwick EaUway Company, 214 Johnes v. Johnes, 76 Johnson v. Gallagher, 173 Johnstone v. Beattie, 191 K. Keble v. Thompson, 206 Kennedy v. Broun, 128 King, The, v. The Inhabitants of Hod- nett, 160 Kingston's, Duchess of, Case, 159 Kirk V. NowiU & Butler, 110 L. Lacey, ex parte, 208 Langdal, ex parte, 114 Langford v. Gascoyne, 195 Lanphier v. Phipos, 129 Laugher v. Pointer, 216 Leahy v. Booth, 219 Leigh V. Barry, 206 Lincoki v. Wright, 199 Lindo V. Belisario, 150 Long V. Dennis, 148 M. Mann v. Cammel, 76 Marie, The, 64 Marshall v. Colman, 123 Marshall v. Stewart, 214 Mason v. Armitage, 76 Miles V. Bernard, 234 M'Namus v. Crickett, 213 Montague v. Benedict, 170 Morgan v. Morgan, 188 Morley v. Gaisford, 217 Mucklow V. Fuller, 198 N. Navulshaw v. Brownrigg, 231 Kelson v. Powell, 232 O'Brien v. Lewis, 128 Ozard V. Darnford, 169 P. Palmer v. Jones, 206 Paradine v. Jane, 156 Pamell v. ParneU, 188 TABLE OF CASES. XXXV Parnell v. Tayler, 173 Parton v. Williams, 125 Patterson v. Gandasegin, 229 Peacock v. Peacock, 124 Peek V. Nortli Staflfordslure Railway Company, 134 PeUcan, The, 64 Phillips V. Hop wood, 75 Pole V. Leask, 227 Pooley V. Preeman, 11 Potiager v. Wightman, 144 Quarman v. Burnett and another, 216 Queen, The, v. Millis, 182 E. E. V. Keite, 221 Eandleson v. Murray, 215 Eex V. Inhabitants of Burton-on- Trent, 163 Eex V. Ivens, 131 Eeg. V. Maiis, 169 Eex V. Palmer, 76 Ee3m.ell v. Lewis, 228 Eidgway v. Hungerford Market Com- pany, 221 Eingsted v. Lady Lanesborough, 171 Eobinson v. Hindman, 220 Eocke V. Hart, 202 S. Scott V. Tyler, 147 Searle v. Price, 176 Sharrod v. The London and North- western Railway Company, 218 Simpson v. Fogo, 48 Sly V. Edgley, 215 Smith V. Buchanan, 95 Smith V. Milles, 193 SomerriUe v. Somerville, 143 Sinclair v. Sinclair, 96 South Yorkshire Railway and River Dtmco. The Great Northern Railway Company, 109 Stacey v. Elph, 209 Steel V. South-eastern Railway Com- pany, 213 StUes V. Guy, 200 St. Louis, The, 52 SuUivan, (admix.) v. Booth, 219 Sutton V. Clarke, 125 T. Tarrant v. Webb, 214 Taylor v. Plumer, 233 Thomson v. Davenport, 229 Tickel V. Short, 233 Townshend, Lord, v. Windham, 143 Turner v. Mason, 222 TweddeU v. TweddeU, 142 U. Urquhart v. King, 202 W. Wait, Re, 122 Waite V. Whorwood, 197 Wakefield u. Wakefield, 161, 163 Walker v. Taylor, 204 Walsh V. Whitcomb, 224 Webster v. Le Hunt, 210 WeUesley ii. Duke of Beaufort, 140 Whitehall v. CressweUer, 213 WiUetts V. Green, 220 Williams, ex parte, 121 Willis, Doe d., ii. Martin, 235 Wiseman v. Easton, 119 Woodward v. Woodward, 72, 173 Woolston V. Scott, 182 Wyld V. Hopkins, 228 PRINCIPIA PRIMA LEGUM, ETC. PART L I. Primary Principles as regards the Essence and Constitution of Law in general. 1. A LAW, considered in its most general and comprehen- Primary prin- sive sense, consists in a direction or rule, framed and pre- Si-als aie^es- scribed by some superior authority endowed with power ^^'^'^ °^ 1^^- for that purpose, for the correct and regular guidance of the conduct of those whom it is intended to control. 2. Such a ride of conduct ought to be practical as re* Primary prin- gards its nature and operation, clear and definite as to the constitution obligations which it imposes, and consistent with right of law. reason, and justice, in respect to the priaciples on which it professes and appears to be based. 3. A particular law may, however, in its general prin- Qualifying ciples and application, be entirely and strictly in accordance prlndpla '^ with, while its practical operation and application to special individual cases may be apparently, if not reaUy, to some extent, more or less at variance with, both reason and justice. 4. Nevertheless, a,s far as possible, reason should invari- Interpreting ably, in every instance, direct the application of the prin- jnijiciple. ciples of law of each kind to particular, as well as to general rules and cases. But, when the attainment • of both the before-mentioned objects is believed or found to be incom- patible, and it is requisite to decide as to which of them shall be selected, to the disregard of the other ; the special exigency to be met by the particular law must always take VOL. I. B 2 ESSENCE AND CONSTITUTION Of LAW. Tit. I. precedence of, and be considered as of more importance than, the attainment of its general object. Principle re- 5. It is essential, moreover, to the perfect constitution tioal requisites and practical carrying out of every law enacted by a civil of aws. state, that it be prescribed by the supreme, legislative, or governing authority in such state ; that it prohibit the commission of certain acts, or command others to be done ; and that it exact some specific penalties for each breach of its enactments, in order to ensure its operative efficiency, * Vide Til. 10, and due obedience to its precepts.* „ . . c 6. As regards the derivation of the term Law, and its Opinion 01 ~ ' learned writers original definition, a law is, in Latin, according to Suazez, as to the ori- . . gin and defini- ihomas Aqiunas, V alentia, and others, styled Lex, from term°Lai/ *^® Verb Liffo, which signifies to bind ; because men are bo\md and obliged by laws either to do, or not to do, some- (a) Disserta- thing (a). But Cicero, in the first book of his Treatise of Law of Na- Laws, contends that the word Lex has its original from the ofNati^"^^ Latin verb Deligo, to elect and choose ; because it teaches cfcc, 1726, us what we ought to elect and make choice of (6). Others (S) Ibid. p. 3. report that it is derived from Lego, to read, because a law (c) lUd. is always read and published in writing (c). Burlamaqui defines law to be "a rule which lays an obligation on subjects of doing or omitting certain things, and leaves , . „ . . . them at liberty to act, or not to act, in other matters, of Natural according as they judge proper " ((f). Law, Part I. ^ . . , , , _ <;. 10, B. 5. 7. As IS observed by Locke, all men are naturally m a Locke's prin- state of perfect freedom to order and direct their own ciple as to na- . n i • tural freedom actions, and dispose of their possessions and persons as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other (e) Treatise of man (e). Civil Govern- o -rv i^ wmt, b. 2, 8. Hoflinan lays it down that we are to understand by Hoffman's de- *^^ ^^^^^ ^^ nature, merely that condition in which men fmition of the exist while they retain their natural liberty, and acknow- state of na- , , . , . ture. ledge no common superior, — that is, a state contradis- tinguished from the civil state.; and it is immaterial to us iines,^T^n^ whether this state ever had an actual existence or not (/). Principle as to 9. This state of nature can, nevertheless, in reality, exist the origin of j> xi • i> ^• -> ■, law in general, pertectiy m a state ot solitude only ; for, directly that any OfiJfEC?!" AND IKTENT OP LAW. 3 two or more persons agree to liye together in society, it is Tit. II, essential that some laws should be formed to regulate their conduct one towards another ; and that in order to secure their satisfactory operation, these laws should be framed, as has already been remarked, on reason and on justice. Hence Hofiinan defines a law to be a rule adapted to pro- mote the general good, constituted by general consent, and sanctioned by implying in its violation some injury to that public good of which our own forms a part (o). In the ia) Legal Out- . ^ ^'" lines, p. 70. institutes of Justinian it is also laid down that Justice is the constant and perpetual desire of giving to eyery man that which is due to him ; and that Jurisprudence is the knowledge of things divine and human, and the exact dis' cernment of what is just and unjust (A). d. i.^t. \. 10. The strict and correct legal definition of municipal Blackstone's law, or that branch or kind of law which regulates the con- municipal duct and afiairs of men when united into a civil society, ^^' and which is that alone with which we are here concerned, as laid down by Sir William Blackstone, is, that it is a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is II. The Object and Intent op Law. 1. The primary principle with regard to the regula- Primary prin- tion of the conduct of each individual is, that he is fully ^„ leg^^^obii- at liberty to follow the dictates of his own will, and S^^°^ <"i '' _ _ _ every memoer that his own conscience is the only controlling power by of society. which he can be restrained. For the constitution, carrying on, and due regulation of society, it is necessary, how- ever, that this liberty allowed to the individual should, on his becoming a member of that society, be qualified by the obligation that he so regulate his conduct and demeanour as a member of such society, that no injury, molestation, or annoyance be thereby occasioned to the other members of that society, who are each reciprocally under a like obligation, both vnth regard to him and one another. 4 OBJECT AND INTEXT OF LAW. 'J^'T. II. 2. It is further essential for the existence and carrying Principle re- on of every social community or civil society, that certain garding neces- .„ ., sity for ex- specific, express, and definite laws or rules oi conduct lor press awb. ^-^^ observance of each individual, be established ; and that the promulgation and enforcement of these laws be vested in some superior authority, duly selected and qualified for this purpose. Principle as to 3. From the absolute necessity for the existence of such to make laws. ^ ^'^^^ ^^ laws, and of rulers to frame them and enforce obedience to them, originates the right of certain persons to rule over others, to enact such laws, and to inflict punish- ments of different kinds for breach of the laws that have been made. Principle re- 4. The ultimate end of all law alike is to promote and fication of enforce the doing of what is right, and to prohibit and ^^®' prevent the doing of what is wrong. But, as actions and duties are multifarious in their nature, and may be variously classified, so the objects of laws in general may be classed under those which relate to the well-being and m^ain- tenance of the community or state itself, or constitutional laws ; those relating to the protection of the persons and property of the members of such community ; and those which relate to the disposal of the property belonging to its members. For each nation, moreover, some particular and special laws will be enacted, adapted probably to that individual state alone, in. order to meet the particular and special circum.stances and exigencies of that particular nation. Principle re- 5. In the earlier days of society, when the requirements of law of" ^^'^ of men were but few, and their transactions one with an- nature. other were plain and simple, they were principally directed by the dictates of their own conscience, and were thus led to pursue that course which, to the generality, appeared to be reasonable and in accordance with right and justice ; whence originated what is ordinarily termed the law of nature. Principle re- 6. In certain cases, and with regard to some specific garding origin . i 'n i- i a n • ofDivinelaw. actions, the Will, of the Almighty has been revealed to mankinrl, and directions have been given respecting the OBJECT AND INTENT OF LAW. acts in question ; whence has originated what is termed Tit. II. the law of God — ^the highest, most perfect, and most strictly obligatory of aR laws. 7. As nations advanced in civilization, and their trans- Principle re- • • ^ T I I o Tro !•! garding origin actions became more complicated, laws oi dinerent kinds, and object of and correspondingly more complicated also, were enacted J^™^gene- in order to meet these particular cases ; the ultimate end ^^^J- of all of them, nevertheless, being to prohibit what is morally wrong, and to promote and enforce the doing what is morally right; and the foundation of them all alike being, in right reason, the law of nature, and the law of God. 8. Hence, in the furtherance of these high moral ends Principle re- ,,,. ,. n 1 ■ 1 • garding prohi- and purposes, the leading object of law m general, m every bitory and society and state alike, is to promote the general good con- j^^" ^ °^ duct of the various members of the state, more especially as regards those matters which directly concern the wel- fare of such state. As a means to attain this end, it endeavours to encourage, and, as far as possible, to ensure the omission or commission of certain specified acts which the state, for special reasons, deems it desirable to prohibit or encourage, as being essential or directly conducive to the well-being and security of the nation. 9. Nevertheless, the obiect aimed at in the framing of a Q^ialifymg •' _ " elementary law is very often not that which appears to be of most essen- principle. tial importance in itself, but that for which the particular exigencies of the time require provision to be made. 10. As a consequence of this principle, it occasionally Consequential -^ ... elementary happens that crimes which are of comparative insignificance principle. in themselves, acquire importance from their bearing upon the welfare of the state ; . and that crimes which are in themselves of comparatively great importance, may be regarded as insignificant on account of their not being calculated either extensively or directly to aifect the public weal. Thus, to counterfeit the coin of the realm, though morally a less crime than many other offences, has been always punished with far greater severity, on account of its injury to the state. 11. As regards the ultimate object of the municipal Principle as OBJECT AND INTENT OF LAW. Tit. II. to the ultimate end of all municipal laws alike. Principle re- garding pre- ference of pub- lic to private interests. Lord Bacon's principle as to the genera] object and in- tention of law. (7.;) The Use of the Law, Lord Bacon' sWorks, vol. 5. Principle of Montesquieu as to the ob- ject and rela- tion of law. laws of each country alike, this should he the utmost good and the utmost happiness of the greatest niunber that can be attained, as well as the security and well-being of the state, which constitute ever the principal and paramount object of aU law. And the welfare thus to be promoted should comprehend the moral and intellectual, as well as the material and physical, good of the people who are thus governed. 12. In regard to the general scope and operation of laws, and the end they are intended to promote, it is a leading principle ever to be kept in view, both as regards their framing and their administration, that the good of the public must always prevail over, and be considered in preference to, the private interests of individuals ; that the welfare of the few must submit to, or rather be merged in, that of the many — in which, indeed, the individual himself is a direct participator as regards his share in the public interest. Moreover, as there may be a number of instances in which the individual has an interest in, and derives benefit from, this attention to the welfare of the public ; he obtains by this means a large amount of, if not com- plete compensation for the private loss or injury which he originally sustained. 13. As respects the general object and intention of all laws alike. Lord Bacon lays it down that " the use of the law consisteth principally in three things : — " 1. To seciire men's persons from death and violence. " 2. To dispose the property of theii- goods and lands. " 3. For preservation of their good name from shame and infamy " {k). 14. In regard to the object, adaptation, and relation of laws, the President Montesquieu has well observed that the laws of a country "should be adapted in such a manner to the people for whom they are made, as to render it very unlikely for those of one nation to be proper for another. They shovdd be relative to the nature and principle .of the actual or intended government; whether they form it, as in the case of political laws, or whether they support it, as may be said of civil institu- OBJECT AND INTENT OF LAW. 7 tions. They shotild be relative to the climate of each Tit. II. coimtry, to the quality of the soil, to its situation and '~ extent, to the manner of living of the natives, whether husbandmen, huntsmen, or shepherds ; they should have a relation to the degree of liberty which the constitution will bear, to the religion of the inhabitants, to their inclinations, riches, number, commerce, manners, and customs. In fine, they have relations to each other, as also to their origin, to the interest of the legislator, and to the order of things on which they are established ; in ® Spirit of all which different lights they ought to be considered" {I). 3, ' ' ' ' 15. As regards the general end and intention of law, it is Burlamaqui's correctly observed by Burlamaqui, that the law is not to lay Warding the' la, restraint upon liberty, but to direct it in a proper manner. ^^J^^t ^"^^ ^^- " Laws are made to oblige the subject to pursue his real interest, and to choose the surest and best way to attain the end he is designed for, which is happiness. With this view, the sovereign is willing to direct his people better than they could themselves, and gives a check to their liberty, lest they should make a bad use of it, contrary to their own and the pubKc good." He further observes that, if at any time the sovereign employs force, *' it is in order to bring back to reason those who have unhappily strayed from it, contrary to their own good and that of (m) Principles • , ,, / \ of Natural society [m). f „^_ Pa^ i. 16. It is, moreover, an axiom of jurisprudence that '^- ^'^' ^- ^■ " the laws are adapted to those cases which most frequently cipleregardSlg occur" (w). And the principle to be deduced from this adaptation of axiom is thus lucidly expressed by an able and learned (») 2 Inst. 137. modern writer ; — " Laws ought to be, and usually are, framed with a view to such cases as are of frequent rather than such as are of rare or accidental occurrence ; or, in the language of the civil law, jits constitui opportet in his qua ut plurimum accidunt, non quae ex inopinato (0) : for, neque leges, neque (0) D. l, 3, senatus-consulta ita scribi possunt ut omnes casus qui quandoque inciderint comprehendentur, sed sufficit ea qum plerumque accidunt contineri (p). Laws cannot be so (;;) D. 1, 3, worded as to include every case which may arise ; but it PKOVINCE OF LAW. Tit. III. (g') Bromn's LegalMaxims, 35, 36. See also Wood's Treatise of Laws, 121. Primary lead- ing principle. Regulating leading prin- ciple. Exceptional elementaiy principle. Further excep- tional prin- ciple. Collateral ex- ceptional prin- ciple. is sufficient if tliey apply to those tHngs whicli most frequently happen. Public acts, it may Hkewise be observed, are seldom made for one particular person, or limited to one single case; but they are made for the common good, and prescribe such rules of conduct as it is useful to observe in the ordinary occurrences of life" {q). III. The Province of Law. 1. The province of every law is to command and to enforce, by the authority of the state, and through the penalties annexed to the violation of such law, the doing or forbearance of particular acts by the subjects of that state. To this end, those acts only should be commanded or forbidden respecting which the law has full authority and power to enforce its decrees. And to those persons only should the law be extended, over whom it is able to exercise control. 2. The acts respecting which laws can be enforced are such only as are public, or known to other persons as well as to the doer of them ; and such also as affect society as well as himself. Where no other person witnesses their commission, or can be affected by it, they are not within the province of law. 3. Commands which are, from their nature, impose sible to be obeyed, or which are obviously contrary to the law of Grod, or which are, or directly tend to, a viola- tion of the laws of the state ; must also be considered as matters which are excepted from and beyond the pro- vince of the law. 4. The thoughts and intentions possessed by any one as to the acts he should perform, are entirely beyond the province of the law ; but the acts which were so instigated and caused, are strictly within its province and jurisdic-^ tion. 5. Acts in general, of whatever kind, not affecting or being relative to their own qountry, which are committed by members of the state while resident in a foreign land, are also beyond the province of the laws of their own : as, .PROVINCE OF LAW. 9 in the first place, their evil acts no longer aiFect the state Tit. III. to which they belong ; and, in the next place, that state " has no jurisdiction to punish them for their misdeeds so committed. 6. But, when those acts are directly injurious to the Exceptional state of which they are members, as in the case of treason theTast.^ plotted against it by its own citizens resident in a foreign country, the oifence is within the province of its laws, and the offenders will be within the jurisdiction of the law when they return to their own country, and may be punished accordingly. 7. As regards the general scope and province of law, it Hooker's prin- is observed by Hooker that, "as for laws which are merely th^^p^o^^'^e^^ human, the matter of them is anything' which reason doth of laws. but probably teach to be fit and convenient ; so that tUl such time as law hath passed amongst men about it, of itself it bindeth no man" (r). And, in another part of the (r) Eccles. same work, he remarks, in a passage of transcendent if^^^' ^' ^' ^' eloquence, that "of law there can be no less acknowledged than that her seat is the bosom of God, her voice the harmony of the world ; aU things in heaven and earth do her homage — the very least as feeling her care, and the greatest as not exempted from her power; both angels and men, and creatures of what condition soever, though each in different sort and manner, yet all with uniform consent, admiring her as the mother of their peace and joy"(«). (s) Ibid. b. 1, 8. The following principle is laid down by Pufiendorf: — v w' a f " The matter of laws, in general, is whatever can be principle re- ,11* Pill 11 garding the done by those persons for whom the laws are made, at province of least at the time of their promulgation. For, if any man ^^' afterwards by his own fault loseth his ability to fulfil the law, the force of the law doth not therefore cease and expire, but the legislator hath power to punish him, for rendering himself thus incapable of conforming to the rule prescribed him. But, otherwise, to make such a law as a subject cannot fulfil, and yet hath not lost his power of fulfilling by his own. fault, is not only a most vain, but a Nature and . , 1 . ,, /,% Nations, b. 1,' most unjust design (t). c. 6, s. 16. viuce of laws. 10 PROVINCE OF LAW. Tit. III. 9. It is frequently, moreover, of paramount importance, Montesquieu's both, in tte making and tlie administering of laws, to keep garding pro- in view the principle maintained by Montesquieu, in regard to tke province of laws, that "we ougbt not to decide by divine laws what should be decided by human laws ; nor determine by human what should be determined by divine (u) Spirit of laws" (m). So also he teUs us that "we ought not to ia«;s,b. 26, c. decide by the laws of liberty, which are only for the government of the community, what ought to be decided (x) Ibid. c. 15. by the laws concerning property" (a?). And, further, that " we ought not to decide by the rules of the civil law when (y)Ibid.c. 16. it is proper to decide by those of the political law" (y). And, again, that, "when religion condemns things which the civH laws ought to permit, there is danger lest the civil laws, on the other hand, should permit what religion ought to condemn. Either of these is a constant proof of a want of true ideas of that harmony and proportion which (s) Ibid. b. ought to subsist between both" (z). ' "' ' 10. As certain matters, even of every day concern, and Principle as to . . the origin and which it 18 of great consequence to society to have duly equity."^ ° regulated, will nevertheless stiU be beyond the strict pro- vince of the law, and to which its remedies cannot con- veniently be extended in all cases that may arise, in order to remedy these inconveniences, and "to extend the • administration of distributive justice to all possible cases, . . . . a new kind of courts has been instituted in England, called courts of equity. They are a kind of inferior experimental legislature, continually employed in finding out and providing remedies for those new species of cases for which neither the courts of common law nor the legislature have yet found it convenient or practicable to establish any ; in doing which they are to forbear to interfere with such cases as they find already in general provided for. A judge of equity is also to adhere, in his decisions, to the system of decrees formerly passed in his own court, regular records of which are kept for that (a) m Lolmt purpose " (a) . 'tuiion rfl. Equity is accordingly defined to be a correction or qualification of the common law, generally made in that PKOVINCE OF LAW. 11 part wlierein it faileth, by reason of its universality it is Tit- III. deficient, or where it is too severe. It is of two kinds. The one abridges and takes from the letter of the law, while the other enlarges and adds to it. 11. According to the doctrine propounded by several Definition of jurists, a court of equity commences at the limits of the of equity, common law, and enforces benevolence in certain circum- stances where the law of nature makes it our duty. Thus, a court of equity, accompanying the law of nature in its gradual refinements, enforces every natural duty that is neglected by the common law. Besides correcting evils, it extends its protecting arm to prevent mischief. Equity guards against fraud in every possible manner; and it suffers not a wrong to be without a remedy. 12. As regards the general scope and province of the LordKenyon'a law, the following principle was laid down by Lord the general Kenyon, 0. J., while deKvering his judgment in a case ^';°P® ^^^ P™' decided by the Court of King's Bench : — in general. " All laws stand on the best and broadest basis which go to enforce moral and social duties ; though, indeed, it is not every moral and social duty the neglect of which is the ground of an action. For there are some which are called, in the civil law, duties of imperfect obligation, for the enforcing of which no action lies. There are many cases where the pure effiision of a good mind may induce the performance of particular duties which cannot be enforced by municipal laws ; but there are certain duties the non-performance of which the jurisprudence of this country has made the subject of a civil action" (6). (j) Per Lord 13. On the subject of the particular and distinctive inlpml'eyr. ' province of courts of law and courts of equity, and as to ■^'■««»"»™. 3 J- what peculiar matters are under the control and within the iSmith'sLead- scope of each, the same learned judge observed, on another ^ , ^ ' ,' occasion : — principle as to "I find that in these courts, proceeding by different and distinctive rules, a certain confined system of jurisprudence has been coMts'of law- framed most beneficial to the people of this country, and ^^^ equity, which, I hope I may be indulged in supposing, has never yet been equalled in any other country upon earth. Our 12 PROVINCE OF LAW. Tit. III. (c) Per Lord Kenyon^O. J., in Bauerman •V. Radenius, 7 J. R, 663. 2 Smith's Leadiiig Cases, 232, 233. Lord Chan- cellor "West- bury's prin- ciple as to dis- tinctive pro- vince of law and equity. courts of law only consider legal rights ; our courts of equity have other rules by which they sometimes super- sede those legal rules, and in doing which they act most beneficially for the subject. We aU know that, if the courts of law were to take into their consideration all the jurisdiction belongiag to courts of equity, many bad consequences would ensue. To mention only the single instance of legacies being left to women who may have married inadvertently : if a court of law could entertain an action for a legacy, the husband would recover it, and the wife might be left destitute ; but, if it be necessary in such a case to go into equity, that court would not suffer the husband alone to reap the fruits of the legacy given to the wife : for one of its rules is that he who asks equity must do equity ; and, in such a case, they will compel the husband to make a provision for the wife before they will suffer him to get the money. I exemplify the pro- priety of keeping the jurisdictions and rules of the different courts distinct by one out of a multitude of cases that might be adduced" (c). 14. In regard to th« proper and legitimate province of courts of law and equit}"^ in deaHng with particular cases, and the mode in which they severally pursue their regular and appointed duties in this respect, the principle applicable to this part of our subject is well elucidated by the following observations which fell from Lord Chan- cellor Westbury while delivering his judgment in the case cited. After remarking that the matter before the court was " one of those painful cases which embarrassed the admi- nistration of substantial justice, by reason of the antago- nistic procedure of courts of law and equity," his Lord- ship subsequently proceeded as follows : — " A court of equity would have no right to interfere with the attempt to enforce a legal title, even for such an interest as that ;* but it had a right to inquire whether it was being enforced bona fide, or for an equitable purpose. * "Where the plaintiff had an ownership of only three days at the time when the ejectment wasbrought. OKIGIN OF CIVIL GOVERNMENT. 13 If a legal title be used at law for a purpose inconsistent "^"^ ^^- with good faith, and with the equitable rights of another party, this court would interfere to prevent the legal rights being enforced in an inequitable manner and for an inequitable purpose " (d). W B-mUaiid L. T. N. S. Chan. 132 ; 32 L. J. cn. 395. IV. The Origin oe Civil Government. 1. The leading principle in the establishment of civil Primary lead- government, by the means and operation of which all the several members of the community are united together into one body which acts independently as such — and the main object of mankind in submitting, and belonging, and sub- jecting themselves thereto — are the general welfare and protection of the community at large, for the certainty and permanence of which there could be no security without such an institution. 2. In the establishment, maintenance, and carrying on Principle as to of this institution, the grand and leading aim should be ffmed'at by the attainment and security of the greatest amount of government. good to each individual member of it, consistent with the general well-being of the whole community. 3. The principal, essential, and particular objects aimed Principle as to ,.,, ., „.., 1 particular ob- at m the maintenance ot civil government, are the pro- jeots. tection and security of the persons, the protection and security of the liberties, and the protection and security of the property of each of its members. 4. Restraint and deprivation as regards or affects any of Principle as to . 1 p -T-ii !• -\ • l^ restraint in these, m the case oi an individual, may be imposed m those return for this instances only where such is deemed necessary by the state ^P"'^* ^°"- for the promotion and greater security of the general good of the whole community. The gain in such case to the state ought, nevertheless, to be so considerable, that it is able to return to the members of the community, gene- rally and individually, a portion larger than that of which the person who suffers abridgment of his rights for this end, is deprived. 14 ORIGIN OF CIVIL GOVERNMENT. Tit. IV. Principle re- gardingrenun- ciation of natural, and acquisition of civU rights. Aristotle's principle re- garding origin of society and of govern- ment. (e) Politics, h. 1. (/) Ibid. Hooker's prin- ciple as to the origin of society and of govern- ment. 5. It may be further concluded that the main body, if not the whole, of the natural rights that belong to men individually and originally, belong to men also collectivelj- and civilly. They lose none by quitting a state of nature and entering into society, except those which are incon- sistent with that society, and which they renounce on entering iato it. And, in exchange for what they have renounced, they acquire many, indeed all those that are essential or contributory to the well-being of that society. 6. Aristotle observes that the same imperious necessity which compels men to associate together into one com- munity or body, naturally produces government, and that communities could not subsist without foresight to disarm, as well as exertion to effectuate the measures requisite for their safety (e). Also, that " Government and subjection are things useful and necessary. They prevail everywhere in animated as well as in brute matter. From their first origin, some natures are formed to com- mand, and others to obey ; the kinds of government and subjection varying with the differences of their objects, but all equally useful for their respective ends, and those Idnds the best and most excellent from which the best and most excellent consequences result " (/). 7. The priaciple as to the origin both of society and government is thus laid down by Hooker : — "Forasmuch as we are not by ourselves sufficient to furnish ourselves with competent store of things useful for such a Kfe as our nature doth desire — a life fit for the dignity of man ; therefore, to supply those defects and imperfections which are in us living single and solely by ourselves, we are naturally induced to seek communion and fellowship with others. This was the cause of men's uniting themselves at the first in politic societies, which societies could not be without government, nor govern- ment without a distinct kind of law from that which hath been already declared. Two foundations there are which bear up public societies: the one a natural inclination, whereby all men desire sociable life and fellowship; the ORIGIN OF CIVIL GOVERNMETSTT. 15 otKer an order, expressly or secretly agreed upon, toucting Tit. IV. the manner of their union or living together. The latter is that which we call the law of a commonweal, the very soul of a poKtic body, the parts whereof are by law animated, held together, and set in work in such actions as the common good requireth (ff). AU public regi- (g) Eccles. ment, of what kind soever, seemeth eyidently to have f "fj^' ^' ^' arisen from deliberate advice, consultation, and com- position between men, judging it convenient and behove- ful ; there being no impossibility in nature considered by itself, but that men might have lived without any public regiment "(A). (h) Hid. 8. As regards the bond of union by which political Aristotle's societies are held together, Aristotle tells us that " a parti- garding bond cipation in rights and advantages forms the bond of •'^'^^'"'^ ^°™' political society ; an institution prior to the intention of government. nature, to the families and individuals from whom it is constituted. What members are to the body, citizens are to the commonwealth" (i). (») Politics, b. 9. Closely coinciding with the foregoing principles is Blackstone's the doctrme laid down by Sir "William Blackstone that principle regarding " the only true and natural foundations of society are the foundation wants and fears of individuals "(A). ' {k)^'comment. 10. The following is Locke's theory with regard to the f^^' I"*^"^- origin and commencement of political societies and civil Locke's prin- ciple as to the government m general : — first formation " Men being by nature all free, equal, and independent, goc^etiesr no one can be put out of this estate, and subjected to the political power of another, without his own consent. The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agree- ing with other men to join and unite into a community, for their comfortable, safe, and peaceable Kving one amongst another, in a secure enjoyment of their properties, and a greater security against any that are not of it. This any nunaber of men may do, because it injures not the freedom of the rest: they are left as they were in the liberty of the state of nature. When any number of men have so consented to make one community or govern- 16 ORIGIN OF CIVIL GOVERNMENT. Tit. IV. (l) Treatise of Civil Govern- tnent, c. 8, s. 95. Puffendorf's principle as to the formation and constitu- tion of civil societies. (m) Lais of Natwre and Nations, b. 7. c. 2, s. 13. Buiianlaqui's principle re- garding the object of law in regard to civil govern- ment. (») Priiwiples of Natural Law, Part I. i;. 10, s. 2. ment, they are thereby presently -incorporated, and make one body politic, wherein the majority have a right to act and conclude the rest " {I). 11. Puffendorf's account of the formation, and his definition of, a civil state are as follows : — By the means of the mutual covenants entered into one with another, " a multitude of men are so united and incorporated as to form a civil state ; which is conceived to exist like one person, endued with understanding and will, and performing other particular acts distinct from those of the private members. Again, as it is distinguished and known from the same members by one general name, so it has peculiar rights and separate properties, which neither particular men, nor many in conjunction, nor all together, without him in whom the supreme authority resides, can make any claim or pretences to. And, lastly, it hath par- ticular actions proceeding from it, which private persons can on no account assiune or challenge to themselves. So that the most proper definition of a civil state seems to be this : ' It is a compound moral person, whose will, united and tied together by those covenants which bew!^ passed amongst the multitude, is deemed the will of all ; to the end that it may use and apply the strength and riches of private towards maintaining the common peace and security '" (m). 12. As regards the ultimate object and intention of law with respect to civU government, it is laid down by Burla- maqui that "the end of the law in regard to the subject is that he should conform his actions to it, and by this means acquire happiness. As for what concerns the sovereign, the end he aims at for himself, by giving laws to his sub- jects, is the satisfaction and glory arising from the execu- tion of the wise designs he possesses for the preservation of those who are subject to his authority. These two ends of the law should never be separated, one being naturally connected with the other; for it is the happiness of the sub- ject that forms the satisfaction and glory of the sove- reign " (w). DIFFERENT KINDS OF GOVEENMENT. 17 Tit. V. V. Different Kinds of Government. 1. It is essential for the due regulation of every body of Primary lead- men formed into a civil community, that the general government of the whole be absolutely and entirely en- trusted or delegated to some portion of such body, independent of the control or influence of the other members of the society. 2. The portion of the body in which the government is Principle re- vested, may consist either of one individual, or of several f^ of loTCrii- persons. And these several persons may be selected for ing^ody- this purpose, either as representative of the entire body, or because they are deemed to be the individuals best fitted to govern the rest. 3. Different bodies of people vary one from the other. Principle re- according to the peculiar character of that people, or the of govem- precise exigencies of the state, as to the particular form of ™''"''- government for which they will exhibit a preference, or which thej'' wiU determine to choose for themselves. 4. The leading objects in the establishment of govern- principles as to ment being, as already observed,* the security of the o^J«5'ts™Pi>i^- o' J ' J ticular terms persons, the security of the property, and the security of of govern- the liberty of the individuals who live under it ; accord- * Tit. 4, ». 3. ing as either of these objects and advantages claim pro- p.ortionably more or less attention beyond the others, will the particular form of government most likely to attain it be preferred. 6. That is the best form of government, as regards its Principle as to quality, which is so contrived that, through its operation, q^aiity"^'' ™ indirectly and in reality, though not directly or obviously, the people who are to be ruled are constituted their own rulers. 6. That is the best form of government as regards its Principle as to 11-1 p ^^ ^ ^ i> preference in results, which most lully secures the utmost degree of results. safety and liberty to each individual, and at the same time effects the least possible encroachment on the safety and liberty of the general body of the community. 7. The most perfect form of government, on the whole. Principle rs- is that in which are combined the best quality as regards fuperifnty in VOL. I. C gOTernment. 18 DIFFERENT KINDS OP GOVERNMENT, Tit. T. Qualifying elementary principle. Turther qua- lifying ele- mentary prin- ciple. Aristotle's principle as to the consti- tution of dif- ferent kinds of govern- ment. (o) Politics, h. 1, c. 4. its nature, and the attainment of the best and most satis- factory results as regards its operation.* 8. Nevertheless, as regards the peculiar value and special adaptation of particular forms of government for particular people, it may be concluded that some forms of government are best calculated to promote the internal regulation of a state, and others to direct the intercourse of the nation with, and to secure its protection against, foreign countries. 9. In addition to aU this, it may be concluded that the nature of the people, the situation of the country in which they Kve, the cHmate which it possesses, the pro- ductions that it yields, the characteristics in all these respects of the nations which adjoia it, as also various other circum- stances, must each influence and contribute to the relative desirableness of the particular form of government best adapted for that particular people. 10. Aristotle observes, in connection with that part of the subject now immediately before us, that " a diversity in the nature and relations of things necessarily occasions various kinds of subordination. According to the differ- ences of those subjected to its authority, government, there- fore, is found to vary ; to be more or less absolute, and, as it were, to fluctuate between monarchj'-, where one man rules always, and sometimes absolutely; liberty, where difierent men hold the offices of magistracy by vicarious succession" (o). * The discussion of the qualities of a form of government in the framing of which pure principles were not resorted to, can hardly claim considera- tion in the present work. But it may here be fairly suggested whether it is not more strictly con'ect in principle, when speaking of the form of government existing in this country, rather to define it to be triplicate than mixed ; consisting indeed in reality, not of parts of three separate forms, but of one in which each of the three separate forms exists entire and contemporaneously. Thus, it is at once a, perfect monarchy, a sovereign with limited power having the supreme authority in the state. It is also a perfect aristocracy, inasmuch as the actual governing power of the country resides in the two Houses of Parliament, the body of whom, including the members of the ministry, belong to the ai-istocracy of , the country. And it is essentially a perfect republic, inasmuch as the House of Commons, which is the really ruling power of the country, is chosen by the people. AUTHORITY AND PKEEOGATIVE OF SOVEREIGN. 19 And again : — ipu yj " In every political association it is necessary that one man, tlie few or the many, should bear sway ; and which- ever of them happens to take place, if the public good be the great rule of administration, the government is right and just, and is called a monarchy when lodged in the hands of one ; an aristocracy, when in the hands of the few ; and a republic, when in the hands of the many. The word aristocracy denotes the government of the best men, or the government that is best in itself. A republic is the general name of all commonwealths, but is applied particulg,rly to denote a government administered by the people at large, but administered with justice, not oppres- sive to any class of citizens, but impartially consulting the good of all" (p). (p) Politics, b. 3, c. 5. VI. Authority and Prerogative of the Sovereign. 1. The sovereign of every kingdom has the executive Primary lead- power of the state of which he is the head, absolutely vested in him, inasmuch as he is at once the representative and the eflacient agent of such state, acting for it on his own authority, and with the promptness and energy which the exigency of the case requires. 2. As the sovereign is thus invested with supreme Consequential power in the state, so certain specific privileges, which are ciple. ° both real and efiioient, must be given to him to enable him to maintain this supremacy, and to perform the various duties with which he is entrusted. 3. Nevertheless, these privileges, which constitute the Declaratory peculiar prerogatives with which the crown is invested, ^jpig are conferred upon it for the good of the state, not for the personal benefit or gratification of the sovereign. 4. As the sovereignty is instituted and exists for the Consequential good of the state, so the prerogatives of the sovereign principle. should never be exerted but for the benefit of the nation. And, on the other hand, the nation should correspondingly be as careful and as zealous to uphold these prerogatives, as it is to guard and secure the general liberties of the c 2 20 AUTHORITY AND PEEROGATIVE OF SOVEHETGN, Tit. VI. Principle re- garding differ' ent branches of the prero- gative. Aristotle's principle re- garding the origin of mo- narchy, both royalty and tyranny. (q) Politics, b. 7, c. 10. Aristotle's definition of a kins- people, of which these prerogatives in reality constitute the outworks. 5. The prerogatives of the crown consist in and may be comprehended under those which concern the right of the crown, in its legislative capacity, to assent to or dissent from laws which have been passed by the other branches of the legislature ; the right of the crown, as the fountain of civil power, to confer, at its will, dignities and rank on any of the subjects of the state, and to appoint the different officers of the government ; the right of the crown, at its will, to levy peace or war with any foreign subjects ; the right of the crown, at its will, to summon, prorogue, and dissolve the legislative assembly, or parliament of the nation ; and the right of the crown to regulate the com- mercial concerns of the country, as also to levy taxes and subsidies, subject to the control and with the consent of the legislature ; its power to direct the administration of justice ; as also any right which it may possess, whether limited or absolute, and whether in general or only in special cases, to suspend or alter either the constitution, or the execution of any of the laws of the realm. 6. Aristotle lays it down that there are two kinds of monarchy, which he terms royalty and tyranny, being different in their origin. " Royalty is produced from the weight and influence of the nobles concentrated in one distinguished and illustrious character, in order the more firmly to resist the dangerous encroachments of the popu- lace. Tyranny, on the other hand, is generated by the combined strength of the populace, who think they can never enough exalt the leader who undertakes to defend the popular cause, and to repeal oligarchic oppression. Most tyrants, therefore, have sprung out of demagogues, who had captivated the affections of the people, by traducing and persecuting their superiors" (q). 7. Aristotle defines a king, or sovereign, to be "in his nature and end a public guardian. His office is a pledge that the nobles shall not be subjected to injustice, nor the people to insult." A tyrant, he says, only consults the interest of his country so far as it is conducive to his own, AUTHORITY AND PKEROGATIVB OF SOVEREIGN. 21 and to enjoy pleasure is his only aim. " To acquire glory, Tit. VI. the brightest glory, is the aim of a king. A tyrant delights in wealth, as furnishing means to his end : a king delights in honour, justly obtained and hardly earned. A tyrant is guarded by mercenary foreigners ; a king by the affection of his people" (r). (r) Politics, 8. Of a limited monarchy, such as we in this country Aristotle's possess, and of which nature is the sovereignty now principle re- ... . . garding Iimit- under consideration, Aristotle remarks that, " as to limited ed monarchy. monarchy, or royalty, the more it is limited, the longer it is likely to last. Moderation, therefore, is the great pre- servative of this form of government. Princes, the farther they recede from despotism, and the nearer they approxi- mate to equality of right with their subjects, are the less exposed to hatred, envy, and all that train, or all those complications of passions, which so often prove ruinous to their power" (s). (s) Politics, 9. Hooker thus expresses himself in regard to the limits jiooker's^prm- to be imposed on the authority and prerogative of the ciple as to the sovereign : — authority and " I am not of opinion that simply in kings the most, ^he sovereign. but the best limited power is best both for them and the people ; the most Kmited is that which men deal in fewest things, the best that which in dealing is tied unto the soundest, perfectest, and most indifferent rule, which rule is the law ; I mean not only the law of nature and of Grod, but the national law consonant thereunto. ' Happier that people whose law is their king in the greatest things, than that whose king is himself their law. Where the king doth guide the state, and the law the king, that common- wealth is Kke a harp or melodious instrument, the strings whereof are timed and handled all by one hand, following as laws the rules and canons of musical science' " {t). (<) eccIcs. 10. The power vested in the sovereign by the state, is f "3''^' ^' ^' defined by Locke in the foUowing tern^s : — Principle of "This power to act according to discretion for the thTpreroga- public good, without the prescription of the law, and some- *^^^ °^-^^^ times even against it, is that which is called prerogative ; executive for since in some governments the law-making power is ^' 22 AUTHORITY AND PREROGATIVE OF SOVEREIGN. (m) Treatise of Oovernment, b. 2, c. 14, s. 160. Principle of Blackstoue as to the prero- gative of tlie sovereign. 'Tit. VI. not always in being, and is usually too numerous, and so too slow for the despatch requisite to execution; and because also it is impossible to foresee, and so by laws to provide for all, accidents and necessities that may concern the public, or make such laws as will do no harm if they are executed with an inflexible rigour on all occasions, and upon all persons that may come in their way ; therefore there is a latitude left to the executive power to do many things of choice which the laws do not prescribe" (m). 11. The meaning of the term prerogative, as applied to the sovereign power in the state, is thus defined by Sir "WiUiam Blackstone : — " By the word prerogative we usually understand that special pre-eminence which the king hath over and above all other persons, and out of the ordinary course of the common law, in right of his roj^al dignity. It signifies in its etymology (from pra and roffo) something that is de- manded before or in preference to all others. And hence it follows that it must be in its nature singular and eccen- trical ; that it can only be applied to those rights and capacities which the king enjoys alone, in contradistinction to others, and not to those which he enjoys in common with anj' of his subjects " (x). 12. As regards the extent to which the lawful prero- gative of the sovereign may be legitimately exercised. Sir William Blackstone lays it down that — " In the exercise of lawful prerogative, the king is, and ought to be, absolute ; that is, so far absolute, that there is no legal authority that can either delay or resist him "(2/). 13. Nevertheless, as laid down by Sir Edward Coke, the following limitations must always be imposed on the prero- gative of the sovereign, for whatever purpose, and on whatever occasion exercised. " The king hath no prerogative but that which the law of the land allows him. But the king, for prevention of ofiences, may admonish his subjects by proclamation that they keep the laws, and do not offend against them, upon (~) 12 Hep. 74. punishment to be inflicted by the law " (z). (x) 1 Comin. h. 1, c. 7. Principle of Blackstone as to the extent of the prero- gative of the jaw. iy) 1 Coonin. h. 1, c. 7. Qualifying principle laid do^^Ti by Sir E. Coke. AUTHORITY AND PKEKOGATIVE 01' SOVEREIGN. 23 He also tells us ttat — Tit. VI. " The king by his proclamation cannot create any offence which was not an offence before, for then he may alter the law of the land by his proclamation in a high point ; for if he may create an offence where none is, upon that ensues fine and imprisonment " (a). (») 12 Hep. 74. And agaia — " The king cannot, without parKament, change any part of the common law, nor create any offence by his proclamation which was not an offence before " (b). (b) Ibid. 14. The principle that the king cannot dispense with Principle as to the laws, and the reason on which this principle is founded, of the sove- are also well and forcibly expressed by a learned writer in "^^^^ ^th^the the following terms : — ^^■"'^• " The king alone cannot dispense with laws, because the king himself cannot pass them ; and here, as in private contracts, nothing less than the power that creates the obligation, is sufficient to dissolve it "(c). (c) Wynne's . Eunomus, 82. 15. Ihe same learned writer well argues that — rjj^^ preroga- " The power of pardons, which some have considered as *^'^'? °/ pardon _ *- _ _ _ no miraction dispensations, and from one admission of this sort have of the fore- argued to the admission of aU others, does not apply at all. cipie° For this power is one of the ancient prerogatives of the crown ; and so far is in its nature from a dispensation with a law, that in most cases it is subsequent to a conviction by law, and in no case disposes of any right vested in the subject " {d). (d) Ibid. 83. Is it not, however, more strictly correct to consider the prerogative of pardon as appendant to, or rather an essential part of the administration of justice, than as an independent prerogative by itself? 1 6. With respect to the absolute inability of the sovereign Blackstone's of a state to commit any crime against the laws, it is laid thETinabilftY ° down by Sir William Blackstone that— of the sove- •' ■ reign to com- " The king, by virtue of his royal prerogative, is not mit crime. under the coercive power of the law, which wiU. not sup- pose him capable of committing a folly, much less a crime" (c). _ _ _ W.^^^'^™- 17. As regards the immunity from punishment of the Puflendorf's 24 ALLEGIANCE TO THE SOVEREIGN. Tit. VII. sovereign of a state, from his being by his position superior principle as to to and above the laws, the principle which follows is laid the immunity j ■ r, -rt jr j j> of the sove- ^0^11 by Puffendorf :— reign from ii -i * * VidA ante, and give way to the common good oi the community.* Tit. 2, s. 12. 9. As regards the mode in which obedience to the laws Puffendorfs is enforced, and the methods by which their due and effi- garding the cient operation is insured, by annexing penalties to their ^ud efficient nonobservance, the principle which follows is maintained operation of laws. by Puffendorf. "Because generally the transgression of the laws is joined with the hurt of others, and with some imaginary good of the offender, therefore it seemed most expedient VOL, I. D 34 VARIETY OF LAWS. Tit. XI. {li) Law of Nature and Nations, b. 1, c. 5, s. 14. PufiFendorf's principle re- garding the constitution and promul- gation of laws. (aj) Zaw of Nature and Nations, b. 1, c. 6, s. 13. to repress the enticing allurements of sin, by representing the frightful image of that pain and grief which was un- avoidably to foUow it. Thus we find that civil laws do always come enforced with a penalty denounced against transgressors, either expressly defining the kind of mulct or punishment, or else intimating that it is left undetermiaed, to be settled by the discretion of the judges, and of those who are to take care of putting the laws in execution. We must therefore take notice that the whole strength and force of a la^w properly consists in declaring what our superior is pleased we should perform or omit, and what penalty we shall incur upon default " (m). 10. In regard both to the promidgation and the constitution of laws in general, Puffendorf lays it down that — " Civil laws are conveyed to the subject's knowledge by a promulgation pubKcly and perspicuously made ; in which there are two conditions which ought to be clear and certaia — 1st, That the laws proceed from him who hath the chief command in the state ; and, 2nd, That the mean- ing of the laws is such, and no other " {x). XI. Variety and Classification of Laws. Primary fun- damental jprinciple. Distinguisli- ing leading principle. 1. Laws in general being intended and adapted to meet so many ends, and to secure the accomplishment of such difierent purposes; it must necessarily foUow that these laws in their nature and constitution will correspondingly and extensively vary. Indeed, every action, of whatever kind, the proceeding of which admits of regulation, may be said to be the subject of law. "We have here, however, to deal only with those actions which are performed by man in his capacity of a member of civiHzed society ; and the laws here referred to are consequently those alone which are framed for this end. 2. Laws thus considered, as regards the several varieties of their nature, may be primarily and principally distin- CLASSIFICATION OF LAWS. 35 guisted into those wMch are constitutional, those which Tit, xi. are international, and those which are domestic. 3. The different forms of government that have been Principle re- established for the regidation of mankind when formed into ftitutional"' a state, which are comprehended under the head of con- ^^■ stitutional law, are of three several original kinds ; being — that wherein the ruling power is vested in one person, or a monarchy; that wherein it is vested in a few select persons, or an oligarchy ; and that wherein it is vested in the whole body of the people at large, but who never- theless, for the sake of convenience, delegate a portion of their body to act for them. The leading principle regulative of this branch of the subject has already been considered while discussing some * vide ante, of the previous titles.* ^*g *' ^' ®' '^' 4. Next in importance to the laws which regulate the Principle re- establishment and order of different forms of government, lational wr are those which regidate the international affairs of various countries, the principles of which are here investigated. 5. The domestic laws for the internal regulation of each Principle re- individual country, varying according to the particular mestic°law. quality and exigencies of the people, remain to be consi- dered, of which also the principles are here fully examined. 6. Each of these laws, whether constitutional, inter- Principle as to national, or domestic, are again divided or classified in of each kind. regard to the original source from whence they are supposed to have been derived ; and, thus considered, are comprehended under the several terms of the law of God, natural law, municipal law, and civil and canon law. 7. As regards the variety of laws above adverted to. Lord Bacons Lord Bacon remarks, in a passage of great eloquence and gardiug va- power, that " there are in nature certain fountains of "^^^ "* ^^^^' justice whence all civil laws are derived, but as streams ; and like as waters do take tinctures and tastes from the soils through which they run, so do civil laws vary accord- ing to the regions and governments where they are planted, thouarh they proceed from the same fountains "(y). (v) Advance- ^ „ -r T-11 '""^'"^ ofLearn- 8. According to Puffendorf, " Law may be best divided, ing. D 2 36 VARIETY OF LAWS. Tit. XI. Puffendorf's principle re- garding dif- ferent kinds of law. (») Law of Nature and Nations, b. 1, c. 6, s. 18. Principle in Iiistitutes re- garding va- riety and clas- sification of laws. (a) Lib. 1, Tit. 1, s. 4. Burlamaqui's principle re- garding the different kinds of law. (h)Principlesof Natural Law, Part I. i;. 10, s. 15. Burlamaqui's principle re- garding posi- tive law. (c) Principles of Natural Law, Part I. c. 10, s. 15. Aquinas'sprin- ciple regard- ing variety, &c., of laws. with reference to its original, into Divine and human ; the former having God, and the latter man, for its author. But if we consider law as it bears a necessary agreeableness to the subject-matter, in this respect we divide it into natural and positive. The former is that which is so exactly- fitted to suit with the rational and social nature of man, that humankind cannot maintain an honest and a peaceful fellowship without it; or, in other words, that which carries in it a natural goodness, or a iisefulness arising from its internal efficacy, towards men in general. Posi- tive law is that which doth not by any means flow from the general condition of human nature, but from the sole pleasure of the lawgiver ; though these ought likewise to have their reason and their uses, in reference to that par- ticular society for which they are enacted" (^). 9. The following principle in regard to the variety and the classification of laws, is propounded in the Institutes of Justinian : — " The law is divided into pubHc and private. Public law regards the state of the commonwealth ; but private law, of which we shall here treat, concerns the interest of individuals, and is tripartite, being collected from natural precepts, from the law of nations, and from the civil law of any particular city or state " {a). 10. With respect to the difierent kinds of law, according to Burlamaqui, "law may be divided — 1. into Divine or human, according as it has God or man for its author. 2. Divine law may be subdivided into two sorts ; namely, natural, and positive, or revealed" (6). 11. Positive or revealed law is defined by Burlamaqui to be, " that which is not founded on the general constitu- tion of human nature, but only on the wiU of God ; though in other respects this law is established on very good reasons, and procures the advantage of those who receive it "(c). 12. A principle somewhat difierent to the foregoing has, however, been maintained by another jurisprudential authority, who tells us that "the law, according to Thomas Aquinas, and some of the doctors, maybe divided into four CLASSIFICATION 03? LAWS. 37 parts or members ; viz., into the law eternal, the law of Tit. XI. nature, the positive law of Q-od, and the law of man " {d). (d) Disserta- 13. As regards both the variety of laws and their clas- Nature, Law sification, the President Montesquieu observes, that human ^^«'«'»'*'<^'^-' laws have relation to the mutual intercourse of nations, Montesquieu's " which is what we call the law of nations. Considered as gardi^ va- members of a society that must be properly supported, ""^y- *'^' °^ they have laws relative to the governors and the governed ; and this we call political law. They have also another sort of laws relating to the mutual communication of (e) Spirit of citizens ; by which is understood the civil law " (e). ;f"|"*' ^' ^' 14. In regard to the varieties of laws in use among Story's princi- different nations, and the origLa and causes of that variety, varieties of it is remarked by a jurisprudential writer of very high ^*"^' authority, that "nations inhabiting the borders of the ocean, and accustomed to maritime intercourse with other nations, would naturally require institutions and laws, adapted to their pursuits and enterprises, which would be whoUy unfit for those who should be placed in the interior of a continent, and should maintain very difierent relations with their neighbom-s, both in peace and war. Accord- ingly we find that, from the earliest records of authentic history, there has, been (as far at least as we can trace any) little uniformity in the laws, usage, policy, and {f)Story'sCon- institutions, either of contiguous or of distant nations" (/). ^ j^ p 2. *' 15. According to the definition afforded by Grotius, Definition by 1 1 • T T r> • 1 • Grotius of " natural law is the dictate 01 right reason, pronouncing natural law. that there is in some actions a moral obligation, and in other actions a moral deformity, arising from their respec- tive suitableness or repugnance to the rational and social nature, and that, consequentlj^, such actions are either forbidden or enjoined by Grod, the Author of nature. Actions which are the subject of this exertion of reason are in themselves lawful or unlawful, and are, therefore, {g) On War as such, necessarily commanded or prohibited by Grod"(^). b. 1, c. 1, s'. 10. 16. Natural law is defined by Burlamaqui to be, " that Burlamaqui's „ principle re- which so necessarily agrees with the nature and state o± garding na- man, that without observing its maxims, the peace and ^^^ ^^' happiness of society can never be preserved. As this law 38 VAEIETY OF LAWS. Tit. XI. (7i) Princ'i of Natural Laxo, Part I, c. 10, s. 15. (i) Ihid. c. 4, s. 5. Burlamaqui's principle re- garding differ- ent kinds of natural law. (fc) PriTiciples of Natiiyral Law, Part II. c. 4, s. 24. Puffendoi-f's principle re- garding obli- gation of na- tural law. (T) Law of Nature and Nations, b. 2, c. 3, s. 20. Puffendorf's principle re- garding va- rieties of natural law. has an essential agreeableness with the constitution of human nature, the knowledge thereof may be attained merely by the light of reason; and hence it is called natural "(A). He further observes, that "the only way to attain to the knowledge of natural law, is to consider attentively the nature and constitution of man, the relations he has to the beiags that surround him, and the states from thence resulting. In fact, the very term of natural law, and the notion we have given of it, show that the principles of this science must be taken from the very nature and constitu- tion of man " (i). 17. Burlamaqui distinguishes natural law into two dif- ferent kinds or species, "the one primary, the other secondary. " The primary, or primitive natural law is that which immediately arises from the primitive constitution of man, as G-od himself has established it, independent of any human act. Secondary natural law is that which sup- poses some human act or establishment ; as a civil state, property of goods, &c."(A;). 18. In regard to the origin and essence of the obliga- tion of natural law, Puffendorf lays it down that "the obligation of natural law proceeds from God himself, the great Creator and supreme Governor of mankind, who, by virtue of his sovereignty, hath boimd men to the observa- tion of it" (Z). 19. Natural law, Hke law in general, admits of being divided into several distinct varieties and classifications. With respect to the different kinds of natural law, Puffen- dorf is of opinion that the most accurate and most con- venient division consists of that " which considers in the first place a man's behaviour towards himseK, and then towards other men. Those precepts of the law of nature which bear a regard to other men, may be again divided into absolute, and hypothetical or conditional. The former are such as oblige all men, in all states and conditions, independent from any human settlement or institution. The latter presuppose some public forms and civil methods CLASSIFICATION OF LAWS. 39 of living to have been already constituted and receiYed in Tit. XI. the world " (m). (m) Law of 20. It is maintained by Hooker, in regard to the differ- Nations, \ 2, ence in the obligation imposed by the law of nature and '^-^'^^J''^' positive laws, that " laws natural do always biad ; laws principle re- positive not so, but only after they have been expressly fatlon^f na- and wittingly imposed " (n). tive\aws ^™'" 21. One peculiar and essential characteristic of the laws {%) Ecdes. of nature, remarked by Burlamaqui, is, that " they are f "15^' ^' '^' universal; that is, they should oblige all men, without Burlamaqui's exception. For men are not only all equally subject to garding the Grod's command ; but, moreover, the laws of nature having ^^\l^^ "^ their foundation in the constitution and state of man, and iiature. being ratified to him by reason, it is plain they have an essential agreeableness to all mankind, and oblige them without distinction, whatever difference there may be between them in fact, and in whatever state they are supposed. This is what distinguishes natural from posi- . . ° . , (0) Principles tivelaws; for a positive law relates to particular persons of Natural • , ■ J) / \ Law, Part II. or societies (0). ^ 5 '^ g 22. In regard to the immutability of natural laws. Bur- Burlamaqui's T)rillClT)lG TG- lamaqui observes, that " the laws of nature, though esta- garding the blished by the Divine wiU, are not the effect of an arbitrary j,™ ^'JS"^ disposition, but have their foundation in the very nature 1^^^- and mutual relations of things. Hence it follows that natural laws are immutable, and admit of no dispensation. This is also a proper characteristic of these laws, which distinguishes them from all positive law, whether Divine or 0/ Natural human »(^)._ _ ... fsTs^'m"" 23. Sir William Blackstone maintains, vrith regard to Blackstone's the law of nature, that, " being coeval with mankind, and garding law of dictated by God himself, it is of course superior in obliga- ii^ture. tion to any other. It is'binding over all the globe, in all countries, and at aU. times. No human laws are of any validity if contrary to this ; and such of them as are valid derive aU their force and all their authority, mediately or immediately, from this original " (§'). (a)\ Comment. 24. As Puffendorf has expressed it, " Every law consists p^^g-gnjjojfg of two parts : in one is defined and declared what is to be principle 40 LAWS DOMESTIC AND INTERNATIONAL. Tit. XII. regarding dif- ferent parts of law. (r) Law of Nature mid Nations, b. 1, c. 6, s. 14. Blackstone's principle re- garding dif- ferent kinds of Englisli law. (s) 1 Coimnent. Tntrod. s. 3. Blackstone's principle re- garding differ- ent parts of laws. (t) 1 Oominent. Introd. s. 2. performed or omitted ; in the other is signified what evil shall be incurred by those who transgress in either respect "(r). 25. With respect to the different kinds of law existent ia this country, Sir William Blackstone makes the foUow- ing primary and maiu division of them : — " The municipal law of England, or the rule of civil conduct prescribed to the inhabitants of this kingdom, may with sufficient pro- priety be divided into two kinds : the lex non scripta, the unwritten, or common law; and the lex scripta, the written, or statute law " («). 26. In regard to the several parts of each law, Sir William Blackstone states them to be of the following kinds : — " One declaratory, whereby the rights to be ob- served, and the wrongs to be eschewed, are clearly defined and laid down. Another directory, whereby the subject is instructed and enjoined to observe those rights, and to abstain from the commission of those wrongs. A third remedial, whereby a method is pointed out to recover a man's private rights, or redress his private wrongs. To which may be added a fourth, usually termed the sanction, or vindicatory branch of the law ; whereby it is signified what evil or penalty shall be incurred by such as commit any public wrongs, and transgress or neglect their duty" {t). XII. Lava's Domestic and International. Primary lead- ing principle. 1. A grand, leading, and primary division as to the nature of laws in general, may with propriety be made, consisting, in the first place, of those laws which concern the internal and domestic regulrfbion and concerns of a country, or its domestic laws ; and, in the second place, of those which relate to and regulate its concerns and com- munication with other countries, and which serve to direct the dealings of diflbrent nations one with another, and which are known generally by the designation of inter- national laws. LAWS DOMESTIC AND INTERNATIONAL. 41 2. Under the domestic laws of a country, are compre- Tit. XII. handed all those laws which seek to regulate the ordering Principle re- and carrying on of the relations, one with another, of the mestio^laws. people of such a country ; the holding and transfer of pro- perty ; and the prevention and punishment of fraud and crime in general. 3. Under the denomination of the international laws of Principle re- a country, may be comprehended those which regulate the national laws. carrying on of communication of different kiads, whether civil or commercial, between various countries ; the forma- tion of treaties ; the adjustment of contending claims be- tween either the government or the subjects of different comitries ; and the declaration of war or peace. 4. The domestic laws of each country are regulated by Principle as to the same iimnutable priaciples of justice; but their indi- domestic laws. vidual application varies according to the circumstances of each case, and the peculiar character of the people for whose conduct they are to be applied. 5. International larws have for their aim and object the Principle re- regulation of the communications and transactions of dif- of intefna-^^*^ ferent nations one with another, in a manner correspond- tion^l laws. ing with that in which domestic laws regulate the commu- nications and transactions of different individuals in the same nation one with another. And as regards the right of nations, as such, to the pos- session, preservation, regulation, and disposition of the property or territory belonging to them, questions and disputes regarding which may also form the object of international law ; these rights are analogous to, if not identical with, those of individuals in regard to these matters, and are each regulated by the same jurispruden- tial principles. 6. The interpretation and enforcement of laws of this Principle re- kind, can be effected only by the great body of nations ^It^io^of' whose concerns they aim to regulate, and by those parti- international cular authorities and officers appointed and delegated by them for that purpose. 7. The law of nature is that by which matters of this Principle re- . garding appli- kind are primarily sought to be regulated, masmuch as it cation of law 42 INTERNATIONAL LAWS. Tit. XII. ig that law alone the authority of which aU nations alike of nature to and entirely acknowledge. international /. , i , law. o. When recourse to the law oi nature has been ex- Pnnciple re- hausted, in the appKcation of its principles for the reenila- gardmg inter- ' jri sr r o pretation by tion of international affairs ; resort must be had, for the law of nature. . • n i t t i • i -i i interpretation of the laws by which the latter are gOTerned, to those principles which have been deduced from the law of nature, the correctness of which has been acknow- ledged by the jurists of different countries, and which have for a long period been acted upon as established legal rules. Principle re- 9. The Roman civil law has, on this ground, been re- to EonSm law. Sorted to for the regulation of international affairs, and is regarded and respected by all nations aKke, as containing the soundest and purest code for the adjustment of differ- ences of this description. Principle re- 10. The individual laws of any particular country garding resort . to municipal may, m the last case, be resorted to for the fore- going purposes, so far as they are not inconsistent or at variance with the individual laws of the other litigant nations. Cicero's prin- H. Oicero observes, in regard to the law of nations and ciple regard- . . , , . . , , ing foundation municipal law, that "the municipal law may not m every kw;"^""^^^^ respect be always the same with the law of nations, but (u) Be Off. the law of nations ought always to be the groundwork of s. 17. ' "' ' t^s mimicipal" (m). Mackintosh's 12. With respect to the extension and application of principle re- , , „ . garding exten- the laws 01 nature, which are primarily adapted for the nature to^o- regulation of private societies, to the government of vernment of commonwealths, it has been at once philosophically and eloquently observed by Sir James Mackintosh, that " the same rules of morality which hold together men in families, and which form families into commonwealths, also bind together these commonwealths as members of the great society of mankind." And that, "with a view to these principles, the writers on general jurisprudence have con- sidered states as moral persons ; a mode of expression which has been called a fiction of law, but which may be regarded with more propriety as a bold metaphor, used to convey (y) Lib. 1, Tit. 2, s. 1. INTERNATIONAL LAWS. 43 the important truth that nations, though they acknowledge Tit. XII. no common superior, and neither can nor ought to be subjected to human punishment, are yet under the same obligations mutually to practise honesty and humanity which would have bound individuals, even if they coidd be conceived ever to have subsisted without the protecting restraints of government ; if they were not compelled to the («) Discourse J- 1 i> J 1 • 1 J 1 1 ■ 1 ■ n • on the Law of cliscnarge oi their duty by the just authority oi magistrates, Nature and and by the wholesome terrors of the laws "(x). 8,%^^'. ^^' 13. The principle maintained in the Institutes of Jus- Principle in tinian, in regard to the law of nations, is, that " that law gaiding law of which natural reason appoints for all mankind, is called ''**^™^- the law of nations, because all nations make use of it "(2/). And again, " The laws of nature, which are observed by all nations, inasmuch as they are the appointment of Divine providence, remain constantly fixed and immu- table "(«). (z)ibid.s.n. 14. In the comprehensive survey, and for the due Burlamaqui's . principle re- elucidation, of the portion of our subject now under discus- gaiding the sion, it may be desirable ta consider states under the ofltatesunder notion of moral persons. In regard to this, Burlamaqui ^^^ notion of . , moral persons. remarks, that " all societies are formed by the concurrence or union of the wills of several persons, with a view of acquiring some advantage. Hence it is that societies are considered as bodies, and receive the appellation of moral persons ; by reason that those bodies are in effect animated with one sole wiU, which regulates all their movements. This agrees particularly with the body politic, or state. The sovereign is the chief, or head, and the subj'ects the members : all their actions that have any relation to society are directed by the will of the chief. "Wherefore so soon as states are formed, they acquire a kind of personal properties;* and we may consequently, with due propor- tion, attribute to them whatever agrees in particular with man ; such as certain actions and rights that properly * Le., certain of the characteristics or qualities which distinguish indi- vidual persons as well as public bodies : "guelque maniere des proprieUs 44 INTERNATIONAL LAWS. Tit. XII. (a) Principles of Natural Law, Part. II. c. 6, s. 4. Vattel's defi- nition of a state. (i) Law of Nations, Pre- lim, s. 1. Vattel's defi- nition of the law of nations. (c) Jbid. a. 3. Vattel's prin- ciple regard- ing considera- tion of states as fi-ee per- sons. (d) Ibid. s. 4. Vattel's defi- nition of the necessary law of nations. (e) Ibid. s. 7. Burlamaqui's principle re- garding the intercourse between states. (/) Principles of Natural Law, Part. II. c. 6, s. 6. Burlaniaqui's principle re- garding origin of interna- tional law. belong to them, certain duties they are obliged to fulfil, &c."(a). 15. Vattel describes nations or states to be "bodies politic, societies of men, united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength " (b). 16. The law of nations the same distinguished writer defines to be " the science which teaches the rights sub- sisting between nations, or states, and the obligations cor- respondent to those rights " (c). 17. He further maintains that " nations, being composed of men naturally free and independent, and who, before the establishment of civil societies, Uved together in the state of nature — nations, or sovereign states, are to be con - sidered as so many free persons living together in the state of nature " (d). 18. Vattel defines that to be " the necessary law of nations which consists in the application of the law of nature to nations. It is necessary, because nations are absolutely bound to observe it. This law contains the precepts prescribed by the law of nature to states, on whom that law is not less obligatory than on individuals, since states are composed of men, their resolutions are taken by men, and the law of nature is binding on all men, under whatever relation they act " (e). 19. In regard to the intercourse between nations, which constitutes the foundation of iaternational law, Burla- maqui, after considering states under the notion of moral persons, in the mode already adverted to, proceeds to observe, that "the establishment of states iatroduces a kind of society amongst them, similar to that which is naturally between men ; and the same reasons which induce men to maintain union among themselves, ought likewise to engage nations, or their sovereigns, to keep up a good understanding with one another " (/). 20. In regard to the origin of international law, Bur- lamaqui goes on to remark, in the same section from which the preceding passage is taken, that "it is necessary, therefore, there should be some law among nations, to LAW OF NATIONS. 45 serve as a rule of mutual commerce.* Now this law can Tit. Xll. be nothing else but the law of nature itself, which is then distiaguished by the name of the law of nations. That is, the law of nature, not applied to man, considered simply as such, but to nations, states, or their chiefs, in the rela- tions they have together, and the several interests they have to manage between each other " {g). (g) IW.. And in a subsequent section he observes, that "all nations are with regard to one another in a natural dependence and equality. If there be therefore any common law between them, it must proceed from Grod, their common Sovereign " {h). (h) ibid. s. 8. 21. The President Montesquieu, with equal humanity Montesquieu's and philosophy, maintaias that "the law of nations is |ardingthe naturally founded on this principle, that different nations ia™o1''na™ons ought ia time of peace to do one another all the good they can, and in time of war as little harm as possible, without t^ ^„^„-j gj- prejudicing their real interests " (i). ^"'V'^' ^- ^' 22. The same distinguished writer asserts that " the Montesquieu's law of nations may be considered as the civil law of the garding law of universe, in which sense every nation is a citizen" (k). m*'?"^'-/ f 23. As independent communities acknowledge no com- Laws, b. 26, mon superior, they may be considered as living in a state Principle of of nature with respect to each other ; and the obvious appiicatfon of inference drawn by the disciples of Grotius was, that the natural law to _ _ "^ _ _ _ intercourse of disputes arising from these independent communities must states. be determined by what they call the law of nature. This , J xii./>.T_- (^1 Wheaton's gave rise to a new and separate branch oi the science. Elements of called the law of nations (I) . zlw^'f^'' 24. Grotius considers the law of nations as a positive Principle of institution, deriving its authority from the positive consent garding law of of all, or the maiority of nations, which he supposes to be °™'°°^- ' . . . , (m)lWheaton's united in a social compact for this purpose (m). Elements of 25. In regard to the different kinds of the law of nations, ^^^^ p, 39, Burlamaqui distinguishes them into two species. He says, Burlamaqui's rr,, . .1 ■ 1 1 ^r> -IT principle re- " There is certainly an universal, necessary, and seil-obli- garding diifer- gatory law of nations, which differs in nothing from the 1™^ of nltioL. law of nature, and is consequently immutable, insomuch * Communication (?) commerce. 46 LAW OF NATIONS. Tit. XII. that the people or sovereigns cannot dispense with it, even by common consent, without transgressing their duty. " There is, besides, another law of nations which we may call arbitrary and free, as founded only on an express or tacit convention, the effect of which is not of itself universal ; being obligatory only in regard to those who have volun- tarily submitted thereto, and only so long as they please, because they are always at liberty to change or repeal it. To which we must likewise add, that the whole force of this sort of law of nations ultimately depends on the law of nature, which commands us to be true to our engagements. Whatever really belongs to the law of nations, may be .reduced to one or other of these two species, and the use of this distinction will easily appear by appljdng it to par- ticular questions which relate either to war, for example, to ambassadors, or to public treaties, and to the deciding of (n) Principles . . • , i of Natural disputes which sometimes arise concerning these matters fX's^f "■ between sovereigns" (n). Vattel's prin- 26. In regard to the duties of nations one towards ing the mutual another, Vattel maintains, with equal force and truth, that duties of na- <( gjj^gg Q^g nation, in its way, owes to another nation every duty that one man owes to another man, we may confi- dently lay down this general principle : one state owes to another state whatever it owes to itself, so far as that other (o) Law of stands ia real need of its assistance, and the former can c. 1 o. 3. ' grant it without neglecting the duties it owes to itself "(o). Definition 27. Wheaton thus lucidly defines the principle of in- byWheaton . , , m, ■, n • . . , of interna- temational law : " ihe law of nations, or international lona aw. j^^^^ ^^ understood among civilized Christian nations, may be defined as consisting of those rules of conduct which reason deduces as consonant to justice, from the nature of oflntenia^''^^ *^® society existing among independent nations, with such Honal Law, definitions and modifications as may be established bv p. 54. •' •' Kent's prinoi- general consent " (p). niturXnd^ 28. Kent maintains that the law of nations is twofold. positive law of " There is a natural and a positive law of nations : by the nations. „ ..... ... (ff) 1 Cotmnen- ioTmer, every state, m its relations with other states, is taries on Ame- ijound to Conduct itself with iustice, good faith, and bene- rican Law, •' ° p. 2. volence " {g). LAW OF NATIONS. 47 29. "With respect to the moral obligations of states, it is Tit. Xll. well observed by Kent, that " states, or bodies politic, are to Kent's princi- ■1 -11 1 1 ■ T 1 . -n ,, pie as to moral be considered as moral persons haymg a public will, capable obligations of and free to do right and wrong, inasmuch as they are ^*^^''^' collections of individuals, each of whom carries with him into the service of the community the same binding law of morauty and reugion which ought to control his conduct taries on Aim- in private Ufe " (r) . ^^^™ ^"■'^' 30. It is laid down by Wheaton, that " if states are moral Wleaton's beings, capable of contracting by direct and positive con- garding capa- sent, and still more if their consent to consider each other f^^ °f ^*^*'^^ ' to make mu- as such moral beings may be implied from the general acqui- ty^l conven- _ _ , tions. escence of mankind ; they are equally capable of binding themselves by that tacit convention which is fairly to be implied from the approved usage and practice of nations, and , -u . 1 . . , . ... 1 r XI, (*) ^ dements their general acquiescence m certam positive rules tor the oflntema- regulation of their mutual intercourse " («). cZ-^f/p.'^Ts. 31. As regards the general principle on which the law Lord Stowell's of nations is based, and the foundation on which its authority garding foun- stands — consisting mainly in conformity to the usage and ^f ^°?o°^ ^^^^ practice of nations— ^Lord Stowell expressed himself as follows : — " A great part of the law of nations stands on no other foundation. It is introduced, indeed, by general principles, but it travels with those general principles only to a certain extent ; and if it stops there, you are not at liberty to go farther, and to say that mere general speculations would bear you out in a farther progress. Thus, for instance, on mere general principles it is lawful to destroy your enemy, and mere general principles make no great difference as to the manner by which this is to be effected^ but the conventional law of mankind, which is evidenced in their practice, does make a distinction, and allows some, and prohibits other modes of destruction ; and a belligerent is bound to confine himself to those modes which the com- mon practice of mankind has employed, and to relinquish those which the same practice has not brought within the oyen, 1 So- ordinary exercise of war, however sanctioned by its bimon^-^dmi- principles and purposes " (t). PP. 140, 141. 48 LAW OF NATIONS. Tit. XII. Vice-Chancel lor "Wood's principle re- garding the obligation of the law of foreign coun- tries in re- gard to the property of foreign resi- dents. (u) Simpsmi V. Fogo, 8 Law Times (V.-C. Wood), 63. S. C, 1 N". R. 424 ; 1 H. & M. 222. Principle re- garding extent and jurisdic- tion of law of nations. 32. On the subject of the law of nations, more especially as respects the obligation of the law of foreign countries in regard to the regulationof property of different kinds belong- ing to foreigners resident in those countries, the observations which follow fell from the lips of that distinguished judge of our own day, Yice-Chancellor Sir W. Page Wood. " For the sake of the tranquillity of mankind, who now especially, in the large extension of commerce which prevails all over the globe, are continually obliged to pursue their business and enterprise in foreign coun- tries, and to place their property under the protection of foreign tribunals, the community of nations has esta- blished this general principle, that a legal title acquired in one country shall be a good title all over the globe. Of course the original title further depends, in such cases, on the priaciples by which the courts are regulated, in determining upon its due acquisition. As to real estate, the legal title to property throughout the globe cannot be recognised, except it be originally acquired according to the laws relating to the transfer of realty in that country in which the real estate is situated, or, as it is expressed by jurists, the lex loci rei sita. As regards the title acquired to property of a movable nature, the question more frequently arises, whether the lex loci contractus shall prevail, or the law of the domicile of the parties. In this case it is immaterial to consider that question, because undoubtedly both the place of the contract and the domicile of the parties were British. Therefore, the two circumstances concur. A third question, however, some- times occurs, even with regard to movables ; viz , whether, in any case, the lex loci rei sita at the time of the con- tract can prevail. In most cases the mere locality of a chattel would not have any effect ; but, even as regards this question also, at the time of the contract before me, no doubt the movable itself was situated in this country" (m). 33. With respect to the extent and jurisdiction of the law of nations, it has been observed that "the law of nations is of much larger extent and jurisdiction than the civil EQUALITY AND INDEPENDENCE OF NATIONS. 49 law, as deriving its autliority from the joint consent of all Tit. XII. men, or at least from the concurrence of most nations in the world ; because there is scarce any law besides that of nature, which is even sometimes styled the law of nations, that is common to all nations : vea, what is reckoned the W l>isserta- , . . , . tion cm Law of law of nations in one part of the world, is not accounted Natim, Law such in another part thereof " (a?). ^41.*°™' "' 34. In regard to the individual independence and liberty Vattel's prin- of nations, as respects their communication one with another, independence^ Vattel maintains that, " nations being free and independent °^ nations. of each other, in the same manner as men are naturally free and independent, it is a-general law of their society that each nation should be left in the peaceable eniovment W -^''«' "/ . -^ ■'•' Nations, Pre- of that uberty which she inherits from nature" («/). Km. ». 15. 35. In regard also to the equality of nations one with Vattel's prin- another, Yattel contends that, " since men are naturally the equality of equal, and a perfect equality prevails in their rights and ^^"'"^^• obligations, as equally proceeding from nature ; nations composed of men, and considered as so many free persons living together in the state of nature, are naturally equal, and inherit from nature the same obligations and rights " {z)'. («) lUd. s. 18. 36. Vattel further maintains, as a necessary consequence Consequential of this equality of nations, that " whatever is lawful for garding equal one nation, is equally lawful for any other ; and whatever is ^ation^^^ °^ unjustifiable in the one, is equally so in the other " (a). (a) lUd. s.'l9. 37. Analogously with the case of individuals, different Kent's prin- nations and states are all alike naturally, materially, and in- equality and ° ternationaUy equal, more especially as regards their mutual ^" nations"''^ rights and intercourse, and transactions one with another. And even as regards precedency, as in the case of individuals, any variation or departure from their natural and entire international equality, can be efiected only by mutual international compact. ■ This priQciple, as regards their equality, is thus clearly and forcibly elucidated by Kent : " N^ations are equal in respect to each other, and entitled to claim equal considera- tion for their rights, whatever may be their relative dimen- sions or strength, or however greatly they may differ in government, religion, or manners. This perfect equality and VOL. I. E 50 PUNISHMENT OF STATES. Tit. XII. (h) 1 Com- mentaries on Ainerican Law, p. 21. Wynne's prin- ciple regarding national obli- gation to do justice, (c) 2 Wynne's EunomiLS, Dial. p. 211. Principle re- garding pun- ishment of states. * But see s. 12, ante, p. 43. Burlamaqui's principle re- garding the certainty of the law of nations. (cl) Principles of Natural Law, Part II. c. 6, s. 6. Vattel's prin- ciple regarding the immuta- bility of the law of nations. (e) Law of Natimis, Prelim, s. 8 entire independence of all distinct states is a fundamental principle of public law" {b). 38. As in tlie case of individuals, so also in that of nations, it has been with, truth maintained by a distinguished writer, that " all nations are bound to assist each other in promoting the ends of justice. They have their reward in doing so, by carrying on, at the same time, the end of their own preservation " (c). 39. States, indeed, are not only, in common and equally with individuals, bound to obey those laws the justice and the obligation of which they acknowledge ; but, in common also with individuals, although in a somewhat different manner, they are liable to undergo punishment for their infraction.* What loss of liberty, the endurance of cor- poreal pain, and deprivation of property, are to individuals by way of punishment ; invasion and pUlage, deprivation of their privileges or their territories, and levying con- tributions upon them, are, in a corresponding manner, the penalties incurred by states for breach of international law ; and the executioners by whom these punishments are inflicted, are the armies of those nations against whom the wrong has been perpetrated. 40. As respects the certainty of the law of nations, Bur- lamaqui maintains, that " there is no room to question the reality and certainty of such a law of nations, obligatory of its own nature, and to which nations, or the sovereigns that rule them, ought to submit. For if Grod, by means of right reason, imposes certain duties between individuals, it is evident he is likewise willing that nations, which are only human societies, should observe the same duties be- tween themselves " {d). 41. In regard to the immutability of the law of nations, Vattel observes that, " since the necessary law of nations consists in the appKcation of the law of nature to states, which law is immutable, as being founded on the nature of things, and particularly on the nature of man, it follows that the necessary law of nations is immutable " (e). 42. Vattel contends, in respect to the object of the society of different nations, as regards their connection and com- NATIONAL RIGHT TO CERTAIN SEAS. 51 munication one witli another, that, " since the object of the Tm XIi. natural society established between all mankind is that battel's prin- , , , . . cipleregardiag they should lend each other mutual assistance, in order to the object of attain perfection themselves, and to render their condition nations, as perfect as possible ; and since nations, considered as so many free persons living together in a state of nature, are bound to cultivate human society with each other — the ob- ject of the great society estabKshed by nature between all nations is also the interchange of mutual assistance, for their own improvement and that of their condition " (/). if) I'bid. s. 12. 43. As regards the mode in which proof should be Principle re- afforded of any matter connected with the law of nations, of law of it has been laid down, that " the law of nations is proved "^^^o^^s. after the same manner as the unwritten civil law is ; viz., by continual usage, and the testimony of men skilful in {g) Disserta- history and the laws themselves ; the law of nations being Nature, Law of the daughter of time and a well- gathered experience " {g). ^"■^^^' <*<'■' 44. The principle of law determining the right of nations Lord stowell's generally to the navigation of the unappropriated parts of garding right the ocean, and that which regulates the right of search *° ^^^' also in the case of neutral vessels, was thus lucidly explained by Lord Stowell : — " Two principles of public law are g'enerally recognised as fundamental. One is the perfect equality and entire independence of all distinct states. Relative magnitude creates no distinction of right. Relative imbecility, whether permanent or casual, gives no additional right to the more powerful neighbour ; and any advantage seized upon that ground is mere usurpation. This is the great foundation of public law, which it mainly concerns the peace of man- kind, both in their politic and private capacities, to pre- serve inviolate. The second is, that all nations being equal, all have an equal right to the uninterrupted use of the unappropriated parts of the ocean for their navigation. In places where no local authority exists, where the sub- jects of all states meet upon a footing of entire equality and independence, no one state, or any of its subjects, has a right to assume or exercise authority over the subjects of another. I can find no authority that gives the right E 2 52 NATIONAL MOEAL JURISPRUDENCE. Tit. XII. of interruption to the navigation of states in amity upon the high seas, exceptiag that which the rights of war give to both belligerents against neutrals. This right, incom- modious as its exercise may occasionally be to those who are subjected to it, has been fully established in the legal practice of nations, having for its foundation the necessities of self-defence, in preventing the enemy from being sup- plied with the instruments of war, and from having his means of annoyance augmented by the advantages of maritime commerce. Against the property of his enemy, each belligerent has the extreme rights of war. Against that of neutrals, the friends of both, each has the right of visitation and search, and of pursuing an inquiry whether they are employed in the service of his enemy ; the right Louis, 2 Dod. being subject, in almost all cases of an inquiry wrongfully l{etKTm.2i3-i. pursued, to a compensation ia costs and damages " (h). Lord Stowell's 45. The principle that nations, any more than indi- principle as to -j i . • i-n i • j.- j. i j? i unlawful viduals, are not justmed m resorting to unlawlul means m {°f5"? ^°^], order to attain lawful and good ends, was thus expounded by Lord Stowell : — " A nation is not justified in assuming rights that do not belong to her, merely because she means to apply them to a laudable purpose ; nor in setting out upon a moral crusade of converting other nations by acts of unlawful force. Nor is it to be argued that, because other ,,, „. nations approve the ultimate purpose, they must therefore Zoids, 2 Dod. submit to every measure which any one state or its sub- A dmiralty . . . n • Rep. p. 257. jects may inconsiderately adopt lor its attainment (i). Lord stowell's 46. The question as to the validity of orders in coimoil principle re- , . p ■ . . garding orders which are repugnant to the law of nations, is disposed of in pugnant\o^'' the following extract from a judgment of Lord Stowell : — law of nations. " Jq the course of the discussion a question has been started, what would be the duty of the court under orders in council that were repugnant to the law of nations ? It has been contended on one side that the court would at all events be bound to enforce the orders in council ; on the other that the court would be bound to apply the rule of the law of nations adapted to the particular case, in disregard of the orders in council. I have not observed, LORD STOWELL ON ORDERS IN COUNCIL. 53 however, tliat these orders in council, in their retaliatory '''"'■ ^11- character, have been described in the argument as at aU repugnant to the law of nations, ho-wever liable to be so described if merely original and abstract. And, therefore, it is rather to correct possible misapprehension on the subject, than from the sense of any obligation which the present discussion imposes upon me, that I observe that this court is bound to administer the law of nations to the subjects of other countries in the different relations in which they may be placed towards this country and its government. This is what others have a right to demand for their subjects, and to complain if they receive it not. This is its unwritten law, evidenced in the course of its decisions, and collected from the common usage of civilized states. At the same time it is strictly true that, by the constitution of this country, the King ia council possesses legislative rights over this court, and has power to issue orders and instructions which it is bound to obey and enforce ; and these constitute the written law of this court. These two propositions, that the court is bound to admi- nister the law of nations, and that it is bound to enforce the King's orders in council, are not at all inconsistent with each other ; because these orders and instructions are presumed to conform themselves, under the given circum- stances, to the principles of its unwritten law. They are either directory applications of those principles to the cases indicated in them — cases which, with all the facts and circumstances belonging to them, and which constitute their legal character, could be but imperfectly known to the court itself — or they are positive regulations, con- sistent with those principles, applying to matters which require more exact and definite rules than those general principles are capable of furnishing. " The constitution of this court relatively to the legis- lative power of the King in council, is analogous to that of the courts of common law relatively to that of the Parliament of this kingdom. Those courts have their unwritten law, the approved principles of natural reason and justice: they have likewise the written, or statute 54 LAWS OF PEACE AND OF WAR. Tit. XIII. la-w, in Acts of Parliament, wtick are directory applica- tions of tlie same principles to particular subjects, or positive regulations, consistent with them, upon matters which would remain too much at large if they were left to the imperfect information which the courts could extract from mere general speculations. What would be the duty of the individuals who preside in those courts, if required to enforce an Act of Parliament which contradicted those principles, is a question which I presume they would not entertain a priori, because they will not entertain a priori the supposition that any such will arise. In like manner this court wiU not let itseK loose into speculations as to what would be its duty under such an emergency, because it cannot, without extreme indecency, presume that any such emergency will happen. And it is the less disposed to entertain them, because its own observation and expe- rience attest the general conformity of such orders and instructions to its principles of unwritten law. In the particular case of the orders and instructions which give rise to the present question, the court has not heard it at all maintained in argument that, as retaliatory orders, they are not conformable to such principles ; for retaliatory orders they are. They are so declared in their own lan- guage, and in the uniform language of the government which has established them. I have no hesitation in saying that they would cease to be just if they ceased to be retaliatory ; and they would cease to be retaliatory from the moment the enemy retracts, in a sincere man- ner, those measures of his which they were intended to (k) The Fox retaliate " {k). and ors., Edwards's Ad- miralty Rep. pp. 312—314. XIII. Laws of Peace and of War. Primary lead- 1. Between nations, as well as individuals, relations of ing piinciple. , . „ . i • i ■ -, . . cbiierent kinds exist, and communications are earned on, the constancy and freedom of which it is, on several accounts, desirable to encourage and to maintain. lAWS OP PEACE AND OF WAR. 55 2. In all cases where commumcations take place between Trr. XIII. different intelligent, active bodies, each is necessarily liable Primary to voluntary aggression of various kinds from the other, re^rding resistance to and protection against which are essential for "^*"'''' °^ ^^• the preservation of the body so assailed, and the operation of which is what is ordinarily termed war. War, indeed, is the act of contention between different states ; and consists in an effort by one nation to coerce, or bring into subjection, or annihilate, another nation, by means of force. According to Lord Bacon, it is "the Observations highesttrial of right " (Z). ' 1^592*'^' 3. The leading objects of the laws of peace and war, are Elementary to prevent, as far as possible, the occurrence of these aggres- objec^of kw*s° sions and contentions between the -people of different ofpeaceand ^ '^ war. nations ; and to render them as little injurious as possible when they do occur. 4. In the case of nations, as well as of individuals, Eegulating negotiation should be resorted to to adjust any differences prfSripir*^ between them ; and force should be used, and is justifiable, pnly in those cases where negotiation fails. But force may and must be resorted to to repel force. And, as regards the general conduct of nations in relation to one another, it should be borne in mind that the being fully prepared to repel force, is the best protection against its being offered. 5. In the conduct of war, the least possible injury con- Practical sistent with the efficient carrying on of the attack, should prlnelplf ^ be done by the opposing nations to each other, who should always act as though they expected soon to become allies. This principle should also be observed in, and should re- gulate the conduct of conquering sovereigns towards sove- reigns whom they have captured, and over whom no greater advantage should be taken than what is necessary to obtain the just rights of the successful party, and to ensure future peace between the warring nations. As a natural and, indeed, necessary consequence of this principle, it also follows that private persons taken captive during war, ought not' to be treated by their conquerors 56 LAWS OF PEACE AND OP WAR. Tit. XIII. Qualifying principle regarding goods of alien Elementary principle regarding treaties. Principle of Grotius as to lawfulness of (m) Grotius on War mid Peace, hy Whewell, b. 1, c. 2, s. 1. Consequential principle of Grotius as to right of going to war, b. 1, 0. 2, s. 1. (re) Qrotius on War and Peace, hy Whewell, b. 1, c. 2, s. 1. Principle of Grotius as to variety of sources of war. (o) Grotius on War and Peace, hy Whewell, b. 2, •:. 1, s. 2. witli more severity than is necessary to restrain tlieir hostile operation during the continuance of the war ; the prospect of the restoration of peace between the belligerent nations being always considered, and their conduct regulated ia accordance with this expectation. 6. Nevertheless, the goods of an alien enemy may be fairly seized upon and appropriated to the use of the victor ; iaasmuch as it is the very end and object of war to deprive the nation to which the other belligerent party is opposed, of whatever may increase its aggressive power, and of which the possession of property forms an essential part. 7. In the formation of treaties, it may be concluded that those are the most eiEcient for preserving peace, where the least is left to dubious construction or interpreta- tion, and where the transaction is based on entirely equitable foundations. 8. As regards the general principle concerning the law- fulness of war, Grotius remarks as follows : — "In the first principle of nature, self-preservation, there is nothing which is repugna^it to war : indeed, all things favour it ; for the end of war, the preservation of life and limb, and the retention or acquisition of things useful to Hfe, agrees entirely with that principle. And if force be requisite for that purpose, still there is in this nothing at variance with nature ; for all animals are pro- vided by nature with means for the very purpose of self-defence " (to). 9. Grotius further observes, that "right reason and the nature of society, which are next to be considered, do not prohibit all force, but that only which is repugnant to society ; that is, that which is used to attack the rights of others. For society has for its object that every one 'may have what is his own in safety, by the common help and agreement " (ra) . 10. Grotius contends, indeed, that there are "as many sources of war as there are of actions at law ; for when the judgments of tribunals cease to be of force, war begins. Now actions are either on account of injury done, or not yet done" (o). GROTIUS ON CAUSES OF WAR. 57 11. As regards the real and just causes of war, Grotius Tit. Xlll. lays it down that there are " three just causes of war Principle of J /. p , 1 ■ 1 1 p Grotius as to — deience, recovery oi property, and punishment ol just causes of o ^'' {p) Grotius on 12. With respect to the iust causes of war between differ- War and TT 1 . . PeacCj by ent nations, Vattel maintains that "the right of employing Whewell, b. 2, force, or making war, belongs to nations no further than ^ +1 1- ■ V £LlJl61 S TUTU" is necessary for their own defence, and for the maintenance ciple regarding p ,, . •-,,„, \ the causes of 01 their rights \q). -war. 13. The following is the principle propounded by fe) j^aw of Puffendorf in regard to the causes of war : — c. 3, s. 26. " The causes of iust war may be reduced to these three P'^ffendorf's •" •' principle re- heads : — garding the "1. To defend ourselves and properties agaiast others that design to do us harm, either by assaulting our persons, or intercepting or ruining our fortunes. " 2. To assert our rights, when others who are justly obliged, refuse to pay them to us. " 3. To recover satisfaction for damages we have injuri- ously sustained, and to force the person that did us the injury to give us sureties for his good behaviour for the future. " And hence ariseth the division of just wars into offen- sive and defensive " {r). (r) Law of He subsequently adds- f^ZL^^^ 3^ " In general the causes of every war, and especially the ''■ ^> s- 3. offensive, ought to be evident, and without any mixture of doubt and uncertainty " (s). (s) Ihid. s. 4. 14. An aggressive war, merely for the sake, and with Principle as to ... „ , wars unjustifi- the object oi adding to the territory ol the power provoking able and un- the war, is no more justifiable in a state, than is an assault provocative by one individual on the person of another for the purpose causes of war. of depriviag him of some of his property. In both instances alike, the crime is that of robbery, although the degree of ignominy attached to it in the case of states, may not be considered so great as in that of individuals, nor the means of punishing the aggressor in the latter case so avail- able. " Wars without justificatory causes," says Grrotius, " are 58 GROTIUS ON CAUSES OF WAR. Tit. XIII. piracy" (t). "Fear from a neighbouring power is not a (i!) Cfrotiiis on suiScient cause of war. For that defence may be just, it must PmceX- 2, be necessary ; and it cannot be tbis except tbere be clear c. 22, s. 3. evidence, not only of the power, but of the animus of the (m) nid. s. 5. party, and such eyidence as amounts to real certainty " (m). Further prin- 15. " Nor can we say of the liberty, either of individuals, provocative o^" 0^ cities, or states, that it is either, by natural law and causes of war. a,t all times, an attribute of all, or that in the cases in which War mid^ °^ i* is, it furnishes just ground for war " {x). Peace, b. 2, iQ " jfor is it less unjust to wish to subjugate any by C, JiJjj S. 11. ■ /» 1 Desire to sub- arms, as being worthy to be slaves. For even if there be jugate, not a anything which is fit for me, it does not follow that any just cause oi •' o war. one has a right to impose it on me by force. For those (y) arotiws on ^i^q have the use of reason, ought to have a free election Peace, by left them of what is useful to them and what is not, except c. 22"! 12. ' another has a right over them " {y). Interpretation 17. " A just cause of War cannot be derived from any pbeoies'not™' explanation of the Divine prophecies, nor from a wish to just cause. fulfil them " {z). War and 18. It is laid down by Grotius, that, "ia the special c '22"' s 15 acceptance of justice, a war cannot be jusit on both sides. Principle of as a law-suit cannot ; because a moral claim to two con- wbether'a war trary things, to act and to prevent the action, by the nature can be just on Qf the subiect, cannot exist. But it may be that neither both sides. . . . of the belligerent parties act unjustly; for no one acts un- justly except he who knows that he is doing an unjust thing, and many persons do not know this when it is so. Thus, persons may carry on a law-suit justly, that is, bond (^ Grotms on ji^g^ ^^ ho^ sides. For many points, both of law and of Peace, by the facts from which the law arises, escape the notice of the Whewell, b. 2, ,. i >> / \ c. 23, s. 12. parties concerned (a). Principle of 19. In regard to the just causes of war, it is remarked garding just by Grrotius, that " it often happens that there is a just cause ullustputtinf really existing for the war, but that the putting it in into execution action becomes vicious from the intention of the agent ; of wars. . . , . . . . either because something else, not in itself unlawful, incites him more than the right, as, for instance, the desire of honour, or some advantage, public or private, which is ex- pected from the war, distinct from the justificatory cause ; LAWS OF PEACE AND OF WAE. 59 or because there is introduced some affection plainly un- Tit. Xlll. lawful, as a pleasure in doing miscliief to another without (b) GroUus mi respect of good " (b). PeLriy 20. As respects the right of one nation to make war Y^^^s'vi ^' upon another, and the limits imposed on that right, it is laid wheatou's down by Wheaton as follows :— " The law of nature has |aSright not precisely determined how far an individual is allowed *" make war, and limits of to make use of force, either to defend himself against an right. attempted injury, or to obtain reparation when refused by the aggressor, or to bring an offender to punishment. We can only collect from this law the general rule that such use of force as is necessary for obtaining these ends is not forbidden. The same principle applies to the conduct of sovereign states, existing in a state of natural independence with respect to each other. No use of force is lawful, except so far as it is necessary. A belligerent has, therefore, no , , IT PI ■,■ o ■, W 2 Elements right to take away the lives of those subjects of the enemy ofintema- whom he can subdue by any other means " (c) . pp. 76, 77/ 21. In treating on the difference between public and Principle by private war, Grrotius observes, that " public war does not difference be- arise except when the judge's authority does not exist, or ^^"^^j^I^g ends, has a prolonged character, and is constantly sustained war. by the accession of new losses and injuries. Besides, in private war defence alone is considered ; but the public W Ch-otius m powers have the right, not only of defending, but also of peace, by obtaining satisfaction " {d). ^ -^"^^^ ^g " ' 22. In regard to the right of self-defence, Burlamaqui Burlamaqui's contends that we ought to " distinguish carefully between seSdefence. a just defence of one's own person, and revenge. The first does but suspend, through necessity, and for awhile, the exercise of benevolence, and has nothing in it opposite to sociability. But the other, stifling the very principle of benevolence, introduces in its stead a sentiment of hatred and animosity, a sentiment vicious in itself, contrary to (^^ principles the public good, and expressly condemned by the law of "[^''^l^ jj nature" {e). c. 4,'s. 16. 23. As regards the principle which ought to actuate the p^\™iX!^ conduct of mankind towards their enemies, it is laid down garding con- duct towards by Burlamaqui, that, "if we have a right to suspend enemies. 60 OBLIGATION OF PROMISES TO ENEMIES. Tit. XIII. the acts of benevolence in regard to an enemy, yet we are never allowed to stifle its principle. As nothing but necessity can authorize us to have recourse to force against an unjust aggressor, so this same necessity shoidd be the rule and measure of the harm we do him ; and we ought to be always disposed to reconcilement so soon as he has done us justice, and we have nothing further to (f) Principles apprehend " (/). Law Part. II. 2'^- Duriag war, as in peace, the principles and obHga- c. 4, s. 16. tions of justice still prevail, and are fully as binding as at ciple regarding other times. Indeed, so far from beiag abrogated, however obligation of they may be disregarded by some, the actual necessity for promises made j j a j ' j to enemies. their observance becomes then greater than ever. This is more especially the case as regards the treatment of captive enemies, carrying out contracts and treaties, fulfilling pro- mises and other engagements made to foes, and the general mode in which the war is conducted. Nothing tends more to alleviate the evils of war, than the observance of this principle ; and nothing more essentially serves to distin- guish civilized nations from barbarians. Moreover, good faith towards an enemy ought ever to be preserved, alike because it is for the real interest of both the belligerent parties to pursue this course, and also be- cause such a line of action best conduces to the attainment of peace, the establishment of which, upon a sure, equitable, and satisfactory basis, is the only legitimate end of war. In addition to this, the mere circumstance of entering into an agreement with an enemy, may not unreasonably be con- tended to amount, /iro tanto, to a cessation of hostilities; and on this account alone the agreement ought to be fulfilled. Probably, however, the best reply to the inquiry whether fraud is lawful to deceive or mislead an enemy, is afforded by the consideration that, unless the enemy had supposed that the other party had been acting in good faith, he would never have been deceived by the fraud ; and that, by acting faith- lessly towards him in such a case, the party who does so proves ahke his own dishonesty and the sincerity of the other, and causes the latter to suffer from trusting in the integrity of the former. LAWS OF PEACE AND OF WAB. 61 The above principle, neyertlieless, does not proHbit, and Tit. Xlll. is not iaconsistent witb, the deceit or misleading of an enemy in those cases — such as resort to false signals, pre- tended retreats, and the like — where no profession is made by the party so acting, of good faith, or sincere dealing with the party who is deceived. 25. In regard to the correct principle to be maintained Cicero's prin- ..,,,.. ciple regarding With respect to oaths taken to confer additional obligation on obligation of T , . T jy J. J 1. oaths taken to promises made to enemies, a class ol persons towards whom enemies. it may be contended that the ordinary relations of life and of society do not extend, it is laid down by Cicero, that " even war has its laws, and an oath is inviolably to be kept to an enemy ; therefore whatever is sworn ought to be kept according to the construction that conscience puts upon the words of the oath. But you are to mind that alone ; for all other constructions are to be disregarded without being guilty of perjury" {g). {g)P<^ Offidis, Here it is moreover to be borne m. mmd that the enemy would not have been satisfied with the obligation of the oath, or have granted the required return, had he not confided implicitly in the good faith of the party making it under the circumstances of the case, and in his determination to observe it, notwithstanding the acknowledged enmity subsisting between the parties. 26. PhiUimore says that treaties are, "the written portion Phmimore'a . principle re- of that law which binds together the society ol states, and garding nature occupy a place in that system which, in some degree, corresponds to the place occupied by statutes in the system of the municipal and public law of independent states" (h). (h) Commen- ■"■ . - taries on Inter- The subjects of treaties are nearly as wide and as ex- national Law, tensive between states, as are the subjects of agreements '^° ■ > V- ■ between individuals, to which in many respects they appear to bear a greater resemblance than to statutes ; and they may be either offensive or defensive, positive, conditional, permanent, or provisional. When entered into, they are to be construed, applied, and acted upon like other legal instruments, and the principles of the interpretation of the one, are applicable to that of the other. 62 TREATIES BETWEEN NATIONS. Tit. XIII. Phillimore's principle re- garding right to make treaties. (i) Ibid. Lord Hard- wicke's prin- ciple regarding right to make treaties and declare war. (k) Hansard's Pari. Hist. 2 Harris's Life of Lord Hard- wicke, p. 35. (l) Ibid, and 3 Harris's Life of Lord Hard- wicke, pp. 46, 47. Montesquieu's principle re- garding privi- leges of am- bassadors. 27. As regards the right to enter into treaties, the same learned writer maintains, that "the right to enter into lawful conventions or treaties with other states, is as un- questionably inherent in every independent state, as the right to make lawful covenants is inherent in every individual" (i). 28. The true and correct principle as regards the pre- rogative of the Crown to make treaties, or to declare war with foreign governments, and the control possessed by ParKament over these proceedings, was thus lucidly laid down by Lord Chancellor Hardwicke, in his speech in the House of Lords on the proposal for taking Hanoverian troops iato British pay ia November, 1743 : — " To make treaties, or to make war, is the acknowledged and established prerogative of the Crown. When the war is declared, the Parliament is to consider whether it ought to be carried on at the expense of the nation ; and if treaties require any supplies to put them in execution, they likewise fall properly at that time under parliamentary cognizance " {k). Corresponding sentiments were also expressed by him during the debate in the House of Lords on foreign alli- ances, on the 10th of December, 1755. " By our constitution the King has the sole power of making treaties of every kind, provided there is nothing in them contrary to the standing laws of the kingdom. " The King is not obliged by our constitution to ask either the consent or approbation of Parliament to any treaty he makes, nor even to communicate it to Parliament, unless it requires a 'grant or an Act of Parliament; and even then he is obliged to communicate the treaty only when he applies for the grant orJlct thereby required " {I). 29. The correct constitutional principle in regard to the privileges of ambassadors, and the real reasons on which it is based, are thus well and forcibly expressed by Montesquieu : — " The law of nations requires that princes shall send ambassadors ; and a reason drawn from the nature of things does not permit these ambassadors to depend either RIGHT OF SEARCH IN TIME OF PEACE. 63 on the sovereign to whom they are sent, or on his tribunals. Tit. Xlll. They are the Toice of the prince who sends them, and this voice ought to be free : no obstacle should hinder the execution of their office. They may frequently offend, because they speak for a man entirely independent. They might be wrongfully accused of crimes if they were liable to be pimished for crimes. If they could be arrested for debts, these might be forged. Thus a prince who has naturally a bold and enterprising spirit, would speak by the mouth of a man who had everything to fear. We must then be guided, in respect to ambas- sadors, by reasons drawn from the law of nations, and not by those derived from political law. But if they make an ill use of their representative character, a stop may be put to it by sending them back. They may even be accused , , „ •' . ° . • . (™) Monies- before their master, who by this means becomes either guieu's Spirit ,T • • ^ ,1 • T )) / \ ofLawSih.iG, their judge or their accomplice [m] . p 31 30. In regard to the law relating to the right of Lord Hard- visitation of, and searching foreign vessels in time of peace, ciple regarding it was laid down by Lord ChanceUor Hardwicke, that rightofsearch. "there are certain cases wherein any nation, though at peace with another, may, by the law of nations, enter and search the ships of the other. Nor can the nation to which the ship, so searched, belongs, deem such a search a violation either of the law of nations, or of particular . . ,W Speech on treaties in force. I think, my lords, it never was disputed, the Depreda- but that, by the law of nations, the ships of one people at Spaniards, peace with another might be searched, in case that other ^??^^'^^i^ people was carrying arms or provisions of war to a nation %oicTce, p. 413. , . -1 ,1 , ,1 ,. )) / \ Bansard's then at war with that other nation (n). Pari. Hist. 31. The following principle, in complete accordance Lord stowell's with that expressed by Lord Hardwicke, was laid down g^ding right by Lord Stowell, while delivering his judgment in the of search. case cited : — " This right is so clear in principle, that no man can deny it who admits the right of maritime capture ; because, if you are not at liberty to ascertain by sufficient inquiry whether there is property that can legally be captured, it is impossible to capture. Even those who contend for the 64 LORD ELLEN BOROUGH ON FOREIGN TRADING. Tit. XIII. inadmissible rule that free ships make free goods, must admit the exercise of this right, at least for the purpose of ascertaining whether the ships are free ships or not. The right is equally clear in practice ; for practice is uniform and universal upon the subject. The many European treaties which refer to this right, refer to it as pre-existing, and merely regulate the exercise of it. All writers upon the law of nations imanimously acknowledge it, without the exception even of Hubner himself, the great champion of neutral privileges " No man can deny that a state may recede from its extreme rights, and that its supreme councils are authorized to determine in what cases it may be fit to do so ; the particular captor having in no case any other right and title than what the state itself would possess under the same facts of capture. But I stand with confidence upon all priaciples of reason, upon the distinct authority of yattel,upon the institutes of other great maritime countries, as well as those of our own country, when I venture to lay it down that, by the law of nations, as now understood, a , , ™, , . deliberate and continued resistance to search, on the part (o) The Mane, . . ' ^ 1 Rob. Admi- of a neutral vessel, to a lawful cruiser, is followed by the p. 340. legal consequence of confiscation " (o). Lord Ellen- 32. On the general subject of the legality of an in- principle dividual carrying on commerce with foreign countries, tradLff'with whether friendly, neutral, or hostile, the following opinion foreign coun- -^as expressed by Lord Ellenborough, C. J. : — " I agree with the Master of the Rolls, in the case of *lEdw.Adm. the Pelican,* that it belongs to the government of the Rep. App. D. ' ..,,.„ country to determme m what relation ol peace or war any other country stands towards it ; and that it would be unsafe for courts of justice to take upon them without that authority to decide upon those relations. But when the Crown has decided upon the relation of peace or war in which another country stands to this, there is an end of the question ; and, in the absence of any express promul- gation of the win of the sovereign in that respect, it may be collected from other acts of the state. If the enemy were evicted by the King's troops from any place before •rORD ELLENBOROTJGH ON EIGHTS OF ENEMIES. 65 held by them, it cannot be doubted that, without any Tit. XIII. formal proclamation for that purpose, it would be lawful for the subject to carry on trade with that place in order to sustain the King's troops and to maintain his possession ; and it would be no violation of his duty as a subject also to trade with his fellow-subjects there for their support, and that of the British authority. It behoves the subject, iadeed, to act with more caution in entering upon any new intercourse of this sort, when he has not the express authority of his sovereign to guide him, and to take care in so doing that he does not invade his duty of allegiance ; but if the fact will bear him out, I see no reason why he may not trade to any neutral or friendly country without any express promulgation of the sovereign's will in that respect. And when the Crown has considered a foreign country as ceasing to be hostile, and under the dominion of France, the subject may also consider it open to lawful commercial adventure as any other neutral state" (jp). (p) Blackburn 33. In regard to the rights of alien enemies, more 15 East 90 91. especially with respect to their power of suing in our Lord Ellen- courts of justice, and enforcing contracts entered into with pr^n^^le^re- them, the principle which follows was propounded by Lord g?^id. b. 12, " Liberty consists principally in not being forced to do a thing when the laws do not oblige. People are in this state only as they are governed by civil laws ; and, because they live under these civil laws, they are free " (/). (/) Hid. b. 26, 15. Sir William Blackstone lays it down, that "natural Blackstone's liberty consists properly in a power of acting as one thinks ^"^^^^^^^^^f ^ fit, without any restraint or control, unless by the .law of liberty. nature ; being a right inherent in us by birth, and one of VOL. I. G 82 CIVIL BANK. Tit. XX. the gifts of God to man at his creation, when he endued (g) 1 Comm. him with the faculty of free-will " {g). Bkckstone's l^. The same learned and distinguished writer thus principle as to expresses himself ia regard to the priaciple of civil civil liberty. '- ° Hberty : — " Political or civil liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no further) as is necessary and expedient for the general advantage of the public. Hence we may collect that the law which restrains a man from doing mischief to his fellow-citizens, though it diminishes the natural, increases the civil liberty of mankiad. But every wanton and causeless restraint of the will of the subject, whether practised by a monarch, a nobility, or a popular assembly, is a degree of tyranny. " That constitution or frame of government, that system of laws, is alone calculated to maintain civil liberty, which leaves the subject entire master of his own conduct, except in those points wherein the public good requires some (li)lC) Art. 22. 11. Hoffinan maintains that no other principle could lay Hoffman's us under an obligation to obey any legislative wOl, besides garding legal "general utility; in other words, the happiness of those obligation. who are to be affected by its regulations. The happiness of nations is the only just end of government" (q). (?) ^egal Out- liTlCS T) 71 12. In regard to the obligation of foreigners to obey, the vatt'el's priji- laws of the country in which they are resident, Vattel piple regard- •' _ •' . . mg obligation observes, that "even in those countries which every of foreigners foreigner may freely enter, the sovereign is supposed to 88 wheaton's docteine. Tit. XXII. allow him access only upon this tacit condition, that he be subject to the laws. I mean the general laws made to maiataia good order, and which have no relation to the title of citizen, or of subject of the state. The pubKc safety, the rights of the nation and of the prince, neces- sarily require this condition ; and the foreigner tacitly submits to it as soon as he enters the country, as he cannot presume that he has access upon any other footing. The sovereignty is the right to command in the whole country ; and the laws are not simply confined to regu- latiag the conduct of the citizens towards each other, but also determine what is to be observed by all orders of people throughout the whole extent of the state" (r). (r) Law of 13. According to the principle laid down by Wheaton, c. 8, s. 101. ' and generally maintained by all jurists, the law of the Wheaton's place where real or immovable property is situate, governs principle re- . . i ■ n garding lex m everything relating to the tenure, the title, and the domicillii^ forms of conveyance, of such property ; and with respect to personal and movable property, the same rule generally, prevails, except that the law of the place where the person to whom it belongs was domiciled at the time of his decease governs the succession ab intestato to his personal {s) 1 Elements effects (s) . of Interna- i j t • tionai Law, 14. It IS remarked by the same writer that, as every ■P' ' sovereign state has the exclusive right of regulating- the W heaton s r. . . . . principle re- proceedings m its own courts of justice, the lex loci con- fori. tractus of another country cannot apply to such cases as are properly to be determined by the lex fori of that state (t) lMd.-p.U9. where the contract is brought in question (t). Wheaton's 15. Wheaton nevertheless holds that " the municipal principle i'^- , , . . , garding opera- laws and institutes of any state may operate beyond its own laws by com?' territory, and within the territory of another state, by pact. special compact between the two states " (u). (u) 1 Elements It may be suggested, however, that in the instance alluded of Interna- • n i o ■, n • tionai Law, to, as m ail cases where the laws of the foreign country are ^' ' allowed to affect any others besides its own subjects resident in the country where they are so permitted to operate ; the correct and real principle to be laid down is, not that the laws of any one country are allowed to operate in another, LORD WESTBURY ON EXTRA-TERRITORIAL JURISDICTION. 89 but that the foreign country in which they are recognised, Tit. XXII. determines conditionally and provisionally to adopt them as its own, and to re-enact them as such. 16. In regard to the effect of judgments recovered in Wheaton's foreign courts, it is laid down by Wheaton that, " by the law garding effect of England, the judgment of a foreign tribunal, of com- ?„/^g^s petent jurisdiction, is conclusive where the same matter comes incidentally in controversy between the same parties, and full effect is given to the exceptio rei judicata where it is pleaded in bar of a new suit for the same cause of action. A foreign judgment is prima facie evidence where the party claiming the benefit of it applies to the English courts to enforce it, and it lies on the defendant to impeach the justice of it, or to show that it was irregularly obtained " (x). («) l Elements 17. The extract which follows from a judgment of uonal Law, Lord " Chancellor Westbury, well and forcibly expresses P' ' the principle as to the extent to which the legislature of bury's princi- any country is constitutionally warranted in conferring on fpn-fne^extra"- its civil tribunals an extra-territorial jurisdiction, and the temtorial jurisdiction grounds of that authority. on courts. " The courts of civil judicature iu every country sit to administer the municipal law of that country, and their *■ jurisdiction therefore is limited and territorial. It is true that the duty of yielding obedience to the law of his native country may foUow the native subject of that country wherever he resides ; for every nation has a right to bind its ovm natural born subjects by its own laws in every place. Mimicipal law, therefore, may provide that judgments and decrees may be lawfully pronounced against natural born subjects when absent abroad ; and may also enact, that they may be served with process to appear in the courts of their native country, even whilst resident ia the domiaions of a foreign sovereign. If a statutory jurisdiction be thus con- ferred, courts of justice, in the exercise of it, may lawfully cite, and on non-appearance give judgment in civil cases against natural born subjects, whilst they are absent beyond seas in foreign lands. This jurisdiction depends on the statute or written law of the country. Where it is not ex- pressly given, it cannot be lawfully assumed. If such a law 90 INTERNATIONAL AND CIVIL LAW. Tit. XXII. does not exist, tlie general maxim applies, extra territorium Jus dicenti impune non paretur. " But, as international law in private rights is, so far as it has been clearly estabKshed, a part of municipal law, it foUows that the law of a country, which gives to its muni- cipal tribunals authority to exercise jurisdiction as to per- sons and things which are beyond the confines of its own territories, may also, consistently with iutemational law, be extended ia certain cases to persons who are not natural born subjects. For, where it is well settled by the comity of nations that any question of private right falls to be decided by the law of a particular country, it would seem reasonable that the courts of that country should receive jurisdiction, and the power of citing absent parties, though residing ia a foreign land. " Thus, by way of example, it is generally agreed by European nations that all questions relating to the owner- ship of land must be decided by the lex loci rei sitts ; that all questions relatiag to the succession or administration of the property of a deceased person, whether testate or in- testate, belong to the judge of the domicile of the deceased ; and that contracts ought to be applied and interpreted by the law of the place where they are made, and where it is iatended they should be performed. If, therefore, an action or suit be commenced ia the courts of a particular country, relating to a subject, which by the consent of nations is appropriated to the law of that country, it naay be right, in order to prevent a failure of justice, to give to such courts the power of exercisiag complete jurisdiction, and therefore of citiag absent parties under the penalty, if they do not appear, of having judgment pronounced agaiust them ia their absence ; but this is a jurisdiction which should be given and exercised with great caution, and only where it is clear on the priaciples of public law that the judgment against the absent party ought to be treated as binding by the courts of foreign countries. The right of admiaistering justice is the attribute of sovereignty, and all persons within the dominions of the sovereign are within his allegiance and under his protection. If, therefore, one sovereign EXEMPTIONS FROM LEGAL JURISDICTION. 91 causes process to be served in tlie territory of another, and Tit. XXIII. siuamons a foreign subject to bis court of justice, it is in fact an invasion of sovereignty, and would be unjustifiable, unless done with consent, which consent is assumed if it be done in a case where a foreign judgment would, by the jus gentium, be accepted as brading. " For, besides the general maxim which I have already cited, and which Hmits the jurisdiction of every tribunal to its own territory, there is another general rule, actor sequitur forum rei ; and both are violated when the terri- torial judge cites and pronounces a judgment agaiast a person who does not appear, and is absent in another territory. " There are, therefore, two grounds on which the legis- lature of any country is warranted in conferriag on its civil tribunals an extra-territorial jurisdiction : one, the right which it possesses of binding universally by its laws the persons who owe to it a natural allegiance ; the other, the right which it receives by pubHc or iatemational law, that is, from the consent of nations, of summoniag all persons interested, wherever resident, when the subject of suit arises or is situate withia its own territory, and falls to be determined by its own law and the judgment of its own courts of civil judicature" (y). Anderson, 8L.T.(]Sf.S.), Chan. 296 ; S. C. 2 N. R. 141. XXIII. Exemptions from Legal Jurisdiction. Aliens, Infants, Lunatics, and Persons under Duress. 1. Although the laws of every country are framed and are Primary lead- intended to bind, and to punish for any infraction of them, ^"^ pnncip e. every person alike who is resident withia its dominions; yet there must necessarily in every country be certain ex- ceptions made to this general rule in regard to those whom the law is unable to control, on account of their not being subjects of the state in which they happen to be located, or from their being incapacitated to comprehend the nature of such law, or to comply with its obligations ; or on account of their being so circumstanced that they have no will of 92 OBLIGATIONS OF ALIENS. Tit. XXIII. Principle of exemption re- garding aliens. Exceptional principle re- garding aliens . Principle re- garding limit of subjection of aliens. Principle re- garding punishment of aliens. Story's prin- ciple regard- ing legal ob- ligation of subjects when abroad. (x) Story's Coinmentaries on the Conflict of Laws, c. 2, p. 22. Story's prin- ciple regard- their own to direct them in the obedience they should pay- to its precepts ; and who may be severally comprehended under the classes enumerated in the following sections. 2. Aliens are exempt from responsibility to the municipal laws of any country^ inasmuch as, having been no parties to the making of such laws, not being members of the society they were intended to regulate, and deriving no benefit from the restrictions which they impose, there is no claim to enforce from them obedience to such enactments. 3. Nevertheless, when an alien enters a foreign country, and enjoys the protection and benefit of its laws, so far as is necessary for his welfare while there ; he is in turn, to a corresponding extent, responsible to those laws, and is liable to punishment for their infraction. 4. The precise limit to which the subjection of an alien to the laws of a foreign country, in which he only tempo- rarily resides, reaches, is dependent upon, and regiilated by, the extent to which he avails himself of the privilege of such laws on the one hand ; and on the extent to which, from the necessity of the case, certain of those laws are made to apply specially to aliens as well as to subjects, on the other. 5. An alien residing in a foreign country, who violates any of its fundamental laws, such as those by which the regulation and well-being of society are immediately affected, is liable to the same punishment as would be inflicted for such an oifence upon any subject of the realm. 6. As regards the obligation of the subjects of each country to obey the laws of that country, even when they are abroad in another country, and so out of the territory and dominion of their own country; it is laid down by a very high authority that, " although the laws of a nation have no direct binding force or efiect, except upon persons within its territories, yet every nation has a right to bind its own subjects by its own laws in every other place " [z). 7. With respect to the absolute jurisprudential independ- ence of one nation of another, and the inability of any country to enforce its laws beyond the limits of its own territory, this arises from the principle that " it is an essential attribute LIMITS OF LEGAL JURISDICTION. 93 of every sovereignty that it has no admitted superior, and Tit. XXIII. that it gives the supreme law within its own domains on ing territorial all subjects appertaining to its sovereignty. "What it yields ™ it is its own choice to yield ; and it cannot be commanded by another to yield it as matter of right. And, accordingly, it is laid down by aU publicists and jurists as an incon- testable rule of public law, that one may with impunity disregard the law pronounced by a magistrate beyond his territory. Extra territoriuni jus dicenti impune non paretur, is the doctrine of the Digest ; and it is equally as true in relation to nations, as the Roman law held it to be in rela- tion to magistrates " (a). (a) Story' sO on- oT Tij.1 iii'1 p 1 • fl''^^ of Laws, o. in regard to the absolute right oi each nation to o. 1, p. 8. enunciate and determine the particular principles of juris- battel's prin- iip. . 1 ciple regard- prudence best adapted for its own regulation, Vattel lays ing right of it down, that " it belongs exclusively to each nation to form mate^its^own" its own judgment of what its conscience prescribes to it, ^^""'^• of what it can or cannot do, of what is proper or im- proper for it to do. And of course it rests solely with it to examine and determine whether it can perform any office for another nation, without neglecting the duty which it owes to itself" (b). (^) Prelim. . . . Ji™- pp- 61, 9. The principle that the jurisprudential system of one 62, ss. 14, 16. country ought not to be allowed to operate uniustlv in Story's prin- T • i--,iT.P n 1 ciple regard- another coim.try, is admitted by Professor Story ; who, ing admission however, cmtends that, "in a vast variety of cases J'aws.'^^'^ which may be put, the rejection of the laws of a foreign nation may work less injustice than the enforcement of them will remedy. And here every nation must judge for itself what is its true duty in the administration of justice. It is not to be taken for granted, that the rule of the foreign nation is right, and that its own is wrong" (c). {c) Conflict of 10. Nevertheless, the principle of presuming that the -^"™' '^- ^• legislative rule in each case adopted by foreign nations, story's prtn- is that recognised by our own country, unless and until i^g adoption the contrary is shown, is thus maintained by Professor offoreignlaws. Story : — " In the silence of any positive rule, affirming, or denying, 94 ADOPTION OF FOREIGN LAWS. Tit. XXm. or restraining the operation of foreign laws, courts of jus- tice presume tlie tacit adoption of them by their own government, unless they are repugnant to its policy, or prejudicial to its interests. It is not the comity of the courts, but the comity of the nation, which is administered and ascertained in the same way, and guided by the same reasoning, by which all other principles of the municipal (d) Conflict of law are ascertained and guided " (d). Laws, c. 2, j2. The principle on which courts of justice proceed Lord Stowell's in regard to the adoption of the law prevailing in one gardingadop- Country, for the determination of suits proceeding in tion of foreign another, was thus laid down and iLLustrated bv Lord jaws. ' _ _" Stowell, in a judgment relating to the validity of a Scotch marriage : — " Beiag entertained in an English court, it (the cause) must be adjudicated according to the principles of English law applicable to such a case. But the only principle applicable to such a case, by the law of England, is that the validity of the marriage rights must be tried by reference to the law of the country where, if they exist at all, they had their origin. Having furnished this principle, the law of England withdraws altogether, and leaves the legal ques- (e) Balrymple tion to the exclusive judgment of the law of Scotland " (e). 2 Hogg^Con-' 1^- -l-^ regard to contracts made in one country, but the sist. Rep . 5 9 . performance of which was sought to be enforced in another, it principle was laid down by Lord Kenyon, C. J., that " it i^ impossible foreign" on- ^^ ^^1 *^^* ^ contract made in one country is to be governed tracts. \yy ^ij^g laws of another. It might as well be contended that, if the state of Maryland had enacted that no debts due from its own subjects to the subjects of England should be paid, the plaintiif would have been bound by it. This is the case of a contract lawfully made by a subject in this country, which he resorts to a court of justice to enforce ; and the only answer given is, that a law has been made in a foreign country to discharge those defendants from their debts, on condition of their having relinquished all their property to their creditors. But how is that an answer to a subject of this country, suing on a lawful contract here ? How can it be pretended that he is bound by a condition FOREIGN PROPERTY, AND FOREIGN COURTS. 95 to which he has given no assent, either express or im- Tit. XXIII. plied ?" (/). (/) Sirdth T. 13. As respects the disposal of foreign property, EastR. 6,'ii. and the law by which transactions in relation thereto Loi-dKenyon's would be regulated ; Lord Kenyon, 0. J., observed as garding dispo- folloWS : — ^^^ °^ foreign property . "Every person having property in a foreign country^ may dispose of it in this ; though, indeed, if there be a law in that country directing a particular mode of conveyance, that ought to -be adopted " {g). pl^^?. b. 14. The following principle was laid down by Lord 182,192. Stowell in relation to the law of marriage and adultery, pr^cipk^'^ ^ ue re- and the eifect and operation of sentences of separation and g^i''i™g de- •^ _ .... crees oi sepa- divorce pronounced by foreign courts, and the jurisdiction ration by p , , foreign courts . 01 our own courts over such cases : — "Something has been said on the doctrine of law regarding the respect due to foreign judgments ; and undoubtedly a sentence of separation, in a proper court for adultery, would be entitled to credit and attention in this court ; but I think the conclusion is carried too far when it is said that a sentence of nullity of marriage is necessarily and universally binding on other countries. Adultery and its proofs are nearly the same in all countries. The vaUdity of marriage, however, must depend, in a great degree, on the local regulations of the country where it is celebrated. A sentence of nullity of marriage, therefore, in the country where it was solemnized, would carry with it great authority in this country ; but I am not prepared to say that a judgment of a third country on the validity of a marriage not within its territories, nor had between subjects of that country, would be universally binding. For instance, the marriage alleged by the husband is a French marriage ; a French judgment on that marriage would have been of considerable weight ; but it does not foUow that the judgment of a court at Brussels on a mar- riage in France would have the same authority, much less on a marriage celebrated here in England. Had there been a sentence against the wife for adultery in Brabant, it might have prevented her from proceeding with any 96 EXCUSES FOR CRIME. Tit. XXIII. (h) Sinclair v Sinclair, 1 Hogg. Con- sist. Rep. 297, Blackstone's principle re- garding ex- cuses for (i) 4 Coniin. b. 4, u. 2. Blackstone's principle re- garding non- concurrence of will with the act. effect against her husband here ; but no such sentence any- where appears " (h). 15. The principle laid down by Sir Williani Blackstone with respect to the excuses for crime, and consequent exemption from legal responsibility and punishment, in the case of the subjects of any state ; are, that " all the several pleas and excuses which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto, may be reduced to this single consideration, the want or defect of will. An involuntary act, as it has no claim to merit, so neither can it induce any guUt : the concurrence' of the will, when it has its choice either to do or to avoid the fact in question, being the only thing that renders human actions either praiseworthy or cul- pable. Indeed, to make a complete crime, cognizable by human laws, there must be both a will and an act. For which reason, in aU temporal jurisdictions, an overt act, or some open evidence of an intended crime, is necessary in order to demonstrate the depravity of the will before the man is liable to punishment. And as a vicious will without a vicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will, is no crime at all. So that, to constitute a crime against human laws, there must be, first, a vicious will ; and, secondly, an unlawful act consequent upon such vicious will " («). 16. Sir William Blackstone maintains that there are " three cases in which the will does not join with the act," so as. to exempt the party committing it from legal jurisdiction. " 1. Where there is a defect of understanding. For, where there is no discernment, there is no choice ; and, where there is no choice, there can be no act of the wiU, which is nothing else but a determination of one's choice to do or abstain from a particular action. " 2. Where there is understanding and will sufficient residing in the party, but not called forth and exerted at the time of the action done; which is the case of all offences com- mitted by chance or ignorance. Here the will sits neuter, and neither concurs with the act, nor disagrees to it. EXEMPTION or LUNATICS. 97 " 3. Where the action is constrained by some outward Tit. XXIII. force and violence " (I). (i) 4 Comm. 17. Although ignorance of the law is never allowed to ' . ' ?\ ' ° _ Pnnciple re- operate as an excuse for its non-observance, on the double garding igno- ground that every man is supposed to, and in duty boimd able as an ex- to be cognizant of the law, to the making of which he cuse for crime, himself was either directly or indirectly a party ; and that if ignorance was allowed to operate as an excuse for its non-observance, this would directly tend to induce persons not to inform themselves of the law : yet, in certain cases, ignorance regarding the circumstances Tinder which a person has been acting, may be allowed to operate as an excuse for , or a palliation of his conduct. Thus, in the case of a charge of stealing goods, if it be proved that the sus- pected party took them through mistake for his own ; in the case of a charge of passing counterfeit coin, if it be proved that the party uttering it believed it to be good ; or on a charge of swearing falsely, if it be proved that the de- ponent supposed he was speaking the truth ; such circum- stances will be allowed to exonerate the party from the charge of felony, and from all actual criminality in the cases in question. 18. By the laws of all civilized nations, lunatics are Principle exempted from legal jurisdiction, so far as regards their exempticm of liability to punishment for any crimes committed by them, l"''*'*'™- on account of their defect in, or deprivation of reason, according to the circumstances of the case, by which they are unable to discern right from wrong, sufficiently to guide them correctly in their conduct. 19. Nevertheless, lunatics are not, like aliens, altogether Principle exempt from the jurisdiction of the law, but they are only ^f^d^f exempt from the ordinary punishment incurred bv the general peniption of ^ •' '^ JO lunatics. members of the state in the event of their violation of it ; be- cause, although bound by its precepts equally with the latter, as members of such state, they are not possessed of reason sufficient to enable them to understand the nature of its obligations.* * Sales and other transactions by idiots are, by the Gentoo law, declared invalid. And they are held not to be amenable for reproachful words spoken by them . ^nd it is pl'ovided that, if they commit any crime, "the VOL. I. H 98 lEKESPONSIBILITY FROM INTOXICATION. Tit. XXIII. Paley's prin- ciple regard- ing exemption from crime by drunkenness. (m) Moral Philosophy, c. 2. Paley's prin- ciple regard- ing propor- tionate re- sponsibility imder intoxi- cation. The general principles by which the law is regulated in regard to lunatics, will be considered in its place, under the proper title. 20. In respect to the exemption from responsibility to the law in consequence of drunkenness. Archdeacon Paley acutely, sagaciously, and equitably argues as follows : — " We will first suppose the drunken person to be alto- gether deprived of moral agency — that is to say, of all reflection and foresight. In this condition, it is evident that he is no more capable of guilt than a madman, although, like him, he may be extremely mischievous. The only guilt with which he is chargeable, was incurred at the time when he voluntarily brought himself into this situation. And as every man is responsible for the conse- quences which he foresaw, or might have foreseen, and for no other, this guilt will be in proportion to the probability of such consequences ensuing. From which principle results the following rule ; viz., that the guilt of any action in a drunken man bears the same proportion to the guilt of the like action in a sober man, that the probabiKty of its being the consequence of drunkenness bears to abso- lute certainty. By virtue of this rule, those vices which are the known effect of drunkenness, either in general or upon particular constitutions, are in all, or in men of such constitutions, nearly as criminal as if committed with all their faculties and senses about them" {m) . 21. As regards the precise proportion of responsibility which appertains to a person who is under the influence of intoxication, Archdeacon Paley very fairly and reasonably disposes of the question in the following lucid terms : — " If the privation of reason be only partial, the guilt will be of a mixed nature. For so much of his self- government as the drunkard retains, he is as responsible then as at any other time. He is entitled to no abatement beyond the strict proportion in which his moral faculties are impaired. Now I call the guilt, if a sober man had committed it, the tchole guilt. A person in the condition magistrate shall not take any fine from such persons, but shall chastise tliem."— Chap. xi. s. 1 ; chap, xv. =.. 2. EXEMPTION OF INFANTS. 99 we describe, incurs part of this at the instant of perpetra- Tit. XXIII. tion ; and by bringing himself into such a condition, in- curred the fraction of the remaining part, which the danger of this consequence was of an integral certainty" (n). («.) Moral 22. Nevertheless, persons who have voluntarily deprived ^_ | """^ 2^. themselves of the use of their reason by getting drunk, Legal prin- are not thereby exempted from legal jurisdiction, so far as l^ txemp^tion regards their liability to be punished for any acts done by fromdrunken- them while in that state.* The law of England considers drun.kenness as an aggravation of the offence, rather than as an excuse (o). But it may, perhaps, reasonably be con- (o) 4 Black. tended that in this case the real essence of the crime g'2!'" ' consists, not in the deeds committed by the individual while so disabled from the use of his reason ; but in the act of voluntarily thus disabling himself so as to render him liable to commit crime, and which ought to be punished with a severity equal to that which the crime itseK deserves. 23. Moreover, although drunkenness is no excuse for Principle the commission of any crime ; yet proof of the fact of di^nkenness drunkenness is often very material, as tending to show the ?« evidence of intention with which the particular act charged as an offence was committed (p). (p) Broom's 24. It appears to be a principle generally recognised by ^^5 g^"^' jurists, that infants under the age of discretion, ought to '^">^^- 1 • • T • pii J} Principle be exempt from the jurisdiction 01 the law, so lar as regarding regards their liability to be punished for any crime, on infa™^*f™m account of their being wanting in understanding sufficient ^S'>'^ jurisdic- to comprehend the nature of the obligations which rest upon them (q). As regards the precise period of life (q) 1 Hawh when they arrive at such discretion, and at which such ^ 'siack. exemption consequently ceases, different opinions have been Comm. h. i, formed, and different rules have accordingly been laid down by various jurisprudential authorities.f * Gifts made by a person who is intoxicated, are rendered invalid by the Gentoo law, as are also sales and other transactions. And it is declared that "if a person from intoxication should speak reproachfully of any one, the magistrate shall not hold him amenable," thus allowing drunkenness to operate as an absolute excuse for crime. — Chap. vii. ; chap. xi. s. 1 ; chap. xv. s. 2. + Even by the Gentoo code, a minor cannot be apprehended by his H 2 100 CRIMES THROUGH COMPULSION. Tit. XXm. Prinoiple re- garding of- fences com- mitted through compulsion. Lord Bacon's principle re- garding acts committed from com- pulsion. (r) Maxims of the Law, Reg. 5, Lord Bacon's principle as to diiferent kinds of necessity, (s) Ihid. Blackstone's principle re- garding acts from compul- sion. {t) i ComTti. b, 4, >;. 2. 25. "Where an o£Fence is committecl by any person througL. the compulsion of another, the wrong-doer is ex- cused from punishment, on the ground that his will did not consent to the act, which is absolutely essential to the constitution of every crime. Compulsion exists not only where the person has been actually obliged by resort to physical force to do the act in question; but where he has been threatened with, and appeared Kkely to incur serious injury from neg- lecting to commit it. 26. In regard to the exemption from legal jurisdiction, on account of acts committed through compulsion ; Lord Bacon lajrs it down that " the law charges no man with default where the act is compulsory and not voluntary, and where there is not a consent and election; and therefore, if either an impossibihty be for a man to do otherwise, or so great a perturbation of the judgment and reason as, in presumption of law, man's nature cannot overcome, such necessity carries a privilege in itself" (r). 27. The same high authority distinguishes the necessity that may arise in cases of this nature into three sorts : — " ISTecessity of conservation of life ; necessity of obedience ; and necessity of the act of God, or a stranger " («). 28. Sir William Blackstone's principle on this head is that compulsion and necessity " being a constraint on the will, whereby a man is urged to do that which his judg- ment disapproves, and which, it is to be presumed, his will, if left to itself, would reject ; and pimishment being only inflicted for the abuse of that free will ; it is highly just and equitable that a man should be excused for those acts which are done through iinavoidable force and com- pulsion " {t).* creditor ; nor is a person under fifteen allowed to be a witness. A gift or any other transaction by a child, is also rendered invalid. And it is provided that if a child ' ' commits any crime, the magistrate shall not take any fine from such person, but shall chastise him."- — Chap. iii. ss. 3, 8 ; chap. vii. ; chap. xxi. s. 10. * By the Gentoo code, it is provided that gifts made from ' ' a violent impulse of fear " are invalid ; as are transactions generally performed by a man " under violent dread. " — Chap. vii. ; chap. xxi. s. 10. CONFLICT OF LAWS. J ! '" '^ 101 \ ' A / Tit. XXIV. XXiy. Conflict of LAyvb -It^W^-' " 1. That which strictly and essentially constitutes wtat is Primary lead- ordinarily termed the conflict of laws, consists in that irre- concilable contrariety and contradiction between different laws, whether of the same or of different countries, and whether enacted at the same or at different periods in the same country, as regards the application of those laws to particular objects of jurisprudence, more especially as respects the maimer in which they regard specific offences and breaches of propriety that require to be guarded against, and the mode in which they determine they ought to be dealt with ; as also with respect to their method of dealing with those various matters which form the subject of jurisprudential regulation. 2. Where, on any particular specific point, the laws of Principle as to any country are in direct and irreconcilable conflict and case of con- contradiction one with another, the law which is of the highest authority, or is most expressly and exclusively intended and adapted to meet the special case to be deter- mined, is that which must take precedence of and overrule the other law with which it is at variance. 3. Thus, statute law must take precedence of that which Illustration of is unwritten or judicial ; the determination of a superior principle. court must control the decision of that which is inferior ; and an express determiaation on any specific question, must overrule any judicial sentence bearing indirectly, or only generally, on the same subject. 4. Where the law of nature and the civil or municipal Principle in 1 ft , jiTii n..' case of confiict law 01 any country are, or appear to be, directly conflictmg between on any particular point, it may be inferred that the law "^^^P? ^"^ of nature is that which determines the abstract priuciple laws. of absolute right and truth in the matter; while the civil or municipal law so far interferes, and so far only contradicts the former, as to reduce to a practical system the rule in such a case to be observed, and so far regulates it as to render it serviceable to the exigencies of society, and interprets its application accordingly. 102 NATURAL, MUNICIPAL, AND DIVINE LAWS. Tit. XXIV. 5. This principle may be illustrated by the law respecting Illustration of the personal property belonging to a wife. By the law of enunciated. nature, a married woman has an absolute right to her own goods and chattels, notwithstanding the husband's authority over and relation to her. But, by the civil or mimicipal law, the goods of the wife are given to, and vest absolutely in, the husband. This, however, is not for the purpose of depriving the wife of the use and enjoyment of that which in reality, and by right, belongs to her exclusively ; but only in order to prevent disputes as to the legal property in the things, and to afford a legal defence to such property. The moral law and law of nature, in such a case, so far override the civil or municipal law, as to prevent the husband from arbitrarily dispossessing the wife of what is her property, and ought ever to be held by her for her enjoyment ; although the civil or m.unicipal law, which considers man and wife as constitutiag together but one person, vests such property entirely in the husband. Principle re- 6. It has been laid doAvn that no civil or municipal law garamg con- ... flict between which is clearly and directly contrary to, or irreconcilable anTlawofGoX '^t^j ^^^ ^^^ of God, is binding on any individual in any state, and that in such a case the latter ought ever to supersede the former. But, as the state which makes the law, determines alike the construction of this law, and also the interpretation of the law of God, while it necessarily denies any such privilege to private persons, on account of the contradiction and confusion that would in such a case ensue; it is rather to be presumed that the state woidd in no case make so irreligious and nefarious a law, than that there could, in any case and under any circumstances, exist a right in subjects to disobey it. If the decision of the point, whether the law was to be obeyed or not, was left to the authority of any private subject, whose only duty is to obey the laws which are enacted by the constituted legislative authority in the state, what a door to fraud and evasion would at once be opened ; inasmuch as, whenever any one wished to evade a law which was not exactly to his mind, he might readily do so by simply declaring that, in his opinion, it was repugnant to the law of God ; and. CAUSES OF CONFLICT OF LAWS. 103 SO no law wHcli he desired to avoid, could be held to be Tit. XXIV. binding on such a person. 7. The constant change of laws, arising from a cor- Conflict of responding change either in the circumstances of the fr^ chants people whom they were designed to regulate, or, it may be, ^" ^^^• merely in the opinion and character and state of feeling of such people, of itself almost necessarily generates a conflict of laws, although the principle which in each case leads to the enactment of the particular law, may itself be pure, and is permanent and immutable. Indeed, as re- gards the conflict of laws, if will generally be found that there is far less conflict of principle, than of practical application. Most men are agreed as regards the principle which is to be recognised; although, on the other hand, they differ widely as to the precise mode in which it ought to be carried out. 8. So is it also as regards the conflict of laws arising Conflict of from the different nature of the jurisprudential" exigencies ^^^ different existing in different countries ; inasmuch as what may be wants of dif- , T I ferent coun- highly expedient m one country, may be exceedingly tries. deleterious in another, and what is declared binding in one coimtry, is made inoperative in another. And yet in each coimtry, the law may be founded solely and entirely on justice and on reason. We have no more right, indeed, to expect uniformity of laws in different countries, than uniformity of diet or of dress. The form which is most applicable, or which is deemed to be so, is that which ought to be adopted. E.ight and justice are alike in aU countries ; but the application of them widely varies among different nations. Consequently, a rule which ensures justice in one nation, may produce injustice in another. Nations and individuals are but seldom at issue in regard to the first principles of right and wrong, however they may differ as to their views regarding the best mode of ensuring the observance of those principles. 9. A forcible illustration of the causes whence the con- Story's prin- flict of laws arises, is thus afforded by Professor Story in the conflict^of ^'^^ case of contracts ; concerning which he remarks that, " to ^^^^■ make a oontract valid, it is a universal principle, admitted 104 STOEY ON CONFLICT OF LAWS. Tit. XXIV. by the whole world, that it should be made by parties capable to contract ; that it should be voluntary ; upon a suiHcient consideration ; lawful in its nature ; and in its terms reasonably certain. But upon some of these points, there is a diversity in the positive and customary laws of diflferent nations. Persons capable in one country, are incapable by the laws of another ; considerations good in one, are insufficient or invalid in another ; the public poKcy of one, permits or favours certain agreements which are pro- hibited in another ; the forms prescribed by one to ensure validity and obligation, are unknown in another ; and the rights acknowledged by one, are not commensurate with those belonging to another. A person sometimes contracts in one country, and is domiciled in another, and is to pay in a third ; and sometimes the property which is the subject of the contract, is situate in a fourth ; and each of these countries may have different and even opposite laws. What then is to be done in this conflict of laws ? What law is to regulate the contract, either to determine the rights, the actions, and the defences growing out of it, or the conse- quences flowing from it, or to interpret its terms, and ascer- {u)Comme,n. tain its stipulations ?" (m). tancs on the '■ ^ ' Conflict of Laws, c. 8, p. 193. 105 CLASSIFICATION OF BODIES AND PERSONS. Before proceeding to trace out and determine the prin- ciple of law applicable to persons in general, it appears to be desirable to specify and define the various kinds of persons recognised by law, and the particular relations in regard to those persons which the law is intended to regulate. Persons in general may be classed under, or divided into, the following orders, whether as regards them- selves individually, or the collective assemblies of them into which, in civil societies, they are wont to unite : — 1. Public bodies, such as those unions or assemblages of different individuals which are constituted by the authority of the state for some public purpose, and which exist, as such a body, in a form and mode quite indepen- dent of their existence as a mere ordinary assemblage of men. 2. Private bodies, which are constituted by various persons united together merely for their own private ends, without any direct object in relation to the state. 3. Public persons who, besides their individual existence as members of the state, are endowed with certain special and public functions in regard to that state, which confer upon them a being and an individuality wholly independent of, and in addition to, their mere private existence as ordi- nary men. 4. Private persons who are the ordinary members of the state, and as such are subject to its laws. 106 CLASSIFICATION OF BODIES AND PEESONS. To both bodies and persons, and to both public and private bodies and persons, certain rights appertain, which are of various orders and kinds ; but which may be all generally comprehended under, first, those which are public, and, second, those which are private. In addition to, and beyond the rights of different kinds which may belong to bodies and persons both public and private, they may also have belonging to them, or may be interested in, or be invested with, the possession, control, and disposal of, property of different kinds; which, inde- pendent of its several varieties as regards its quality, may be generally comprehended under that which is public, or belonging to the state, and to the individuals who share in it as members of that state ; and that which is private, and to which each individual is entitled in his own right, and to the exclusion of all others besides. "We will now proceed to inquire into the leading prin- ciples of law, which regulate the constitution and concerns of bodies and persons of the several orders above alluded to. CORPORATIONS OF DIFFERENT KINDS. 107 Tit. XXV. XXV. Public Bodies. Corporations of different kinds. 1. Public bodies of various descriptions, the members of Primary lead- wbicb bave been united together by the authority and act ™^ P^ncip e. of the Crown, whether by charter, letters-patent, or other- wise, may be severally distinguished under the general name of bodies corporate or corporations ; by means of which institutions, a number of men are, as regards their civil relations and duties, joined together into one assemblage or body, and to which body is attached' certain rights and privileges, which an ordinary assemblage or body of men, without being so united or incorporated, could not, accord- ing to the principles of law, be endowed with or permitted to hold. The civil or political body thus constituted is, moreover, for ever kept aKve and in being, by the per- petual renewal and succession of its constituent members. 2. The leading and main objects for which corporations Principle re- are formed, are the holding of property by the successive fects™f cor- members of it among themselves, and the government and porations. regulation of certain persons connected with such corporate body. 8. As a corporation consists of but one body, although Principle re- composed of a number of different persons, so all its acts |orate^ction. are done by itself as an individual; and it is capable of both acting and being acted upon, of suing and of being sued, in its own name and body, and without resorting or referring to the individual persons of whom it is constituted. 4. A further object which is attained by the incorpora- Principle re- tion together of a number of men into one civil body of this porate union. kind, is, that there is thereby conferred, as far as possible, upon the body, the several powers and privileges which an individual may exercise ; and the former is thus enabled efficiently to discharge all the functions of the latter. 5. In order to ensure the proper action and conduct of Further prin- corporate societies, it is necessary strictly and precisely to corporate regulate the operation and powers both of the whole body, action- and of every independent member of it acting as a portion 108 CONSTITUTION AND PRIVILEGES OF CORPORATIONS. Tit. XXV. Principle re- garding cor- porate privi- leges and liabilities. Blackstoiie's principle re- garding tlie origin of corporations. (x) 1 Oom/m. b. 1, c. 18. Blackstone'a principle re- garding the constitution and essence of a corporation. {y) im. Principle re- garding the difi'erent kinds of corpora- tions. of such body, so that the proceedings of the body may be uniform and consistent, corresponding with those of a rational, properly conducted individual. 6. It is, moreover, essential duly to limit and regulate both the privileges and the liabilities of the whole body, and of each individual constituting it ; alike as regards the acts of the whole body, or of any of its members, and also as regards the whole body, each member of it individually, and each member of it one with another. 7. It is observed by Sir William Blackstone, in regard to the origin of corporate bodies, that, " as all personal rights die with the person,- and as the necessary forms of investing a series of individuals, one with another, with the same identical rights would be very inconvenient, if not imprac- ticable, it has been found necessary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to constitute artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality. These artificial persons are called bodies politic, bodies corporate, or corporations " {x) . 8. The same learned and distinguished writer remarks, in reference to the constitution and essence of corporate bodies, that when the different persons who compose them " are consolidated and united into a corporation, they and their successors are then considered as one person in law ; as one person they have one will, which is collected from the sense of the majority of the individuals. The privileges and the immunities, the estates and possessions of the cor- poration, when once vested in them, will be for ever vested, without any new conveyance to new successions ; for all the individual members that have existed from the foundation to the present time, or that shall ever hereafter exist, are but one person in law, a person that never dies" (y). 9. In regard to the various kinds of corporations which may be constituted, these appear to be distinguished by law-writers into the following general orders : — Corporations aggregate, consisting of several persons, united in the manner already set forth. Corporations sole, consisting of one person onlj- and his PAKKE AND MANSFIELD ON CORPORATIONS. 109 successors, who are incorporated by law, so as to give them Tit. XXV. some legal capacities, particularly that of perpetuity. Corporations, whether sole or aggregate, may further be divided into — Ecclesiastical corporations, the members of which are entirely spiritual persons ; Lay corporations, which are again distinguished into those which are civil, and those which are eleemosynary. 10. With respect to the principle regulating the con- Baron Parke'a tracts of corporations under their common seal, the opinion garding cor- which follows was expressed by Mr. Baron Parke :— Ks^'^nder " Generally speaking, aU corporations are bound by a ^^^^^ common covenant under their corporate seal, properly affixed, which is a legal mode of expressing the wlU of the entire body, and are bound as much as an individual is by his deed. Contracts with partnerships stand upon a different footing. They relate to the power of one member of a partnership to bind another, and constitute a branch of the law of principal and agent. In partnerships where all the mem- bers do not concur in a contract (as often they do not), one partner may bind the other in all contracts within the scope of their ordinary partnership dealings. In those beyond, the individual partners making the contract are bound, not the other partners. But corporations, which are creations of law, are, when the seal is properly affixed, bound just as individuals are by their own contracts, and as inuch as all the members of a partnership woiild be by a contract in which all concurred. But where a corpora- tion is created by an Act of Parliament for particular pur- poses and special powers, then, indeed, another question arises. Their deed, though under their corporate seal, and that regularly affixed, does not bind them if it appears by the express provisions of the statute creating the corporation, or by necessary or reasonable inference from its enactments, that the deed was uUt'a vires — that is, that the legislature («) South YorJc- means that such a deed should not be made" (z).* andBiver^"^^ * Some dissatisfaction has been evinced by high judicial authority at mi /jL^™* certain occasional expressions in the Courts of Equity, and from which it NorthemRail- appears to have been thought that corporations have no powers except those way Co., 22 expressly given, or given by necessary inference. ''• "''■°- 110 PARTNERSHIP BODIES. Tit. XXVI. Lord Mans- field's princi- ple regarding corporate powers of forfeiture. (a) Kirk v. Nowill and Butler, 1 Durnford and East's Eep. p. 124. Blackstone's principle re- garding the dissolution of corporations. (6) 1 Cmnm. b. 1, u. 18. 11 . Lord.Mansfield, C. J., propounded the following prin- ciple in regard to the liability of corporate bodies to incur a forfeiture, and the grounds on which that liability is based : — " A corporation, in the definition of it, is a creature of the Crown created by letters-patent ; and such a corpora- tion, with a power of making by-laws, cannot make any such law to incur a forfeiture. Those corporations, which are created by Act of Parliament, have no other additional powers incident to them than those which are created by charter, unless they be expressly given. No such ex- traordinary power of making by-laws to incur a forfeiture appearing upon this plea to have been conferred, it is impossible for the Court to say that this by-law can be supported by the Act " («). 12. In regard to the dissolution of a corporation, and the causes through which this may be effected, the follow- ing principle is laid down by Sir William Blackstone : — " A corporation may be dissolved — "1. By Act of Parliament, which is boundless in its operations. " 2. By the natural death of aU its members, in cases of an aggregate corporation. " 3. By surrender of its franchises into the hands of the king, which is a kind of suicide. " 4. By forfeiture of its charter, through negligence or abuse of its franchises ; in which case the law judges that the body poKtic has broken the condition upon which it was incorporated, and therefore the incorporation is void" (6). Primary lead- ing principle. XXVI. Private Bodies. Partnerships. 1. Private bodies or unions of men instituted for commer- cial or other purposes, and without being incorporated, are termed partnerships. The principle of partnership is that, for the more efficiently and perfectly carrying on transactions of the LEGAL PRINCIPLE OF PARTNERSHIP. Ill nature above alluded to, two or more persons, as regards Tit. XXYI. tlieir interests and property, may be considered as merged into one, and may be treated by and treat with others, whether individuals or partners, accordingly. 2. As a necessary consequence of this condition of the Consequential parties, all the acts of one member of the firm in relation to ciple!^^ ^^^' that firm, become the acts of the others ; the Habilities of the one relating to their common business, are the liabilities of the others ; and the partnership property of the one, is the partnership property of the other. 3. Nevertheless, acts done by any member of the firm Exceptional which do not relate to the business of that firm, or which princMe!^^ are beyond the scope of his authority as such member, and property belonging to any member in his private capacity, are not binding upon, or to be deemed to be the general acts or property of the firm, or of any of its members, as such members. 4. On this principle, and inasmuch as no act done by Principle of one person which is prejudicial to the interests, either joint authority'^ or several, of another, can be allowed to bind him upon his *° ^^ °f ' ' _ _ ^ bankruptcy. presumed, and without his express authority ; and inasmuch as an act of bankruptcy, which amoimts to the civil death of the firm that is the subject of the partnership, is an act of this nature : consequently an act of bankruptcy committed by one member of a firm does not bind the other members of it without their express sanction, or amount to an act of bankruptcy of the entire firm. 5. Pufiendorf defines a partnership to be " a contract Puffendorf' s . definition of by which two or more jom together their money, goods, partnership. or labour, upon agreement that the gain or loss shall be divided proportionally between them " (c). (c) Law of .-. , • • 1 o n 1 i>T-iij Nature and 6. According to the prmciples ot the law ol Jinglana, a Nations, b. 5, partnership is in general constituted between individuals p . ' . , by an agreement between them to share the profits and English law losses of their joint undertaking, either in a general or partnerahip. particular concern ; and it seems that the right to partici- pate in profits, and the liability to contribute to losses, create a partnership, however unequal the shares may be, and although one party has no direct interest in the capital 112 SUITS BETWEEN PARTNERS. Tit. XXVI. of the firm, or may have no right to any definite aliquot (d) cutty on proportion of the profits (d) . '%Z% ' 7. But a participation in profits and losses, whatever ualifying principle as to P- Qualifying m^y be its effect with regard to the rights of strangers, principle as to "^ , - j.- -j? ii, partnership. does not create a partnership between the parties, it the facts negative any intention or agreement on their part that it should have such operation ; although, where the existence of a partnership between individuals quoad strangers is established, the law will presume that the parties have agreed to be partners inter se ; yet this pre- («) Ilnd. sumption may be repelled (e) . Principle of g. The principle of the law of partnership laid down in partnership in J' Code Napo- the Code Napoleon, is as lollows : — ^°°' " A partnership is a contract by which two or more persons agree to place everything {quelque chose) in common, with a view of partakiag of the benefits which (/) m. 9, c. 1. wiU result" (/). 18S2 Ee , -I • 1 • -, ■, • 1 ^-.T-r Code Napoleon termination oi partnerships laid down m the Code JNapo- regarding Uon, which is as follows, is that recognised by the law of JlrtnersMpf most civilised countries : — " A partnership ends — " 1. By the expiration of the time for which it was established. " 2. By the extinction of the subject of it, or the com- pletion of the transaction, (ndgociation) ; [or object for which it was formed]. " 3. By the natural death of one of the partners. " 4. By the civil death, suspension {interdiction), or failure, {deconfiture) , of one of them. " 5. By the will of one only or more of them, to put an end to the partnership" {k). ■ {k) Liv. 3, c,4, Partnerships are, however, in general regulated by deeds for that purpose, containing special provisions, not only as _ to the terms of the partnership, but in respect to what acts shall or shall not operate to terminate its subsistence. 13. As regards the general principle which regulates the Lord Eldon's direction, continuance, and termination of partnerships, gaMim; the and the ground on which that principle rests : these have juration and *=■ _ i. L > termination of been expounded with much force and clearness by Lord partnerships. Chancellor Eldon, in the following passages from his judg- ment in the case referred to : — "The general rules of partnership are well settled. Where no term is expressly limited for its duration, and there is nothing in the contract to fix it, the partnership may be terminated at a moment's notice by either party. By that notice the partnership is dissolved to this extent, that the Court will compel the parties to act as partners VOL. I. 1 114 LOED BROUGHAM ON SECRET PARTNERSHIPS. Tit. XXVI. (Z) Crawshay V. Maule, 1 Swanst. p. 495. Lord Eldon's principle as to acts constitu- ' ting a partner- ship. (m) Langdal ex, parte, 18 Ves. juu. 301. Lord Broug ham's prin- in a partnership existing only for the purpose of winding up the affairs. So death terminates a partnership, and notice is no more than notice of the fact that death has terminated it. Without douht, in the absence of express, there may be an implied contract as to the duration of a partnership The doctrine that death or notice ends a partnership, has been called unreasonable. It is not necessary to examine that opinion, but much remains to be considered before it can be approved. If inen wiU enter into a partnership, as into a marriage, for better and worse, they must abide by it ; but, if they enter into it without saying how long it shall endure, they are \mderstood to take that course in the expectation that circumstances may arise in which a dissolution will be the only means of sa\'ing them from ruin ; and, considering what persons death might introduce into the partnership, unless it works a dissolution, there is strong reason for saying that such should be its eifect. Is the surviving partner to receive into the partnership, at all hazards, the executor or adminis- trator of the deceased, his next of kin, or possibly a creditor taking administration, or whoever claims by representa- tion or assignment from his representative ?" [I). 14. Lord Chancellor Eldon thus laid down the principle as to what particular acts serve to constitute a partnership : — "A man, who is to have no profit, may be a partner, if holding himself out as such, as by tending his name. He may also be a partner when the contract is that he shall suffer no loss ; and I agree it is not in the less a partner- ship because part of the contract is that they are not to suffer by bad debts, by the personal negligence of him who has the custody of the article, by fire, &c. The true criterion is, whether they are to participate in profit. That has been the question ever since the case of Groves v. Smith" (»*).* 15. The principle of law applicable to certain cases of secret partnerships, those between pawnbrokers, was thus * Who are partners, and who not, has been much discussed of late, and put on the right footing. See Cox v. Hickman, 30 L. J., H. of L., 125 ; 8 H. of L., 868 ; and Kihhaxo v. Juices, 32 L. J., Q. B., 217. PARTNEKSHIPS BETWEEN PAWNBROKERS. 115 laid down by Lord Chancellor Brougham ; disiinguishing Tit. XXVI. with much perspicuity what engagements of this sort are ciple regarding illegal, the tests that may be applied to determine this ships.— Pawn- point, and the proper mode of construing contracts entered ^^°^^^- into for this purpose : — ■ " If a person agrees with another to be a secret partner in the business of a pawnbroker, he agrees to do that which is illegal, and punishable by the 39 & 40 G. 3, c. 99, an Act containing provisions highly beneficial, and bringing the trade in question under regulations which are whole- some to the community, inasmuch as they prevent the abuse of such traffic; regulations which wUl never be objected to by the respectable part of the body concerned in carrying the trade on, and which only aflfect those whom the police ought to watch over. Any agreement of this sort, therefore, is unlawful, can convey no rights in any court to either party, and will not be enforced by decisions at law, or by decree here in favour of one against the other of persons equally culpable. " If, as in the present instance, we have before us a contract of partnership wholly silent upon the statutory obligation to make the names public over the door, we have no right to argue from the omission that an infraction of the law was intended ; on the contrary, we are rather bound to believe that the compliance with the law, being taken for granted as a matter of course, was not expressly mentioned in the articles, as being thought super- fluous. " If, again, such a contract, legal in itself, has been made, nothing done afterwards, how illegal soever, can operate to make the contract unlawful. But where the acting of the parties is illegal, where^ the contract being silent, the law is broken under it, though not by force of it, there arises a very natural suspicion that the written articles, though true as far as they go, do not contain the whole truth, and that another agreement was entered into, collateral to the one in writing, and to which the illegal acting may be referred. " Then, if such an agreement shall appear from all the I 2 116 IMPLIED OBLIGATIONS BETWEEN PARTNERS. Tit. XXVI. circumstances plainly to hare subsisted, the inference is irresistible that the two, the written and the unwritten, must be taken together, in order to get at what the true contract between the parties was. For this is not the case of two independent contracts between the same parties, touching the same thing. The nature of the transaction prescribes silence as to some parts of it which will not bear the light, while the innocent and producible portion is reduced to writing. Hence the two must be taken as one contract, the production of one, and suppression of the other portion, being easily explained. " The question is, whether or not any man of plain or ordinary understanding can hesitate a moment how he shall explain all this, and to what contract, if partnership there be in the matter, all this acting shall be referred. There were times when courts of justice took a delight in vain subtleties and absurd refinements, as if their duty ever was, what certainly was their frequent object, rather to show their ingenuity than to get at the truth, and to astonish ordinary minds bj^ coming at unexpected conclu- sions, founded on bare possibilities, rather than satisfy the justice of the case by deciding as all mankind besides would decide undoubtingly. Those were the times when the most ordinary actions of men were wrested to humour inferences hardly rational, though not absolutely impos- sible, and when the words of men were tortured and made to bear the meaning most remote from the real truth. Happily we have outlived those follies, the pride of the older times, and the remains of the dark and scholastic ages. Judges are now content to see things as ordinary , . j^rmsirona ™^®^ '^°' ^^^> "^^^^ ^^^cts come before them, to draw from V. Armstrong, them the inferences as to conduct which a jury would Armstrong, clearly deduce " (w) . Keen, ei^es, ^^- '^^^ opinion which follows was expressed by Lord 66, 67. Chancellor Eldon on the subject of the implied obligations principle as to existing between partners, the determination of partner- obli^tions" '^^^P® ^^ different ways, and the consequences of such and deter- determination : — mination of -nj_i- ii-iii partnerships. partnerships are regulated either by the express con- DETERMINATION OF PARTNERSHIPS. 117 tract, or by the contract implied by law from tbe relation of Tit. XXVI. the parties. The duties and obligations arising from that relation are regulated, as far as they are touched, by the express contract : if it does not reach all those duties and obligations, they are implied and enforced by the law. In the instance of a partnership without articles, the respective proportions of capital contributed by the partners, and the trade being carried on either for a certain period, or the connection dissolvable at pleasure, the time being expired, or, in the other case, notice to determine being given, it cannot be contended that, if the remaining partners choose to carry on the trade, they can consider the whole pro- perty as their own, to be taken at such valuation as they think proper to put upon it. That is not the law. The obligation implied among partners is, that they are to use the joint property for the benefit of all whose property it is. " Many complicated cases may arise. There may be a partnership where, whether the parties have agreed for the determination of it at a particular period, or not, engage- ments must, from the nature of it, be contracted which cannot be fulfilled during the existence of the partnership ; and the consequence is, that, for the purpose of making good those engagements with third persons, it must con- tinue ; and then, instead of being, as it was, a general part- nership, it is a general partnership determined, except as it still subsists for the purpose only of winding up the concerns. Another mode of determination is, not by effluxion of time, but by the death of one partner, in which case the law says that the property survives to the others. It survives as to the legal title in many cases, but not as to the beneficial interest. The question then is, whether the surviving partners, instead of settling the account, and agreeing with the executor as to the terms upon which his beneficial interest in the stock is still to be continued, subject still to the possible loss, can take the whole -property, do what they please, and compel the executor to take the calculated value. That cannot be without a contract for it with the testator. The executor has a right to have the 118 VARYING ARTICLES, AND PLEDGING FIRM. Tit. XXVI. (o) Crawshay V. Collins, 15 Ves. jun. 226, 227. Lord Eldon's principle re- garding varia- tionofpartner- sMp articles by conduct of partners. {p) Const V. Harris, 1 Turner & Eussell, 523. Lord Eldon's principle re- garding power of one partner to pledge credit of firm. value ascertained in the way in wMcli it can be best ascertained, by sale" (o). 17. Lord Chancellor Eldon laid down the following principle in regard to the variation of the terms of articles of partnership, in consequence of the conduct of the partners themselves : — " In ordinary partnerships nothing is more clear than this, that although partners enter into a written agree- ment, stating the terms upon which the joint concern is to be carried on, yet, if there be a long course of dealing, or a course of dealing not long, but still so long as to demon- strate that they have all agreed to change the terms of the original written agreement, they may be held to have changed those terms by conduct. For instance, if, in a common partnership, the parties agree that no one of them shall draw or accept a biU of exchange in his own name without the concurrence of all the others, yet, if they afterwards slide into a habit of permitting one of them to draw or accept bills without the concurrence of the others, this Court will hold that they have varied the terms of the original agreement in that respect" {p). 18. In the extract which follows, Lord Chancellor Eldon lays down, with great clearness, the principle as to the power of one partner to pledge the credit of the firm for his own private benefit, and in what cases, and to what extent, such a course will be permitted: — " This petition is presented upon a principle which it is very difiicidt to maintain, that if a partner for his own accommodation pledges the partnership, as the money comes to the account of the single partner only, the partnership is not bound. I cannot accede to that. I agree, if it is manifest to the persons advancing money, that it is upon the separate account, and so that it is against good faith that he should pledge the partnership, then they should show that he had authority to bind the partnership. But if it is in the ordinary course of commercial transactions, as upon discount, it would be monstrous to hold that a man borrowing money upon a bill of exchange, pledging the partnership without any ERLE, C. J., ON POWERS OF PARTNERS. 119 knowledge in the bankers that it is a separate transaction, Tit. X XVI. merely because that money is aU carried into the books of the individual, therefore the partnership should not be bound. No case has gone that length. It was doubted whether Sope y. Cust * was not carried too far ; yet that does hot reach this transaction, nor Shirreff v. Wilks ; as to which I agree with Lord Kenyon, that, as partners, whether they expressly provide against it in their articles, (as they generally do, though unnecessarily), or not, do not act with good faith when pledging the partnership property for the debt of the individual, so it is a fraud in the person taking that pledge for his separate debt" (y). (?) Bonbonus, 19. The principle which follows was thus briefly ex- 8 Ves. juu. pressed by Lord Chief Justice Erie, in relation to the power j ^ Oh' f of one partner in a mercantile firm to bind another by a Justice Erie's negotiable instrument, made and issued by the former garding power alone in the name of both ; and the ground on which that ^iifd ead[^ *° principle is based is fully explained : — °^^'^^- " One trading partner, putting the name of the firm to a negotiable instrument, and issuing that instrument, if it passes into the hand of a holder for value, without notice of any defect, binds the other partners by the act as a trading firm ; and the rights of the partners inter se cannot protect them from this well-known liability in respect of negotiable instruments. The presumption of law is, that there was an authority, as far as the holder of such a negotiable instrument is concerned; and the question whether the fraudulent partner is liable to an indictment for forgery is one upon which we do not now give any opinion. But such liability would afibrd no defence against the holder of the bill " (r). + (»•) Wiseman . . \' . v.Eastmv, 8 20. The principles involved m the following extract from L. T. (N. S.) a iudgment by Lord Chancellor Eldon, are applicable to , „. . . 1 o 1 T LordEldon's the cases of joint property belonging to the firm, the disso- principle re- lution of the partnership, and the claim of creditors on the property,°Ss- partners as such and individually : — solution, and ^ •' creditors. * Sittings after Michaelmas, 1774. Stated, 1 East. 53, inSMrreffv. Wilks. f See also Sx parte The Darlington Joint-Stock District Banking Company re Riches, and Lord Chancellor "Westbury's Judgment, 11 L.T., Chan., 651. 120 JOINT PROPERTY, DISSOLUTION, AND CREDITORS. Tit. XXYI. "Among partners clear equities subsist, amounting to something like lien. The property is joint : the debts and credits are jointly due. They have equities to discharge each of them from liability, and then to divide the surplus according to their proportions ; or, if there is a deficiency, to call upon each other to make up that deficiency, accord- ing to their proportions. But while they remain solvent, and the partnership is going on, the creditor has no equity against the effects of the partnership. He may bring an action against the partners, and get judgment, and may execute his judgment against the effects of the partnership. But when he has got them into his hands, he has them by force of the execution, as the fruit of the judgment ; clearly not in respect of any interest he had in the partnership effects, while he was a mere creditor, not seeking to sub- stantiate or create an interest by suit. There are various ways of dissolving a partnership : effluxion of time ; the death of one partner ; the bankruptcy of one, which operates like death ; or, as in this instance, a dry, naked agreement that the partnership shall be dissolved. In no one of those cases can it be said that to all intents and purposes the partnership is dissolved ; for the connection still remains until the affairs are wound up. The repre- sentative of a deceased partner, or the assignees of a bank- rupt partner, are not strictly partners with the survivor or the solvent partner ; but stiU, in either of those cases, that community of interest remains that is necessary until the affairs are wound up, and that requires that what was partnership property before shall continue, for the purpose of a distribution, not as the rights of the creditors, but as the rights of the partners themselves require ; and it is through the operation of administering the equities, as between the partners themselves, that the creditors have that opportunity, as in the case of death it is the equity of the deceased partner that enables the creditors to bring forward the distribution. The creditors are not injured by the agreement of partners to dissolve the partnership, and that from that time what was joint property shall become the separate property of one ; notice of the dissolution being JOINT PARTNERSHIP CREDITORS. 121 given ; as either a consideration is paid, or, which for this Tit. XXVI. purpose is equal to consideration, a covenant is entered into to pay the debts, and indemnify the retiring partner, so con- ceived as not to leave any lien upon the property" (s). W Williams, 21. The general principle which regulates the claim of Ves. jun. 5, 6. ioint creditors against a firm, and the rights and liabilities Lord Eldon's . ° principle re- of the partners in respect to such claim, is well expounded garding joint in the following judgment by Lord Chancellor Eldon : — credftora.''^ " In my long course of practice, I have never been able to reconcile all the decisions which have taken place on partnership property, with respect to joint and separate estate ; nor have I ever been able very clearly to see my way in the -application of the doctrine which has been held in some of the late cases on this subject. I conceive originally the law was, that if there was a separate creditor of a partner, he might lay hold of any chattels belonging to the partnership, and take a moiety of them, or whatever other proportion that partner might be en- titled to in the effects of the partnership. But at law, somehow or other, they now contrive to take an account, which ascertains what is the interest of the debtor in the effects taken in execution ; and when you put the question what is that interest, nothing can be more clear than that it is that which would result to him when all the accounts of the partnership were taken. This equity, which has been transferred into the proceedings of a court of law, I apprehend, subsisted here long before : a separate creditor applying for satisfaction of his debt out of partnership estate, by means of an equitable execution, must have taken it upon equitable terms. " There has been a great deal of reasoning as to the rights of partners with reference to the execution of a separate creditor ; but it always appeared to me, that the interest of the individual partner was all which a creditor of that individual could take, and that he must take it subject to all the partnership dealings. "When we got into bankruptcy. Lord Hardwicke's great mind and great under- standing was satisfied with this ; and with respect to joint and separate estate, a rule was established which we have 122 BKEACH OP PARTNEESHIP COVENANTS. Tit. XXVI. always acted upon, rather because we found it, than upon any inquiry iuto the principles on which it was established. This being the case, consider it with reference to a separate commission of bankruptcy. If there is a partnership of A. and B., the moment an act of bankruptcy is committed by one of them — A., for example — if a commission is issued on that day, or one is afterwards taken out which has effect from that time, from that moment the partnership is put an end to. The question then is, what is the property of the insolvent partner A., and what is the property of the solvent partner B. A. may have no interest in the joint effects, no property at all ; B. may have no property at all : I mean they have no separate or respective in- terests ; because, until the whole demands both of A. and B. are settled, you cannot say whether anything remains to be divided ; and that must depend not only on the demands against both, but on the demands which they may have against each other. There may be a partnership where, if the effects were immediately divided, each partner would receive £1000 ; but if there were third persons who had demands to the amount of £1800, the consequence would be, if they had no demand on each other, they would receive only £200. So if there were no demands from third persons, but one had a claim on the other, he must take the amount of that demand before the other could take anything. The interest of the insolvent partner, and the solvent one, may be a great deal, a little, or nothing at all "(?!). 22. The principle applicable to cases of breach of cove- nants contained in articles of partnership, and the remedies to be applied, by the interference of the Court of Chancery, garding breach as well as bv other methods, was thus laid down bv Lord of articles. r^ ■, Chancellor Eldon :• — " Although this Court wlU interfere where there is a breach of covenants in articles of partnership, so important in its consequences as to authorize the party complaining to call for a dissolution of the partnership, whether (and it is a matter that will deserve a great deal of consideration before it goes so far) it will entertain the jurisdiction of (t) In the mat- ter of Wait, 1 Jacob & "Walker, 608, 609. Lord Eldon's principle re- PRINCIPLE OF DETERMINATION OF PARTNERSHIPS. 123 pronouncing a decree (for this is what is to be done in Tit. XXYI. the cause in which this motion is now made) for a perpetual injunction, as to a particular covenant, the partnership not being dissolved by the Court. There is one case which is constantly occurriug, that of a partner raising money for his private use, on the credit of the partnership firm ; and the Court interferes then, because there is a ground for dissolving the partnership ; but then the danger must be such, there must be that abuse of good faith between the members of the partnership, that the Court will try the question whether the partnership shall not be dissolved in consequence. But it is quite a difierent thing, and it would be quite a new head of equity, for the Court to interfere where one party violates a particular covenant, and the other party does not choose to put an end to the partner- ship : in that way there may be a separate suit and a per- petual injimction in respect of each covenant ; that is, a jurisdiction that we have never decidedly entertained. All this bill seeks is a perpetual injunction against using any other than this particular firm and name ; and the question would be, if very serious mischief were to arise from not using it, whether the party would not be obliged to frame his biU differently. I have no difiiculty in saying, that where the members of a partnership contract by covenant that the firm, shall be A. B. C. D., that it is a breach of that covenant for A. to sign those instruments to which the covenant refers, in the name of -A. and Co. ; but it is no less a breach of that covenant for D. to sign his own name, adding ' for self and partners,' because by these words it can no more be known who are his partners than by the word Co." (u). („) Marshall 23. The general principle as to the mode of determining 2 jacobT' partnerships, and as to the consequences of such determina- Walker, 267, . -^ 268, 269. tion, was thus expressed by Lord Chancellor Eldon : — Lord Eldon's " I have therefore always understood the rule to be, that principle re- •' _ gardmg deter- in the absence of express contract the partnership may be mination of determined when either party thinks proper ; but not in this sense, that there is an end of the whole concern. All the subsisting engagements must be woimd up ; for that 124 PUBLIC PERSONS. Tit. XXVII. (x) Peacock v. Peacock, 16 Ves. jun. 57. purpose they remain with a joint interest ; but they cannot enter into new engagements " (x). Primary lead- ing principle. * Vide ante, Tit. 21. Principle re- garding object in conferring powers. Principle regarding limitation of powers. Qualifying leading prin- ciple. Principle regarding derivation of authority. XXVII. Public Persons. Officers of Justice. 1. In addition to the civil rulers of the state already referred to,* certain persons, independent of their existence as members of the civil society or state to which they belong, have conferred upon them, for the benefit of that state, and not for their own benefit, special authorities, powers, and privileges, peculiar to themselves, and quite distinct from and beyond those which are possessed by the other and ordinary members of the community. 2. The leading object in the endowment of certain persons above others, with the authorities, powers, and privileges referred to, is to enable them to carry out and enforce the observance of the laws of the state, of which they are constituted the principal and active executors ; without which it would be impossible to eifect and ensure the due and regular maintenance and operation of such laws. t3. The powers and authorities with which these persons are intrusted, extending in some cases so far as to enable them to deprive their fellow-subjects of life, and liberty, and property, are those, and those only, which are deemed sufficient to qualify them efficiently to discharge the duties they are appointed to fulfil. 4. In the exercise of each of these powers and authorities, they are expressly and directly limited by the law of the land, by which alone their right to exercise the powers referred to is conferred. And thej"- are equally amenable, and liable to punishment, for any infringement on these restrictions, or for the breach of these or any other laws of the state, in common with all the ordinary members of the community. 5. Moreover, in each country, the sovereign, or supreme executive power in the state, is intrusted with the duty of AUTHORITY OF OFFICERS OF JUSTICE. 125 carrying the laws into execution. But as it is impossible Tit. XXVII. for him in his own person to perform the several acts essential for this purpose, certain of these individuals act as his delegates, and are clothed with his authority and power, so far as is necessary to enable them to fulfil these duties. 6. In order to enable the officers, of iustice to fulfil their Principle re- . ■ ■) garding extent appointed duties, they are empowered by the authority of of authority. the state to do certain acts, and are held harmless in the performance of them, which, when committed by ordinary persons, would constitute high oflfences against the law. Thus, the putting to death of a man by the public execu- tioner, by command of the proper authority, is no homicide ; and the breaking open of a house by a bailifi'duly authorized is a lawful entry. 7. In order to ensure the proper execution of their duties Principle re- without fear, and with due vigour, certain privileges and tection while immunities are granted to officers of justice, by which they discharging are protected while rightly discharging their appointed functions. And many statutes have been passed to secure from injury officers of justice thus acting. 8. But in order to obtain the protection of the law, and Qualifying the benefit of the several statutes thus made for their g^iJ^ pro- securitv ; it is required that these officers of justice do not \^p^^°^ ^^il** J ' ^ •> discharging intentionally and knowingly exceed the limits of the duties duties. intrusted to them, or of the powers with which they are invested. And it has been held to be necessary, in order to enable such officers of justice to obtain the protection of these statutes, that, in case of their so exceeding their (z) See the proper authorities and powers, they should at the time of '^waiiaJ^'^ doing so be ignorant that they had so transgressed, and ""? *^® should have believed that they were acting properly, and expressed of in due execution of such authorities and powers (z). andBayley.j!,' 9. It has also been decided that a person who, in the 3. B&A. 333. Further pnn- exercise of a public function, without emolument, which ciple regard- he is compellable to execute, acting without malice, and of^ublic^ '°° according to his best skill and diligence, and obtaining oncers. the best information he can, does an act which occasions consequential damage to a subject, he is not liable to an action for such damage (a). t'!^^:!^ 6 Taunt. 29. 126 PROFESSIONAL MEN. Tit. XXVIII. Private persons, wlio are no otherwise distinguisHed than as members of the state to which they belong, but who may be placed in various civil or artificial positions in relation to that state, will be severally considered in regard to these positions in the following sections. Primary lead- ing principle. Regulating leading principle. Consequential elementary principle. Qualifying elementary principle. XXVIII.— 1. PEorESSioNAL Men. 1. It is essentially and extensively for the benefit of every civiKzed community, both that certain professions, requiring peculiar skill and knowledge for their due and proper pursuit, should be followed and carried on by cer- tain of its members duly qualified for this purpose ; and also that those who are not duly qualified to exercise these important callings, should be absolutely prohibited and prevented from so doing. 2. As it is expedient that these professions should be carried on by duly qualified persons, and by those only ; it is essential that this matter be made the subject of state regulation, so far, and in such a mode, as to prevent any infriagement upon the rules prescribed for this end, and that specific and precise laws for this purpose should be ordained. 3. Restrictions as to the liberty of any person to follow a particular professional or other ra ilin g, and as to the mode in which it shall be carried on, may consequently be reasonably and justly imposed by the state for the general benefit of the whole community ; and for the puj-pose of improving the mode of pursuing the calling itself. 4. Nevertheless, the restrictions above referred to of each kind, being odious in themselves, and contrary to the spirit of free institutions, ought, in their interpretation, ever to be construed strictly, and should on no account be allowed to extend beyond their just and appointed limits, or to have a larger operation than is absolutely necessary for securing the purposes intended. RECIPEOCAL RESTRICl'IONS AND PRIVILEGES. 127 5. On the other hand, certain immunities and privileges Tit. XXVIII. may fairly, reasonably, and advantageously be conferred on Collateral particular professional bodies and individuals, which essen- pri™clple!^^ tiaUy add to their efficiency, and do not interfere with the general rights of the community, and in return for the restrictions under which the former are placed. 6. Certain restrictions and inabilities are imposed on general prin- ciple regard- members of the legal profession, which the law deems ex- ing legal pedient and necessary for the welfare of society, and which ^^'^ ^ lo^ers- are based on the nature of the relation subsisting between them and their clients, the influence and the advantages which they possess over the latter, and the necessity of guarding against the undue and pernicious exercise of these powers ; and which strictly regulate, if they do not abso- lutely prohibit, particular transactions between them, but which, when efiiected between the ordinary members of society, do not require any such precautions with regard to them to be adopted. Such, for instance, is the case of an attorney purchasing property of the client who has intrusted him with the professional conduct of his afiairs. 7. It was, nevertheless, laid down by Lord Chancellor f'°i'<^ Cotten- nam s prm- Cottenham, in a case which came before him on an appeal ciple regard- from a decision of the Master of the Rolls (Lord Langdale), transactions that a solicitor is not absolutely incapacitated from pur- °^*.™;^™ chasing from his client, but that he will be bound to show clients. that he paid a full consideration. And it was determined by this case, that though a bill to set aside such a sale is dismissed, the court will frequently refuse the solicitor his costs of the suit. It was also decided that the Court of Chancery will allow a client to institute proceedings against a solicitor within a reasonable number of years after the connection of solicitor and client has ceased. The Lord Chancellor observed in this case, while deliver- ing his judgment — " It is very true that the idea of the incapacity of an attorney to deal with his client has, in many cases, been very much overstated. I have an impression that there is no such incapacity, but that the Court would not permit such a transaction to stand, when that situation has or 128 PRINCIPLE KEGARDING SOLICITORS AND CLIENTS. Tit. XXVIII. (J) Champion T. Rigbij, 9 L. J. (N. S.), Equ., 211. Lord St. Leo- nards's prin- ciple regard- rag purchase transactions between attorneys and clients. (c) Cutts V. Salmon, 21 L. J., C. C, 750. Lord West- bury's prin- ciple regard- ing profes- sional remu- neration. {d) O'Brien v. Lewis, 8 L. T.,Chan., 179. See also Ken- nedy v. Broun, and Brown, v. Kemiedy, 1 N. E., 275. General prin- ciple regard- ing medical practitioners. might have been productive of benefit to the solicitor, at the expense of his client " (i). 8. The principle which regulates the legality of pur- chases and other pecuniary transactions between attorneys and their clients, and the mode in which such matters ought to be conducted, was thus explained by Lord Chan- cellor St. Leonards : — " This case admits of little doubt. The rule of law is clear that an attorney may purchase from his client ; but if he does purchase from his client, he must show that he deals with him at arm's length ; and no attorney would be well advised in dealing with his client without the inter- vention of another solicitor. I do not mean to lay down a rule that a purchase by a solicitor from his own client, without the intervention of a third party, could in no case be sustained ; but I say that no prudent man would take such a course " (c). 9. As regards the obKgation on solicitors not to bargain with their clients for remuneration beyond that to which they are professionally entitled. Lord Chancellor Westbury has expressed himself as follows; thus referring to and recognising the principle established by preceding cases : — "This case must be decided on the general principle which had been long established on grounds of public utility. The law treated the relation of solicitor and client in a particular manner. It had laid down certain rules and scales of charges for the remuneration of his services, and, giving him that right, it implied the obligation on him not to bargain, or permit his client to promise, that any additional benefit should be given beyond the legal remu- neration " {3). 10. The members of other professions besides that of the law, are placed under corresponding regulations, and have corresponding privileges granted to them, alike as to the qualifications and the duties required of them in the pursuit of their calling, and the immunities conferred upon them. Thus, by the law of England, and by that of most other civilized countries, if a person not duly authorized to practise medicine, inadvertently causes the death of a person PROFESSIONAL SKILL IN MEDICAL MEN. 129 by his treatment, he is held guilty of manslaughter ; but Tit. XXVIII. this would not be the case if the individual who undertook to prescribe was a duly authorized member of the medical profession, and merely erred in his judgment as to the right course to be pursued. 11. Nevertheless, as was very lucidly expressed by Chief TindaVs prin- Justice Tindal, " every person who enters into a learned q^isitrmedT-' profession, undertakes to bring to the exercise of it a reason- '^^^ ^'^^^'• able degree of care and skill. He does not, if he is an attorney, undertake at all events to gain the cause ; nor does a surgeon undertake that he will perform a cure ; nor does the latter undertake to use the highest possible degree of skill, as there may be persons of higher education and greater advantages than himself: but he undertakes to bring a fair, reasonable, and competent degree of skill ; and, in an action against him by a patient, the question for the jury is, whether the injury complained of must be referred to the want of a proper degree of skill and care in the defendant, or not " (e). * (e) LanpUer 12. It was also laid down by the same high authority, car. &^. 475. that " a surgeon is responsible for an injury done to a Tindal's prin- „ 1 .n . T . . ciple as to patient through the want oi proper skill in his apprentice ; proof of medi- but, in an action against him, the plaintiff must show „^"^ ' " ' that the injury was produced by such want of skill, and it is not to be inferred " (/). (/) Hancke v. Hooper, 7 Car. & P. 81. * By the Gentoo code, a physician is punishable if, "unskilled in the art of physick, he causes any one to take a medicine, or, if skilful in his profession, he gives not to a sick man the remedy proper for his disorder." — Chap. xvii. s. 2. VOL. I. K 130 Tit. XXIX. TRADESMEN. Primary lead- ing principle. Consequential leading principle. Qualifying leading principle. Principle re- garding privi- leges in return for restrictions Exemplifica- tion of prin- ciple regard- ing restric- tions and jjrivileges. XXIX.— 2. Tradesmen. 1. The leading principle in the establishment of those trades, or separate orders of men, by whom, and by whom alone, particular commercial and other callings are permitted to be followed, is analogous to that already laid down with respect to professional persons and bodies ; and proceeds and is grounded on the axiom, that the fullest opportunity ought to be afforded to those so engaged, for performing the duties of these callings, in the efficient discharge of which, in the most perfect and satisfactory manner, the public at large is directly and extensively interested. 2. In order to secure the accomplishment of this purpose, it is essential that certain restrictions be imposed, both as regards the persons who are permitted to carry on these pursuits, and the particular mode in which they are to be carried on. 3. Such restrictions ought, nevertheless, to extend just so far, and so far only, as is necessary for securing these im- portant ends ; and should be such only as appear calcidated, either directly or indirectly, to secure them. 4. In return, and in part compensation for these restric- tions, it is, however, both reasonable and equitable that certain privileges should be allowed to those who lie under this restraint ; and which privileges should them- selves conduce to the same beneficial ends which the restrictions themselves are designed and adapted to pro- mote. 5. Thus, in certain trades and callings where particular skill is required, and where it is of essential importance to the public that those who engage in them should possess such skiU, those persons only are allowed to foUow them who have duly qualified themselves according to the prescribed mode, whether by apprenticeship or otherwise, for such callings. And, in return for the restrictions thus imposed, those persons only who follow these callings, are entitled to claim from those who employ them, that fair and reasonable RECIPROCAL OBLIGATIONS AND PRIVILEGES. 131 rate of remuneration allowed bylaw for the skilful exercise Tit. XXIX. of their particular avocations. 6. So also where particular callings demand of the per- Principle re- j>n-i •! . . PI garding privi- sons loUowmg them especial sacrifices on their part for the leges iu return benefit of the public; it is but reasonable that some f°'" =^^'"''"''^^- especial privileges should be conferred upon the persons following these callings, in return for the sacrifices they are thus required to make. 7. As an exemplification of the latter principle, we Exemplifica- may refer to the laws relating to innkeepers, which are cipleincaseof peculiarly and expressly adapted to secure, on the one '""^'^'^P''^^- hand, to the public, the full advantages and enjoyment, free from imposition and disappointment, which such a calling is calculated to afford; and to secure, on the other hand, to those engaged in such a calling, that pro- tection and compensation which they are, in return, entitled to claim. 8. The public are consequently entitled at all times to Coleridge's the full accommodation which an inn is capable of affording, obligation on aad to have it always at their service whenever they require kgel°,fg""'" it ; and are obliged to make only fair and reasonable recompense for the advantages they obtain. And it has accordingly been laid down, on the high authority of Mr. Justice Coleridge, that " an indictment lies against an innkeeper who refuses to receive a guest, he having room in his house at the time ; and it is not necessary for the guest to tender the price of his entertainment, if his objection is not on that ground. And it is no defence for the innkeeper that the guest was travelling on a Sunday, and at an hour of the night after the innkeeper's family had gone to bed ; nor is it any defence that the guest refused to tell his name and abode, as the innkeeper had no right to insist upon knowing those particulars. But if the guest come to the inn drunk, or behave in an indecent or improper manner, the innkeeper is not bound to receive him" (g). (.g) Rex y. I'vciiiS 1 Oil' 9. The innkeeper is, on the other hand, in return for the & p. 213. accommodation which he is thus bound to afford, entitled to Principle as to . privilege in certain protection and advantages beyond those enjoyed return lur by other persons, through which he is enabled to secure " "g''"°°- K 2 132 INNKEEPERS AND CAimiERS. Tit. XXIX. that compensation for his services which he has fairly- earned, and which he might not be otherwise able to obtain. Illustration of 10. Thus, an innkeeper is entitled to a lien on the goods principle" *^^ persons who have been entertained at his house, to the extent of the money in which they stand indebted to him for such accommodation, in order to secure the repayment to him of such debt. Principle as to 11. On the other hand, the law implies on the part of innlkeeper to ^n innkeeper, a contract with his guests that he will take gu^sts>oods ^^^ °^^® "^^ their goods while they remain under his roof, subject to certain reasonable restrictions as to their being properly deposited by the owner in a situation where such protection might fairly be expected and required. Lord Ellen- 12. The general principle in regard to an innkeeper's princMe^as to li^^bility at common law for the goods of his guest stolen IiabOity of during his stay in his house, and as the bailee of such innkeepers for ° "^ goods of guests goods, was very clearly laid down by Lord Ellenborough, C. J., in the following extracts from his judgm^t in the case appended, and which has, indeed, formed a leading authority on the subject ever since it was pro- nounced : — *- " The law obliges the innkeeper to keep the goods of persons coming to his inn, cmisd hospitandi, safely ; so that, in the language of the writ, pro defedu hospitatoris hos- pitibus damnum non eveniat ullo modo. . . . But there may, no doubt, be circumstances, as where the guest by his own misconduct induces the loss, which form an exception to the general liability, as not coming within the words pro defectu hospitatoris. . . . An innkeeper is not bound by law to find show-rooms for his guests, but only convenient lodging-rooms and lodging. ... If an innkeeper gives the key of his chambe;? to his guest, this will not dispense with his own care, or discharge him from his general responsibility as innkeeper. The cases show that the rule is not inveterate against the innkeeper, but that the guest may exonerate him by his fault, as if the goods are carried away by the guest's servant, or the companion whom he stolen. LIABILITIES OF RAILWAY CARRIERS. 133 brings with him ; for so it is laid down in Calye's case (A). Tir. XXIX. .... Although, in general, a traveller who resorts to an (h) i S7nith's inn may rest on the protection which the law casts around t^"'- ^cohT^. him, yet, if circumstances of suspicion arise, he must exercise ordinary care" (%). (i) Burgess \. 13. A distinct principle in regard to their liabilities, on m. & S. 306. the one hand, and their privileges on the other, has been Corresponding . , . principle m also established in the case of common carriers, correspond- regard to carriers. ing with that maintained respecting innkeepers. Thus, common carriers are under a legal obligation, independent of any specific contract made with them on that account, on the one hand, safely to take charge of, and carry to their destination, the goods intrusted to them for that purpose ; and, on the other hand, they are not only entitled to a fair remuneration for their services in this respect, but, in order to secure the payment to them of this remuneration, they are especially privileged to retain a lien on the goods so intrusted to them to carry, until they have been paid. 14. The rule in regard to the common law obligation of Lord Chan- ccllor "West- carriers safely to convey and deliver the goods intrusted fury's prin- to them, from which no declaration or avowal on their PP'® J!?^*'^" ' mg obligation part, however openly or clearly made, is able to discharge and liability 11 1 nm 1T111 1 of carriers. or exonerate them, has been fully estabushed by a late decision in the House of Lords. The extracts which foUow from certain passages in the very able and learned judgment of the Lord Chancellor (Lord "Westbury), while expressing his opinion upon the case, enunciate in very clear and forcible terms the precise principle of the law of England upon this subject. After adverting to the Eailway Traffic Act, 17 & 18 Vict. c. 31, s. 7, his lordship observed — " I think that the true construction of that section may be expressed in a few words. I take it to be equivalent to a simple enactment that no general notice given by a rail- way company shall be valid in law for the purpose of limiting the common law liability of the company as car- riers. Such common law liability may be limited by such condition as the court or judge shall determine to be just 134 LORD WESTBUKY ON CARRIERS LIABILITY. Tit. XXIX. (k) Peel- V. North Staf- fordshire Jiaihcay Co., 8L. T. (N".S.\ H. ofL., 770, 771; S. C, 3 X. C. 1. and reasonable ; but with, this proviso, that any such con- dition so limiting the liability of the company shall be embodied in a special contract in writing between the company and the owner or person delivering the goods to the company, and which contract in writing shall be signed by such owner or person. " The condition insisted upon by the company, even if it had been duly embodied in a special contract between the parties to the appeal, is a condition which it would have been the duty of a court or judge to hold to be neither just nor reasonable. " Such special contract in writing, signed by the party delivering the goods, must itself, either in terms or by distinct reference, set out or embody the condition in question. " In order to embody in the letter any other document, or memorandum, or instrument in writing, so far as to make it part of a special contract contained in that letter, the letter must either have set out the writing referred to, or so clearly and definitely refer to the writing, that by force of the reference the writing itself becomes part of the in- strument it refers to. " I am therefore of opinion that, even if the conditions had been just and reasonable, there would not be found in the present case any special contract in writing sufficient to answer the exigency of the seventh section" (k). PARENTS, IN RELATION TO THEIR CHILDREN. 135 Tit. XXX. XXX. Parents, in relation to their Children. 1. The circumstance alone of parentage, by its relation Primary lead- to the subject of it, and the absolute dependence of the i^^SP^^^Pl"- latter, for sustenance and preservation, on the being who gave it birth, necessarily gives rise to certain obligations and duties, the discharge of which the law of every country will be careful to enforce, in the event of the person who is bound by the law of nature to observe them, failing to do so. 2. Children, whether legitimate or illegitimate, being Consequential equally dependent upon the care of their -parents, those prindfle. parents are, in either case, alike and equally bound to fulfil these duties towards them, the only requisite to prove the obligation being the proof of the parentage itself. 3. As regards the duties which devolve upon parents, Principle re- even independent of the regulations of the municipal law fural parental of any country, there is, doubtless, a natural obligation on obligation. the part of the parent to provide for the necessities of the child, so as to secure it against actual want, and the per- formance of which obligation the law will exert itself to enforce. 4. The necessities of the child are considered and deter- Interpretative mined by the law to consist in its food, clothing, lodging, principle. maintenance, and bringing up, according to the means of the parent. 5. The law gives to the parent control and authority Principle re- over the person of the child, and the right to resort to all f^ authority" reasonable and requisite means for enforcing, this authority; and requires from the child obedience to the parent, which is essential in order to support their mutual relation and obligations. 6. But any abuse or unreasonable exercise, either as Kestriotive regards its nature or extent, of this control and authority, principle, on the part of the parent, will be at once restrained by the law; which will also, if necessary, enforce the obedience and submission of the child to the parent. 136 PRINCIPLE OF PARENTAL AUTHORITY. Tit. XXX. Principle of Grotius as to origin of parental authority. (k) Grotitis on War aiid Peace, b. 2, c. 5, s. 1. Puffendorf s principle re- garding origin of paternal power. (l) Law of Nature and Nations, b. 6, c. 2. Locke's prin- ciple regard- ing origin of paternal power. 7. As regards the origin of the parental authority, according to Grotius, " parents acquire a right over their children by generation ; both parents, the father and the mother ; but if there be a contention between the authorities, the authority of the father is preferred, as superior in sex" {k). 8. In regard to the origin of paternal power, Puffendorf remarks as foUows : — " The origin of this power, Grotius and most writers refer to the act of generation ; by which the parents do, in some manner, resemble the Divine Creator, whilst they make a person really exist who before had no being. But inasmuch as both the parents equally contribute to this signal benefit, they say that both originally acquire a right over their issue ; but that, in case they contend for the sovereignty, and by reason of their contrary commands cannot both be obeyed together, the father's authority is to carry the precedence, not only on accoimt of the ad- vantage he hath in sex, but Hkewise because the mother herself is placed under his direction and sway " [l). 9. The following is the principle which is both forcibly and philosophically maintained by Locke, as regards the origin and derivation of the authority of parents over their children, and the reciprocal duties subsisting between them :~- "The power that parents have over their children, arises from that duty which is incumbent on them to take care of their offspring during the imperfect state of child- hood. To inform the mind and govern the actions of their yet ignorant nonage, till reason shall take its place and ease them of that trouble, is what the children want, and the parents are bound to. For God, having given man an understanding to direct his actions, has allowed him a freedom of will and liberty of acting, as properly belonging thereunto, within the bounds of that law he is under. But whilst he is in an estate wherein he has no understanding of his own to direct his will, he is not to have any will of his own to follow. He that understands for him, must will for him too. He must prescribe to his PAKENl'AL OBLIGATIONS. 137 will, and regulate his actions. But when he comes to the Tit. XXX. estate that made his father a freeman, the son is a freeman too" (m). I . „, .. „ » ' (m) Treatise of 10. As regards the nature and extent of the paternal Gmemrmnt, , 1 . -L^ , . . D. 2, c. 6, s. 58. authority, the obligations arising from this relation, and puffendorf' s the grounds on which they are based, the followina; prin- P"nviple le- . . •' ° -"^ gardmg natm-e ciple is mamtained by Puffendorf : — and extent " The power which a father enjoys, on the bare score of authority. his beiag a father, inasmuch as it accrues to him as a necessary means of discharging the obligation towards his issue which nature lays upon him, must consequently be so great as sufficiently to answer and effect that design. Now the obligation or duty of a father, as such, chiefly turns on this general performance, that he duly educate his children ; that is, nourish, protect, inform, and govern them, in order to the rendering them useful to themselves and others, until they are able to consult their own proper benefit, and are grown masters of their own wills and actions" («). {n) Law of 11. Sir William Blackstone also remarks, citine: Grotius •^<»^«« «»«^ _ ' _ ° Natmis, b. 6, as an authority for the first part of the principle advanced, c. i, s. 6. that natural right obliges the parent to give a necessary principlTre- maintenance to children ; but that what is more than that, girding obli- gation of they have no right to, than as it is given them by the necessary n J* i_-\ ' i_ j_i -i' j_»j. A* i> l^ niaintenance. lavour 01 their parents, or the positive constitutions oi the municipal law. Also, that no person is bound to provide a maintenance for his issue, unless when the children are impotent and unable to work [or to obtaia it ?], either through infancy, disease, or accident. And a parent may, on the same priaciple, maintain and uphold his children in their law-suits, without being guilty of the crime of maintaining quarrels. He may also justify an assault and battery in defence of the persons of his children (o). (o) i Comm. 12. As regards the iurisdiction of courts of equity ' ^' °' ^^' 1 • 1 ^■ ^ e ^^. X ^-^1 I^or"! Eldon's in cases relating to the subject oi the present title, principle as to the following principle was laid down by Lord ChanceUor ij-ty'*'"'' °^ Eldon :— " So much has passed with reference to this subject, as 138 LORD ELDON ON EQUITABLE JURISDICTION. Tit. XXX. to make it not altogether inexpedient to say something on the natvire of the law, as between parent and child, which is administered in this court. I do apprehend that, not- withstanding all the doubts that may exist as to the origin of this jurisdiction, it will be found to be absolutely necessary that such a jurisdiction should exist, subject to correction by appeal, and subject to the most scrupulous and conscientious conviction of the judge, that he is to look most strictly into the merits of every case of this kind, and with the utmost anxiety to be right. It has been questioned, whether this jurisdiction was given to this court upon the destruction of the Court of Wards (which, howeyer, it is impossible to say could have been the case when we recollect the nature of the jurisdiction), or whether it is to be referred to circumstances and principles of a different nature; more especially, whether it belongs to the King, as parens patrice, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown round them. With respect to the doctrine that this authority belongs to the King as parens patrice, ex- ercising a jurisdiction by this court, it has been observed at the bar, that the court has not exercised that jurisdiction, unless where there was property belonging to the infant to be taken care of in this court. Now, whether that be an accurate view of the law or not ; whether it is founded on what Lord Hardwicke says in the case of Butler v. {p) Amb. 303. Freeman (p), 'that there must be a suit depending relative to the infant or his estate' (applying, however, the latter words rather to what the court is to do with respect to the maintenance of infants) ; or whether it arises out of a necessity of another kind, namely, that the court must have property in order to exercise this jurisdiction, — that is a question to which, perhaps, sufficient consideration has not been given. If any one will turn his mind atten- tively to the subject, he must see that this court has not the means of acting, except where it has property to act EQUITABLE JUKISUICl'ION OA'ER INFANTS. 139 upon. It is not, however, from any want of jurisdiction Tit. XXX. tliat it does not act, but from a want of means to exercise its jurisdiction ; because tbe court cannot take on itself tbe maintenance of all tbe children in the kingdom. It can exercise this jurisdiction usefully and practically only where it has the means of doing so ; that is to say, by its having the means of applying property for the use and maintenance of the infants. " That such has been the doctrine of this court for a long series of years, no one can deny. The law makes the father the guardian of his children by nature, and by nurture. An Act of Parliament has given the father the power of appointing a testamentary guardian for them : one should think that the guardian so appointed must have all the authority that Parliament could give him; and his authority is, perhaps, as strong as any authority that any law could give. But it is above a century ago since, in the case of the Dulce of Beaufort v. Berty (q), the Lord Chancellor of that {g) l P. Wins. 703 day, Lord Macclesfield, determined, that the statute guar- dian was subject to all the jurisdiction of this court. The Lord Chancellor in effect said, ' I will not place the statute guardian in a situation more free from the jurisdiction of this court than the father is in ;' so that he applied the •acknowledged jurisdiction over the father as a justification for interfering with the testamentary guardian. The former jurisdiction he stated as the acknowledged law of the court. And he went further ; for he added, 'that, if he had a reason- able ground to believe that the children would not be properly treated, he would interfere, upon the principle that preventing justice was preferable to punishing justice.' " If this court has not the power to interpose, what is the provision of law that is made for the children ? You may go to the Court of King's Bench for a habeas corpus to restore the child to its father ; but when you have restored the child to the father, can you go to the Court of King's Bench to compel that father to subscribe, even to the amount of five shiUings a year, for the maintenance of that child ? A magistrate may compel a trifling allowance, but I do not believe that there was ever a mandamus from the 140 LORD CAMPBELL ON CUSTODY OF INFANTS. Tit. XXX. Court of King's Bench upon such a subject. Wherever the power of law rests, with respect to the protection of children, it is clear that it ought to exist somewhere : if it be not in this court, where does it exist ? Is it an eligible thing that children of all ranks should be placed in this situation — ^that they shall be in the custody of the father ; although, looking at the quantum of allowance which the laAV can compel the father to provide for them, they may be regarded as in a state little better than that of starvation ? The courts of law can enforce the rights of the father, but they are not equal to the office of enforcing the duties of the father. Those duties have been acknow- (r) Wellesley lodged in this his Majesty's Court for centuries past" (r). 0/ Beaufort, 2 13. The priaciple of law as regards the right to the Kuss. 19—22, iggal custody of children under fourteen years of age was Lord Camp- thus laid down by Lord Campbell, C. J. : — reffardine^us^ " ^^ ^^^ ^^^^ ^^ ^^® to determine what directions ought tody of chil- ^q \^ given by the court respecting Alicia Race, an infant foiiiteen. of the age of ten years and a few months, brought up under a writ of habeas corpus, granted at the instance of her mother. On the one side, it is contended, that we ought at once to order the child to be delivered to the mother ; and, on the other, that we should ask the child to make her election whether to go home with her mother, or return to the school from which her mother wishes to remove her. It is not disputed that, the father being dead, with- out appointing a guardian, the mother is now guardian for nurture ; and it is laid down, 3 Co. Rep. 38, b., that guardianship for nurture continues till the child attains the age of fourteen. An observation was made that the commissioners of the school are in loco parentis ; but this was little relied upon, and is wholly untenable. As a general rule it is admitted that, if a child under the age of seven years is so brought up, the court ought at once to order the child to be delivered to the guardian. But the contention is that, between the ages of seven and fourteen, the court ought to examine the child, and ascertain whether it has mental capacity to be competent to make a choice, and, according to the degree of mental capacity which it PECUNIARY TRANSACTIONS WITH CHILDREN. 141 IS found to possess, to hand it over to the guardian, or to Tit. XXX. liberate it, and to desire it to go where it pleases. With regard to the maintenance of the poor, a rule has been in- troduced, that while a child is under seven, it shall not be separated from the mother for the purpose of being main- tained by the parish in which it is settled. Again, Jby Serj. Talfourd's Act, 2 & 3 Vict. c. 54, s. 1, it is enacted, that where infants under the age of seven are in the sole custody and control of the father, the Lord Chancellor, or the Master of the Rolls, may make an order that such infants shall be deKvered to and remain in the custody of the mother, until they attain the age of seven years. Under seven is sometimes called the ' age of nurture ;' but this is the peculiar nurture required by a child from its mother, and is entirely different from guardianship for nurture, which belongs to the father in his lifetime, even from the birth of a child. "We can find no distinction in the books as to the rights and incidents of this species of guar- dianship, from the time when it commences tiU the time when it expires. One of these incidents is, that the guar- dian shall be entitled to the custody of the person of the child. Without such right, he could not possibly perform the duties cast upon him as guardian. He is to nurture the child. The legal sense of this word is its natural and common sense in the English language, which. Dr. Johnson says, is ' to educate ; to train ; to bring up ;' accordingly, from the case to be found in the Year Bodis, 8 Edw. 4, 7 B., to the present time, it has ever been considered that the father, or whoever else on his death may be the guardian for nurture, has by law a right to the custody of the child, and shall maintain an action of trespass against a stranger who takes the child" (s). (s) Re Alicia 14. In regard to transactions of a pecuniary nature q.b.',7, 171-2'. between parent and child, and the view in which these are Lord Eldon's "DriiiciiDis rG* to be regarded. Lord Chancellor Eldon propounded the garding trans- p ^^ . " • • 1 actions be- followmg prmciple :— . tween parent " The court will not view transactions between father ^^'^ '^^^''^• and son in the light of reversionary bargains, but will regard, them as family arrangements, with a reasonable 142 LORD IIARDWICK ON VOLUNTARY CONVEYANCES. Tit. XXX. (t) Tweddell V. Tweddell, 1 Turn. & Buss., 13. Lord Hard- wicke's prin- ciple regard- ing voluntary conveyances in favour of children. degree of jealousy, and will not look into all the motives and feelings which might actuate the parties in entering into such arrangements. There may be considerations in such cases which the court could not possibly reach. It might be conducive, for instance, to the best interests of the parties, that the father should be enabled to educate all his children in a liberal way ; a principle on which the court acts in the case of an infant eldest son, by giving for his maintenance a much greater sum than he can pos- sibly require, in order that his brothers and sisters may be so brought up, and educated, and placed in such situations, as to do him credit in the world" (t). 15. The principle regarding the validity of a voluntary conveyance in favour of a child, and as to how far this can be maintained against the claim of creditors, was thus expounded by Lord Chancellor Hardwicke : — " There is no case where a person indebted makes a con- veyance of a real or chattel interest for benefit of a child without the consideration of marriage or other valuable consideration ; and dying indebted afterwards, that that shall take place. There is certainly a difference between the statutes of fraud, of the 13th Eliz., which is in favour of creditors, and the 27th Eliz., which is in favour of pur- chasers. But that difference was never suffered, by way of general rule, to go further than this : on the 27th Eliz. every voluntary conveyance made, where afterwards there is a subsequent conveyance for valuable consideration, though no fraud in that voluntary conveyance, nor the person mak- ing it at aU indebted, yet the determinations are, that such mere voluntary conveyance Is void at law by the subsequent purchase for valuable consideration. But the difference between that and the 13th Eliz. is this : if there is a voluntary conveyance of real estate or chattel interest by one not indebted at the time, though he afterwards becomes indebted, if that voluntary conveyance was for a child, and no particular evidence or badge of fraud to deceive or defraud subsequent creditors, that will be good ; but if any mark of fraud, collusion, or intent to deceive subsequent creditors appears, that will make it void ; otherwise not, SIR WILLIAM GRANT ON DOMICIL. 143 but it will stand, though afterwards he becomes indebted. Tit. XXX. But I know no case on the 13th Eliz. where a man indebted at the time makes a mere voluntary conveyance to a child without consideration, and dies indebted, but that it shall be considered as part of his estate for benefit of his creditors ; and on that foundation, I take it, this court has grounded their opinion in the execution of powers, when they stop in transitu (as it is called), and says, it shall not be given away from creditors ; therefore I am not warranted to do it otherwise. There is a case showing the groiuid and reason of this at law, and that this is considered as part of the estate of the testator at the time of his death ; viz., 2 Rob. Rep. 173. It was an odd case : one hardly knows how it came in question. A man actually indebted, and conveying voluntarily, always m.eans to be in fraud of creditors, as I take it. Here the testator had a power to appoint the benefit of the covenant, or, in the other light, this chattel interest in the land, to take effect out of the remainder in tail, generally to any person, or to take it to himself : he appoints it not to him- self, but merely voluntarily to a daughter, to take effect after his death, as it could not be otherwise. In respect of his creditors, it must be considered as part of his estate at the time of his death : he having executed it so as to gain the interest to himself, and attempted to pass it at the same time to his daughter, the court will not suffer it, saying he has been guilty of a fraud as to them, being indebted at the time. This is an unfortunate case ; but I cannot help it ; for I must not lay down a rule which will make the rights of creditors precarious" (?«). {u)LordTowH- 16. Sir W. Grant, M. R., thus elucidated the principle '^^;^„,_ applicable to the question of domicil in the case of parent 2 Ves. sen. and child, and also with regard to fraudulent attempts to gj^-^ Grant's change such domicil :— principle re- o • „ gS'rdmg domi- " On the subject of domicil there is so little to be found cil. in our own law, that we are obliged to resort to the writings of foreign jurists for the decision of most of the questions that arise concerning it. The dictum of Lord Alvanley in Somerrillc v. Somrrcille (.r) has no relation to the point now in (*) 5 TVs. 787. 144 PROVISION FOB ILLEGITIMATE CHILDREN. Tit. XXX. (y) Potinger V. Wightman, 3 Mer. 79. Lord Eldon's principle re- garding provi- sion for after- born illegiti- mate children. {;) Gordrni V. Gordon, 1 Mer. 152. dispute. He is speaking of the power of a minor to acquire a domicil by his own acts. Here the question is, whether, after the death of the father, children remaining under the care of the mother follow the domicil which she may- acquire, or retain that which their father had at his death, until they are capable of gaining one by acts of their own. The weight of authority is certainly in favour of the former proposition. " It has the sanction both of Voet and Bynkershoek ; the former, however, qualifying it by a condition that the domicil shall not have been changed for the fraudulent purpose of obtaining an advantage by altering the rule of succession. Pothier, whose authority is equal to that of either, maintains the proposition as thus qualified. There is an introductory chapter to his Treatise on the Custom of Orleans, in which he considers several points that are common to all the customs of France, and, among others, the law of domicil. He holds, in opposition to the opinion of some jurists, that a tutor cannot change the domicil of his pupil ; but he considers it as clear that the domicil of the surviving mother is also the domicil of the children, provided it be not with a fraudulent view to their succession that she shifts the place of her abode ; and he says that such fraud would be presumed, if no reasonable motive could be assigned for the change " (y). 17. In regard to the question whether a provision for an after-born illegitimate child will be enforced in equity, Lord Chancellor Eldon expressed himself as follows : — " Many cases may easily be imagined of the most dread- ful difficulty, if the rule be admitted that no unborn illegi- timate child can, by possibility, be provided for. Suppose a father suffering under the affliction of having an only daughter seduced, and afterwards abandoned and left preg- nant by her seducer. Does the law impose upon him the additional affliction of being unable, in his last moments, to make any provision for the unfortunate creature which owes its being to that seduction ? What ground is there, in morality, or in the policj^ of the law, that can justify such a conclusion ?" (s). HUSBANDS AND "WIVES. 145 Tit. XXXI. XXXI. — 4. Husbands, — in relation to their Wives, AND MaRRIAGTE generally. 1. The leading principle of law ia regard to the relation- Primary lead- ship between husband and wife is, that, by the act of mar- ""^ P^icipl^' riage, the husband and wife at once become, and are thence- forth considered as blended into, one person, having an entire community of feeling and of interest, with which the law wiU. on no account interfere. 2. The main object of this union is obtaining and Declaratory- securing, to the fullest possible extent, a reciprocity of aid, ^^^^^ ^""' protection, and society between the two persons so united, against any infringement of which the law zealously guards. 3. A further object of this union is the procreation of Collateral children, and the proper maintenance and bringing up of P^'^'^pl^- those who are the known and acknowledged offspring of it, in which, also, the law will render its co-operation and its aid, when such are required. 4. As a consequence of this union, the property belong- Consequential ing to either party becomes common to both, vesting in principle." the husband, as the protector and manager of it on behalf of his wife as well as himself. Neither party can therefore give or convey his or her property to the other. 5. Nevertheless, through the intervention of third Qualifying parties, who may hold property as trustees for them, pro- pr^^cipie^"*" perty may be reserved and held separately for either the husband or the wife independent of the other, and made use of by him or her as though they were unmarried. 6. And although husband and wife are considered as Exceptive , , . T , . , . •, p elementary blended into one, and as havmg an entire community oi principle. interest and feeling, so that the evidence of either for or against the other will not be admitted ; yet, when any injury amounting to a criminal act is inflicted by either party against the other, the law regards this as such a severance of interest and feeling, pro tanto, that, so far as is necessary for the protection of the injured party, and to prevent a further severance of the bond between them, It VOL. I. L 146 GEOTIUS ON THE MARRIAGE UNION. Tit. XXXI. Principle as to disabilities, &c., acquired by marriage. {a) Co. Litt. 112. (h) Cro. Car. 112. Principle regarding stealing by wife of hus- band's goods. (c) First Re- port of Com- missioners on CriminalLaw, Principle of civil law marriage. {d) Just. Inst. Lib. 1, Tit. 10, s. 1. Principle of Grotius as to authority of husband over wife. (e) Grotius on War and Peace, b. 2, li. 5, s. 8. will admit the evidence of either against the other, and will adjudicate upon it. 7. Upon the foregoing principle of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities that either acquire by the laarriage. For this reason, a man cannot grant anything to his wife, or enter into covenant with her («). For the grant would be to suppose her separate existence ; and to covenant with her would be only to covenant with himself. And, there- fore, it is also generally true that all compacts made between husband and wife, when single, are voided by intermarriage (b). 8. On the principle of the complete legal amalgamation of the husband and wife into one person, as regards, more especially, their unity of interests and possessions, results the axiom that, if the wife take a chattel of which the husband is the sole or joint owner, the taking is not theft, because they are in law as one person, and she has a kind of interest in the goods. And, on the same principle, if the wife and a stranger jointly steal the goods of the hus- band, the stranger alone is guilty of theft (c). 9. The principle laid down by the civil law, in regard to the actual nature and essence of marriage, is, that it "is a social compact between a man and a woman, obliging them to an inseparable cohabitation during life " (d). 10. Grotius remarks that "the most natural form of partnership appears in marriage ; but, on account of the difference in sex, the authoritj^ is not common to the two : the husband is the head of the wife (Eph. v. 23) ; namely, in matters relating to the marriage union and to the family ; for the wife is part of the husband's family" (e).* * By the Gentoo code, positive pro%'ision is made for the subjection of the wife to the husband, and this is actually made compulsory on the latter. "A man, both day and night, must keep his wife so much in subjection, that she by no means be mistress of her own actions. If the wife have her own free will, notwithstanding she be sprung from a superior caste, she will yet behave amiss." — Gentoo Code, chap. xx. A sentiment somewhat ungallant, but in strict accordance with the principle contained in the above law, was expressed by Grotius, when he declared that, in states, " all mischiefs sway where women have the liberty to do and say what they please." — Politick Maxims, 13. CONDITIONS UESTRAINING MAREIAGE. 147 11. The principle which regulates the illegality of con- Tit. XXXI. ditions in restraint of marriage was thus expounded hy Lord Thur- Lord Chancellor Thurlow : — regarding con- " In ampliation of the civil law, it seems to have been ^}^'^°^? ™- ■■^ _ straining weU settled in all times that if, instead of creating a marriage. condition absolutely enjoiaing celibacy or widowhood, the matter be referred to the advice or discretion of another, particularly an interested person, it is deemed a fraud on the law, and treated accordingly ; that is, the condition so imposed is holden for void. On the other hand, the ancient rule of the civil law has suffered much limitation in descending to us. The case of widowhood is altogether excepted by the Novels, and injunctions to keep that state are made lawful conditions. So is every condition which does not directly or indirectly import an absolute injunction to celibacy. Therefore, an injunction to ask consent, or not to marry a widow, is not unlawful. A condition to marry or not to marry Titius or Moevia is good, for this reason, that it implies no general restraint ; besides, in the first case it seems to have in view a bounty to Titius or Moevia. In like manner the injimction which prescribes due ceremonies and the place of marriage is a lawful con- dition, and is not understood as operating the general prohibition of marriage. Still more is a condition good which only limits the time to twenty-one, or any other reasonable age, provided this be not evasively used as a covered purpose to restrain marriage generally" (/). (/) ScoU v. 12. The principle of law, which prevails in respect to pickens, 712. conditions in restraint of marriage, was thus laid down by Lord Mans- Lord Mansfield, C. J., who, at the same time, explained the ciple regarding mode in which they should be construed :— restotTof" " Conditions in restraiat of marriage are odious, and are marriage. therefore held to the utmost rigour and strictness. They are contrary to sound policy. By the Roman law they are all void. " Conditions precedent must previously exist ; therefore in these there can be no liberality, except in the construc- tion of the clauses. "But, in cases of conditions subsequent, it has been L 2 148 WAGERS IN KESTRAINT OF MARRIAGE. Tit. XXXI. established by precedents that, where the estate is not given over, they shall be considered as only in terrorem. This shows how odious such conditions are ; for, in reason and argument, the distinction between being or not being limited over is very nice ; and a clause can carry very little terror which is adjudged to be of no effect ; though, to be sure, the reasoning will not hold. If the estate is (g) Long v. given over, such a condition cannot be got over" (g). Bum'2056. 13- The principle of law in regard to contracts and Lord Ellen- wagers which operate in restraint or discouragement of princ|)le^re- marriage, was laid down by Lord Ellenborough, C. J., in marriage. " On the face of the contract its immediate tendency is, as far as it goes, to discourage marriage ; and we have no scales to weigh the degree of effect it would have on the human mind. It is said, however, that the restraint is not to operate for an indefinite period, but only for six years, and that there might be reasonable grounds to restrain the party for that period. But no circumstances are stated to us to show that the restraint was reasonable ; and the distinct and immediate tendency of the restraint stamps it as an illegal ingredient in the contract. Wagers in general are seldom indifferent in their tendency, and {h) BartUy v. this certainly is not so " (A). 23. ' ■ ' 14. As regards the question, what actually constitutes a Lord Stowell's valid marriage, and what is the real nature of this con- principle re- ■ ■ 1 1 ■ 1 j> 11 1 • T T ITT garding nature tract, the prmciple which lollows was laid down by Lord contra™^'^ StoweU with great force and clearness, discriminating, moreover, in a very luminous manner, the doctrines appli- cable to the subject, propounded alike by the law of nature, the civil law, and the municipal laws of different countries : — " It is held by some persons that marriage is a contract merely civil ; by others that it is a sacred, religious, and spiritual contract, and only so to be considered. The jurisdiction of the Ecclesiastical Court was founded on ideas of this last-described nature ; but, in a more correct view of this subject, I conceive that neither of these opinions is perfectly accurate. According to juster LORD STOWELL ON MARRIAGE CONTRACTS. 149 notions of the nature of the marriage contract, it is not Trr. XXXI. merely either a civil or religious contract ; and, at the present time, it is not to be considered as originally and simply one or the other. It is a contract according to the law of nature, antecedent to civil institution, and which may take place, to all intents and purposes, wherever two persons of different sexes engage by mutual contract to live together. Our first parents lived not in political society, but as individuals, without the regulation of any institutions of that kind. It is hardly necessary to enter something of a protest against the opinion, if any such opinion exists, that a mere commerce between the sexes is itself marriage. A marriage is not every casual com- merce ; nor woidd it be so even in the law of nature. A mere casual commerce, without the intention of cohabita- tion and bringing up of children, would not constitute marriage under any supposition. But when two persons agree to have that commerce for the procreation and bringing up of children, and for such lasting cohabitation, — that, in a state of nature, would be a marriage, and, in the absence of all civil and religious institutes, might safely be presimied to be, as it is popularly called, a marriage in the sight of God. " It has been made a question how long the cohabitation must continue by the law of nature, whether to the end of life ? Without pursuing that discussion, it is enough to say that it cannot be a mere casual and temporary com- merce, but must be a contract at least extending to such purposes, of a more permanent nature, in the intention of the parties. The contract, thus formed in the state of nature, is adopted as a contract of the greatest importance in civil institutions, and it is charged with a vast variety of obligations merely civil. Rights of property are at- tached to it, on very different principles, in different countries. In some, there is a communio honorum. In some, each retain their separate property. By our law it is vested in the husband. Marriage may be good, inde- pendent of any considerations of property, and the vinculum fidei may well subsist without them. 150 LORD BROUGHAM ON SCOTCH MARRIAGES. Tit. XXXI. <« j^ j^Qg^, coimtries it is also clotlied with, religious rites, even in rude societies, as well as in those whicli are more distiagriislied for their civil and religious institutions. Yet in many of those societies, as I have had occasion to observe, they may be irregular, informal, and discounte- nanced on that account, yet not invalidated. Scotch marriages have been mentioned. The rule prevailed in all times, as the rule of the canon law, which existed in this country and in Scotland, till other civil regulations interfered in this country ; and it i» the rule which pre- vails in many countries of the world, at this day, — that a mutual engagement, or betrothment, is a good marriage, without consummation, according to the law of nature, and biuds the parties accordingly, as the terms of other contracts would do, respecting the engagements which they purport to describe. If they agree, and pledge their troth to resign to each other the use of their persons, for the purpose of raising a common offsprrag, by the law of natiire that is complete. It is not necessary that actual use and possession should have intervened to complete the nnculiim fidei. The vineulum follows on the contract, without consiunmation, if expressed in present terms ; and the canon law itself, with all its attachments to ecclesias- tical forms, adopts this view of the subject, as is well described by Swinbxirn in his book on Espousals, where he says ' that it is a present and perfect consent, the which alone maketh matrimony, without either public solem- nization or carnal copulation ; for neither is the one, nor (t) Lindo V. the other, the essence of matrimony, but consent only' " («). 1 Hagg. Con- 15- In the following extracts from a judgment delivered Lord Brou ^^ Lord Brougham in the House of Lords, in a case relat- ham's prin- ing to a marriage, which was heard on an appeal from the evMencTof "^ Scotch Courts, is laid down, with peculiar force and clearness, ™ntracte. *^® principle regarding evidence of consent in marriage, of promise to marry, and of intention to fulfil that promise, so as to render valid a marriage in Scotland : — " Marriage is a consensual contract ; it is constituted by consent, and consent alone. But there are three various ways in which you have evidence of the consent. There EVIDENCE OF CONSENT TO MARRY. 151' are two kinds of consent, as they may be called. One is Tit. XXXI. consent in. fact ; the other is consent to be presumed by law. The former is either a direct consent ^er verba de prcBsenti, a consent, mutually given and taken, to be man and wife thereafter ; or it is that which is evinced by living as husband and wife, and acknowledging each other as such, rebus ipsis et factis. The other way is that which touches the facts of the present case more immediately, where a promise is given, and a copula follows upon the promise, and is to be taken as not disconnected with that promise ; and here the law, presumptione juris et de jure, implies consent. A promise, like all other acts, may be proved by two several ways — either by direct evidence, or circumstantial evidence. There m^ay be direct evidence by the testimony of witnesses who heard the promise given. There may be direct evidence in. writing, proved to be of the hand of the party giving it. But the promise, like aU other facts, may be proved by circumstances. It may be proved without either witnesses to support it, or the handwriting to remain on record against the party promising. Circumstances may be proved by evi- dence ; circumstances may be proved by the testimony of witnesses, or by written evidence ; and, if those circimi- stances are sufficient to convince the Court, trying the question as a matter of fact, that a promise did take place, the promise must be taken to have been made, as much as if it had been established by the other more direct and immediate proof; nay, sometimes circumstantial evidence is stronger, and less liable to doubt, than direct evidence, inas- much as it is more difficult to make out a circumstantial case by curiously contrived perjury, than a direct case by a witness, who may take a false oath to the fact. Now let us see what the evidence is, being not of the direct, but of the circum.stantial kind, by which we here are called upon to believe, as the court below did, a promise of marriage by the appellant. "I shall now, my Lords, take the case — sifted by the observations I have taken leave to throw out — as if I were at Nisi Prius, trying it with a jury, and stating to them 152 MUTUALITY OF MAERIAGE PROMISES. Tit. XXXI. the grounds on whicli their Terdict ought to turn. I should then inform them, that there were three matters for their consideration, before heing satisfied of which they could not find a verdict for the affirmative of the issue. Stating the issue which had been joined- — what is called in English law pleading an issue of ne imcqiies accoupte — I should call upon them to consider three particulars ; — that they must be satisfied there was a promise, a serious pro- mise, intended as such by the person making it, and accepted as such by the person to whom it wp-s made ; that, in the second place, they must be satisfied that there was a cohabitation afterwards; that, in the third place, they must be satisfied that there was no disconnection between the subsequent cohabitation and the preceding promise (that is the way in which, I think, I am most safe in stating it) ; that there is no disconnection, no medium impedimenUmi, — no evidence to rebut connection, — between the cohabitation and the promise. If that disconnection is not substantiated, the law will take the promise to be connected with the copula. Now here the copula is admitted ; — there is no doubt what- ever of its having taken place. The disconnection cannot be set up ; for the time is so short, the circumstances are so little varied (that is, the circumstances of the parties be- tween the promise and the copula), the relations in which the parties stood to one another, and all mankind besides, are so precisely the same, that I take it to be quite as clear that there was no disconnection of the copula with the pro- mise, as it is clear that there was a copula. Then the only question turns on the existence of a promise, and to that I now come, in the last place. If the doctrine had been ventilated here, that courtship or other circumstances show- ing an intention — nay, that an intention to marry, however strongly expressed, and however plainly entertained — con- stituted what may be termed (borrowing an expression familiarly known to the Scotch lawyers) an equipollent to a promise, I should have taken leave to deny the proposi- tion in point of law. The promise must be mutual ; both parties must be bound; the marriage, to bind one, must bind both : there is nothing more plain than the perpetual ^ REQUISITES OF MARRIAGE PROMISE. 153 distinction between an intention to marry, and a promise to Tit. XXXI. marry ; and the law attaches on the promise followed by "the copula, and not on any intention. But courtship is a most material fact in the case, when you are examining whether, from the conduct of the parties, it appears that a promise had actually passed between them. Where persons are on the footing of lovers, when it is well known that love is usually followed by matrimony, that it is naturally incident to the relation of lovers to wish to be married, and that a long course of courtship can hardly have any other object than marriage ia view, though the intention to marry will not of itself supply the want of a promise, yet, in seeking for evidence of a promise, the long courtship and the inten- tion make it extremely probable that the parties had received mutual promises of marriage. Therefore, if it stood alone as a mere question of probability, that would carry us a good way towards satisfying the jury (whom I suppose to be trying the cause) that there was a courtship, and a course of love-making, with a view, as it may gene- rally be taken, to matrimony, otherwise it is no courtship between the parties. This, however, would plainly not be enough. " A promise differs from vey-ha de prcBsenti in this, that it contemplates a future period. What I have read I mainly rely on, because it proves it was a contemplation of an after event. Intentions, however ardent, however strongly ex- pressed; courtship, however direct; asking, however plain and prompt it were ; and asking the hand in marriage, — they all refer to the present ; but what differs a promise from this thing is, that it has a future reference, it contem- plates a future time. "But, if there was any doubt or ambiguity as to the meaning of the previous expressions, the copula which fol- lows wiU carry us far out of tho scope of that doubt ; for I desire to be distinctly understood as acceding to the doctrine, that where persons are in courtship, — though courtship is not a promise, — and where ambiguous expressions may have been used, and where an offer of love may have been made on the one hand, and accepted on the other, that which is 164 INTENTION TO FULFIL MARRIAGE PROMISE. Tit. XXXI. (k) Honyman v. Campbell, 5 W. & S. 143—149. Lord Camp- bell's prin- ciple regard- ing contracts of marriage. doubtful will become certain, and tbat, if tbere is great probability of a promise having taken place, that proba- bility may be turned into a certainty by the copula which follows ; and for this plain and obvious reason, that the woman, in these circumstances, does not yield her virtue for nothing ; — I assume that she gets that consideration for it, precisely as I would assume, if I had a doubt about the evidence of a common contract for the purchase or sale of merchandise, when I saw one party paying the price, if there were an ambiguity as to whether the price was stipu- lated, I should consider that that ambiguity was removed by the fact of its being paid. In holding this doctrine — for which I know not that I have the warrant either of the dictum of any judge, or the authority of any text-writer, or of one decided case on the law of Scotland, in this House — I know that I am following out the principles on which the Scotch law is founded ; I know that I am laying down a rule which is of a wholesome and eiEcacious tendency in respect to the contract of marriage" (/«). 16. The general principles of law in regard to contracts of marriage, and as to the cases in which their non- performance will be excused, ■were thus ably expounded by Lord Campbell, C. J., who also reviewed the leading authorities bearing on the subject : — "A contract of marriage, like any other contract, may be shown to be void on the ground of fraudulent misrepre- sentation or fraudulent suppression. This contract of marriage likewise has peculiar incidents, by reason of which the performance of it may be excused. If, subse- quently to the contract, the woman has been guilty of incontiaence, the man, at his choice, is excused from the performance of his promise, which was given under the implied condition that the woman should continue chaste. So if, by bodily disease, it should become impossible for him, without danger to his health, to go through the ceremony of marriage at the appointed day, giving reason- able notice of this to the woman, or showing something whereby notice might be excused, he might justify the postponement of the performance of his promise. So if, LORD CAMPBELL ON MAEEIAGE CONTRACTS. 155 by mental disease, lie had become incapable of giving Tit. XXXI. assent in the celebration of the marriage, the woman certainly could maintain no action for a breach of the contract. But here the defendant does not seek to excuse himself for refusing to marry the plaintiff within a reason- able time, giviQg her notice of the temporary impediment, but considers the contract as ipso facto at an end by his supervening bodily incapacity. His plea would, I think, have been proved by evidence that, at the time when he ought to have married the plaintiff, he had become unfit for the procreation of children without danger to his life. The question, therefore, seems to arise whether, if, subse- quently to a contract to marry, one of the parties, by bodily disease, becomes vmfit for the most important duty of marriage — ^the procreation of children — the contract to marry is thereby dissolved, so that the party so rendered unfit, being sued for a breach of the contract, m^ay establish a defence by simply allegiag and proving the supervening unfitness. " In support of the affirmative of this proposition, there certainly is the high opinion of Pothier, one of the most celebrated of modern jurists, who, in his ' Traits du Mariage,' part 2, ch. 1, s. 61, says, ' I am discharged from a promise to marry (" de 1' engagement des fian9ailles," understood in France to be a promise to marry made in the presence of a priest), not only when there happens to the person to whom I am engaged something which, could I have foreseen it, would have prevented me from entering into the engagement ; but, still further, I am discharged when something happens to me which, could I have fore- seen it, would have prevented me from entering into the engagement. Por example, if I become afflicted with some disease which does not permit me to enter into the state of marriage without the risk of injuring my health, as if I become consumptive (pulmonique).' According to this doctrine, the party who so becomes xmfit by a tendency to consumption, has a right to consider the contract dis- solved, the other party wishing the marriage ceremony to be performed; and, the defendant's third plea being 156 DISSOLUTION OF MAEEIAGE CONTRACTS. Tit. XXXI. sufficient without tlie allegation of notice, that allegation need not be proved. But the continuation of the same section destroys the authority of Pothier, by showing that the law of France upon this subject is entirely different from that of England ; for, having said, ' if I become con- sumptive,' he adds, ' or if it be any disease which dis- qualifies me from gaining my livelihood ; or if there happens to me a derangement of my fortune which takes away from me the power of supporting the expenses of the marriage which we had promised to enter into. In these and other similar cases I am dispensed from keeping my promise of marriage, which I would not have made if I could have foreseen what would have happened.' Pothier himself says elsewhere ia the same treatise, part 1, ch. 1, s. 4, 'Le commerce charnel n'est point de I'essence du mariage ' (of which he gives _ an example which it would be irreverent to repeat), and he recognises the maxim of Ulpian, ' Nuptias consensus, non concubitus, facit.' " The only English authority bearing directly upon the question how far a contract to marry is dissolved by super- vening disease, is the dictum of Lord Kenyon in Atchinson ZJ^^'^^^'^ V. Baker :* ' If the condition of the parties was changed N. P. C. 103. . . ^. ° after the time of making the contract, it was a good cause for either party to break off the connection.' But this was said merely obiter, va. a case ia which the refusal to marry was on the part of the lady, who, subsequently to her pro- mise, discovered that the gentleman had an abscess in his breast, which he had concealed from her ; and the dictum in its latitude is not supported by any decision to be found in our books. "As yet, there has been no decision that, for anything supervening after the contract to marry, unfitting either party fuUy to perform the duties of the married state, the party so unfitted may treat the contract as dissolved, the other still desiring that the marriage ceremony should be performed. "We find the general rule upon this subject t Aleyn, 26. laid down in Paradine v. Jane .f ' Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and hath no remedy over. EXCUSES FOR NON-PEEFOKMANCE OF CONTRACT. 157 then tlie law will excuse him But, when the party Tit, xxxt. by his own contract creates a duty or charge upon himself, he is bound to make it good if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. And, therefore, if the lessee covenant to repair a house, though it be burnt by lightning or thrown down by enemies, yet he ought to repair it.' This is quite consistent with the rule laid down in 1 EoU. Abr. p. 450, pt. 10 : ' If a man covenant to build a house before such a day, and afterwards the plague is there before the day, and continues there till after the day, this shall excuse him from the breach of the covenant for not doing thereof before the day, for the law will not compel him to venture his life for it, but he may do it after.' Time not being of the essence of the contract, the existence of the plague might be pleaded in suspension and in excuse of performance of it on that day ; but the con- tract was not dissolved, and, if the house had not been built in reasonable time afterwards, the covenantor would have been liable in damages. So ' if a man be bound in obligation to A., conditioned to infeoff B., a stranger, and B. refuse, the obligation is forfeited, for the obbgor has taken upon him to make the feofl&nent ; ' Co. Litt. 209, a. This rule has often been applied to mercantile contracts, as in Barker v. Hodgson* where it was held that the * 3 M. & S., charterer of a ship, who covenants to send a cargo alongside of a foreign port, is not excused from sending it alongside, though, in consequence of the prevalence of an infectious disorder at the port, all public intercourse was prohibited by the law at the port, and though he could not have had communication without danger of contracting the dis- order. Lord Ellenborough, C. J. : ' Perhaps it is too much to say that the freighter was compellable to load his cargo ; but if he was unable to do the thing, is he not answerable for it upon his covenant ? The question here is, on which side the burthen is to fall. If, indeed, the performance of this covenant had been rendered unlawful by the Government of this country, the contract would have been dissolved on both sides, and this defendant. 267. 158 JURISDICTION OF COURTS REGARDING MARRIAGE. Tit. XXXI. (T) Hall V. Wright, 27 L. J.,Q. B, 353. De Grey's principle re- garding juris- diction of courts in re- lation to marriage. inasmuch as lie had been compelled to abandon his contract, would have been excused for the non-performance of it, and not liable to damages. But if, in consequence of events which happen at a foreign port, the freighter is prevented from furnishing a loading there, which he has contracted to furnish, the contract is neither dissolved, nor is he excused for not performing it, but must answer in damages.' " Is there any reason why this rule should not be applied to the contract of marriage, at least where the ceremony of marriage may be duly celebrated, and the relation of husband and wife thereby constituted between the parties ? The counsel for the defendant argued that, in his dangerous state of health, as described in the plea, he is in the same situation as if, by disease, or accident, or violence, he had suffered mutilation. In that case he certaialy could not have obtained an action against the lady for refusing on that account to marry him. But I am by no means pre- pared to say that, if she had desired to be married by him, and he had refused to marry her, he would not have been liable to an action. By such a marriage she could not have become the mother of children; but she might, nevertheless, have been affectionately attached to him, and might innocently have desired to enjoy the consortium vitm with him ; she might have obtained rank and station in society as his wife, and as his widow she might have been dowable of his lands. The defendant suggests the impos- sibility of entering into the married state under such cir- cumstances ; but he may well pay damages for refusing to do so" [1). 17. As regards the province and jurisdiction of par- ticular courts, both spiritual and temporal, in relation to marriage, more especially with respect to deciding on its legality, and enforcing rights and obligations arising out of this condition, the following principle was laid down by Lord Chief Justice De Grey : — " Upon the subject of marriage, the spiritual court has the sole and exclusive cognizance of questioning and de- ciding, directly, the legality of marriage ; and of enforcing, LORD MANSFIELD ON MAEEIAGE LAWS. 159 specifically, the rights and obligations respecting persons Tit. XXXI. depending upon it ; but the temporal courts have the sole cognizance of examiniag and deciding upon all temporal rights of property ; and, so far as such rights are concerned, they have the inherent power of deciding, incidentally, either upon the fact, or the legality of marriage, where they lie in the way to the decision of the proper objects of their jurisdiction. They do not want or require the aid of the spiritual courts ; nor has the law provided any legal means of sending to them for their opinion, except where, in the case of marriage, an issue is joined upon the record in certain real writs, upon the legality of a marriage, or its immediate consequence, ' general bastardy ;' or, in like manner, in some other particular instances, lying pecu- liarly in the knowledge of these courts, as possession, deprivation, and some others : in these cases, upon the issue so formed, the mode of trying the question is by reference to the ordinary; and his certificate, when returned, received, and entered upon the record in the temporal courts, is a perpetual and conclusive evidence against all the world upon that point " (m). (m) Duchess of 18. The general principles and rules of the common cte 2 Smith's law in relation to marriages, the bearing of the ecclesiastical Jl^^'^jf *^'^**^' and common law on this subject, and the mode in which Lord Mans- the Act for the regulation of marriages is to be construed, cipleregarding were thus expounded by Lord Mansfield, C. J. : — ™les of law regulating " Before this Act of Parliament passed,* by the laws marriages. then in being, if a man and woman made a contract in * ■'''^".-'^f'"' private per verba de prmsenti, and kept it a secret, and G. II. c. 33. afterwards there was a public marriage solemnized by either of them, and issue born of that marriage, neverthe- less the private contract took place of the subsequent marriage ; because the canon law compelled a strict observance of these contracts, and decreed them to be solemnized in the face of the Church. Therefore, clan- destine marriages were so far, to be sure, practicable, that the courts would not avoid the contract ; but still they were contrary to law. • " The law of England executed by the ecclesiastical 160 LORD STO'W'ELL ON USE OF SUKNAME. Tit. XXXI. courts prohibited it, and made it unlawful to marry any person in private ; so that no clergyman of reputation dared to marry any person without either license or banns. If they married with license, there was an oath that the parties were of age ; or, if under age, that they had the consent of parents or guardians. If by banns, it was no objection to the marriage that the parties were under age. " All other marriages were illegal ; but, not being vacated, the practice stUl continued. Therefore this Act was passed in order to prevent these illegal practices, which were become so very enormous that places were set apart in the Fleet and other prisons for the purpose of celebrating clandestine marriages. The Court of Chancery, on the ground of its illegality, made it a contempt of the Court to marry one of its wards in this manner. They committed the offenders to prison ; but that mode of punishment was found ridiculous and iueffectual. Then this Act was introduced to remedy the mischief, and. in fact, only made that less practicable which was before illegal. So that I cannot go into arguments on the impoKcy of the law ; and, if I could, it would be sufficient to say that several attempts have been made to repeal this law in Parliament, where great characters have taken the lead, all of which have proved ineffectual. " Then the question is, What is the law ? The meaning of the Act is that, where there is the consent of a father, or guardian lawfully appointed, or of a mother, or guardian appointed by the Court of Chancery, the marriage shall be valid ; but here there was no consent by any one ; consequently, in my opiuion, it is void by the Marriage V. The Inha- Act. There is no reason to except illegitimate children ; nett 1 Durn & for they are withia the mischiefs intended to be remedied KsI'me. bytheAct''W. Lord stowell's 19. As regards the necessity of using the right name garding use of ^ if principle re- follows was expressed by Lord Chancellor Campbell : — dity^f^foreign "-^ foreign marriage, valid according to the law of the marriages. country where it is celebrated, is- good everywhere ; but that appKes only to the form, and not to the essentials of the contract, which depend on the lex doinicilii, that is, the law of the country where the parties are then domiciled, and in which they contemplate to reside. Hence, if a marriage abroad of English subjects domiciled here is contrary to OTir notions of public poKcy — for example, (T) Brook Y. polygamous or incestuous — this coimtrv will not recoenise ^roofc, 4 L.T., f "^^ . . •' ° H. ofL., 93. it, and will follow in that respect its own rules as to Baron Parke's incest and policy " (0- j ii mciple re- . . garding valid 40. The principle as to what constituted a valid marriage, marriage in , ii>-ii -i-i. • n case of dim. SO as to render a deiendant responsible m an action for ''°"- criminal conversation, previous to the Divorce Act of 1860 * » 23 & 24 Vict. , . c. a 44. and respecting the evidence of adultery required in such CIRCUMSTANCES CONSTITUTING A VAUD MARRIAGE. 181 ^ case, was laid down in tlie foUowiag terms by Mr. Baron Tit. XXXI. Parke : — "The mere proof of a contract by which the parties suppose themselves to be doing that which is su£Bcient to create that relation, which was not really so, is not enough. It must be proved to be reaUy a contract sufficient ac- cording to the law, at least sufficient in the first instance. It appears then that a marriage de facto is an actual marriage formally celebrated in all essential requisites, and that such a marriage is to be shown in actions for adultery on the part of the plaintiff. If this were not required, it might happen that the plaintiff might make a man responsible in a case where the act is done with the supposed wife, with the full intention on her part of quitting and rendering void that which was an invalid and void contract. If the marriage be such as is valid, until avoided by the proper ecclesiastical authorities, she could do no such thing, for she is bound by the obligation she has contracted, and her consent is wholly invalid, and the act of the defendant was an injury to the husband ; but if she be not the wife of the plaintiff at all, although the defendant may have committed an immoral act, it is not one properly injurious to the plaintiff, any more than to any other person. If there be no binding contract, the woman could at any time put an end to the connection with the plaintiff. It appears in Blackstone, in the case of a marriage under the age of consent, that the woman or man may afterwards disavow the espousals, and a second marriage is not unlawful ; and, on the same prin- ciple, the consent of the woman, in having connection with the defendant, ought to be treated as putting an end to the contract. Consequently, the act of the defendant under such circumstances does not make him a wrong-doer with respect to the plaintiff, and therefore it would be very reasonable to require, in such a case, that the husband in the action should establish a contract binding both himself and his wife ; the plaintiff must therefore show the fact of adultery during the continuance of that con- tract unavoided. Here the plaintiff has not shown such a 182 RELIGIOUS CEREMONIES IN MARRIAGE. Tit . XXXI . contract. It is quite consistent witli all tke facts Here proved, that tlie supposed wife of the plaintiff lias quitted him and gone to cohabit with the defendant, because, although at the time of the ceremony she intended to contract, and believed she did contract matrimony, she has since dis- covered that she made no contract binding on her on that occasion. If she married the defendant, she would not on this proof be guilty of bigamy; and, according to the authorities cited, the two cases depend upon the same principle. It may be proper to advert to a dictum in Buller's Nisi Prius, p. 28, that a marriage, according to any form of reKgion, is a marriage de facto ; and for this * BvJ. N. P. the case of Wookton v. Scott* before Denison, J., in 1753, is quoted. Whether this marriage of Anabaptists, before the Marriage Act, was vaKd, is one of those doubtful disputations pressed on the House of Lords in The Queen + 10 Cla. & v. Millis.-f The case before Denison, J., was probably upon a marriage prior to 1752, when all marriages were in the same condition. Both these marriages and Quakers', if valid at all, were vaKd as being formal marriages, and (m) Cather- Wal to all purposes " (m). 13 L. J., Ex., 336; S. C, 13 M. & W. 264. GUAKBIANS AND WARDS. 183 Tit. XXXII. XXXII. 5. GrUARDIANS, IN RELATION TO THEIR "WaRDS. 1. The object of the law in providing a guardian for a Primary lead- child, is to supply, as far as possible, more especially as "'^ ^""^ regards the civil necessities of such child, the want of the parent which he has lost. 2. With that view the law confides to the guardian the Consequential care both of the person and of the property of the child, g^pi™^ ^^^' in the same way that the parent, if liviag, would have been intrusted with it. And the law also gives the guardian the same authority and control over the child that the parent would have had. 3. All the requisite precautions, however, are adopted Eestrictive by the law to guard the child against any misconduct, or pri^cSle!^^ abuse of his powers, on the part of the guardian ; and the authority of the guardian, both over the person and the property of the ward, is strictly limited to the extent which the law deems necessary for the security and benefit of such ward. 4. Sir "William Blackstone lays it down that the relation Blackstone's of guardian and ward " is a kind of artificial parentage, ia regardln" order to supply the deficiency, whenever it happens^ of the guardianship. natural" (o). (o)lComm. b 1 c 14. The father and mother are the natural guardians of the ' ' ' children, both as regards their personal protection and the protection of their property, and are so considered by the common law (p). (p) lUd. Co. 5. Gruardianship, or tutelage, is defined by the civil law, p*. ' . ,' in the Institutions of Justinian, to be — the civil law " An authority and power given and permitted by the g^rdianship. civU law, and exercised over such independent persons who are unable, by reason of their age, to protect them- (q). (q)m.l, . . ... Tit 13 6. It is further laid down by the civil law, in regard to „ ' , ' ■^ _ _ ° _ Further prin- the reason and foundation of the principle of guardianship, ciple of civil law regarding or tutelage, that — guardianship. " It is agreeable to the law of nature that all such who 184 MISCONDUCT OF GUAEDIAN. Tit. XXXII. (r) Institutes of Just. Lib. 1, Tit. 21. Principle of guardianship in Code Napo- leon. (s) Liv. 1, Tit. 10, s. 8, 450. Principle of parental guardianship in Code Napo- leon. (i!) Liv. 1, Tit. 10, c. 2, s. 1, 389. (M)75irf.p.390. Principle re- garding in- juries by guardian to ward. Lord Hard- wicke's prin- cipleregarding power of Court of Chancery in relation to guardianship. are not arrived at puberty should be put under tutelage, to the intent that aU who are not adults may be under the government of proper persons " (r). 7. The Code Napoleon provides that "the tutor (or guardian) shall take care of the person of the minor, and shaU. represent him in all civil acts or transactions, and take care of his property as a good father of a family" (s). 8. In regard to the natural guardianship of the parents, the Code Napoleon provides that " the father, during his marriage, is the administrator (or guardian) of the personal property of his children who are minors " {t) ; and that, " after the dissolution of the marriage of one of the parents by death, either natural or civil, the tutorship (or guardian- ship) of the minor children who are infants, and who have not been emancipated, shall of right devolve on the survivor of the father and mother " (««). 9. In case of the conduct or proceedings of the guardian, whether natural or civil, being prejudicial to the interests of the minor as regards his property, such acts are in most cases voidable ; and, when they are not voidable, the guardian will be compelled to indemnify his ward to the extent of the injury which he has sustained. 10. As respects the general power of the Court of Chancery in regard to the guardianship of infants, and the protection of their persons and their property, the following principle was laid down by Lord Chancellor Hard- wicke : — " This Court hath the care and ordering of infants ; and though by Act of Parliament the Court of "Wards had a particular power over them and lunatics, yet in every other respect the law as to infants continued as before ; and, as the statute of 12 Car. II. c. 24, has dissolved the Court of "Wards and Liveries, the power of this Court over infants is resulted back to them again. The law of England is favourable to infants : no decree shall be had against them here, but what they may show cause against when they come of age. This Court will make strangers accountable to infants, in case they take upon them to receive the profits of their estates. This Court can also LORD HARDWICKE ON EQTJITY GUARDIANSHIP. 185 ascertain the quantum of an infant's maiatenance, and to Tit. XXXII. whom it shall be paid, and this is conclusive to all parties. " The allegation of faculties is a term ia the Ecclesias- tical Court, in regard to the ability of an infant to allow alimony, and is according to the quality of the person and the quantity of the maintenance. It is this makes them judges of the application of the maintenance, and encroaches upon the jurisdiction of thisCourt. Andfor whom have they now interposed ? For the benefit of a wife, who has in a scandalous manner inveigled an infant, and stolen him away from this Court. But though I cannot, upon a peti^ tion, prohibit the Ecclesiastical Court, yet I will restrain the wife from proceeding either upon the excommunication pronounced against the infant, or upon the excommim^ica- tion against the mother, the guardian of the infant ; for, as there is a certain sum allotted for his maintenance, the guardian is to be considered as very little more than the hand of this Court ; for if the guardian applies it to other purposes, it is a misapplication, and she would be liable to the censure of the Court " («). («) Sill v. 11. With regard to the appointment of the father to West's Eep. the guardianship of the child during: its minority, the doc- ' trmes here expressed were propounded byliordbtowell: — principle " This is a proceeding for divorce against a minor ; and m^rdi^fhip it is laid down in our books of practice, that a minor can- °^ father, not appear in person, but must appear by his guardian or curator ad litem lawfully assigned. " If a minor has no guardian or curator ad litem, and none can be assigned for the purpose of substantiating pro- ceedings against him, it must amount to a total denial of justice towards the other party, who complains of his con- duct, and who is, in this case, his wife, complaining of brutal and barbarous treatment, and praying the protection of the Court to be given to her, by a sentence releasing her from the necessity of cohabitation. Though he has no guardian, he has a father who is his natural guardian by the law of the land, who can bring actions on his behalf for injuries done to him, and is bound to maintain his child ; who may bring in this Court suits, on his behalf, 186 LORD STOWELL ON PARENTAL GUARDIANSHIP. Tit. XXXII. against the wife, of exactly the same nature with that which is now brought against his son. The minor has elected him his curator ad litem, and the father has refased, upon repeated applications, to accept the office, though offered to be protected from any expense that might be iacurred in the discharge of a paternal duty corresponding to the paternal privileges he enjoys ; and the son alleges that there is no other person who will accept the office. In this state of things, unless he can be assigned curator, this conse- quence must follow, that minority shall protect a man in the most outrageous treatment of his wife. His marriage, as a minor, does not take him out of his minority, nor out of the iacapacities of suing, or being sued, that belong to that state of minority. I have a right to suppose this to be a case of extreme oppression, that cries loudly for relief; and if this Court cannot appoiat the natural guardian to be the curator ad litem, this most dreadful of all doctrines iaevitably follows, that the unfortunate woman, who marries a minor, is doomed to continue under the most intolerable tyranny that can be exercised over a wife. Minority is to give total impunity. Other courts exercise a power of nominating officers of their own, or other proper persons, to be guardians for this purpose. But this Court neither has nor claims such power ; and, unless it can compel the natural guardian to perform his personal duty, there is a complete defeasance of all remedial justice. " Under this necessity, and to prevent that failure, I shall hold the father to be curator ad litem, and enforce the process for that purpose. It may be a new case ; be- cause fathers have been willing to stand forward in aid of justice, and in vindication of their sons. But it appears to be a case for which an urgent necessity calls upon the Court to provide, in the best manner that it can ; and I trust that I do not exceed the limits of my duty when I adopt the course which I propose; but, if it should appear otherwise, I trust it will be pointed out in what better mode this Court could, more rearularly, as well as {y) JBeaurame _° _ •' T. Beaurame, more effectually, have reached the justice of such a 1 Hagg. Con- » i \ sist. lip. 498. case (y). GUAEDIANSHIP OF LUNATICS. 187 12. On tlie subject of tlie appointment of guardians to Trr. XXXII. persons who are lunatics, Lord Stowell enunciated the fol- Lord stowell's , . . . , ■ principle lowing principle : — regardiag " I am not aware of any case which has occurred pre- ^junXos!^ cisely similar to the present ; it must therefore be decided, not on express authority, but on principle, or rules of analogy, drawn from other authorities, which are clear and imdisputed. The question resolves itself into two points : first, whether a lunatic is put out of the protection of the law ; and, secondly, if he is not, whether there is any other mode in which redress can be obtained. On the first there can be no doubt ; and it never can be asserted, that the wives of limatics should be universally released from the duties of their marriage vow. It would be an imputa- tion on the law of this covmtry, to suppose that it had not provided some remedy against such a mischief. Then in what way is this protection to be afforded ? It must be, I conceive, in the same way as in other cases, by the committee, who is the o£B.cer appointed by the Lord Chan- cellor to represent him, who is the guardian of all lunatics, and to whom the person, and estate, and family of the lunatic are intrusted. The lunatic cannot personally institute the suit, and therefore he must act by his ordinary guardian. It is true, as has been observed, that, in com- plicated matters, the committee ordinarily applies to the Lord Chancellor for authority to sue ; but I do not know that it would be advisable to promote a suit before the Lord Chancellor preparatory to proceedings of this nature. This Court has no authority over the committee to require that he should make an application to it. It is bound, I conceive, to receive his plea, when brought before it, as matter of right. On these grounds, and upon principle, the powers of the committee must be upheld, to protect the lunatic from the greatest of all possible injuries. "But looking further, to the rules of analogy which govern other cases of persons who, on account of disability, are allowed to sue by their guardian, as in the case of infants — how then does the case stand ? The committee also brings suits in other instances. In suits of nullity 188 LIABILITY OF GUARDIAN TO ACCOUNT. Tit. XXXir. Arches. 22nd Feb. 1790. (2) Parnell v. Parnell, 2 Hagg. Con- sist. Kep. 170. Lord Hard- wicke's prin- ciple regarding guardian's ac- counts with infant wards. (a) Morgan V. Morgan, 1 Atkyns, 488. Lord Broug- ham's prin- ciple respect- ing guardian.s acting profes- sionally. that power has been recognised and allowed. In the case of Fust V. Boicerman* the committee was permitted to pro- ceed: that was a stronger case. In these proceedings the wife can sustain no injury, as the limatic will have the power of condonation if he recovers, or he may stand on what has been done for him " (z). 13. With respect to the conduct of guardians, and the accounts between them and their infant wards. Lord Chancellor Hardwicke laid down the following rides : — " Where any person, whether a father or a stranger, enters upon the estate of an infant, and continues the possession, this Court wiU consider such person entering as a guardian to the infant, and wiU decree an account against him, and will carry on such account after the infancy is determined ; but, from the inconveniency of such long accounts, whenever it comes in proof that the infant, after being of age, has waived such account, this Court will lay hold of any such thing to put an end to it ; though, indeed, in the case of a father, the Court is not so strict, as imagining the parental authority might hinder the bringing any bill or ejectment to recover the posses- sion" {a). 14. As regards the case of guardians acting profes- sionally for, and in relation to the property of their wards, the principle which follows was propounded by Lord Chancellor Brougham : — "The rule, I think, cannot be laid down much more precisely than I have stated it : that, where the known and defined relation of attorney and client, guardian and ward, trustee and cestui que trust, exists, the conduct of the party benefited must be such as to sever the connection, 9,nd to place him in the same circumstances in which a mere stranger would have stood, giving him no advantage, save oidy whatever kindness or favour may have arisen out of the connection ; and that, where the only relation between the parties is that of friendly habits, or habitual reliance on advice and assistance, accompanied with partial employment in doing some sort of business, care must be taken that no undue advantage shall be made of the GUARDIANS ACTING PKOFESSIONALLY. 189 influence thus acquired. Tlie limits of natural, and often Tit. XXXII. unavoidable kindness, with its effects, and of undue influence exercised, or unfair advantage taken, cannot be more rigorously defined. Nor is it, perbaps, advisable tbat any strict rule should be laid down, any precise Kne drawn. If it were stated that certain acts should be the only tests of undue influence, or that certain thiags should be required in order to rebut the presumption of it, such as the calling in a third person, how easy would it be for cunning men to avoid the one, or protect themselves by means of the other, and so place their misdeeds beyond the denunciations of the law, and secure the fruits of them out of its reach. If any one should say that a rule is thus recognised which, from its vagueness, cannot be obeyed, because it cannot well be discerned, the answer is at hand. All men have the iuterpreter of it within their own breasts ; they know the extent of their influence, and are conscious whether or not they have taken advantage of it in a way which they would feel indignant that others similarly cir- cumstanced should do with regard to themselves " (h). (5) Hunter v. 15. The observations which follow were also made by ^ g^^en tao Lord Chancellor Brougham, while delivering judgment in i*^ ' ^' 9-' a case in which was involved the general principle of law Cas. 472. applicable to guardians and their wards, the transactions Lord Broug- between them, and the professional persons employed : — ciple regarding 7,. transactions " I take the rule to be this : there are certain relations between known to the law as attorney, guardian, trustee. If a ^dlVards. person standing in these relations to cUent, ward, cestui que trust, takes a gift, or makes a bargain, the proof lies upon him that he has dealt with the other party, the client, ward, cestui que trust, exactly as a stranger would have done, taking no advantage of his influence or knowledge, putting the other party on his guard, bringing everything to his knowledge which he himself knew. In short, the rule, rightly considered, is, that the person standing in such relation must, before he can take a gift, or even enter into a transaction, place himself in exactly the same position as a stranger would have been in ; so that he may gain no advantage whatever from his connection with the 190 TKANSACTIONS BETWEEN GUARDIANS AND WAKDS. Tit. XXXII. other party, beyond what may be the natural and un- avoidable consequence of kindness arising out of that con- nection. A cHent, for example, may naturally entertain a kindly feeling towards an attorney or solicitor by whose assistance he has long benefited ; and he may fairly and wisely desire to benefit him by a gift ; or, without such an intention being the predominating motive, he may wish to give him the advantage of a sale or a lease. No law that is tolerable among civilized men — men who have the benefits of civility, without the evils of excessive refinement and overdone subtlety — can ever forbid such a transaction, provided the client be of mature age and of sound mind, and there be nothing to show that deception was practised, or that the attorney or solicitor availed himself of his situation to withhold any knowledge, or to exercise any influence, hurtful to others, and advantageous to himself. In a word, standing in the relation in which he stands to the other party, the proof lies upon him (instead of lying, as it would do in the case of a stranger, on those who oppose him), that he has placed himseK in the position of a stranger ; that he has cut ofi", as it were, the connection which bound him to the party giving or contracting ; and that nothing has happened which might not have happened (c) Ibid. 466. J^ad no such connection subsisted" (c). Lord Broug- 16. The principle emmciated in the following extract ham's prin- . ciple regarding from another and later judgment by Lord Brougham, m fenerally. ^^ House of Lords, is applicable to the general law relating to guardians and their wards, as also to the particular case of the latter being domiciled in a foreign land, and beyond the jurisdiction of the courts of this country : — " Most of the authorities on the general law of Europe seem agreed that the guardian, validly appointed in any given country, has an authority for the protection of the ward, and the administration of his personal estate every- where, ex comitate; and the manifest convenience of this comitas, as well as the evident consideration that the appointment is eminently of a personal nature, appears to justify this position. The guardian is a substitute for the WARDS DOMICILED ABROAD. 191 parent, and the artificial relation resembling the natural. Tit. XXXII. from which it flows, ought surely to foUow the same analogies, and to extend everywhere with the person. Nor would it be easy to assign any reason why the court of a foreign country, in which the ward might chance to be temporarily resident, should refuse to recognise the tutorial relation, and the powers which it bestows, less than the parental relation, and the patri • 1 executors. rateljr, if they think fit ; but if a trust estate is to be sold, the trustees must all join in conveying, and also in the receipts. 12. The office of executor being a private one of trust, Principle re- named by the testator, and not by the law, the person of executor to nominated may refuse to act, although he cannot assign the office, except as, and, in the cases hereinafter mentioned. And even if in the lifetime of the testator he has agreed to accept the office, it is still in his power to recede (q). (q) Williams Nevertheless his refusal must not be merely verbal, but "^ "^^ °^^' it must be by some act entered or recorded in the Spiritual Court (r). (r) Ibid. 13. As regards the principle regulating the liability of Principle as to the executor for the loss of any of the trust property, it c^e oHoss. has been held that in the case of property being stolen from the possession of an executor, or from the possession of a third person, to whose custody it has been delivered by the executor, or where it is lost by casualty, as by accidental fire, the executor wUl not in equity be charged with such as assets (s). (s) ibid. And in certain cases, where a loss is occasioned by failure of bankers with whom money is deposited, the rule in equity is, that where the deposit was made from necessity, or con- formably to the common usages of mankind, the executor will not be responsible for the loss {t). (t) ibid. o 2 196 DISTINCTION BETWEEN EXECUTORS AND ADMINISTRATORS. Tit. XXXIII. Principle re- garding con- tinuation of executorship by new ex- ecutors. (u) 2 Black. Comm. b. 2, c. 32. Qualification as to preceding principle. (a;) Ibid. Principle as to diiference between ex- ecutors and ad- ministrators. (y) 1 Black. Oo7iim. b. 2, c. 32. Principle re- garding pur- chases by executors of sets. So also in the case of an attorney who has part of the trust funds in his hands becoming insolvent, the executor will not be chargeable if the business was transacted in the ordinarj'- manner, without any circumstances to show suspicion. 14. It is an established principle of law, as laid down by Sir William Blackstone, that " the interest vested in the executor by the will of the deceased may be continued and kept alive by the wiU of the same executor ; so that the executor of A.'s executor is to all intents and purposes the executor and representative of A. himself" (n). 15. It is, however, a further principle of law, as main- tained by the same authority, that " the executor of A.'s administrator, or the administrator of A.'s executor, is not the representative of A. For the power of an executor is founded upon the special confidence and actual appoint- ment of the deceased ; and such executor is therefore allowed to transmit that power to another in whom he has equal confidence. But the administrator of A. is merely the officer of the ordinary, prescribed to him by Act of Parliament, in whom the deceased has reposed no trust at all ; and therefore, on the death of that officer, it results back to the ordinary to appoint another" (a-). 16. In regard to the difference between the duties of the two offices of executor and administrator. Sir William Blackstone states that these in general are very much the same. in both, excepting that, first, "the executor is bound to perform a will, which an administrator is not, unless where a testament is annexed to his administration, and then he differs still less from an executor. And, secondly, that an executor may do many, acts before he proves the will, but an administrator may do nothing till letters of administration are issued : for the former derives his power from the will, and not from the probate ; the latter owes his entirely to the appointment of the ordinary " (y). 17. As regards the purchase by the executor of any part of the assets of the testator whom he represents, it has been decided that an executor will not be permitted, either immediately or by means of a trustee, to be the purchaser from himself of any part of such assets ; but he DUTIES AND LIABILITIES OF EXECUTORS. 197 will be considered in such a case as a trustee for the Tit. XXXIII. persons interested in the estate, and shall account for the utmost extent of advantage made by him of the subject so purchased (s). (z) HcM v. IDA 1 • m • 1 • 1 Hallet, 1 io. As to what transactions, enectmg a change m the Cox, 134. quality of the testator's estate, will subject an executor to Lord Hard- wickft's T)riii- a devastavit, the followiag principle was laid down by Lord ciple as to ChanceUor Hardwicke :- ™^^° " If an executor changes and alters the nature of a ^™™ change ° _ _ of estate. testator's estate, it has been insisted that this is a con- version by the executor, and that, as money has no ear- mark, you cannot follow it, but the executor by such transactions has made himself liable to a devastavit : now in general this rule is right ; but if an executor, for the benefit of the testator's estate, should invest part of it in the funds, or should transfer the money from one par- ticular stock, and invest them in another, this is not a conversion or appropriation by the executor of a testator's estate, but you may still follow it, as much as if it had continued in the same plight or condition as it stood in at the death of the testator ; for, in the nature of the thing itself, the executor could do no otherwise, where a testator's estate is standing out in the funds, for of course they wiU require to be varied and changed according to the circumstances of things" (a). {a) Waitev. 19. In regard to the general duties and liabilities of Atk. 159. ' executors, their responsibility for each other, and in what Lord Cotteu- cases a devastavit will be incurred by them for not properly cipleregarding investing the trust funds intrusted to their care, the iiab\iiti^ of principle which follows was expounded at length by Lord executors. Chancellor Cottenham : — " In Langford v. Gascoyne* Lord Eldon says, ' The rule " ^ Ves. 335. in all the cases is, that if an executor does any act by which money gets into the possession of another executor, the former is equally answerable with the other ; not, where an executor is merely passive, by not obstructing the other in receiving it. But if the one contributes in any way to enable the other to obtain possession, he is answerable, unless he can assign a sufEcient excuse.' In 198 EXECUTORS RESPONSIBLE FOR EACH OTHER. Tit. XXXIII. the reported cases the loss appears to have been of pro- perty received by the defaulting executor after the testa- tor's death, and not of a debt due from him before that event ; but this cannot furnish any distinction against the co-executor. In the latter case a debt due from an executor constitutes part of the assets, but the co-executor could not have had any control over it ; whereas he had the means of watching and, if necessary, of interfering with the receipt by the defaulting executor of assets, after the death. His being passive cannot be an immunity for him in the case of assets received, and not in the case of a debt retained ; but how is this immimity consistent with the admitted UabHity of aU executors for losses from negligence and inactivity in not calling in debts due to the estate ? Could passiveness be a protection in the case of property lost in the hands of a co-executor, but an offence in the case of property lost in the hands of other debtors to the estate ? The liability in the latter case arises from the soundest principle. If a person named executor does not choose to accept the office, he has only to renounce, or at least to abstain from proving. But if he proves, he thereby accepts the office, and becomes bound to perform the duties of it, and is liable for the consequences of his neglecting to perform them. Of these duties, a principal one is to call in and collect such parts of the estate as are not in a proper state of investment. If he knows, or has means of knowing, that part of the estate is not in a proper state of investment, but is held upon personal security only, and necessarily so for the purposes of the wiU, is it not part of the duty which he has undertaken, to interfere, and to take measures, if necessary, for putting such property in a proper state of investment ? Or is it no part of his duty because the property is in the hands of a co-executor, and not of any stranger to the estate ? It is impossible to find any prin- ciple for any such distinction, and so it appears to have been felt when the case arose, as it did in Mucklow v. * 1 Jao, 198. Fuller* before Lord Eldon, in 1821, in which Sir John Leach, as Yice- Chancellor, and Lord Eldon upon appeal, LIABILITY FOR LOSSES. 199 held FuUer, an executor who had proved, but had not Tit. XXXIII. acted, liable for a bond debt due from the other executor, Mucklow, before the testator's death, which had remained unpaid and was lost by his insolvency. It is true that in that case there was a specific bequest of the bond debt, which the will directed the executors to get in and place upon Government securities within three years, and to hold upon certain trusts ; and this was relied upon in argimient and not disregarded in the judgment, a distinc- tion appearing to be relied upon between the office of executor and trustee : but it does not appear to me that these circimistances prevent that case from involving the principle which must regulate the present. There cannot be one rule applicable to a portion of the estate given to the executors upon particular trusts, and another rule applicable to another part of the estate, constituting the residue, given to the executors for the general purposes of the will. In both cases the executors are trustees of the funds which they are to administer, for the purposes specified ; and their responsibility with respect to each of such funds must be the same. In Booth v. Booth* the * 1 Beav. 125. question arose before Lord Langdale, and he held the passive co-executor liable for property of the testator improperly left in the hands of the acting executor. Lincoln v. Wright,-^ before the same learned judge, was not t 4 Beav. 427. a case of a debt due from a party who was appointed executor, but of assets received by one of three executors and lost ; and the others were held liable, not upon the groimd of the defaulting trustee having through any act of theirs obtained possession of the property, but upon the simple fact of their having permitted the breach of trust, that is, their not having taken effectual measures to correct it and secure the property. From what I have already said, it will have been seen that I approve of the principle of these decisions, and that I cannot dis- cover any principle for distinguishing between losses by not calling in debts due from debtors to the estate, and balances due from executors. These cases establish that it is the duty of all executors to watch over, and, if 200 executor's responsibility for testator's acts. .Tit. XXXlll. necessary, to correct the conduct of each otter ; and the moment that principle is established all ground of dis- tinction between the two classes of cases ceases. Finding, therefore, a principle adopted and acted upon for many years and in many decisions, of the justice and grounds of which. I fully approve, I cannot feel any disposition to shake its authority because I cannot reconcile it with dicta and doctrines of a much earlier date respecting the security of an executor who is passive. I have discussed this case much more at large than any difficulty in it would seem to warrant, because I thought it material to draw the attention of those who may hold the office of executors, to the fact that they cannot safely rely upon what they may find in the earlier cases, laying it down that a devastavit by one of two executors shall not charge his companion, provided he has not iutentionally or otherwise contributed to it. The later authorities to which I have referred must show them that passiveness will in many cases furnish no protection, but that negligence and inattention, in not interfering with, and taking proper measures to prevent or correct, the improper conduct of their co- executors, may subject them to responsibilities from which the language of the earlier cases might lead them to suppose they were eSempt. The co-executors appear in this case to be free from any moral blame ; they derived no benefit, but have suffered much, from the breach of trust of Anthony Gruy ; but they knew that part of the testator's property remained in his hands, and that it was, therefore, not in a proper state of investment. They knew, therefore, that a breach of trust by him was actually in operation ; and, excepting some unprofitable applica- tions for accounts and a settlement, nothing was done by them to secure the property so known to them to be in (h) Stiles -v. peril" (b). Chan., 188. ' ^0. The principle regarding the responsibility of ex- Lord Stowell's ecutors for the acts of the testator whom they represent, responsibUity was expressed by Lord Stowell in the following terms : — fo/actTor "^^ ^^y' ™ particular cases, be very hard upon the testator. representatives of deceased persons that they should be EXECUTOR MISAPPROPEIATING MONEY OF TESTATOR. 201 called upon to answer for the actions of those who are Tit. XXXill. gone, and to make compensation for raisdeeds of which, perhaps, they never before heard the existence. Such, however, is the law, that parties who are representatives must frequently be responsible, at least to the extent of the property derived from those whom they represent. It may be observed, likewise, that here, as in other cases, the principal was not personally concerned in the act com- plained of — that he ^as not himself the wrong-doer ; but he cannot on that account only be discharged from respon- sibility. It frequently happens that persons must suffer for the misconduct of those whom they employ ; and in cases of this kind it is peculiarly proper that it should be so. Such a burden appears necessarily to arise from the tenure by which this kind of property is held. It is necessary for the honour and justice of the country that compensation should be made for the wrong which has been done, though at the expense of parties who may have been personally innocent " (c). (c) Nostra 21. The principle that an executor who himself, for his j^^oior^ own benefit, makes use of the money of the testator, or J, ^°^- Adm. ... . I'ep. 295. who neglects to invest it at interest, shall pay interest, for gir-vy. Grant's such money, was thus laid down by Sir W. Grant, M. E. :— P"nciple t^^at , . . executors " An executor is not charged with interest, except upon shall pay in- one of two grounds : either that he has made use of the of money of money himself, or that he has neglected to lay it out for *^^*^*'°"^- the benefit of the estate. There is always negligence. If the executor makes use of the money, he ought to pay the interest he made. He ought not to derive any advantage himself from the trust property. On the other hand, an executor may be, and is frequently, charged with interest, without any profit to himself. If his duty was to lay out, and procure profit to, the estate, and he neglected to do so, it is reasonable that he should indemnify the estate against the effect of that negligence. Complete indemnity is not obtained unless that interest is paid which might have been made. But that is not the principle upon which the Court proceeds. A rule has been laid down as to interest from which the Court does not depart without special 202 GIFTS BT TESTATOR TO EXECTJTOK. Tit. XXXIII. (d) Roclee v. Hart, 11 Ves. 59. SirW. Grant's principle re- specting gifts to executors. (c) Urquhart V. King, 7 Ves. 228. Lord Hard- wicke's prin- ciple as to difference of powers of executors and adminis- trators. reasons ; not for the general reason that more might have been made than mighty according to the rule, have been made ; for that exists in every possible case " {d). 22. The priaciple which regulates the question whether a gift to an executor is to be construed as made for his own absolute benefit, or intended only to vest the property in him as trustee, was thus explained by Sir W. Grrant, M. E. :— "It is true at law the appoiatment of an executor is a gift of everything not otherwise disposed of: but in equity it is always a question of intention, whether he is entitled beneficially or as trustee ; and the question always arises upon the sufficiency of the evidence by which the intention is made out. I apprehend the conclusion courts have drawn from the circumstance of a legacy to the executor was, perhaps, originally a stretch, and not very conclusive evidence of an intention that he should not take beneficially ; for undoubtedly there might be reasons for a legacy consistent with an iatention that the executor should take the whole. But they have reasoned it thus : that it is giving him part and the whole. That I do not think quite conclusive ; but it is now settled that it raises a presumption against him, which he is allowed to rebut by evidence of the real intention that he should take beneficially" (e). 23. The principle as regards the distinction between the powers of executors and those of administrators, together with the grounds for such distinction, and the authority of one executor to release a debt without the other joining in such release, while one administrator only is unable to do this, was thus expounded by Lord Chancellor Hard- wicke : — " I am of opinion that one administrator cannot release a debt or convey an interest so as to bind the other ; and that the case of an administrator differs from that of an executor. " It is certain that executors have such a power, and the reason is that each executor is considered as entirely repre- senting the testator. If an action is brought against joint COMPARATIVE POWERS OF ADMINISTRATORS AND EXECUTORS. 203 executors wlio plead different pleas, some books say that Tit. XXXIII. plea shall be received which is most for the benefit of the testator's effects, and this shows each executor may plead in right of his testator. " But the case of executors differs essentially from that of administrators : executors receive all their power and interest from the testator ; and though, before they can maintain an action, they must prove the will, yet the pro- bate is only a declaration of the proper court that they are executors, which by the law of Scotland is called con- firming the executors to the testator, and is the same in effect as is done here, and still the interest arises not from the probate, but from the testator ; therefore an executor may release a debt or assign a term before probate, and if after probate he sues for the same, the precedent act done by him may be pleaded ia bar : but not so of an adminis- trator ; for, upon an action brought by such an adminis- trator after letters of administration granted to him, his release or assignment will not bar him. If an executor appoints another to be his executor, and dies, such second executor shall be the immediate representative to the first testator ; but, on the death of an administrator, his whole interest determines, and administration de bonis non, &c., must be granted to another. " So if a creditor makes his debtor his executor, the debt is totally extinguished, and cannot be recovered, though the executor should afterwards die intestate, and adminis- tration de bonis non, &c., of the testator should be granted ; but if a debtor be appointed administrator, that is no extinguishment of the debt, but a suspension of the action, and his representation on his death would be chargeable at the suit of the administrator de bonis non, &c., of the first intestate.* These cases evince the dif- * Sallc. 299 ; ferent foundations on which the rights of executors and administrators depend; the power of the latter arising wholly from the ordinary, of the former from the testator. The right of an administrator is expressed so differently in the books, as if they were at a loss how to describe it. In 8 Co. 135 B., it is called an authority, because the admi- 204 TRUSTEES. Tit. XXXIV. * 2 Vern. 514. (/) Hudson V. Hudson, 1 West, 158. Hardwidce M.S.Wimpole. Principle re- garding snb- stitution of stranger for executor. (g) Walker V. Taylor, 4L. T., H. ofL., 845. nistrator has nothing to his own nse. In Vaugh. 182, it is with greater propriety called a private office of trust ; for it is more than a bare authority, and less than the interest of an executor, which seems to have been the foundation of Lord Cowper's opinion in the case oi Adams Y.Buckland."* (/). 24. In regard to the substitution in certain cases of a stranger, becomiug possessed of assets, for the executor himself, Lord Chancellor Westbury has expressly laid it down in a recent case, that, " where an executor parts with any portion of the assets of the testator, under such circumstances as that the purchaser must be reasonably taken to know that they were sold, not for the benefit of the estate, but for the executor's own benefit, the result is that the purchaser holds the assets as if he were himself, in respect of those assets, the executor " {g). Primary lead- ing principle. Regulative leading prin- ciple. Trustees.* 1. Where certain persons, from their position Or other circumstances, are unable, or disqualified, or are not deemed fit to manage and protect the property belonging to them, certain other individuals, who by moral character and ia- telligence appear to be qualified for this important duty, are selected and apporated to act for them, as their trustees, for this purpose, t 2. The persons thus chosen to protect the property of others should be, and are by law, required to take the same care of it that a reasonably cautious and sensible man would * See also Tit. XXXIII., "Executors and Adminibtrators. " + The following general principle concerning trusts is expressed in the Gentoo code : — "A man ought not to take upon himself the trust of another's property. If he accepts such trust, he must preserve it with care, and retui-n it upon the first demand." It is further provided that the trustee shall not he answcrahle for in- juries to the trust property in case his own was injured with it, or if it Avas spoiled by any unforeseen accident, or through ignorance ; — reasonable and just provisions, closely corresponding with those in our own code. — Chap. iv. OBLIGATIONS AND LIABILITIES OF TRUSTEES. 205 take of his own property ; but they are not called upon to Tit. XXXIV. do more than this. 3. When a trustee has been appointed, and refuses to Principle re- garding Mi- accept the trust, or to act, he must either release or dis- gation of claim. The Court of Chancery will not suffer the trust perform trust. to fail for want of a proper trustee. Therefore, in such case, the trustee referred to may be discharged, and another appointed (h). (h) Cruise * J. ^ ii 1 ,/.!• -Ow- Tit. 12, A trustee caimot, however, by any act oi his own, ^, 4, vol. 1. denude himself of that character, until he has performed his trust («'). (i) Chalmer Indeed, where trustees have once taken upon them- i'j_ & -w^. 'es. selves to act, it may be laid down as an invariable rule, that a full performance of all the trusts which have devolved upon them, will alone serve effectually and entirely to exonerate them from all liabilities iu relation to their duties. 4. The three great properties of a trust are, pernancy Principle as to of the profits, execution of estates, and defence of the land, of trusts. So that the Court of Chancery will compel trustees — 1. To permit cestui que trust to receive the rents and profits of the land. 2. To execute such conveyances as cestui que trust shall direct. 3. To defend the title of the land in any court of law or equity (k). W' 5. A cestui que trust has, however, no civil remedy vol. 1. ' ' against his trustee in the courts of law for a breach of trust, Principle as t . . . remedyagainst but he is obliged to resort to the courts of equity. "A trust trustees. is where there is such a confidence between the parties that no action at law wiU lie, but is merely a case for the Jardwicke consideration of this Court" (meaning the Court of C"., 2 Atk. Chancery) (1) . Principle as to 6. Trustees have all equal power, interest, and authority. ^^"S^*^ '^ They cannot act separately, but must all join, both in trustees. conveyances and in receipts. Where money is paid ^ to*12 only to one, he who receives will, in general, only be ''^ *> ™1- ^■ , , , , Principle as to accountable {m) . benefit to trus- 7. A trustee can in no case derive any benefit from the t^^s^^om trust trust. Nor have trustees any allowance for trouble, but (m) Cruise they are allowed all costs and expenses («). c_ 4^' y^j' ^ ' 206 RESPONSIBILITIES OF CO-TRUSTEES. Tit. XXXIV. Principle as to general and CO- liability of trustees. Principle as to inevitable losses by trustees. (o) Palmer v. Jones, 1 VeiTi. 143 ; Bart. Elts. Tracts. Principle as to liability for imaginary values. Principle as to the co-respon- sibility of co- trustees. (p) 1 P. Wms. 82, n. ; 3 Bro. Sep. 90. (g) Leigh v. Barry, 3 Atk. 584, n. I. (r) Bridg. Rep. 38 ; KebU V. Thompson, 3 Bro. C. C. m. (s) 2 Equ. Ah: 742. Principle of civil law re- garding trans- actions be- tween tutors and pupils. 8. Trustees are each of them individually liable to make good to the trust estate any injury or loss arising, not only from their own acts, but in many cases also from the acts of one another. And they are also liable in some cases for acts arising through the operation of the law. Moreover, the mere neglect to act, equally with the positive commission of acts, wUl in certaia instances occasion this Kability. 9. If a trustee is robbed of the money he received, he shall be allowed it on account, the robbery being proved, although the sum is only proved by his own oath, for he was to keep it but as his own. So also in the case of inevitable loss by fire, tempest, or shipwreck, where the trustees are not guilty of negligence by not insuring. And so iu the ease of the failure of bankers (o) . 10. The court will not in general, however, charge a trustee with imaginary values, but he shall be charged as a bailiff only ; for, although very supine negligence might, indeed, in some cases charge a trustee with more than he had received, yet the proof must then be very strong. 11. As regards the responsibility of co-trustees, the rule is that each shall be answerable for his own neglect or default only, and not be implicated in any act of his com- panion to which he was not fraudulently privy (p). It has therefore been held that, though they should all join in signing a receipt for the trust money, yet he alone shall be accountable for it who actually received it (q), unless the circumstance be tarnished by fraud or gross neglect on the part of the other trustee (r). But if one trustee directs the payment of the trust money over to the others, and joins in the deed, he charges and makes himself liable for the default of the other (-s) . 12. In regard to transactions or dealings between trustees and their cesfiiis que trust, the principle may be well exemplified by reference to the following rule, which was maintained by the civil law in relation to tutors and their pupils : — " A tutor, although he is subject to an action of tutelage, is not reckoned to be bound by any pact or agreement ; for between a tutor and his pupil there is no express contract. PURCHASES FROM CESTUI QUE TRUSTS. 207 But, although tutors are not subject to an action of mal- Tit. XXXIV. feasance, they are understood to be bound by an implied, or quasi contract ; and thus both tutor and pupil may bring actions reciprocally : the pupil m.ay bring a direct action of tutelage against his tutor ; and the tutor, if he has expended his own money in the affairs of his pupil, or has been bound for him, or has mortgaged his own pos- sessions to the creditors, is entitled to the action called contraria tutelcB " (t). (t) Just. Inst. 13. As a precautionary principle, and for the pre- 28, s. 2. vention of all fraudulent transactions of the foregoing Precautionary • -I n 1 / J principle as to nature, trustees are seldom permitted to purchase the trust purchase by estate, and the purchase is liable to be set aside, unless it ^^g/estate. is proved that there was no fraud. It is, however, laid down that the trustee for sale may be a purchaser in this sense, that he may contract with his cestui que trust that, with reference to the contract of purchase, they shall no longer stand in the relative situation of trustee and cestui que trust ; and the trustee having thereby proved that he had removed himself from the character of trustee, his purchase may be sustained (m). (u) Cruise 14. As regards the purchase by the trustee from the c.X vol! 1.' cestui que trust, there is, nevertheless, no actual or positive General prin- rule that a trustee to sell cannot be the purchaser ; but, jng purchase however fair the transaction, it must be subject to an trustmoDCT^ option in the cestui que trust, if he comes in a reasonable time, to have a resale, unless the trustee, to prevent that, purchases under an application to the Court (x). W Campbell -.^ rr,, . n •, ■ • •, '^- Walker, 15. Ihe precise rule regarding transactions between 5 Ves. 678. trustees and their cestuis que trust, more especially with Principle re- garding pur- respect to purchases made by the former of trust property chases by belonging to the latter, was thus fully and clearly explained cestuis que by Lord ChanceUor Eldon :— ""'*<• " The rule I take to be this ; not that a trustee cannot buy from his cestui que trust, but that he shall not buy from himself. If a trustee will so deal with his cestui que trust that the amount of the transaction shakes off the obligation that attaches upon him as trustee, then he may buy. If that case is rightly understood, it cannot lead to 208 POWER OF TRUSTEES TO GIVE RECEIPTS. Tit. XXXIV. much mistake. The true interpretation of what is there reported does not break in upon the law as to trustees. The rule is this : a trustee, who is intrusted to sell and manage for others, undertakes, in the same moment in which he becomes a trustee, not to manage for the benefit and advantage of himself. It does not preclude a new contract with those who have intrusted him. It does not preclude him from bargaining that he wiU no longer act as a trustee. The cestiiis que trust may, by a new contract, dismiss him from that character ; but even then that trans- action, by which they dismiss him, must, according to the rules of this Court, be watched with infinite and the most guarded jealousy ; and for this . reason, that the law supposes him to have acquired all the knowledge a trustee may acquire, which may be very useful to him, but the communication of which to the ce-^fui que trust the Court can never be sure he has made, when entering into the new contract, by which he is discharged. I disavow that interpretation of Lord Eosslyn's doctrine, that the trustee m^ust make advantage. I say, whether he makes advan- tage or not, if the connection does not satisfactorily appear to have been dissolved, it is in the choice of the ccfsfui que trusts, whether they will take back the property or not, if the trustee has made no advantage. It is founded upon this, that, though you may see in a particular case that he has not made advantage, it is utterly impossible to examine upon satisfactory evidence in the power of the Court, by which I mean in the power of the parties, in ninety-nine cases out of a hundred, whether he has made advantage or not. Suppose a trustee buys an estate, and by the knowledge acquired in that character discovers a valuable coal-mine under it, and, locking that up in his own breast, enters into a contract with the cestui que trmt : (v) Lacev ex ^^ ^® chooses to deny it, how can the Court try that against parte, 6 Ves. that denial ? The probability is, that a trustee who has Principle re- °^''® conceived such a purpose will never disclose it, and ?f trusteesTo'^ the cestui que trust vfi]l be effectually defrauded " {y). give receipts 16. The principle regarding the power of trustees for money. Sale to give a valid receipt and discharge for the purchase- FRAUDULENT CHAHGES AGAINST TRUSTEES. 209 money paid to them, and thereby to release the purchaser Tit. XXXIV. from all inquiry and further liability in respect of. such money, was thus expounded by Sir "W. Grrant, M. R. : — " There is no doubt that the trustees can give the defendant a complete legal title. The objection is, that if they misemploy the price, the purchaser may be called upon to pay the money over again — in other words, that the purchaser is bound to see to the application of the purchase-money. I think the doctrine upon that point has been carried further than any sound equitable principle wiU warrant. Where the act is a breach of duty in the trustee, it is very fit that those who deal with him should be affected by an act tending to defeat the trust, of which they have notice; but where the sale is made by the trustee in performance of his duty, it seems extraordinary that he should not be able to do what one should think incidental to the right exercise of his power ; that is, to give a valid discharge for the purchase-money" (s). (s) Balfour y. 17. It was recently observed by Lord ChanceUor West- veS.^^ bury, that " where fraudulent charges are made against Principle re- trustees, and inquiries into the truth of them are directed dSeat^harges by the Court, if, in the result, it is proved that such charges fS'^iy'st were unfounded, the costs consequent upon the investi- gation will be thrown upon the party making them " («). (a) BartUtt v. 18. As regards the withdrawal of a trustee from the gf^„ "'I l t. office which he holds, it has been held that a deed of ^®^- disclaimer is the best evidence of the renunciation of a gardSgre-^' trust : but the conduct of the party desirous of renouncing ninciation of ' J. ./ o trusteeships. a trust may amount to a disclaimer (6). (b) stacey v. Nevertheless, a trustee cannot by any act of his own ^K.'igs/' denude himself of that character until he has performed l^i« trust (0). _ _ WS-" 19. The principle which follows, in regard to the l J- & "W ■ 68. inability of trustees to relieve themselves from the respon- gardSg inabi- sibility of their trust by transferring it to persons of 1% of trastees whose responsibility they are not satisfied, and the extent trusteeship. and the limits of this principle, were thus explained by Lord Chancellor Westbury : — " I quite agree that trustees denuding themselves of VOL. I. P 210 RELEASE AND INDEMNITY. Tit. XXXIV. {d) Webster V. Le Sunt, Le Sunt v. Webster, 4 L. T. 723. Principle as to releases and indemnities to trustees. Principle re- garding re- leases to trus- tees where breachoftrust. (e) Parrant V. Blanchford, I De G. J. & S. 119. trust funds, if they do so under circumstances that warrant any reasonable belief of the insecurity of the trust funds in the hands of those to whom they commit them, shall not be considered in this Court as having validly discharged themselves of the custody of the trust funds, or released themselves from responsibility. The principle of the Court there can be no doubt about. The application of that principle is a different thing ; and, strict as the rule of the Court always must be in examining the conduct of trustees under such circumstances, I think it is the duty of the Court to protect them, unless there be a case proved by incontrovertible testimony of there being that negligence or misconduct, or, as here alleged, fraud, to justify the Court acting against them " {d). 20. A release and indemnity by a cestui que trust to a trustee, is valid as regards all the acts intended to be released from and indemnified against, of which the cestui que trust had knowledge, and on account of which he was willing to discharge his trustee ; but it extends no further than this, and not to any case of fraud or breach of trust unknown to the cestui que trust. 21. The correct principle applicable to breaches of trust, and as to the invalidity of releases given to trustees to protect them from responsibility ia cases of this descrip- tion, has been thus expounded by Lord Chancellor West- bury : — "Where a breach of trust has been committed from which a trustee alleges that he has been released, it is incumbent upon him to show that such release was given by the cestui que trust deliberately and advisedly, with full knowledge of aU the circumstances, and of his own rights and claims against the trustee ; for it is impossible to allow a trustee who has incurred personal liability, to deal with his cestui que trust for his own discharge upon any other ground than the obligation of giving the fullest informa- tion, and of showing that the cestui que trust was well acquainted with his own legal rights and claims, and gave the release freely and without pressure or undue influence of any description " (e). MASTERS AND SERVANTS. 211 Tit. XXXV. XXXV. — 8. Masters, — in relation to their Servants. 1. The relation between master and servant is based on Primary lead- a reciprocity of mutual obligations arising out of the "^^ P""cip e. mutual wants of each, which must necessarily exist, and be provided for, and regulated in a society or state the various members of which are very differently circumstanced as regards their possessions and their exigencies, and who are more or less mutually dependent one on another for the supply of their particular requirements. 2. On the part of the master, there is the want of assist- Declaratory ance and co-operation in carrying out those undertakings cipl™^ ^^"' in which the superior degree of possession and power en- joyed by him induce and capacitate him to en^ge. On the part of the servant, there is the want of maintenance and protection, arising out of the inferior degree of posses- sion and power enjoyed by the latter in comparison with the former. 3. The obligations arising out of this relationship are, on ilegulative the part of the servant, that he will render assistance to the prindpl"''^ master according as he requires it, and, as a necessary consequence, obedience also ; and, on the part of the master, that he will, in return, render fair and due remu- neration to the servant, in proportion to such service, and also afford him protection when needed. 4. The obKgations of the servant to assist and obey the Qualifying master extend, nevertheless, to such acts, and to such acts pr^cipie!^ only, as are lawful and reasonable in themselves, and not to any such as are unlawful and unreasonable. 5. The following principle is advanced by Puffendorf in Puffendorf s regard to the origin of the relation of master and servant, origS^of tHs" and the basis on which it is established : — relation. " The first rise of servitude is owing to the voluntary consent of the poorer and more helpless persons, and is founded upon that common form of contract, Do, ut facias; T • • ,..(/) ^Ci'tO of I promise to give you constant sustenance, upon condition you Nature and assist me with your constant work " (/). c. V°s"4. ' p 2 212 RESPONSIBILITY OF MASTERS. Tit. XXXV. Principle re- garding pre- sumption as to period of service. (g) Fawci'tt V. Cash, 3 Nev. &M.177. (A) Beeston V. CoUyer, 4 Bing. 300. Principle as to mode of effect- ing retainer of servant. (i) Bcestuii V. CoUyer, 4 Bing. 309. Consequential principle in- volving re- sponsibility of master for servant. Qc) Bac. Ahr. "Master and Servant," E. it) Chitty on Contr. 216. 6. In regard to the constitution of the contract for ser- vice, and the period for which it is intended to be con- tinued, it has been determined that a general hiring, in the absence of any custom to rebut the presumption, is to be presumed to have been a hiring for a year {g) ; and so on from year to year, for so long time as the parties should respectively please. And such an implied yearly hiring is not destroyed by the salary being paid monthly (A) . 7. As regards the mode of effecting the retainer of a servant, a contract for the hire and service of a servant, clerk, or an agent, need not be in writing unless the retainer is, by the terms of the bargain, to extend beyond a year, in which case a written agreement is necessary, in reference to the 4th section of the Stat, of Frauds, 29 Car. 2, c. 3. But it seems that hiring for a year, or an implied yearly hiring, need not be reduced into writing (/). 8. As a consequence of the connection thus established between them, the master becomes responsible for the acts of the servant done for the master, as though they were the master's own individual acts, and is himself liable to all the consequences arising from their commission. These acts, however, of the servant must be strictly within the scope of his employment as such, and this liability is grounded on the authority delegated by the master, ex- pressly or impliedly, to the servant [k). It is further to be observed that the responsibility for the act of a domestic servant does not rest on the circum- stance of the master being pater familias, but because the servants are of his own choosing. The master's assent must in all cases appear, either by express evidence thereof, or by the proof of facts from which the law raises an infer- ence that such assent was given [l).* * The principle which follows, wholly differing from our own, is that which prevails in the Gentoo law, with regard to the liability of the master, and the exemption from responsibility of the servant, for acts committed by the latter, at the command of the former. " If a servant, at the command of his master, commits theft, or murder, or any such crimes, in that case it is not the fault of the servant, the master only is guilty." — Oentoo Code, chap. ix. o. 1. Here, however, it is to be borne in mind that the authority of the master NEGLIGENCE OF SERVANT. 213 9. As regards tlie responsibility of the master for the Tit. XXXV. acts of the servant, negligence of the servant is held to be, Principle re- in many cases, that of the master, for which the latter is fponsibDity of responsible. Thus, in an action on the case for damages ™^ster lor ser- , vant s negli- occasioned by the negligence of the defendant, who was genoe. the master, in driving his carriage, it is suf&cient to show that the damage was occasioned by the negligence of his servant (m). im)£racker ^ ' V. Fromat, 10. But as the law will not suffer that, because a 6 T. K. 659. servant is depraved and acts wickedly, the master must gSatinglimit- necessarily be of the same character, especially where the ^^°'^ «* ™^s- „,,. T ter's respon- acts done by the servant do not arise out of the duties to be sibility. performed by him in that capacity, so it has been held that a master is not answerable for the wilful and ma- licious act of his servant (m). And a master is not liable for (») M'-Namus the wilful trespass of his servant (o). Nor is a master lEast, 106. liable for the nes-ligence of his servant, unless the servant (0)2 Roll. Abr. . . . 553, 1. 25. is at the time actually engaged in the business of his master (»). W Whitehall 11. If a master employs a servant to do an act which 20L. T.,C. B.' . . T. . 237 necessarily involves the committing a public nuisance, r, ji + ^ the master is Kable for damages sustained by a third person principle. from the negligence of the servant in doing the act (y). (?) BlUs v. ir. « n T 1 -T CI r- ii p ji The. Sheffield Vz. As the liability 01 the master lor the acts 01 the Gas Consumers servant arises from the consideration that these acts were £" t*q"b 84 done by the direction and for the benefit of the master, so. Further limit- when they are found to be contrary to his consent, and to ^er's respon- be injurious to him, the master's liability ceases. Thus, sibility. where one is employed by another to do work for him under the superintendence of his own servant, and the person em- ploj-^ed does something contrary to the directions of the superintendent, and thereby causes an injury, the employer is not liable (r) . (r) Steel v. South Easteni Railway Co. over the servant is absolute, and that the latter is not free to choose 25L. T.,C. B., whether he will obey or disobey his master's commands. 129. As regards injury to property while in the possession of servants, the principle of the Gentoo code, according with our own, is that "if the servant by his own fault occasions such injur}', he shall make it good ; but that if it arises from any event beyond the servant's control, he shall not be responsible, or liable to make it good." — Chap. ix. sect. J. The Yorh, Newcastle, and Berwiolc Railway Go. 214 INJURIES TO AND BY SEKVANTS. Tit. XXXV. 13. A master is not, in general, liable to an action at Principle as to the suit of Ms servant for injuries sustained in consequence liability of ^^f ^j^g negligence of a feUow-servant acting iu his master's master tor . . . injuries to service ; but the master would be liable if the servant guilty of negligence was not a person of ordinary skUl (s) HxdchinsoH and care (s) . The negligence of the servant, although contrary to the consent of, and to the injury of the master, must be con- 19 L. J., Ex., sidered to be the negligence of the master, who has the 296 ; 5 Exch. • p , • •, , ,-i ^ ^ Kep. 34.3. opportunity oi seiectmg sucn servants as are tne least likely to be guilty of such a fault. Besides, it may be presumed that ordinary persons will be guilty of negligence, although it cannot be presumed they will be guilty of wilful disobedience or direct violation, of duty. principle. 14. A master will be held liable iu damages for injuries done to a workman in his service, in the course of his employment, by a fellow-workman also in. the master's («) Dixon V. service {t). M. & P.' 353J 15. A master, however, does not guarantee his servant Scot ° ^^^ against accidents caused by the negligence or unskil fulness Restrictive of the feUow-servants with whom he is associated, or cases of this Warrant their competency. His duty is only to take all kind. jyg ^jj^ reasonable care to employ skilful and competent {u) Tarrant persons as Servants (u). V. Webb, 27 ^ , ' L. T., c. B., 16. A master is, nevertheless, liable for accidents occa- 202 „ ' . . sioned by his neglect towards those whom he employs principle. while they are engaged in his employment; but great latitude must be given to the phrase "engaged in his employment," eundo, morando, et redcundo ; and it makes not the slightest difference that, at the time of the accident, the servant was leaving his work without lawful excuse or {x) Marshall proper cause (x). V. Stewart, 25 1, \ ' L.T.,H.ofL., 17. The principle of law applicable to, and which regu- ■o Ti , , ^^t"^® ^D-^ determines, the liabiKty of the master for the acts Baron Parke s « , . ■ principle re- 01 his Servant, was thus explained by Mr. Baron Parke bilityofmas- '^^^^ great force and clearness, together with the limits aerrant'^"'' °^ ^^^'^^ ^^^ imposed OH such liability :— " Upon the principle that qui facit per ahum facit per se, the master is responsible for the acts of his servant ; and MASTER, WHEN EXONERATED. 215 that person is undoubtedly liable who stood in the relation Tit. XXXV. of master to the wrong-doer — he who had selected him as his servant, from the knowledge of or belief in his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey ; and whether such servant has been appointed by the master directly, or intermediately through the intervention of an agent authorized by him to appoint servants for him, can make no difference. "But the liability, by virtue of the principle of relation of master and servant, must cease where the relation itself ceases to exist ; and no other person than the master of such servant can be liable, — on the simple groimd that the servant is the servant of another, and his act the act of another ; consequently a third person entering into a con- tract with the master, which does not raise the relation of master and servant at all, is not thereby rendered liable ; and, to make such person liable, recourse must be had to a different and more extended principle,, namely, that a per- son is liable not only for the acts of his own servant, but for any injury which arises by the act of another person, in carrying into execution that which that other person has contracted to do for his benefit. That, however, is too large a position, as Lord Chief Justice Eyre says in the case of Bush v. Steinman,* and cannot be maintained to its * l l^os. & Pul. • • • '^^^■ full extent without overturmng some decisions, and pro- ducing consequences which would, as Lord Tenterden observes, ' shock the common sense of all men :' not merely would the hirer of a post-chaise, hackney-coach, or wherry on the Thames, be liable for the acts of the owners of those vehicles if they had the management of them, or their servants if they were managed by servants ; but the purchaser of an article at a shop, which he had ordered the shopman to bring home for him, might be made responsible for an injury committed by the shopman's carelessness whilst passing along the street. It is true that there are cases — for instance, that of .StfsA v. Sfeinmai), Sly V. JEdglei/,f and others, and perhaps among them may + 6 Exp. 6. be classed the recent case of Randleson v. MttrntyX — in ^gg 216 master's liability for servant's misconduct. Tit. XXXV. which the occupiers of land or buildings have been held responsible for acts of others than their servants, done upon, or near, or in respect of their property. But these cases are well distinguished by my brother Littledale, in *5 B. &. C. .547. his very able judgment in Laugher v. Pointer* "The rule of law may be, that where a man is in possession of fixed property, he must take care that his property is so used or managed that other persons are not injured ; and that, whether his property be managed by his own immediate servants, or by contractors with them, or their servants. Such injuries are in the nature of nuisances; but the same principle which applies to the personal occupation of land or houses by a man or his family, does not apply to personal movable chattels, which, in the ordinary conduct of the affairs of life, are intrusted to the care and management of others, who are ■not the servants of the owners, but who exercise employ- ments on their own account with respect to the care and management of goods for any persons who choose to intrust them with them. It is unnecessary to repeat at length the reasons given by my brother Littledale for this distinction, which appear to us to be quite satisfactory ; and the general proposition above referred to, upon which only can the defendants be liable for the acts of persons who are (y) Quarmccn not their servants, seems to us to be untenable" (y). ^iwihlr^Q lT ^^- '^^^ principle of law in regard to the liability of the "k'r^k M^i master for the negligence and certain other wrongful acts W. 499. of his servant, his obligation to afford compensation for Baioii Parke's ^j^g injury that has been sustained, and the proper form of principle re- _ ■" •' ■*■ -^ gardiiig lia- action to be resorted to for this purpose, was laid down by bility of mas- -n/r -n -n i • i /> n • ter for negli- -"•'-r. xiaron I'arke m the loLlowmg terms : — vantand fonn " ^^® ^^ ^^ "^^^ established, on the one hand, that of action whenever the injury done to the plaintiff results from the proper. . . •> -^ i ^ immediate force of the defendant himself, whether in- tentionally or not, the plaintiff may bring an action of trespass; on the other, that if the act be that of the servant, and be negligent, not wilful, case is the only remedy against the master. The maxim Qui facit per alium facit per se renders the master liable for all the WANT OF CARE OB, SKILL. 217 negligent acts of the servant in the course of his employ- Tit. XXXV. ment ; but that liability does not make the direct act of the servant the direct act of the master. Trespass will not lie against him, case will, in effect, for em- ploying a careless servant, but not trespass, unless, as was said by the Court in Morky v. Gaisford,* the act * 2 H. Black, was done ' by his command ;' that is, unless either the particular act which constitutes the trespass is ordered to be done by the principal, or some act which comprises it, or some act which leads by a physical necessity to the act complaiaed of. The former is the case when one, as ser- vant, is ordered to enter a close to try a right or otherwise ; the latter, when such a case occurs as Gregory v. Piper,^ + 9 B. & c. where the rubbish ordered to be removed, from a natural necessity fell on the plaintiff's soil ; but when the act is that of the servant in performiag his duty to his master, the rule of law we consider to be, that case is the only remedy against the master, and then only is maiatainable when the act is negligent or improper; and this rule applies to all cases where the carriage or cattle of a master is placed in the care and under the management of a servant, a rational agent. The agent's direct act or tres- pass is not the direct act 6f the master. Each blow of the whip, whether skilfid and careful or not, is not the blow of the master, it is the voluntary act of the servant ; nor can it, we think, be reasonably said that all the acts done in the skilful and careful conduct of the carriage are those of the master, for which he is responsible in an action of trespass, to the same extent as if he had given them him- self, because he has impliedly ordered them; but those that were careless and unskilful were not, for he has given no order, except to use skill and care. Our opinion is, that in aU cases where a master gives the direction and control over a carriage, or animal, or chattel, to another rational agent, the master is only responsible in an action on the case for want of skill or care of the agent — no more ; consequently this action cannot be supported. We should observe that, though the master in this case is taken to have ordered the driver of the engine to proceed at a great 218 GEiSERAL PRINCIPLE REGARDING RESPONSIBILITY. Tit. XXXV. *9B.&C. 591. t 4 Ex. Rep. 365. (z) Sharrod v. TJie London andN. -western Eailway Co. 20 L. J. 187. Mr. Justice Mellor's prin- ciple regard- ing respon- sibility of mas- ters for acts of servants. speed, it did not follow as a necessary consequence that it would impiage on tlie plaiatiff's cattle. It might not have happened if the driver had seen the cattle sooner, or the cattle had heard the engine and got out of the way. The act, therefore, cannot he treated as a trespass on the ground that it was by necessary implication ordered to be done by the defendants, the principle on which the case of Gregory v. Piper'* was decided. This is the simple case of an act done by the servant in the course of his employ- ment, not specifically ordered by the master ; and though the injury by such an act be direct so far as relates to the servant, we have recently held that a master would not be responsible in trespass — Gorelon v. Rolt"\ (z). 19. The general principle with regard to the responsi- bihty of masters for the acts of their servants, was thus lucidly expounded in a recent case at Nisi Prius by Mr. Justice MeUor : — " If a master is to be made responsible under all circum- stances, it would be a very dangerous thing to be a master. No doubt, under many circumstances, the master is re- sponsible for damage done by his servants, because he has the power of selecting them ; but it has been established by a multitude of cases that a sefvant cannot maintain an action agaiust a master for an injury resultiag from the carelessness or negligence of a fellow-servant. And you will see the principle upon which this goes. The principle is this : that a servant, when he engages to serve a master, undertakes to run all the ordinary risks of the service, which include the negligence of other servants. The master does not warrant to the man he engages that he wiU be responsible for the neghgence of all his servants. But if a master who is engaged in undertakings of this description negligently selects or chooses an incompetent servant, and gives him the general superintendence of the particular work, and the power of giving directions how it is to be carried out, the master is responsible if an injury happens to another servant in the course of his employ- ment, through the negligence or incompetence of the servant so selected. If the master intrusts the direction AUTHORITIES, GENERAL AND SPECIAL. 219 to a foreman or a manager — and in many cases it is Tit. XXXV. impossible for a master to be personally attentive to, or cognizant of, aU tbat takes place — ^therefore, if he gives tbe superintendence of the work to a competent foreman, and gives him power to give directions, and does nothing more himself than generally look and see how the work is going on, that is not such an interference as will make a master liable : the mere encouragement to go on with the work is not enough. The interference that wiU make the master liable is that which supersedes the authority given to the servant " (a). («) Sullivan 20. If the servant be accredited and invested by his Booth, Leahy master with a general discretion and authority to act jj p^sittujcs generally for him in his affairs, or, in other words, be a May, 1863. general agent, so that the public cannot discriminate what where^ervant are, in any particular case, within the general scope of the "i^ested with agent's powers, the wishes and directions of the master, authority. th'e latter is liable, although his orders be violated. In such case the master, having, for his own convenience, induced the public to consider that his servant is possessed of general powers to act for him, is not permitted to delude by suddenly withholding such general authority, and con- fining it within prescribed limits, where, from his pre- vious conduct, a continuance of a general discretion in the agent might reasonably be presumed (&). (J) Ghitty on, 21. Where, however, the servant had never before been „„ ' ' _ _ _ where servant employed, and is retained only for a partictdar purpose — invested with in other words, is a special agent — he is invested with a authority limited power ; and it is the duty of persons dealing with °'^^' such agent to ascertain the extent of his authority ; and the principal or master is not bound by any act of the agent not warranted expressly, or by fair and necessary implication, by the terms of the authority delegated to him (c). (c) lUd. 22. Whether the servant be invested with a general or Restrictive special authority, the master is not bound if the servant's regard*to^ act or contract do not" fall within the general purview or autliority of scope of his powers, and be wholly unconnected with the business intrusted to his direction. 220 FORFEITURE OF WAGES, AND DISCHARGE. Tit. XXXV. Principle re- garding main tenance of the contract. (d) jRobinson V. Hiiyjman, 3 Esp. 234. Discontinu- ance of con- tract by mis- conduct of servant. («) lUd. Forfeiture of wages hy mis- conduct. (/) CMtty on Contr. 579. What consti- tutes cause of discharge. (g) Callo V. Brouiickcr, 4 C. & P. 618. Misconduct justifying discharge. Qi) Rose. N. P. 263. Collateral principle. (i) Wilhtts V. Qreen and another, 3 C. & E. 59, per Alderson, B. Sickness no determination of contract. 23. As tHe connectioii thus established is based on a reciprocity, both of benefit and of obligation, between the parties, so the law will not allow it to be severed by either party without just cause. Hence, if a master turns away his domestic servant without previous notice, and there was no fault or misconduct in the servant to warrant.it, he is entitled to a month's wages, although no express con- tract to that effect were made {d). 24. But if a servant misconducts himself, as by wilfully disobeying orders, he may be discharged, without warning, before the expiration of the period for which he was hired, and is not entitled to any wages from the day he is so discharged, if they had not then accrued due (e). 25. Where the payment of wages by the master to the servant is to be quarterly, or yearly, or at fixed periods, and the servant improperly leaves his master, or is g^uilty of misconduct, during the currency of such quarter, it seems that he is not entitled to wages for any part of such quarter, even to the day he quits, as there can be no apportion- ment of an entire sum under such circumstances (/) . 26. In order to justify the immediate discharge of a yearly servant, there must be proved against him moral misconduct, pecuniary or otherwise, wilful disobedience, or habitual neglect [g). 27. If a servant misconducts himself, the master may turn him away without any warniug ; and in such case the misbehaviour is a forfeiture of the accruing wages, even though the master has recovered damages against him for his misconduct {h). 28. If an employer discharges his servant, and at the time of the discharge a good cause of discharge in fact exists, the employer is justified in discharging the servant, although at the time of the discharge the employer did not know of that cause (/). 29. Incapacity by reason of sickness is not a deter- miaation of the contract of service, nor wUl it justify dismissal without a regular notice; yet disability to perform his duty will prevent a servant from recovering wages where the agreement is not for any specific term. CAUSES OF DISMISSAL. 221 but only for so much, as the services of the plaintiff are Tit. XXXV. worth (k). (fc) Bayley 30. As to what constitutes a sufficient reason for the dis- i'm.&W. 506. charge of a servant by a master, and the mode in which Lord Holt's correction ought to be administered by a master to a servant, cause of dis- when necessary, the principle which follows was laid down ^ode^of cor- by Lord Chief Justice Holt : — rection of . servant. "The refusing to deuver a key by a servant to his master, who had a design to discharge him, is no provoca- tion ; and if a master gives correction to his servant, it ought to be with a proper instrument, as a cudgel, &c. And then if by accident a blow gives death, this would be but manslaughter. The same law of a schoolmaster. But a sword is not a proper instrument for correction, and the cruelty of the cut will make a malice implied " (I).* (0 ^- v- ^^ite, 31. In regard to the grounds on which the dismissal of i44. a servant may be legally justified, it was laid down by ^°^^, ^^'}' . •> ^ •' •> ' J man s pnnci- Lord Denman, C. J., that — pie regarding " "Where a justifiable cause of dismissal exists, it is dismissal of sufficient to prevent the servant recovering wages, though ^^^"^^'i*- the servant might not in fact have been dismissed upon that ground ; and it is not necessary that the cause relied on in answer to an action for wages should have been stated at the time of dismissal " (m). (m) Ridgwmj 32. In the extract which follows from one of his judg- \^^'^ai"^ ments, Mr. Baron Parke explains with his usual perspicuity ^ ^^^- ^ ^• the principle of law applicable to the determination of paron Parke's contracts for service, and in what cases the contract will principle as to determination be put an end to by the misconduct of the servant in dis- of contract by - . ,1 1 « . 1 . disobedience obeying the orders oi tne master : — of servant. " In the case of a domestic servant, the contract is to serve for a year, the service to be determined by a month's warning, or by payment of a month's wages. That is subject to the implied condition that the servant will obey the lawful orders of her master. * The principle of tbe Gentoo law in regard to the liberty allowed to the master of correcting his servants, as also his pupils, wife, children, and younger brothers, is that he may do it with moderation, and in such a manner that no dangerous injury may be thereby inflicted. —ffentoo Code, chap.xvi. s. 1. 222 DETERMINATION OF CONTRACT. Tit. XXXV. " In the case of Spain v. Arnott* Lord Ellenborough * stark, N. P. ruled, that if a servant refuse to obey his master's orders, t 1 Per. & t^6 latter is justified in dismissing him. Amor v. Fearon^^ Dav. 398. confirmed that doctrine ; and it is, therefore, clear that where a servant wilfully disobeys his master's orders, there is a lawful cause of dismissal. This plea discloses the particulars of such disobedience ; namely, that the plaintiff requested the defendant's permission to be absent for a night, which the defendant refused, and that against his consent the plaintiff absented herself. Now that is ample to justify the defendant in putting an end to the contract ; and then comes the question whether the replication shows that the plaintiff had any sufficient ground for disobeying her master's orders. Now the master is the person who is to regulate the conduct of his servants as to the times of their going out and coming in, and therefore I think this replication does not disclose any sufficient excuse for the conduct stated in the plea. Even had the replication averred that the fact of the plaintiff's mother being in a state of extreme danger had been communicated to her, and the defendant had been so unkind as to refuse the plaintiff permission to visit her, stiU that would not have justified a disobedience of her master's orders. And, more- over, there is nothing to show that the defendant had any {n) Turner notice or knowledge of the mother's illness " (n). V. Mason, 14 ° _ _ ^ ' L.J.,Ex.,3i2. 33. As regards the determination of contracts for Principle as to service between masters and servants, it has been held aetermmation _ _ ' of period of that a general hiring for a year, and so on, particu- larly of clerks and respectable servants, can only be put an end to at the end of the current year, where no misconduct (o) Beestmi is imputed (o). V. Oollyer, „- . , 4 Bing. 309. 34. As the master cannot terminate the contract of ser- Further prin- yice without iust cause, so neither, on the other hand, can ciple regard- . ing continu- the Servant do so, and quit the service of his master, without contract. ^^ adequate justification, but is liable to punishment for so doing. of te™?nitk>n ^^' ^'^^^ ^^ *^® P^''* °^ *^^ master towards the servant of contract by which endanger his life or his personal safety or well- being, or the preservation of chastity in the case of a PRINCIPAL AND AGENT. 223 female servant, or the command to do acts which, are un- Tit. XXXVI. lawful, alone justify the sudden termination of the contract of service by the servant. 36. Dishonesty in a servant towards his master, which Principle as to 1 •! /> 1 1 ■ n ^ punisliment of must be necessarily fatal to the contmuance of the contract, dishonesty. as destroying that mutual confidence which is essential to its support, is criminally punishable by particular statutes; as are other offences committed by servants towards their masters, and peculiarly distinguished as such. 37. The same protection is afforded to a servant against Principle as to improper treatment by his master, as is extended towards protection all ordinary persons against injury of a like nature and ^^^^^ "^ ^ as is afforded to the master against any wrong done to him by the servant. XXXVI. 9. Principals, — in relation to their Agents. 1. In certain cases, and for certain purposes, it is occa- Primary lead- sionaUy deemed requisite that the acts which a person ^^ pi^^cip e. desires to have performed, should be effected for him by some other person, instead of his doing them himself ; which other person is styled the agent, as the one for whom the act is performed is termed the principal. 2. For the purposes here mentioned, it is required that all Consequential the powers possessed by the principal should be by him principle, delegated to and vested in the agent, so far at least as this is essential in order to completely constitute such agency. 3. It is necessary, however, in all cases of this kind, that Qualifying certain specific restraints on the authority of the agent principle. should be imposed, so that acts be on no account done by the agent which were not strictly within the scope of his authority as such agent, which the principal did not intend to have performed, or the performance of which he is not prepared to sanction. 4. The just limit of the power of the agent may be Eegulative determined to extend to whatever is necessary for fully princMe!'*^ carrying out the authority of his principal for the precise 224 AGENT, HOW APPOINTED. Tit. XXXVI. Eegulatire principle re- garding trans- actions be- tween prin- cipal and agent. principle re- garding trans- actions witli strangers. Constructive elementary principle. (p) Chitty on Cmitr. 216. Principle re- specting law- fulness of delegated act. (q) Lord Bacon's Maxims, Eeg. 16. Principle as to requisites of appointment of agent, (r) Stat. 29 Car. 2, e. 3. Chitty on Conir. 210. Principle as to implied autho- rity. (s) Ch. Contr. 211. Principle as to revocation of authority. (0 Walsh V. Whitcomb, 2 Esp. 565. General prin- ciple of civil law regarding principals and agents. purposes intended ; but it should in no case, in any degree, extend beyond that limit. 5. Every possible and necessary protection against encroachment, fraud, and abuse should be afforded to both the parties in this undertaking, alike as regards their transactions with one another and with third parties or strangers. 6. A corresponding degree of protection should also be afforded to third parties or strangers carrying on transac- tions with them, particularly as regards the existence and extent of the power and authority of the agent to act for, and to bind his principal. 7. The general construction of the contract should in all cases tend to restrain rather than to extend the authority of the agent. Hence the principal is only responsible for acts of the agent strictly within the scope of the authority given to him, and of the employment in which he is engaged {p). 8. The authority of the principal does not justify illegal acts ; and for the commission of these both the principal and his agent are criminally responsible [q). 9. It is not necessary that the appointment of an agent should be in writing ; but he may be authorized to act, and ma,y be appointed by parol. Writing is not necessary to empower him to act, even for the purposes described in the Statute of Frauds (r). 10. In some instances an authority may be implied from the acts of a party, although no authority was in fact ever given (s). 11. A bare authority is revocable by the party who con- ferred it, at any time before it has been executed ; but, if there be an interest coupled with the authority — ^that is, if the party receiving the authority acquire with it a beneficial and valuable personal interest in the subject- matter, or in the execution of the act which he is autho- rized to perform — the power granted cannot be counter- manded (<). 12. The following is the general principle adopted by the civil law in regard to principals and agents, and which RIGHT OF ACTION BY PRINCIPAL. 225 is mainly, if not entirely, recognised by the law of Tit, xxxvi. England : — "When one person transacts the business of another who is absent, they reciprocally obtain a right to certain actions, called actiones negotiorum gestorum ; i.e., actions on account of business done: and it is manifest that these can arise from no proper or regular contract; for they take place only when one man assumes the care of the affairs of another without a mandate : and, in this case, those persons for whom busiaess is transacted are always bound without their knowledge ; and this is permitted for the public good, because the business of those who are absent in a foreign country, and have not committed the administration of their affairs to any particular person, would otherwise be totally neglected ; for no man would take this care upon himself if he could not afterwards bring an action to recover what he had expended. But, as the principal is bound to reimburse the agent who has negotiated his affairs properly, so is the agent boimd to render a just account of his administration to his principal. And an agent, in this case, is obliged to use the most exact diligence; for it will not suffice, although he proves that he has taken the same care of the affairs of his principal which he usually took of his own, if it can by any means appear that a more diligent man could have acted with greater advantage to his principal" («.). I^VS^^s^'^' 13. The rule maintained by the civil law in regard Principle of to the right of action by the principal for any matters ^,111^™^. transacted by the aarent, was as follows : — . ceedings for , . . -. acts of agents. " If any business is negotiated by a slave [or servant] (servo), who acts by the command of his master, the praetor wiU. give an action against the master for the whole value of the transaction; for whoever thus contracts is presumed to have done it in a confidence in (x) Inst. Lib. the master (x). 4, Tit. 7. 14. The principle laid down by Puffendorf, with respect Puft'endorf'a '■ '■ '' _ . pnnciple in to the nature and extent of the authority of an agent, is that regard to the agent is " to be looked upon as a kind of instrumental agent." ' " VOL. I. Q 226 CONSTITUTION AND PROOF OF AGENCY. Tit. XXXVI. cause, inasmucli as lie not only does all by another's authority, but likewise acquires no proper rigbt, brings no obligation on himself, referring to the person with whom he is appointed to treat ; but obtains a right only for the person who has employed him ; and to him, indeed, he stands under an obKgation to manage his concerns with {y) Law of honesty and faithfulness " {y). Nature and i ir a i j t • i j_ Nations \>. 3 !"• -^ regards the circumstances necessary to con- u. 7, s. 1. stitute an agency, and the proof required of this fact, worth's prin- the following principle has been laid down by Lord cipleregarding r;„„„_„„|V ._ constitution ^^ranworm . — and proof of a j^q q-^q p^^ become the agent of another person except agency. _ ° _ -^ _ by the will of that other person. His wiU may be mani- fested ia writing or orally, or simply by placing another in a situation in which, according to ordinary rules of law — or perhaps it would be more correct to say, according to the ordinary usages of mankind — ^that other is understood to represent and act for the person who has so placed him ; but in every case it is only by the will of the employer that an agency can be created. This proposition, however, is not at variance with the doctrine that where one has so acted as from his conduct to lead another to believe that he has appointed some one to act as his agent, and knows that that other person is about to act on that behalf, then, unless he interposes, he wUl, in general, be estoppal from disputing his agency, though in fact no agency really existed. It is, however, necessary to bear in mind the difference between this agency by estoppal, if I may so designate it, and a real agency, however constituted. " Another proposition to be kept constantly in view is, that the burden of proof is on the person dealing with any one as agent, through whom he seeks to charge another as principal. He must show that the agency did exist, and that the agent had the authority he assumed to exercise, or otherwise that the principal is estopped from disputing it. Unless this principle is strictly acted on, great in- justice may be the consequence ; for any one dealing with a person assuming to act as agent for another, can always principal's liability for agent. 227 save himself from loss or difficulty by applying to the Tit. XXXVI . alleged principal to learn wlietlier the agency does exist, and to what extent. The alleged principal has no similar mode of protecting his interests : he may be ignorant of the fact that any one is assuming to act for him, or that persons are proposing to deal with another, under the notion that that other is his agent. It is, therefore, im- portant to recollect constantly where the burden of proof Hes'Vs). (z) Foley. 16. In relation to the question of the proper constitution (s. s.), H. of of agency by the principal, and the liability of the princi- ' ' pal for the acts of his agent, the doctriae which follows was B. 's, principle established by Chief Baron Pollock : — tion of agency " The question in all cases in which the plaintiff seeks ^f "^rincf af to fix the defendant with liability upon a contract, express or implied, is, whether such contract was made by the defendant, by himself or his agent, with the plaintiff or his agent ; and this is a question of fact for the decision of the jury upon the evidence before them. The plaintiff, on whom the burthen of proof lies, in aU these cases, must, in order to recover against the defendant, show that he (the defendant) contracted expressly or impliedly: ex- pressly, by making a contract with the plaintiff; impliedly, by giving an order to him under such circumstances as show that it was not to be gratuitously executed : and if the contract was not made by the defendant personally, it must be proved that it was made by an agent of the defendant properly authorized, and that it was made as his contract The agency may be constituted by an express limited authority to make such a contract, or a larger authority to make all falling within the class of description to which it belongs, or a general authority to make any ; or it may be proved by showing that such a relation existed between the parties as by law would create the authority ; as, for instance, that of partners, by which relation, when complete, one becomes by law the agent of the other, for all purposes necessary for carrying on their particular partnership, whether general or special, or usually belonging to it ; or the relation of husband and Q 2 228 LOBD ERSKINE ON PRINCIPAL AND AGENT. Tit. XXXVI. wife, in whicli the law, under certain circumstances, con- siders the husband to make his wife an agent. In all these cases, if the agent in making the contract acts on that authority, the principal is bound by the contract, and the agent's contract is his contract, but not otherwise. This agency may be created by the immediate act of the party ; that is, by really giving the authority to the agent, or representing to him. that he is to hare it, or by con- stituting that relation to which the law attaches agency ; or it may be created by the representation of the defend- ant to the plaintiff, that the party making the contract is the affent of the defendant, or that such relation exists as to constitute him such ; and if the plaintiff really makes the contract on the faith of the defendant's representation, the defendant is bound, he is estopped from disputing the truth of it with respect to that contract ; and the repre- sentation of an authority is, quoad hoc, precisely the same as a real authority given by the defendant to the supposed agent. This representation may be made directly to the plaintiff, or made publicly, so that it may be inferred to have reached him ; and may be made by words and («) Reynelly. conduct" (a). Lewis, Wyld ^ ' V. HopUiis, 17. The general rule of law as to the responsibility of 15 M & W . . 517. ■ ' the principal for the acts of his agent, and the mode of its LordErskine's application, were thus lucidly explained, and forcibly illus- garding re- trated, by Lord Erskine : — Mts'of'igent!'^ "No rule of law is better ascertained, or stands upon a stronger foundation, than this ; that, where an agent names his principal, the principal is responsible, not the agent ; but, for the application of that rule, the agent must name his principal as the person to be responsible. In the com- mon case of an upholsterer employed to famish a house ; dealing himself in only one branch of business, he applies . to other persons to furnish those articles in which he does not deal. Those persons know the house is mine ; that is expressly stated to them ; but it does not follow that I, though the person to have the enjoyment of the articles furnished, am responsible. Suppose another case. A person instructs an attorney to bring an action, LOKD TENTERDllN ON PKINCIPAL AND AGENT. 229 •who employs his own stationer, generally employed by Tit. XXXVI. him. Tlie client has nothing to do with the stationer if the attorney becomes insolvent. The client pays the attorney. The stationer, therefore, has no remedy agaiast the client " (b). (b) ffartop ex 18. Lord Tenterden, C. J., laid down the following rule Ju^. 352. with regard to the liability of a principal for the acts of Lord Tenter- his agent, explaining at the same time the limits imposed regarding lia- on such rule :— ^^V/ ^T' cipal lor acts " I take it to be a general rule that, if a person sells of agent. goods (supposing, at the time of the contract, that he is dealing with the principal), but afterwards discovers that the person with whom he has been dealiag is not the principal in the transaction, but agent for a third person, though he may in the meantime have debited the agent with it, he may afterwards recover the amount from the real principal, subject, however, to this qualification, that the state of the account between the principal and the agent is not altered to the prejudice of the principal. On the other hand, if, at the time of the sale, the seller knows, not only that the person who is nominally dealing with him is not principal, but agent, and also knows who the principal really is, and, notwithstanding all that know- ledge, chooses to make the agent his debtor, dealing with him, and him alone, then, according to the cases of Addison V. Gandasegin,* and Patterson v. Gandasegm,f the seller *4Taunt.574. cannot afterwards, on the failure of the agent, turn round ' and charge the principal, having once made his election at the time when he had the power of choosing between the one and the other " (c). (c) Thomson 19. The rule as regards the personal liability of the q'b. &c. 78.' agent, on account of engagements entered into by him for Bayley's priu- .. PI Ti-T -t 1 - cipleregarding his principal, as to how far that liabmty extends, and m personal lia- what manner it may be discharged, was thus lucidly ^^° *^^° ' explained by Mr. Justice Bayley : — " Where a purchase is made by an agent, the agent does not of necessity so contract as to make himself per- sonally liable ; but he may do so. If he does make himself personally liable, it does not follow that the principal may 230 PEKSONAL LIABILITY OF AGENT. Tit. XXXVI. not be Kable also, subject to this qualification, that tlie principal shall not be prejudiced by being made personally- liable, if the justice of the case is that he should not be personally liable. If the principal has paid the agent, or if the state of accounts between the agent here and the principal would make it unjust that the seller should call on the principal, the fact of payment, or such a state of accounts, woidd be an answer to the action brought by the seller where he had looked to the responsi- biKty of the agent. But the seller, who knows who the principal is, and, instead of debiting that principal, debits the agent, is considered, according to the autho- rities which have been referred to, as consenting to look to the agent only, and is thereby precluded from looking to the principal. But there are cases which establish this position, that, although he debits the agent, who has contracted in such a way as to make himself personally liable, yet, unless the seller does something to exonerate the principal, and to say that he will look to the agent only, he is at liberty to look to the principal when that principal is discovered. In the present case the seller knew that there was a principal ; but there is no authority to show that mere knowledge that there is a principal destroys the right of the seller to look to that principal as soon as he knows who that principal is, provided he did not know who he was at the time when the purchase was originally ((Q Thomson made " (d). V. Davenport, , . , „ , t ^ 9 B. & C. 78. 20. The prmciple of law apphcable to the same topic, Littledale's -^as thus laid down by Mr. Justice Littledale, while principle ^^- ■,■,... . . garding per- dehvering his judgment in the same case : — of agent. " ^^^ general principle of the law is that the seller shall have his remedy against the principal, rather than against any other person. Where goods are bought by an agent, who does not at the time disclose that he is acting as agent, the vendor, although he has debited the agent, may, upon discovering the principal, resort to him for payment. But if the principal be known to the seller at the time when he makes the contract, and he, with a GENEEAL AND SPECIAL AGENCY. 231 Ml knowledge of the principal, chooses to debit the agent, Tit. XXXYT. he thereby makes his election, and cannot afterwards charge the principal. Or if in such case he debits the principal, he cannot afterwards charge the agent. There is a third case. The seller may, in his invoice and bill of parcels, mention both principal and agent ; he may debit A. as a purchaser for goods bought through B., his agent. In that case, he thereby makes his election to charge the principal, and cannot afterwards resort to the agent. The general principle is, that the seller shall have his remedy against the principal, although he may, by electing to take the agent as his debtor, abandon his right against the priacipal" (e). (e) Ibid. 21. The rule as to the absolute power of an agent Lord St. Leo- . . . nards prin- to bind his principal by transactions with third parties ciple as to who are strangers, was explained iu the following terms by to bSd pnn" Lord St. Leonards :— ''^P^- " As the law, therefore, stands, any one may safely buy of an agent if he does not know, and it is absolutely necessary that he should not, that the agent is not autho- rized to sell ; and if the person selling is known to be an agent, then the law gives to persons accepting goods in pledge from known agents the interests of the person who makes the pledge. There is also a provision making the act of the agent, where he acts contrary to his authority, a misdemeanour ; so that, whilst the legislature gives to an agent, and the persons dealing with him, every possible security, it does not give impunity to an agent who does a wrongful act in making a pledge or a sale, for which he had not, as between him and his principal, any authority. When, therefore, you are dealing for a pledge with an agent who has a consignment, the knowledge that he has the power to sell appears to me to amount to nothing; for every agent must be sup- (j)]sfamashaw posed to have a power to sell who has the disposition of "^- Srownrigg, 21 Xi. J.J Cn.j goods" (/). 908. 22. It was laid down by Lord Kenyon, C. J., that a pri^^e^e re^'" principal is bound by all the acts of his general agent ; garding gene- but where he appoints an agent for a particular pur- agency. 232 LIMITATION OF AUTHORITY OF AGENTS. Tit. XXXVI. pose, he is only bound to the extent of the authority (g) E. I. cdmp. given (g) . 1 Esp!"iit. 23. The principle that the power of an agent for certain Baron Parke's specific purposes, extends only to those particular purposes, regarding was thus explained by Mr. Baron Parke : — autho^r%^of " ^he employer of an agent for a particular purpose, special agents, giyes only the authority necessary for that agency under ordinary circumstances ; as this Court held in the case of an agent to a mine, where the question was as to his power to bind his principals by borrowing money when an emergency arose, in which it was highly expedient to do so ; and it was held he had no such * 7 M. & "W. power ; Hawtayne v. Bourne* The employment of an agent gives also the power usually exercised by similar (h) Coxy. The. agents " {h). Comp. 18 L.J. , 24. Where an agent, without disclosing his principal, Exch., 65. purchases goods, the vendors, on discovering the principal. Principle re- j- o ±. a. garding lia- may sue him, though he has debited the agent, and though where prm^'' ^^ principal has remitted money to his agent to discharge cipaldisclosed. the debt («'). Powell, 3 25. The rule of law that the property of a principal °T\j,, ■ intrusted for certain purposes to an agent or factor to deal borough's with, nevertheless remains the property of such principal, ownership of although certain changes may have taken place in the handsofaaent ^^^ure of such property, and is recoverable if it gets into the hands of the assignees of the agent, and this notwith- standing the fact that the authority to the agent may have previously determined, was laid down in the following terms by Lord EUenborough, C. J. : — " The plaintiff in this case is not entitled to recover if the defendant has succeeded ia maiataining these proposi- tions in point of law ; viz. : that the property of a principal intrusted by him to his factor for any special purpose belongs to the principal, notwithstanding any change which that property may have undergone in point of form, so long as such property is capable of being identified, and distinguished from all other property ; and, secondly, that all property thus circumstanced is equally recoverable from the assignees of the factor in the event of his becoming a INSURANCES, AND MERCANTILE AGENCIES. 233 Bankrupt, as it was from the factor himself before his Ti t. XXXVI. bankruptcy. And, indeed, upon a ^new of the authorities and consideration of the arguments, it should seem that if the property in its original state and form was covered with a trust in favour of the principal, no change of that state and form can divest it of such trust, or give the factor, or those who represent him in right, any other more valid claim in respect to it, than they respectively had before such change. An abuse of trust can confer no rights on the party abusing it, nor on those who claim in privity with him. The argtiment which has been advanced in favour of the plaintiffs, that the property of the principal continues only so long as the authority of the principal is pursued in respect to the order and disposition of it, and that it ceases when the property is tortuously converted into another form for the use of the factor himself, is mischievous in principle, and supported by no autho- rities of law. And the position which was held out in argument on the part of the plaintiffs, as being the imtenable result of the arguments on the part of the defendant, is no doubt a result deducible from those arguments ; but, unless it be a result at variance with the law, the plaintiffs are not on that account entitled to recover " (k). W Taylor V. . . . Plumer, 3 M. 26. The general pnnciple m eqmty apphcable to cases & s. 573. of this kind in relation to insurances, and to transactions ^?'^,'^ Hard- wioke s pnn- between merchants, was thus explained by Lord Chancellor cipleregarding .^ T . 1 insurances and Hardwicke : — mercantile " The rule of equity is, that if an order is sent by a ^S^^'^^^^- principal to a factor to make an insurance, and he charges his principal as if it was made, if he never in fact has made that insurance, he is considered as the insurer himself. In a transaction between merchants in dif- ferent countries, one sends to the other to insure, who pretends to do it, and charges his correspondent as if done ; he shall, after a loss happens, be charged as the insurer: that is a right principle; but if such factor employs an agent, that equity will not extend over that (l) Tickel v. , „ /rt Short, 2 Ves. agent (/). 239. 234 ILLEGAL ACTS BY AGENT. Tit. XXXVI. 27. As regards tlie liability of an agent to his principal, LordKenyon's on account of injury arising to tlie latter from tte conduct llrdiiigMabi. of tlie former, it was laid down by Lord Kenyon, C. J., that lity of agent ^n agent who acts upon the best advice he is able to get in to principal. ° .... i. i i • • the affairs of his principal, is not liable to damages arismg (m) Miles v. from such conduct (m). f pSf ' ^^- '^^® ^^® °f ^^^ *^^* ^ principal cannot be rendered N. P., 61. guilty of an illegal act through the conduct of his agent, principle that SO as to be held responsible for it, was thus explained by ^ent does not ^^- ^aron Parke ; who at the same time declared in what criminate cases an exception to this priaciple will be made, principal. " As it is an illegal act for a man to offer to give money to another for voting, I take the law to be clear that a man cannot be guilty by his agent of an Ulegal act, and be held responsible for that act, unless he has given the agent authority, expressed or implied, to do that illegal act. I know that the law of agency in such cases has been much extended by committees of the House of Coromons ; but I take it to be a clear proposition of law that if a man employs an agent for a perfectly legal purpose, and that agent does an illegal act, that act does not affect the prin- cipal, unless a great deal more is shown ; unless it is shown that the principal directed the agent so to act, or really meant he should so act, or afterwards ratified the illegal act ; or that he appointed one to be his general agent to do both legal and illegal acts — to do everything, in short, which he might think proper to support the in- terests of the candidate. If the candidate gives his agent such a general authority, and the agent is guilty of bribery, the candidate is no doubt responsible for it. I know that there is a very great difference ia Parlia- mentary practice upon this subject ; but I conceive that the rule of law is, as I have laid it down, that no man, who is an agent for a legal purpose, can make the principal responsible for an illegal act, unless the principal has in (m) Oooper v. siade, 6 H. of some way directly or indirectly authorized it, as I have L. Ca. 793. t • i j, / \ „ . . , ^ explained («). Principle as to -^ ^ ' _ vitiating 29. Fraud wiH vitiate any transaction, although the transactions ...- ni .-,„ by fraud. principal do not personally take any part in the fraud, if DETERMINATION OF AGENT's AUTHORITY. 235 the agent do ; for tlie principal is civilly responsible for Tit. XXXVI. tlie acts of his agent (o). (o) Doe d. 30. The authority of the agent may be determined in j)/arHn'4, the four following modes : — 1. By the express revocation T. E. 39. -_-. PnUClBlG 1*6- thereof by the principal. 2. By his death. 3. By eiSux gpecting the of time, when a specific period is fixed for the execution of ^f a^™™gf °" the act to be done by the agent. 4. By the execution of the commission, whereby the agent becomes functus officio (p). {p) cutty on ^ Contr. 214. END OF PART I. WORKS BY THE SAME AUTHOR. In Three Vols., 8to., with Plates, cloth, JBeticateli fig wptesg permfeaion to |^. % % prince ^Ifiert. THE LIFE OF LOED CHANCELLOK HAEDWICKE; SELECTIONS FROM HIS COBRESPONDENCE, DIARIES, SPEECHES, AUD JUDGMENTS, NOW EIRST PUBLISHED FROM THE ORIGINAL MSS. AT WIMPOLE. By GEORGE HARRIS, Esq., OF THE UIDBLE TEMPLE, BAKBISTEE-AT-LAW. " It is a very valuable book indeed. It is the very first in value that has for a long time appeared. " — Lord Brougham. "Vigorous, intelligent, and remarkably interesting." — BlacTcwood's Magazine. "The author, as well as the noble representative of the Chancellor, deserve great praise and great thanks for so valuable a contribution to legal history. " — Law Review. " Mr. Harris has produced a work no less interesting to the general reader, than to those who may consult it for its historical value. " — Westminster Review. " A valuable contribution to the History of British Politics and Jurisprudence." — Morning Chronicle. " A nobly-conceived portraiture of the mind of the great Lord Hardwicke." — Mor7iing Post. " A very valuable contxibution to political and legal history." — Critic. "Mr. Hai-ris always writes well; his narrative shows the animation of an intelligent, and his reflections the power of a superior, mind." — Britannia. " Mr. Harris's legal acumen, industiy, and ability in the compilation and composition of this valuable contribution to legal biography, cannot be too highly commended." — Law Times. ' ' Not only the best life of Lord Hardwicke extant, but also the best chrono- logical and general compilation, referring to the period which it embraces, at present known to English literature."— Oftserue?'. Works by the same Author. WzisimtzO fig express permfegtan to 3Lort ISrouflfjam. In Svo., cloth, CIYILIZATION CONSIDEEED AS A SCIENCE, IN ITS RELATION TO ITS ESSENCE, ITS ELEMEIS'TS, AI^D ITS END. By GEORGE HAEEIS, Esq., F.S.A., BABEISTEE-AT-LAW, AUTHOB OP "THE LIFE OF I.OBD CHANCELLOE HAEDWICKE," **XHE XBTTE THEOBT OF BEPEESElfTATIOir Ilf A STATE," ETC. The necessity is here shown, not only for general education, hut for supplying, in conjunction with it, all those various institutions and requirements which together constitute the Elements of Civilization ; and the different measures, legislative and social, essential for its complete accomplishment, are pointed out. CONTENTS. The Real Natuke and Essence of Civilization. The Elements which Contribute to the Promotion op Civilization. 6. National Commemorations and Festivals. 7. Dignities and Honorary Rewards. 8. Moral Jurisprudence. 9. Internal Communication. 10. International Intercourse. The End Eestiltino from the Complete Establishment of Civilization. 1. National Education of the People. 2. National Religious Influence. 3. National Instructory Institutions. 4. Cultivation of Art and Science. 5. Liberty of the Press and Toleration. "In this work an attempt is made, and we may add with considerable success, to define the nature and essence of that somewhat uncertain and doubtful^ state of things which is comprehended under the term of Civilization. The various ele- ments which contribute to the constitution and progress of Civilization are pointed out with much clearness and force ; and the author explains how, in his opinion, it is susceptible of scientific treatment, and how desirable it is that every branch of civilization should be cultivated, in order to ensure its establishment as an entire system or condition. The work, as a whole, is calculated to have a useful effect in directing attention to the various systems of education ; and in inducing thoughtful men and women to examine in a philosophical spiiit those evidences or results of civilization with which they are surrounded." — Observer. "It is written with as much modesty as firmness, with as much fidelity of statement as courtesy, and with a philosophy as deep as its language is simple. It is the first extensive, and by far the most sterling effort, made in the present day, to reduce civilization to a science, and to push it forward, safely, easily, and quickly, in its magnificent course. " — Social Science Review. " Mr. Harris's volume is a monument of patient research and indefatigable zeal. He discusses every conceivable topic bearing on his subject, and upon all of them he delivers opinions with a boldness and decision that do honour to his moral courage. The work contains many sound and instructive statements, numbers of valuable facts and citations, and is evidently the result of much reading and thought. '' — Daily News. ' ' This work is remarkable for the carefulness with which it has adhered to the exact province marked out by the term Civilization, gi-eatly to the advantage of the precise and logical character of the treatise. Mr. Harris discusses the nature of civilization in a very lucid and comprehensive manner. Of course, however, a work like this must be full of controvertible propositions. We can, at all events, say that Works ly the same Author. Mr. Harris's theories are carefully considered and ably propounded; and if we cannot agree with all that he says, we are delighted with the generous and truth-seeking tone in which he discusses all the questions which come before him. " — John, Bull. "Apart from the intrinsic merits of Mr. Harris's thoughtful and most sugges- tive volume, this work possesses a special but melancholy interest at the present time, inasmuch as we know, from private sources of information, that it was one of the very last additions made to his library by the lamented Pkincb Consort. As a whole, we can safely say we have very seldom met with a work which has exhibited more patient industry, research, and thought, than this new volume by Mr. Harris. That which from the title might have been thought dry, abstruse, and recondite, is really a work abounding in interest. It is written in language able, elegant, and lucid ; and while commending itself on this account to the scholar and politician, will be perused with equal gratification by the general reader. Indeed this elaborate and most instructive treatise deserves a place among the standard volumes which grace the library -shelves of every educated gentleman, " — Svm. In Svo., cloth, THE TEUE THEORY OF REPRESENTATION IN A STATE OB, THE LEADING INTERESTS OF THE NATION, NOT THE MERE PRE- DOMINANCE OF NUMBERS, PROVED TO BE ITS PROPER BASIS. By GEORGE HARRIS, Esq., OF THE MIDDLE TEMPLE, BAEEISTEK-AT-LAW, AUTHOR OP " THE LIPE OP LOED CHANCELLOH HAHDWIOZE," ETC. "This is a very thoughtful publication. Its views are original and compre- hensive. The various arguments are all ingenuous, well sustained, and perfectly free from party spirit. Indeed, the frank, truth-seeking, and dispassionate tone of the whole book renders its perusal a real pleasure, independently of its learning, logic, and earnestness. " — Illustrated London News. " A very able Essay on a most important and thoroughly English theme. We welcome Mr. Harris's work as a highly valuable contribution to our political knowledge. The more such subjects are discussed among us in the dispassionate and philosophical tone which is observable throughout this work, the more qualified shall we be to contemplate the bearing and effects of any particular measure of Parliamentary Reform that may be mooted." — Johm, Bull. "At this time, when the attention of the House of Commons and the public generally is so much excited on the subject of Reform, Mr. Harris's comprehensive and well-written little volume will be read with interest and advantage. AU his propositions are stated clearly and temperately, and are argued throughout with logical skill, judgment, and discretion." — Sun. " Mr. Harris's theory is so perfectly sui generis, and so elaborately worked out, that it deserves to be carefully studied as the production of a thoughtful man, who believes that our present system of Parliamentry Government is organized on a wrong basis altogether. All the subjects it embraces are discussed with candour, ability, and fairness. Mr. Harris's scheme ought to be well considered by every politician, and deserves respectful attention from all constitutional publicists. " — Constitutional Press. "On the whole, the work is extremely valuable, especially at this particular moment ; and every class of the community, from the highest to the lowest, may read it with advantage, and gather much from it. The subject is treated in a masterly manner, and no point connected with the representation of the kingdom, has been overlooked. The style is clear and lucid, the arguments are powerful, and the earnest and manly spirit which pervades the entire work clearly shows that the writer feels a deep interest in the subject, and has brought ability, judg- ment, experience, and a well stored mind to bear upon it in a manner eminently successful. " — Oxford Journal. LONDON : LONGMAN, BROWN, GREEN, LONGMANS, & ROBERTS. •I