^ ^ //vs T/rur£ ^^ v/c/AV spf^uo/e tree. . » /i good aou/^s&. /^/f Di^rrfrUtcj , Cornell University Library K 230.H73E4 1917 The elements of Jurisprudence / 3 1924 017 985 494 ^\ JURISPRUDENCE T. E. HOLLAND Cornell University Library ^ The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017985494 THE ELEMENTS OP JURISPRUDENCE BT THOMAS ERSKINE HOLLAND, K.C. BEHOHBB or LIKCOLH^S IHH BOVBTIXB CHICHELB FBOrBSSOB OF IHTBBNATIONII. LAW AND DZPLOUAOT rBLLOW or ALL SOULS COLLBQE D.O.L., HON. LL.D. OF THK UNITBB8ITIES OF BOLOQNA, GLASGOW, DUBLIN AND BBUBSELS r.B.A., ABSOCIAIX OF THE ROTAL ACADEHIBS OF BELGIUM, BOLOGNA AND PADUA HON. PBOFE880B IN THE UNIVBB8ITT OF FEBUGIA BON. KBHBEB OF THE DNIVEBSITT OF ST. FETBBSBUBG, OF THE AHEBICAN 80CIBTT OF INTERNATIONAL LAW, AND OF THE JURIDICAL 80CIETT OF BERLIN LATE PRESIDENT, OF THE INSTITUT DE DROIT INTBBHATIOIIAL TWELFTH EDITION OXFORD UNIVERSITY PRESS AMERICAN BRANCH NEW YORK : 29—35 WEST 32nd STREET London: Huuphbet Milfobd 1917 Amplissimum luris Oceannm ad paucos revocare fontes limpidos rectae rationis. — Leibnitz, Ep. ad Magi., xrvii. Das bedarf heutzutage keiner Bemerkung, dass das System, ebensowenig beim Recht wie bei jedem andern Gegenstande, keine Ordnung sein soil, die man in die Sache hineinbringt, sondem eine solche, die man herausliolt. — Jheking, Gdst des R. R., i. p. 36. COPTKIGHT 1917 BY OXTOKD UlflVEESITY PRESB AUEKICAN BKANCH PREFACE TO THE FIRST EDITION. The legal systems of the continent owe to their common derivation from the law of Rome, not only a uniform legal nomenclature, but also a generally accepted method, which at once assigns any newly developed principle to its proper place, and has greatly facilitated the orderly exposition of those systems in the form of codes. In England, on the other hand, legal nomenclature is a mosaic of many languages, and the law itself, as expounded by Coke and Blackstone, except so far as it has been deduced with much logical punctiliousness from the theory of feudal tenure, is little more than a collection of isolated rules, strung together, if at aU, only by some slender thread of analogy. The practitioner has been content to find his way through it, as best he might, by the help of the indices of Vi PREFACE TO THE FIRST EDITION. text-books, or by means of 'Abridgments,' or so-called 'Digests,' arranged under alphabetical titles. It was a step in advance when it occurred to Mr. J. "W". Smith to pubUsh a series of ' Leading Cases,' selected almost at random, and to group round each a collection of subordinate decisions, in which the rule recognised m the principal case is deviously tracked in its various appUcations. Of a somewhat similar nature is Dr. Broom's ' Selection of Legal Maxims,' which explains the workings in different departments of law of a string of principles, such as those which are collected in the title of the Digest ' de Reguhs luris.' It may be remarked that the principles to which reference is made, alike in the 'Leading Cases' and in the 'Maxims,' are but what Bacon would caU ' media axiomata,' which neither work attempts to exhibit in their mutual relations, or to deduce from the higher principles of which they are corollaries; also that the search for these principles is an enquiry into the ethical reasons by which English law ought to be moulded, not an analysis and classi- fication of legal categories. There have been of late years signs of a change in the mental habit of English lawyers. Distaste for comprehensive views, and indifference to foreign modes of thought, can no longer be said to be national characteristics. The change is due partly to a revival of the study of Roman law, partly to a growing famili- arity with continental life and literature, partly to such investigations as those of Sir H. Maine into the origin of legal ideas, but chiefly to the writings of Bentham and Austin. To the latter especially most Englishmen PREFACE TO THE FIRST EDITION. vil are indebted for such ideas as they possess of legal method. The ' Province of Jurisprudence Deter- mined,' is indeed a book which no one can read without improvement. It presents the spectacle of a powerful and conscientious mind struggling with an intractable and rarely handled material, while those distinctions upon which Austin after his somewhat superfluously careful manner bestows most labour are put in so clear a Ught that they can hardly again be lost sight of. The defects of the work are even more widely recognised than its merits. It is avowedly frag- mentary. The writer is apt to recur with painful iteration to certain topics; and he leaves large tracts of his subject wholly imexplored, while devoting much space to digressions upon questions, such as the psychology of the will, codification, and utilitarianism, which have no necessary connection with his main argument. It may be asserted, without injustice either to Bentham or to Austin, that works upon legal system by English writers have hitherto been singularly un- systematic. It is long since the author formed the hope of attempting to write a treatise upon legal ideas which should at least be free from this particular fault, and the objects which he proposed to himself differed so considerably from those aimed at in Mr. Justice Markby's 'Elements of Law' that the appearance of that very valuable work did not dissuade him from the prosecution of his design. In carrying it out he has not gained so much assistance as he expected from the legal literature of the continent. He soon discovered viii PREFACE TO THE FIRST EDITION. not only that the name of Austin was unknown in Germany, but that very Uttle had been written in that country with a direct bearing upon analytical jurispru- dence. The latter fact is not so surprising as it may appear, if it be remembered that the continental jurists find in Eoman law a ready-made terminology and a typical method, upon which they are little inclined to innovate. From treatises upon ' Naturrecht,' which may be described as ' Jurisprudence in the air,' he has derived next to nothing; and works upon 'Encyclo- padie ' and 'Methodologie ' are generally too brief, and too much infected with a priori conceptions, to have been consulted with much profit. More help has been found, where it might not at first be looked for, in the numerous works, usually entitled * Pandekten,' in which the Germans have set forth the Roman law as it has been modified with a view to modern convenience. Pore- most among these must be mentioned von Savigny's ' System des heutigen Komischen Eechts.' Still less has been derived from the other modern literatures; and after a general survey of the subject the author set to work to think it out for himself, resolving to traverse the whole of it, and to hold a straight course through it, turning neither to the right hand nor to the left into any digression however tempt- ing. He now offers the result of his labours, which has been much delayed by other and more pressing engage- ments, to the indulgence of those who best know the extent and difficulty of the topic of which he has attempted to give a complete and consistent view. T. E. H. Oxford, March 20, 1880. PREFACE TO THE THIRD EDITION. ix PREFACE TO THE SECOND EDITION. This edition has been carefully revised, and contains a good deal of new matter. The author has to thank several of his reviewers, whose articles form in themselves valuable contributions to the literature of the subject, especially Mr. A. V. Dicey and Mr. F. Pollock. He is also indebted to previously unknown correspondents, such as Mr. R. Foster of the New York Bar, who have been good enough to favour him with private communicatiotis upon points suggested by their reading of the book. He takes this opportunity of explaining, with particular reference to an able article by Mr. A. Tilley, that the method which he has followed, as best exhibiting the scientific order of legal ideas, is not, in his opinion, necessarily that which would be found most con- venient for the arrangement of a Code. He has elsewhere pointed out that logical division should be to the codifier what anatomy is to the painter. Without obtruding itself upon the siuf ace, it should underlie and determine the main features of every systematic exposition of law. T. E. H. Oxford, August 25, 1882. PREFACE TO THE THIRD EDITION. In preparing this edition for the press, the author has throughout taken account of the development both of positive law and of legal theory, in this and other countries, during the last three years, so far as he has been able to follow it. He has also worked out in greater detail than before, though it is hoped without detriment to the general proportions of the book, the difficult topics dealt with in Chapter VIII, and what he ventures to think the important question, raised in Chapter XII, as to the necessity of agreement in contract. Upon many points he has found help in the elaborate reports upon foreign law which some of the governments of the continent are careful to have drawn up before proposing serious legislative changes. No one can consult these reports without wishing that something of the kind were more usual in this country, where a legal principle which has elsewhere long been discussed from every point of view, is not im- frequently treated in Parliament, and even by the Courts, as a novelty. T. E. H. OxFOBD, January 31, 1886. PREFACE TO THE EIGHTH EDITION. PREFACE TO THE FOURTH EDITION. In revising this edition, care has been taken to introduce as much illustration as possible from recent English cases, in which one seems to remark a growing tendency towards scientific generalisation. The author has reason to be more than ever convinced of the truth of what may perhaps be described as the 'objective' theory of Contract, main- tained in Chapter XII. He has seen with pleasure that the method of this work has been followed 'as the most logical and most exact,' by Mr. Stimson ui compiling his American Statute Law: an Analytical and Compared Digest of the Constitutions and civil public Statutes of all the States and Territories, relating to persons and property; and that much of its terminology has been adopted in the able treatise of Professor Terry, of Tokio, Some Leading Principles of Anglo-American Law, expounded with a view to its Arrange- ment and Codification. T. E. H. i OxFOKD, December i, 1887. PREFACE TO THE EIGHTH EDITION. No pains have been spared to make this edition an im- provement upon its predecessors. The Prefaces to the edi- tions of 1890, 1893, and 1895 have not been reprinted, but it may be worth while to repeat the statement, made in 1893, that 'in compliance with a wish expressed in many quarters, especially by Oriental students, the author has translated the German and Greek definitions which occur in the earlier chapters, though well aware how much of the meaning of the former at any rate must perish in the proc- ess.' Many references have now been made to the new Civil Code for Germany, which became law last month. This great work, the result of twenty years of well-directed labour, differs materially from the draft Code, to which allusions will be foimd in the sixth and seventh editions. Few more interesting tasks could be imdertaken than a comparison in detail of this finished product of Teutonic legal science with the Code Civil, which has so profoundly affected the legislation of all the Latin Races. T. E. H. Oxford, September 15, 1896. PREFACE TO THE TWELFTH EDITION. xi PREFACE TO THE TENTH EDITION. The preparation of this edition has been delayed by more pressing engagements of the author, which have obliged him to resort to the temporary expedient of a re- print of the previous edition. He has now carefully revised the work, adding much new matter suggested, in more than usual abundance, by recent decisions and discussions. While rejoicing that increased attention is now devoted, on both sides of the Atlantic, to the subject of legal method, he cannot help thinking that the order of the German Civil Code, which has been unavoidably followed in Mr. Jenks's interesting attempt to exhibit English law also in the form of a Code, in so far as it treats of Obligations before Rights in rem, is less convenient, as well as less scientific, than that derived from the Roman institutional writers. It may be desirable to repeat that this book has been copyrighted in the United States since 1896, and that an unauthorised edition, issued in the same year at St. Paul, Minnesota, was taken, not, as is stated in the 'Publishers' Preface,' from a (then non-existent) ninth English edition, but, as indeed appears from the title-page, from the seventh edition, published in 1895. T. E. H. OxTOBD, June i, 1906. PREFACE TO THE TWELFTH EDITION. In the preparation of this edition the author has aimed at producing a text which may be regarded as practically final, although futiu-e issues of the work may be illustrated by annotations chronicling the movement of legislation and case-law, British and foreign. The task thus imdertaken has required an expenditure of time and labour exceeding, probably, that demanded by any preceding new edition. The old adage 'silent leges inter arma' needs some qualification. The reader will, indeed, find that a considerable amount of new matter has been suggested to the author by the gigantic struggle now in progress. T. E. H. ■ Oxford, iV^owejnber 30, 1916. CONTENTS. PART I. LAW AND RIGHTS. CHAPTER I. PAGE JUBISPBUSENCE Z CHAPTER n. Law 14 CHAPTER m. Laws as Rules op Human Action 25 CHAPTER IV. PosniTE Law • 43 CHAPTER V. The Soukces of Law 55 XIV CONTENTS. CHAPTEE VI. PAGE The Object of Law 78 CHAPTER Vn. Bights , . gi CHAPTER Vm. AxAiTSis OF A Bight 90 CHAPTER IX. The Leading Classifications of Rights . . . 125 CHAPTER X. Bights at Best and in Motion 149 PAET n. PRIVATE LAW. CHAPTER XI. Antecedent Rights 'in rem' 166 CHAPTER Xn. Antecedent Rights 'in peesonam' .... 241 CHAPTER Xin. Bemediai. Bights ^20 CONTENTS. XV CHAPTER XIV. PAGE Abnobmai, Bi&hts 336 CHAPTER XV. Adjective Law 355 PART m. FTTBLIC LAW. CHAPTER XVI. The Nature op the Topic 363 CONSTITUTIOITAL Law 367 Admxntsteative Law 371 CBmrsAi. Law 375 Cbiminaii Pboceduee , . 378 The Law of the State as a Pebson .... 384 Civil Pbocedxjbe by and against the State . . 385 PART IV. INTERNATIONA!. I.AV7. CHAPTER XVIL The Natuee of the Topic 388 Inteenational Pebsons 392 Substantive Law . , 394 Adjective Law, Belligebenct 400 „ „ Neutrality 403 XVI CONTENTS. PART V. THE APPLICATION OF LAW. CHAPTER XVin. PAGE The Natube of the Topic ...... 406 The Application of Private Law . . . . 407 „ „ Public Law . . , . , 422 „ „ LSTEENATIONAL LaW . . , 429 Index 431 TABLE OF CASES ENGLISH, SCOTCH, COLONIAL, AND AMERICAN. Abernethy v. Hutchinson, page 212. Abrath v. N. E. Ry., 188. Adams v. Lindsell, 269. Adamson v. Jarvis, 239. Alabaster v. Harness, 380. Aldred's Case, 225. Alexander v. Perry, 283. Allen V. Flood, 169, 187. Alton V. Midland Ry. Co., 254. Amalg. Soc. of Ry. Servants V. Osborne, 339. America, the, 181. Angus V. Dalton, 224. Anon., 239. Appleby v. Franklin, 335. Arkwright v. Newbold, 238. Armory v. Delamirie, 203. Armstrong v. Lane, and Yorks. Ry. Co., 154. Ashbury Carriage Co. v. Riche, 346. Ashby V. White, 150, 154, 252. Ashford v. Thornton, 356. Atkinson v. Newcastle Water- works Co., 253. Attorney-General v. Panter, 110. Attorney-General v. Trustees of British Museum, 214. Austin V. Gt. Western Ry. Co., 254. B. Bailey v. De Crespigny, 297. Bainbridge v. Firmstone, 284. Bainbridge v. Postmaster- General, 132. Baker v. Snell, 153, 172. Ball, ex parte, 335. Banner, ex parte, 118. Barnes v. Toye, 349. Barrett v. Assoc. Newspapers, 188. Baxter v. Portsmouth, 251. Beake v. Tyrell, 427. XVUl TABLE OF CASES. Beamish v. Beamish, 69. Beard, in re, 276. Behn v. Burness, 309. Berdell v. Parkhurst, 350. Bernina, the, 154. Bethell v. Halliard, 177. Bidleson v. Whytel, 258. Bilbie v. Lumley, 111. Bird V. Brown, 273. Blackburn v. Vigors, 275. Blain, ex parte, 413. Blyth V. Birmingham Water- works Co., 113. Boileau v. RutUn, 334. Bolton V. Lambert, 273. Bonham's Case, 37. Bonomi v. Backhouse, 150. Boston Ice Co. v. Potter, 265. Boulton V. Jones, 265. Bowen v. Hall, 182. Bower v. Peate, 331. Bradford Corporation v. Fer- raud, 56. Bright V. Boyd, 250. Brinkley v. Attorney-Gen- eral, 177. Brisbane v. Dacres, 110. Broderip v. Salomon, 343. Brogden v. Metr. Ry. Co., 269, 272. Bromage v. Genning, 259. Bromage v. Prosser, 184. Brown v. Brandt, 253. Brown v. Kendall, 113. Brunsden v. Humphrey, 169, 324. Buckley v. Gross, 102, 203. Buller V. Crips, 62. Burgess v. Burgess, 212. Burrows v. March Gas Co., 153. Bxissy V. Amalg. Soc. Ry. Servants & Bell, 187. Butler and Baker's Case, 256. Butterly v. Vyse, 240. Byrne v. Van Tienhoven, 269. C. Caird v. Sime, see Sime v. Caird. Caledonian Railway Co. v. Walker's Trustees, 69. Carlill V. Carbolic Smoke-ball Co., 262, 267, 268, 276. Carr v. L. and N. W. Ry. Co., 263. Carteret, Lord, v. Paschal, 312. Chamberlain v. Williamson, 332. Chanter v. Hopkins, 309. Chasemore v. Richards, 208. Chatham Furnace Co. v. Moffatt, 238. Chisholm v. Georgia, 48. C. S. Co-op. Socy. V. General Steam Nav. Co., 315. Clark V. Chambers, 153. Clayton v. Clark, 316. Cobbett V. Grey, 171. Cochrane v. Moore, 256. Coggs V. Bernard, 65, 284. Collen V. Wright, 239. Collins V. Evans, 239. Colls V. Home and Colonial Stores, 224. Colman v. Eastern Counties Ry., 346. Colonial Bank v. Whinney, 210, 313. Colonial Secretary v. David- son, 283. TABLE OF CASES. XIX Commonwealth v. Hamilton Manuf. Co., 373. Commonwealth v. Hayden, 377. Commonwealth V. Pierce, 114. Cook V. Fountain, 74. Cooke V. Gill, 324. Cooke V. Midi. G. W. Ry. of Ireland, 173. Cooper V. Phibbs, 15. CorelU V. Wall, 190. Cork V. Blossom, 151. Cornford v. Carlton Bank, 345. Cornish v. Abington, 263. Cotterell v. Jones, 189. Couch V. Steel, 253. Couturier v. Hastie, 265. Cowan V. Milbourne, 64. Cowan V. O'Connor, 269. Cowley V. Cowley, 211. Cox V. Midland Ry., 273. Cundy v. Lindsay, 262. Curran v. Arkansas, 343. Currie v. Misa, 284. Cuthbert v. Gumming, 60. Cutting Case, the, 426. D. Daimler Co. v. Continental Tyre and Rubber Co., 344. Danubian Sugar Factories v. Inl. Rev. Commissioners, 213. Darrell v. Tibbetts, 307. Dartmouth College v. Wood- ward, 255, 371. Dashwood v. Magniac, 67, 228. Davey v. L. and S. W. Ry., 155. Davies v. Davies, 303. Davis V. Duke of Marl- borough, 74. Day V. Savage, 37. Debenham v. Mellon, 274. De Cairos Bros. v. Caspar, 282. Dickenson v. Dodds, 268. Dietrich v. Northampton, 95. Di Lorenzo v. Di Lorenzo, 176. Dockrell v. Dougall, 211. Donald v. Suckling, 232. Donaldson v. Beckett, 212. Douglass v. Co. of Pike, 70. Drake v. Auburn City Ry., 153. Drew V. Nunn, 264. Drummond v. Drummond, 68. Dublin, &c. Ry. v. Slattery, 155. Du Boulay v. Du Boulay, 211. Dulieu V. White, 174. Dunlop V. Higgins, 269. Dunmore v. Alexander, 269. E. East and S. Africa Tel. Co. v. Cape Town Tramways Co., 151. Eastland v. Burchell, 274. Eaton V. Jacques, 231. Edelstein v. Schuler, 61. E. L Ry. Co. v. K. Mucker- jee, 298. Ellis V. London and S. W. Ry., 553. Evans v. Edmonds, 238. XX TABLE OF CASES. F. Falke v. Scottish Imperial In- surance Co., 252. Farrow v. Wilson, 315. Farwell v. Boston and Wore. Ry. Co., 156. Feltham v. England, 156. Ferguson v. W. Union Tel. Co., 173. Ffoulkes V. Metr. Distr. Ry. Co., 254. Finlay v. Chirney, 332. Fitz-John v. Mackinder, 189. Fleckner v. U. S. Bank, 273. Fletcher v. Rylands, 150. Foakes v. Beer, 316. Foot V. Card, 174. Foote's Case, 64, 382. Fores v. Wilson, 181. Foster v. Macldnnon, 261. Freeman v. Cooke, 263. Frost V. Knight, 319. G. Gee V. Pritchard, 74. Gelpeke v. Dubuque, 67, 70. George v. Skivington, 173. Gerhard v. Bates, 152. Gibbons v. Budd, 298. Giblan v. National LabouTr ers' Union, 187 Gibson v. E. I. Co., 345. Gibson v. Evans, 183. Gilchrist, ex parte, 210. Gilmour v. Supple, 217. Glamorganshire Coal Co. v. S. Wales Miners' Federa- tion, 187. Good V. Cheeseman, 316. Goodwin v. Robarts, 61. Gordon v. Harper, 204. Gore V. Gibson, 251. Gray v. Brown, 179. Greenlands v. Wilmshurst, &c.. Association, 187. Grey v. Ellison, 266. Grierson v. Eyre, 74. Grill V. Gen. Iron Screw Col- Uery Co., 114, 299. H. Hall V. Barrows, 212. Hallett's Estate, in re, 75. Hammersmith Ry. Co. v. Brand, 208. Hanfstaengl v. Baines, 212. Hanfstaengl v. Empire Co., 211. Harris v. Brisco, 189. Harrison v. D. of Rutland, 188. Hart V. Frame, 115. Hawthorne, in re, 413. Haynes v. Haynes, 257. Hearne v. Garton, 377. Heaven v. Pender, 116. Hebditch v. Mcllwaine, 185. Henderson v. Folkestone Waterworks Co., 70. Henthorne v. Eraser, 269. Heurtebien v. Esmault-Pel- terie, 191. Hill v. Tupper, 229. Hoadley v. Macleane, 285. Hobbs V. Glasgow Ry., 154. Hochster v. Delatoor, 319. Holman v. Johnson, 37. Holmes v. Mather, 151. Honeywood, in the goods of, 183. Hopwood V. Thorn, 185. Horah v. Horah, 176. TABLE OF CASES. XXI Household Fire and Carriage Co. V. Grant, 269. Hurst V. Picture Theatres, Ld., 229. 1 Hyde v. Hyde, 177. Hyde v. Wrench, 267. HydratiUc Engineering Co. v. McHaffie, 259. Imperial Loan Co. v. Stone, 351. J. Jacobson v. Norton, 282. Janson v. Driefontein Cons. Mines Co., 276. Jeffreys v.Boosey, 67, 21 1, 212. Johnson v. Pie, 349. Johnstone v. Marks, 349. Jolly V. Kine, 224. Jolly V. Rees, 274. Jones V. Broadhurst, 314, Jones V. Hulton, 183. K. Keeble v. HickeringiU, 186. Kelly V. Metr. District Ry. Co., 254. Kendall v. Hamilton, 333. Kenyon v. Hart, 191. Keppel V. Bailey, 225. King V. Hoare, 333. King V. Lake, 184. Kneesy v. Exner, 174. Knight V. Gibbs, 153. Knox V. Mackinnon, 114. Krell V. Henry, 315. Kujek V. Goldman, 239. Lamond v. Richard, 253. Lamphier v. Phipos, 115. Lampleigh v. Braithwait, 252, 285. Lansdowne v. Lansdowne, 109. Latless v. Holmes, 110. Lawrence v. Fox, 257. Laythoarp v. Bryant, 284. Leask v. Scott, 70. Lee V. Bude, 38. Lee V. Griflan, 296. Lemaistre v. Davis, 225. LesHe v. ShieU, 310, 349. Levene v. Brougham, 310. Lewis V. Holmes, 173. Lipton V. Buchanan, 282. Liverpool Insurance Co. v. Mass., 99. London v. Wood, 37. London School Board v. Wright, 255. London Street Tramways Co. V. London Coimty Coun- cil, 69. Longmeid v. Holliday, 173, 239. Lord Advocate V. Young, 199. Lord V. Lord & Lambert, 178. Lord V. Price, 204. Louisa van den Berg, re, 282. Lowery v. Walker, 173. Lumley v. AUday, 185. Lumley v. Gye,. 182, 186. Lynch v. Knight, 153, 173, 175. Lynch v. McNally, 153. Lynch v. Nurdin, 154. M. McCoun V. R. R. Co., 255. Macmillan & Co. v. Dent, 211. xxu TABLE OF CASES. Malan v. Secretan, 283. Malloy V. Starin, 153. Mangau v. Atherton, 154. Marais, ex parte, 374. Markham v. Cobbe, 335. Martin, re, 340. Max Morris, the, 154. Maxim-Nordenfelt Gun Co., V. Nordenfelt, 70, 303. May V. Burdett, 150. Mayor of Bradford v. Pickles, 208. Mehrhoff v. Mehrhoff, 174. Melhuish v. Milton, 118. Metropolitan Bank v. Pooley, 380. Metropolitan Saloon Co. v. Hawkins, 339. Meyer v. Knights of Pythias, 251, 273. Meynell v. Surtees, 267. Midland Ry. Co. v. Smith, 335. Mignonette Case, the, 378. Milan, the, 154. Millar v. Taylor, 67. Mills V. Armstrong, 154. Milner v. Milner, 163. Mitchell V. R. R. Co., 173. Mogul Steamship Co. v. Mc- Gregor, 186. Monson v. Tussaud, 184. Moore v. Robinson, 201. Moss V. Moss, 176. Motteram v. E. Counties Ry. Co., 110. Moulton V. Camroux, 351. Mounsey v. Ismay, 223. Mowe, the, 354. Mtembu v. Webster, 283. Munn V. Illinois, 209. Murray v. S. C. Ry. Co., 156. N. Nash V. Inman, 349. New York Central Ry. Co. v. Lockwood, 114. Newbigging v. Adam, 271. Niboyet v. Niboyet, 94, 246. NichoUs V. Bastard, 203. Nichols V. Pitman, 212. Nitro-glycerine Case, the, 111. 0. Oakey v. Dalton, 212. O'Donnell v. Chnton, 261. Ohver v. Bank of England, 239. OUver V. Ohver, 211. Orme v. Orme, 247. Ormerod v. Todmorden Mill Co., 210. Orr V. Orr-Ewing, 413. Osborne v. Amalg. Soc. of Ry. Servants, 276, 339. Osborne v. Gillett, 181. P. Paget V. Gee, 73. Paquin v. Beauclerk, 274. Paradine v. Jane, 314. Parlement Beige, the, 326. Pasley v. Freeman, 237, 239. Paxton's Case, 38. Payne v. Cave, 267. Pearks, &c., Lim. v. Ward, 378. Peek V. Derry, 238, 239. Peek V. Gurney, 238. People V. Phyfe, 373. Pickard v. Sears, 263. Pickering v. Rudd, 191. Pierce v. Pierce, 71. Pillans V. Van Mierop, 283. TABLE OF CASES. XXUl Pinnel's Case, 316. Planch^ V. Colburn, 319. Pollard V. Photographic Co., 190. Pope V. Curll, 211. Porter v. Freundenberg, SSi. Power V. Banks, 348. Poyser v. Minors, 355. Price V. Moulton, 333. Priestley v. Fowler, 156. Prince Albert v. Strange, 190. Printing Co. v. Sampson, 276. Q. Quartz Hill Gold Mining Co., V. Eyre, 189. Quin V. Hill, 273. Quinn v. Leathern, 70, 187, 328. Quirk V. Thomas, 332. R. R. R. Co. V. Stout, 173. Radley v. L. & N. W. Ry. Co., 153. Raffles V. Wichelhaus, 265. Ramsay's and Foote's Case, 382. Ramsgate Hotel Co. v. Montefiore, 267. Randall v. Trimen, 238. Ranelagh v. Hayes, 308. Rangeley v. Midland Ry. Co., 226. Rann v. Hughes, 283. Ratcliffe v. Evans, 330, 332. Read v. Gt. Eastern Ry. Co., 173. Reddel v. Dobree, 194. Redfern v. Redfem, 382. Redgrave v. Hurd, 271. R. V. Bailey, 110. R. V. Burgess, 381. R. V. Dudley, 378. R. V. E. Archipelago, 345. R. V. E. Counties Ry. Co., 156. R. V. Ensor, 382. R. V. Essex, 59. R. V. Foote, 64, 382. R. V. Holbrook, 381. R. V. Hutchinson, 428. R. V. Jackson, 247. R. V. Jones, 382. R. V. Mayor of London, 345, 378. R. V. Miles, 428. R. V. MiUis, 69, 293. R. V. Peltier, 380. R. V. Ramsay, 64, 382. R. V. Roche, 428. R. V. Thurston, 110. R. V. Topham, 382. R. V. Windsor, 386. Read v. Gt. E. Ry. Co., 173. Reynolds v. Reynolds, 176. Rhodes, in re, 251. Riche V. Ashbury Carriage Co., 347. Risdale v. Clifton, 70. Robinson v. Davidson, 315. Robinson v. MoUett, 66. Rogers v. Spence, 204. Roodt V. Wallach, 282. Rotherham, re, 257. Rousillon V. Rousillon, 303. S. Sachs V. Henderson, 254. Salaman, in re, 95. Salomon v. Salomon & Co., 343. XXIV TABLE OF CASES. Sargasso, the, 154. Satania, the, 257. Savile v. Jardine, 185. Schibsby v. Westenholz, 40. Schultz V. Schultz, 350. Scott V. Littledale, 263. Scott V. Sebright, 175. Scott V. Shepherd, 152. Scott V. Thieme, 283. Scribner v. Kelley, 172. Shaw V. Shaw, 176. Shaym v. Evening Post Co., 343. Shrewsbury, Earl of, v. N Staff. Ry. Co., 347. Siggers v. Evans, 256. Sime V. Caird, 212. Simmons v. Heath Laimdry Co., 295. Smith V. Baker, 155, 329. Smith V. Freyler, 308. Smith V. Hughes, 263. Smith V. Milles, 203. Smith V. Smith, 176. South Yorks. Ry. Co. v. Gt. N. Ry. Co., 347. Spiers v. Hunt, 276. Spring Co. v. Edgar, 153. Standing v. Bowring, 256. Stanhope v. Stanhope and Adye, 332. Stanley v. Powell, 111. Steeds v. Steeds, 318. Stewart v. Casey, 285. Stokes V. Stokes, 39. Sutton's Hospital, Case of, 339. Swift V. Gifford, 195. Swift V. KeUy, 176. Swift V. Tyson, 67. Synge v. Synge, 319. Taff Vale Ry. Co. v. Amalg. Soc. of Ry. Servants, 187, 341. Takuji Yamashita, re, 352. Tayloe v. Merchts. Fire Ins. Co., 269. Taylor v. Caldwell, 315 Taylor v. Hawkins, 185. Taylor v. Manchester, Shef- field, and Line. Ry. Co., 254. Taylor v. Root, 258. Temperton v. RusseU, 182, 186. Thomas v. Quartermain, 329. Thomas v. Sorrell, 229. Thomas v. Winchester, 173. Thompson v. Alexander, 340. Thompson v. Leach, 256. Thorley v. Lord Kerry, 184. Thoroughgood v. Bryan, 154. Tilt v. People, 373. Tobin v. The Queen, 132, 386. Tradesmen's Ben. Soc. v. Du Preeze, 283. Tuberville v. Savage, 171. Turner v. StaUibrass, 254. Turner v. Webster, 250, 264. Tuttle V. Buck, 329. Tweddle v. Atkinson, 257. U. Union Bank of Australia, ex parte, 413. United Methodist Church Ministers, in re, 295. TABLE OF CASES. XXV V. Vaughan b. Menlove, 113. Vaughan v. Taff Vale Ry. Co., 208. Vaughan v. Weldon, 324. Vegelahn v. Guntner, 187. Velasquez Ld. v. Inland Rev- enue, 211. Vicars v. Wilcox, 153. Victorian Railways Commis- sioners V. Coultas, 173. Villar V. Gilbey, 95. W. Wakelin v. L. and S. W. Ry., 155. Walker v. Cronin, 182. Walker v. Gt. N. Ry. of Ire- land, 95. Wallis V. Day, 299. Walter v. Lane, 212. Walworth v. Holt, 74. Wandsworth Board of Works v. United Telegraph Co., 191. Ward v. Turner, 194. Ward v. Weeks, 153. Warwick v. Queen's College, 223. Watkin v. Hall, 183. Watkins, ex parte, 264. Webster v. Hudson Railway, 154. Weir V. Bell, 239. Weldon v. Times Bookclub, 184. Weldon v. Weldon, 247. Wellock V. Constantine, 379. Wells V. Abrahams, 335. Wells V. Wells, 298. Wennhak v. Morgan, 183. Western Union Tel. Co. v. Wofford, 272. Westlake v. Westlake, 174. W^st Rand Central Gold Co. v. The King, 386, 390. Whitbourne v. Williams, 179. Wilkinson v. Downton, 174. Williams v. Birmingham Bat- tery Company, 329. WiUiams v. E. I. Co., 239. Williams v. Jones, 172. Williamson v. Allison, 239. Williamson v. Freer, 185. Willis V. Baddeley, 65. Willoughby v. Willoughby, 65. Wills V. Murray, 311. Wilson v. Carnley, 294. Wilson v. Glossop, 251. Wilson V. Horn, 175. Windmill Local Board of Health v. Vint, 335. Wing v. Angrave, 359. Wing v. London Gen. Omn. Co., 171. Winkfield, the, 202. Wood v. Leadbitter, 229. Woodruff V. Woodruff, 70. Wright V. Sill, 70. WsTnan v. Leavitt, 173. X. Xenos V. Wickham, 279. Y. Young V. Hichens, 195. Z. Zamora, the, 368, 390. Zollverein, the, 424. Zouch V. Parsons, 349. THE ELEMENTS OF JURISPRUDENCE. CHAPTER I. JURISPKUDENCB. The present treatise is an attempt to set forth and The need explain those comparatively few and simple ideas which ^f l^-w. underlie the infinite variety of legal rules. The search for these ideas is not merely a matter of scientific curiosity. The ever -renewed complexity of human relations calls for an increasing complexity of legal detail, till a merely empirical knowledge of law hecomes impossible. The evil has been partially remedied by the formation of Codes, in which legislators, more or less imbued with legal principles, have grouped the legal chaos under genera and species. But an uncodified system of law can be mastered only by the student whose scientific equipment enables him to cut a path for himself through the tangled growth of enactment and precedent, and so to codify for his own purposes. In this department of knowledge, as in others, the difficulty of the subject is due less to the multiplicity of its details than to the 1950 B 2 JURISPRUDENCE. ^AP. I. absence of general principles under which those details may be grouped. In other words, while legal science is capable of being intelligently learnt, isolated legal facts are capable only of being committed to memory. Its name. For the beginnings of the science which reduces legal phenomena to order and coherence the world is indebted to the Romans. It is also from their language that the science derives its name. 'lurisprudentia,' in its original use, was merely one among several phrases signifying a knowledge of the law, just as 'rei militaris prudentia' signified a knowledge of the conduct of warfare \ The sort of knowledge which the term denoted may be gathered from Cicero's description of a jurisconsult as one who must be ' skilled in the laws, and in the usages current among private citizens, and in giving opinions and bringing actions and guiding his clients aright^.' From this thorouglily practical conception of legal knowledge the Roman jurists subsequently rose to a far higher one. The rudiments of this may already be traced in the writings of Cicero, who enumerates the civU law, along vrith astronomy, geometry, and dialectic, among the * ' Habebat enim magnam prudentiam, turn iuris civilis turn rei mili- taris.' Nep. Cim. 2. The following terms are used synonymously with 'iuris prudentia': 'legum prudentia,' Cic. Rep. ii. 36; 'legum scientia,' Inst. Prooem. 3; 'legitima scientia,' ib. 2; 'iuris notitia,' Tac. Orat. 31; 'cognitio iuris,' Cic. de Orat. i. 44; 'iuris scientia,' ib. 55, Tac. u. s., Pompon. Dig. i. 2. 2. 40; 'civilis scientia,' Cic. de Orat. i. 43; 'iuris peritia,' Ulp. Dig. i. i. i. Knowledge of a particular department of law is described by such phrases as 'iuris civilis cognitio,' Cic. de Orat. i. 59; ' iuris public! prudentia,' ib. 60. ^ Cic. de Orat. i. 48. The same persons who were called ' iurisconsulti ' or 'iure periti,' 'iuris peritos . . . qui pragmatici vocantur,' ib. 59, were also described as 'prudentes in iure civili,' Cic. Amic. 2; more briefly as 'prudentes,' Gai. i. 7. Cf. 'in libris iuris auctorum et in alia antiqua prudentia.' Cod. xviii. 2. i. The phrase 'iuris prudens ' is employed by Pomponius (Dig. xxxviii. 15. 2). ' Legum prudens ' occurs in Ennius (Gell. xii. 4) and 'imprudens iuris' in lust. Inst. iv. 2. MEANING OF THE TERM. 3 arts which have to do with the pursuit of truth'. He tells us that the study of law must be derived from the depths of philosophy, and that, by an examination of the human mind and of human society, principles may be discovered in comparison with which the rules of positive law are of but trivial importance ^ Thus the way was prepared for Ulpian's well-known definition of jurisprudence as 'the knowledge of things human and divine, the science of the just and unjust V Jurisprudence was conceived of as a branch of philosophy; and such an elevation of the idea of legal study was naturally accompanied by a corresponding elevation of its professors. Ulpian claims for himself and his learned brethren that they are ' the priests of Justice, engaged in the, pursuit of a philosophy that is truly such and no counterfeit V The Romans had, in fact, attained by this time to the idea of a science of those legal principles which exist independently of the institutions of any particular country. No technical term could be borrowed from the Greek language to denote what was of purely indigenous growth', and thus it happened that a phrase which at first had been but one among several, signifying, in a homely and quite unscientific sense, a 'knowledge of law,' came at length, by an accident of Latin philology, to express the new idea of a legal science. The nations of modern Europe are fortunately in the ' Cic. de Off. i. 6. ' Cic. de Leg. i. 5. Cf. Plin. Ep. i. 10. ' ' lurisprudentia est divinarum atque humanarum rerum notitia, iusti atque iniusti scientia.' Dig. i. i. 10. This is nearly a translation of the Stoic definition of iroipla as being Belay rt Kal iuBpairhav ^irio-T^/ji) (Plut. Plac. Phil. i. pr.; cf. Cic. de Off. i. 43), modified by the addition of a clause specifying the particular kind of wisdom intended. The first clause of Ulpian's definition has been, with little reason, thought by some to have reference to the distinction between ius sacrum and the other branches of law; see Glilck, Pandekten, i. p. 198. * Dig. i. I. I. I. ' lurisprudentia is represented in the Basilika, ii. i. i, and in Har- menopulus, Prompt, i. i. 18, by (ras in the sense of 'a chant' is the original one, as does, e. g., Fustel de Coulanges, La Cit6 Antique, p. 227. 2 Prof. Max Miiller seems to have thought that, among the Hindoos at all events, the order of ideas was the converse. In the Vedic Hymns, Rit&, he says, from meaning the order of the heavenly movements, became in time the name for moral order and righteousness. Hibbert Lectures, 1878, p. 23s. ITS TWO MEANINGS. 17 to law, he holds fast to it, even while he loses his hold chap. ii. on the idea of the existence of a supreme lawgiver. Men have also almost always beheved themselves to be acquainted with certain rules intended for the guidance of their actions, and either directly revealed to them by a superhuman power, or gathered by themselves from such indications of the wiU of that power as are accessible. They have supposed that they have discovered by self- analysis a master part of themselves, to the dictates of which they owe allegiance. They have observed that, in order that their senses may receive certain impressions from external objects, those objects must be arranged in certain ways, and no other. It is easy enough, upon consideration of these facts, to account for the existence of such phrases as laws of Nature, laws of God, laws of Morality, laws of Beauty, and others which will at once suggest themselves. The employment of the same name to denote things so The different may appear to us to imply an extraordinary of^the confusion of the topics appropriate to Theology, to Physics, sciences. to Ethics, to -^Esthetics, and to Jurisprudence; but the wonder will be less if we remember that the separation of the sciences to which we are accustomed, and which we take for granted, was unknown to remote antiquity. The world with all its varied phenomena was originally studied as a whole. The facts of nature and the doings of man were alike conceived of as ordained by the gods. The constitutions of states and the customs and laws of all the peoples of the earth were as much of divine contrivance as the paths of the planets. The great problem thus presented for the study of mankind was gradually broken up into a number of minor problems. There occurred a division of the sciences. A line was drawn between those which deal with external nature, including Theology and Metaphysics, and those which deal with the actions of meh. These latter, the practical, were 1950 c i8 LAW. Use of the term in the phy- sical sciences; in the practical sciences. thus severed from the theoretical sciences * ; and the term law, which had been used ambiguously in the discussion of both sets of topics before their severance, has henceforth two distinct histories. In the theoretical sciences, it is used as the abstract idea of the observed relations of phenomena, be those relations instances of causation or of mere succession and co-existence. In the practical sciences the term is used to express the abstract idea of the rules which regulate human action. In the theoretical, or as we should rather say in modern phrase, in the physical sciences, Law is used to denote the method of the phenomena of the universe; a use which would imply, in accordance with the primitive meaning of the term, that this method is imposed upon the phenomena either by the wiU of God, or by an abstraction called Nature. This use of the term may certainly lead to miscon- ceptions. It has long ago been agreed that all we can know of natural phenomena is that they co-exist with, or succeed, one another in a certain order, but whether this order be imposed immediately by a divine will, or mediately through an abstraction called Nature, or through minor abstractions called Gravitation, Electricity, and the like, the phenomena themselves are unable to inform us. It is therefore necessary to realise that when we talk of the laws of Gravity or of Refraction, we mean merely that objects do gravitate and that rays are refracted. We are using the term law merely to convey to our minds the idea of order and method, and we must beware of import- ing into this idea any of the associations called up by the term when it is employed in the practical sciences. Its use in these sciences is, speaking very generally, to express a rule of human action ; and the sciences of human action being those in which the term is most used, and ' They are henceforth connected only by means of religion, and by speculations concerning the faxsulties of the human mind. AS THE ORDER OF THE UNIVERSE. 19 indeed is most needed, it is reasonable to say that this chap. ii. is its proper meaning, and that its use in the theoretical sciences is improper, or metaphorical merely. But just as its metaphorical use, as meaning 'order,' is sometimes obscured by associations derived from its proper use as signifying ' a rule,' so is its proper use as ' a rule ' occasionally confused by an imagined parity between a rule and the invariable order of nature. The first step therefore towards clearing the term Law of ambiguity for the purposes of Jurisprudence is to discard the meaning- in which it is employed in the physical sciences, where it is used, by a mere metaphor, to express the method or order of phenomena, and to adopt as its proper meaning that which it bears in the practical sciences, where it is employed as the abstract of rules of human action. The opposition between these two meanings will be best The two seen by grouping together, under the heads of Order and ® ' Eule respectively, a few characteristic specimens of the vague employment of the term Law. L LaniD as the order of the Universe. ' Law is the King of Kings, far more powerful and rigid Order, than they: nothing can be mightier than law, by whose aid, as by that of the highest monarch, even the weak may prevail over the strong.' — The Vedas*. Nd/ios, Trdvrwv jSocrtXevs OvaTUiV re koX aOavdrtav. — Pindar ^. 'En-el KoX Tov oXov koct/iov, koI to. 6eia koX ras koXou/acvos iopai, vo/ios Koi rd^i?, et )(pii Tois opatfievois iriaTviuv, SioiKtiv (fiaivcTtu. — Demosthenes '. ' Sat. Br. 14. 4, 2. 23; Br. Ar.Up. i , 4, 14, cited Tagore Lect. 1880, p. 136. ' 'Law, the King of All both mortals and immortals.' Apud Plat. Gorg. 484 B. ' ' Since also the whole world, and things divine, and what we call the Cz 20 LAW. CHAP. II. 'O vd/xos o Koti/os, ocnrep icrrlv 6 op6o tj /lij, ro/iiKhv Si 4 i^ ivXV^ fiiv ovBh' Siwpepei ovrai 1) &WuSf Srav Si duvrat Siatjiepei. He goes on to explain this statement, and to refute the idea that eveiything which is (t>i(T€i is wholly vmIvtitov. He uses avviiic^ as sjTionjmious with yoniKdv. Eth. Nic. V. 7. ' Rhet. i. 16. He also opposes the fSioi v6nos to that which is Koiviii or kotA tpitriy, ib. 14; cf. Demosth. Aristocrat, p. 639. ' Stob. Eccl. ii. p. 184. ' Chrys. apud Plut. de Stoic. Rep. 9. Cf. the saying of Heracleitus: rps^ovrai yap vtlvres oi ia/dp&ntioi vifiot 6irh iyhs rod de/ov. Frag. 91, ed. ByTvater. * Chrys. apud Diog. Laert. vii. 88. ' De Legib. i. 6; ib. i. 15; cf. De Inv. ii. 52; Rep. (Mai) iii. 22. ' De Legib. ii. 4; cf. the distinction between 'summa lex' and 'lex scripta,' ib. cc. 6. 15; between 'lex Naturae' and 'civilis,' De Off. iii. 17; between 'civilis nexus' and 'communis lex Naturae,' Rep. i. 17, iii. 38; between 'simimum ius' and 'ius civile,' ib. v. 3; and between 'universmn ius' and 'ius civile,' De Legib. i. 4. 1950 D 34 LAWS AS RULES OF HUMAN ACTION. CHAP. III. It may be worth while to add a few instances from later writers of the terms in which the law of Nature has been spoken of. Isidorus: 'lusnaturale est commune onmium nationum, eo quod ubique instinctu naturae, non constitutione ahqua, habetur V S. Thomas Aquinas: ' Participatio legis aetemae in rational! creatura lex naturalis dicitur^.' Grotius : ' lus naturale est dictatum rectae rationis, iudi- cans actui alicui, ex eius convenientia aut disconvenientia cum ipsa Natura rational! ac sociali, inesse moralem turpitudinem aut necessitatem moralem, ac consequenter ab auctore Naturae, Deo, talem actum aut vetari aut praecipi^' Hobbes: 'Keason suggesteth convenient Articles of Peace, upon which men may be drawn to agreement. These Articles are they which otherwise are called the Lawes of Nature*.' Jeremy Taylor : ' The law of nature is the universal law of the world, or the law of mankind, concerrung common necessities, to which we are inclined by nature, invited by consent, prompted by reason, but is bound upon us only by the command of GodV Cumberland: 'Lex Naturae est propositio naturaliter cognita, actiones indicans effectrices communis boni °.' Special uses of term. The wider sense. The term 'Law of Nature,' besides the sense in which we have just explained it, has been employed in a wider and also in a more restricted sense. The wider is that of the well-known 'ius naturale' of Ulpian, which he says prevails among animals as well as men, regulating the nurture of the young and the union of the sexes'. It is obvious that the courses of action 1 Etymol. v, cf. Decretuin i Dist. c. 7. '1.2. q. 91. art. 2. ' De I. Bell, et P. i. i. 10. « Leviathan, p. 63. ' Duct Dub. ii. c. 1. r. i. ' lust. Inst. i. 2. ' De Lege Nat. v. i. THE NARROWER SENSE. 3S mentioned by Ulpian are followed in pursuance, not of chap. hi. a precept addressed to a rational will, which alone is properly called a 'law,' but rather of a blind instinct, resembling the forces which sway the inanimate world \ Such an employment of the term is, in fact, fully as metaphorical as its use to express the order of the uni- verse. A law for the nurture of offspring is no more intelligible than a law of gravitation. It is in pursuance of this 'law,' which is supposed to govern the relations of men before they have originated any of those institutions which mark their superiority to the merely animal creation, that all men are asserted to be equal. 'lure enim naturali ab initio omnes homines liberi nascebantur ' ; which is equivalent to saying that before any laws were in existence, no differences between man and man were recognised by law. Ulpian's 'ius naturale ' is therefore a merely metaphorical phrase, leading to consequences which, however magnHoquently they may be expressed, turn out upon analysis to be dangerous truisms. All legal right and wrong had its origin after human society was put in motion and began to reflect and act. To talk of law and right as applied to mankind at a supposed period anterior to society beginning to think and act is a contradiction in terms ^. An employment of the term 'natural law' in a sense The . ... narrower as much narrower than that which we have given it sense. as Ulpian's is wider, is its identification with the 'ius gentium.' The 'ius gentium,' in its origin a system of positive law enforced among the Komans and the races with whom they were brought into commercial contact, was conceived of, doubtless as early as the second cen- tury B. c, as a body of principles which are found in > Hesiod, Op. et Dies, 276. ' Yet writers are not wanting to assure us that the genesis of law pre- ceded even the development of the family. Zocoo-Rosa, Principii d'una Preistoria del Diritto, 1885, p. 36, Da 36 LAWS AS RULES OF HUMAN ACTION. CHAP. m. the laws of aU nations, and which therefore point to a similarity in the needs and ideas of all peoples \ 'lus autem gentium omni humano generi commune est; nam usu exigente et humanis necessitatibus gentes humanae quaedam sibi constituerunt. BeUa etenim orta sunt et captivitates secutae, et servitutes, quae sunt natural! iuri contrariae '^.' By the introduction of these precepts the narrow and strict law of Rome was gradually enriched and expanded. It was an afterthought to give them a higher authority and a philosophical significance by identifying them with the 'ius naturale'; as is done even by Cicero"; and more explicitly by Gains when he says: 'Quod vero naturalis ratio inter omnes homines constituit, id apud omnes populos peraeque custoditur, vocaturque ius gentium, quasi quo iure onmes gentes utuntur *.' Ulpian's extravagantly wide application of the term never seems to have gained currency. It was, on the other hand, long and generally used in the restricted sense of an equivalent for what the Romans meant by the 'ius gentium.' Its suitable and convenient use in the sense in which it was employed by Aristotle was restored by such writers as Oldendorp, Gentili, and Grotius. Deduc- A brief notice must suflSce of the various piactical the doc- conclusions which have been drawn from the doctrine trine. ^f 'ius naturale.' * Cic. de Off. iii. 69. Cf. Voigt, Das Ius Naturale, passim, and Prof. Nettleship, Contributions to Latin Lexicography, pp. 500-510. ' lust. Inst. i. ii. § 2. ' Gentium ius . . . ab eo enim nominatum est . . . et omnes gentes similiter eo sunt usae; quod enim honestum et iustum est omnium utilitati convenit.' Frag. Vet. I. Cti. Cf. Cic. de Off. iii. 17; Gai. Inst. iii. 93. ' ' Lege naturae, id est gentium,' De Off. i. 2 3 ; ' In re consensio omnium gentium lex Naturae putanda est,' Tusc. i. 13. * Inst. i. 1. DEDUCTIONS FROM THE DOCTRINE. 37 I- Acts prohibited by positive law, but not by the chap, iil so-called natural law, are said to be 'mala prohibita,' not 'mala in se.' Thus a government may find it ex- pedient to forbid certain acts, such as the planting of tobacco', which are not regarded as odious by the public sentiment. 2. Positive laws have been said to be invalid when they contradict the law of Nature. So Hooker, para- phrasing S. Thomas: 'Human laws are measures in respect of men whose motions they must direct. How- beit such measures they are as have also their higher rules to be measured by: which rules are two, the law of God, and the law of nature. So that laws must be made according to the general law of nature, and without contradiction to any positive law of scripture; otherwise they are iU madeV Grotius: 'Humana iura multa con- stituere possunt praeter naturam, contra naturam nihil V And Blackstone: 'This law of nature, being co-eval with mankiad and dictated by God himself, is of course superior in obligation to any other. It is binding aU over the globe in all countries and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from their original*.' It is with reference to assertions of this ' 12 Ch. II. c. 34. Cf. the lenient view which has been taken by the Courts of evasions of the revenue laws, e. g. Holman v. Johnson, Cowp. 341. ' Eccl. Pol. iii. c. 9. ' De I. B. et P. ii. 3. 6. * Comm. Introd. p. 43. Cf. Cic. de Legib. ii. 4; Suarez, de Lege et Deo, ii. 14; Raleigh, Works, iii.; Coke, I. Inst. 11, 183, 197; 7 Rep. 14; Locke, Civ. Gov. 11. Lord Coke in Bonham's case, 8 Rep. 118, says that 'when an Act of Parliament is against Common Right and Reason, or repugnant, or impossible to be performed, the Common law will control it, and adjudge such Act to be void,' &c. ; and Lord Hobart, 'even an Act of Parliament, made against natural equity, as to make a man a judge in his own case, is void in itself, for iura naturae sunt imrmUabilia, they are legeslegum.'Dayv. Savage, Hob. 87. These dicta, though approved of by Lord Holt in London v. Wood, 12 Mod. 687, appear never to have 38 LAWS AS RULES OF HUMAN ACTION. CHAP. III. sort that Bentham remarks : ' On ne peut plus raisonner avec des fanatiques armes d'un droit naturel, que chacun entend comme il lui plait . . . qui est inflexible en mSme temps qu'inintelligible, qui est consacre a ses yeux comme un dogme, et dont on ne peut s'ecarter sans crime . . . c'est-a-dire qu'Us substituent au raisonnement de I'ex- perience toutes les chimeres de leur imagination '.' 3. Natural law, or natural equity, has been often called in to justify a departure from the strict rules of positive law. "With the changing ideas of society cases of course often occurred when the law of the State was found to be in opposition to the views of equity entertained by the people, or by leading minds among them. The opposition would be said in modern language to be between law and morahty. But law and morality in early times were not conceived of as distinct. The contrast was therefore treated as existing between a higher and a lower kind of law, the written law which may easily be superseded, and the unwritten but immutable law which is in accordance with Nature. And this way of talking continues to be practised to the present day. Long after the boundary between law and morality had been clearly perceived, functionaries who were in the habit of altering the law without having authority to legislate found it convenient to disguise the fact that they were appealing from law to morality, by asserting that they were merely administering the law of Nature instead of law positive. 4. In cases for which the law makes no provision, the Courts are sometimes expressly authorised to decide in accordance with the principles of natural law. This been followed in practice; and see now. Lee v. Bude, &c., Ry. Co., L. R. 6 C. P. 582; also a learned note by Gray C. J. on the American cases in point, in Paxton's Case, Quincy, Mass., 51. 1 Dumont, Trait6s de Legislation, i. p. 147. DEDUCTIONS FROM THE DOCTRINE. 39 is so, for instance, in the Austrian^ and German" Civil chap, ni. Codes; and the Commissioners for preparing a body of substantive law for India recommended that the judges should decide such cases 'in the maimer they deem most consistent with the principles of justice, equity, and good conscience °.' The new Swiss Civil Code, which came into operation in 19 12, provides that, in default of express enactment, a judge is to decide in accordance with 'le droit coutumier.' Failing both of these sources, he is to apply such rules as he would lay down were he a legis- lator : 'II s'mspire des solutions consacrees par la doctrine et la jurisprudence*.' 5. The exceptional rules of the 'Law merchant' have been explained as derived from natural law. Thus it is laid down in the year-book of 13 Ed. IV that jurisdiction over foreign merchants is to be exercised 'secundum legem naturae que est appelle per ascuns ley marchant, que est ley universal par tout le monde^' 6. When English Courts refuse recognition to a foreign judgment as being 'opposed to natural justice,' the objec- tion is Umited to the procedure by which the judgment ' 'Nach den natiirlichen Grundsatzen,' § 7. 2 In which the phrases 'Treu und Glauben,' 'gute Sitten,' 'billiges Ermessen,' are of frequent recurrence. See R. Stammler, Die Lehre von dem Riohtigen Recht, 1902. For a discussion of the words 'd'aprfe les principes g6n6raux du droit et l'6qmt6,' in a Congo Ordonnance of 1886, see Stokes v. Stokes, L. J. 67 P. D. & A. 55. Cf. the much discussed pro- vision in art. 7 of the International Prize Court Convention of 1907, fortunately unratified by any Power, that, in certain events, that Court may decide 'd'aprSs les principes g6n6raux du droit et de I'^quitfi.' ' First Report, p. 9; Second Report, p. 10. Sir Fitzjames Stephen seems to have maintained that such attractive phrases mean 'little more than an imperfect understanding of imperfect collections of not very recent editions of English text-books.' Stokes, Anglo-Indian Codes, ii, p. 1 1 59. The dangerous provision in art. 5 of th^ abortive convention, above mentioned, empowering the Court, in the absence of Treaties or rules of International Law, to decide 'd'aprSs les principes g6n6raux de la justice et de l'6quit§,' led to the, fortunately also abortive, attempt, made in the 'Declaration of London,' to supply something more definite. * Art. I. The phraseology employed in the three languages of the Code does not always suggest quite the same idea. " Cited by Sir F. Pollock, Journal of Soc. Comp. Legislation, 1900, p. 431. Cf. infra, p. 60 n. 40 LAWS AS RULES OF HUMAN ACTION. CHAP. III. was obtained \ This ground of objection, as stated in the Indian Code of Civil Procedure, would appear to be of wider application ''.' 7. The law of Nature is the foundation, or rather the scaffolding, upon which the modern science of Inter- national Law was built up by GentDi and Grotius. The appeals to 'natural law' in modern diplomacy, perhaps most frequently made on behalf of the United States, have been little more than rhetorical I Rules enforced by deter- minate authority. Divine laws. II. In contrast with the species of rules which we have just been considering, are rules set by a determinate authority. Among such rules would no doubt be included rules imposed, or thought to be imposed, upon mankind by a God or Gods. Direct revelations of the vsdll of a supernatural power, or such indirect intimations of that will as each man may find in his own conscience, have alike been described as 'laws of God^' It has been believed that infractions of either class of God's laws, 1 Schibsby v. Westenholz, L. R. 6 Q. B. iS5- ■ ' ' No foreign judgment shall operate as a bar, if it is, in the opinion of the Court before which it is produced, contrary to natursvl justice.' Art. 14 (c). ' The Second Armed Neutrality (Art. 3) professed to safeguard 'les principes g(5n6raux du droit naturel, dont la liberty du commerce et de la navigation, de m^me que les droits des peuples neutres, sont une eon- sequence directe.' Martens, Rec, 2meed., vii. p. 175. Mr. J. Q. Adams, with reference to the claim of the United States to the Continent of North America, writes in his diary, Nov. 16, 1819: — 'From the time when we became an independent people, it was as much a law of Nature that this should become our pretension as that the Mississippi should flow to the sea.' Memoirs, iv. p. 438. At the Behring's Sea Arbitration, Mr. Carter, arguendo, went so far as to speak of the law of Nature as ' the true source upon which the whole system of the law of Nations rests,' p. 289. Upon this statement, see the criticisms of Sir C. Russell, pp. 729, 1041. * Austin introduces a new ambiguity into the term 'law of God,' by applying it complimentarily to the conclusions arrived at by the utili- tarian philosophy as to the mode of producing the greatest happiness of the greatest number. BY A DETERMINATE AUTHORITY. 41 generally known as sins, are sooner or later to be chap, hi, redressed; whether, as among the Jews, the redress is to take the shape of temporal reward and punishment, or, as under the Christian dispensation, the readjustment of religious good and evU is postponed to a future state of existence. The laws of God thus resemble in almost every point, other than the essential points of source and sanction, those laws which we shaU presently admit to be properly so called. It is however just this difference of source and sanction which withdraws them from the cognisance of Jurisprudence. Laws the author and upholder of which is superhuman are within the province of quite a different science, and the jurist may be warned, in the quaint words of Thomasius, 'not to put his sickle into the field of dread Theology ^' Leaving therefore on one side those rules which are Human alleged to be set by God, we come to those which are set by a deiinite human authority, and here we draw the final distinction between the case when such authority is, and the case when it is not, a sovereign political authority. Rules set by such an authority are alone properly called ' laws.' By a successive narrowing of the rules for human action, we have at length arrived at such of those rules as are laws. A law, in the proper sense of the term, is therefore a general rule of human action, taking cogni- sance only of external acts, enforced by a determinate authority, which authority is human, and, among human authorities, is that which is paramount in a political society '^. ' Ne falcem hie immittamus in campum venerandae Theologiae'; Inst. lur. Div., lib. i. c. 1. § 163. Elsewhere the same author doubts the truth of the conception of God as a law-giver. The wise man, he says, sees in God rather the teacher of a law of Nature, or a Father; Fund. I. Nat. et Gent. c. 5. ' ' Fiir das Feuer ist das Brennen nicht wesentlicher als filr das Recht 42 LAWS AS RULES OF HUMAN ACTION. CHAP. III. More briefly, a general rule of external human action Definition enforced by a sovereign political authority. All other rules for the guidance of human action are called laws merely by analogy; and any propositions which are not rules for human action are called laws by metaphor only. die Erzwingung seiner Bef olgung durch den Richter.' Jhering, Zweck, i. p. 321. It should hardly be necessary to remark that the legal character of a rule is not affected by the circumstance that it may occasionally fail to be enforced. Neither does promulgation seem to be of the essence of a law: in Japan, for instance, down to the year 1870, laws were addressed only to the officials whose duty it would be to administer them, and might be read by no one else; in accordance with the Chinese maxim 'let the people abide by, but not be apprised of, the law.' See Professor N. Hozumi's very interesting paper on the New Japanese Civil Code of 1898, read at the St. Louis Congress of 1904, p. 21. CHAPTER IV. POSITIVE LAW. A LAW, in the sense in which that term is employed Positive in Jurisprudence, is enforced by a sovereign political authority. It is thus distinguished not only from all rules which, like the principles of morality and the so-called laws of honour and of fashion, are enforced by an iadeterminate authority, but also from all rules enforced by a determinate authority, which is either, on the one hand, superhuman, or, on the other hand, politically subordinate. In order to emphasise the fact that laws, in the strict sense of the term, are thus authoritatively imposed, they are described as 'positive' laws\ It is to such laws that the following definitions willDefini- be found to have reference: — TovTO ecTTt vofio?, v, iroXeuis oe crvvaTjKi} Koivrj, Kad' rjv ajracri irpooT^Ka ^rjv rots iv Tg TroXa. — Demosthenes '. "Ocra y h.v to Kparovv Trjz woXecos /3ovXfV(Ta,iJ,€vov & xpr) ttoulv ypdxlqi, vdjaos KoAeiTai. — Xenopllon ^ 'O vo/ios €o-T(. Xdyos (Lpio'niei'os, (caS' o/xoXoyt'av Koti'i;r TrdXeeo?, p.rivvv iro\lT€viui, Itali segnoriam appellant.' « I. B. et P. i. c. 3. 7. 1950 E 50 POSITIVE LAW. CHAP. IV. faculties of each particular person to the maintenance of peace and for common defence'.' The sovereignty of the ruling part has two aspects. It is ' external,' as independent of all control from without ; 'internal,' as paramount over all action within. Austin expresses this its double character by saying that a sovereign power is not in a habit of obedience to any determinate human superior, while it is itself the deter- minate and common superior to which the bulk of a subject society is in the habit of obedience^. With reference to each kind of sovereignty, questions arise the nature of which must be briefly indicated. External. External sovereignty, without the possession of which no State is qualified for membership of the family of Nations, is enjoyed most obviously by what is techni- cally known as a 'Simple State,' i. e. by one which is 'not bound in a permanent manner to any foreign political body.' States which are not 'simple' are members of a ' System of States,' in which they are combined upon equal or upon unequal terms. In the former case they compose an 'Incorporate Union,' such as is the United Kingdom of Great Britain and Ireland, or an ' fitat f ederatif,' or 'Bundesstaat,' such as are the United States of America, the Swiss Confederation, or the German Empire. In the latter case the States occupying the inferior position are known as ' mi-souverains,' and may be 'protected' like the Republics of Andorre and San-Marino, and now the Sultanate of Egypt, or ' under suzerainty,' as were Bulgaria till 1909, and Egypt till 19 14. When the component states are equally united, their external sovereignty resides in no one of them, but in the government which results from their combination. The external sovereignty of a system of unequally 1 The Philosophical Elements of a True Citizen, c. 5, Works, ii. p. 69. s Jurisprudence, i. p. 171. SOVEREIGNTY. 5 1 united states is to be looked for usually in the State chap. iv. which is suzerain or protector of the others. The questions which arise with reference to internal Internal, sovereignty relate to the proportion borne by the sove- reign part of the State to the subject part; in other words, to forms of government. These were analysed, with reference to simple states, by the Greek philosophers in a way which left little to be desired. The power may be confided to all members of the State who are not under some disabiUty on account of age, sex, or other- wise; or it may be restricted to one or more of the members. In the former case, the form of polity is a democracy. In the latter, it is an aristocracy or a monarchy, as the case may be. Questions as to the dis- tribution of powers in compound States, and especially in federal governments, have only of late years received an adequate treatment ^ Whether the ruling power be as widely diffused as possible, or be concentrated in the hands of a despot, makes but little difference for the purposes of our present inquiry. It is by the sovereign, be that sovereign one individual or the aggregate of many individuals, that all law is enforced. 'The Lawes of Nature,' says Hobbes, 'are not properly Lawes, but qualities that dispose men to peace, and to obedience. When a Common-wealth is once settled, then are they actually Lawes, and not before; as being then the commands of the Common- wealth.^' In the words of an eminent living jurist: 'Das Recht existirt erst vermoge der Sanction der Rechts- gemeinschaft des einzelnen Staates'.' ' For a masterly analysis of the structure of a 'Federal Government,' see Professor Dicey's Law of the Constitution, ed. viii, 1915, pp. Ixxiii, 134; and for a detailed examination of the questions to which the actual working of the greatest experiment in this form of government has given rise. Lord Bryce's American Commonwealth, 1888. Cf. Essays vi and viii, in his Studies in History and Jurisprudence, 1901. ^ Leviathan, p. 138. ' ' Law first exists throughthe sanction afforded by participation in the Ez 52 POSITIVE LAW. CHAP. IV. Diffi- culties of the theory of sove- reignty. Considerable doubt has of late been thrown upon the doctrine that apart from the existence of a State, and of a sovereign power within it, there can be no Law, because all laws are rules enforced by such a power. Real diffi- culties in applying the doctrine to the facts of history were pointed out by Sir Henry Maine, with that fertility of illustration and that cogency of argument for which his writings are so conspicuous. He asks in what sense it is true that the village customs of the Punjaub were enforced by Runjeet Singh, or the lav.s of the Jews, during their vassalage to Persia, by the Great King at Susa. He denies that Oriental empires, whose main function is the levying of armies and the collection of taxes, busy themselves with making or en- forcing legal rules ; nor will he concede that it is a serious answer to his objections to say that 'what a government does not forbid it allows.' He would almost restrict to the Roman Empire, and the States which arose out of its ruins, the full applicabiUty of the Austinian conception of positive law. As applied to other political societies, he looks upon it as an ideal or abstraction, related to actual phenomena as are the axioms of mathematics to the actual conditions of matter, or the postulates of pohtical economy to the deaUngs of ordinary hfe\ These remarks are no less valuable than they are in- teresting. When legal phenomena are explained by the action of an absolute political sovereign, the student of Jurisprudence should always remember, and may no law of the individual State.' Von Bar, Das Internationale Privat- und Strafrecht, p. 519. Cf. Sir Henry Maine's remarks on 'the retreat out of sight of the force which is the motive power of law ' in the modern world. 'The great difficulty,' he says, 'of the modern analytical jurists has been torecoverfromits hiding-place the force which gives its sanction to the law.' Early Law and Custom, p. 388. • Early History of Institutions, Lect.xiii. Cf. the Essays on ' Primitive Iceland,' and on 'the Nature of Sovereignty,' in Bryce's Studies in History and Jurisprudence, 1901, i. p. 312, ii. p. 49. SOVEREIGNTY. S3 doubt be in danger of forgetting, that the explanation, chap. rv. though true as a general statement, necessarily leaves out of account many other characteristics of such pheno- mena. Sir Henry Maine did good service by showing that Justifica- it is a mistake to suppose that the obligation of law theory, rests everywhere, and at all times, as immediately and obviously upon a sovereign political authority as it does in England at the present day. In guarding against a crude application of the doctrine of sovereignty, this great jurist has however perhaps hardly done justice to its essential truth. The reply which we would venture to make to his remarks upon this point would be to the following effect. With reference to the Western nations, we would submit that the dependence of law upon sovereignty was as obvious in Attica and Lacedaemon as it ever was under the Roman Empire. A law as carried by Pericles, or as imagined by Plato, would conform to Austin's defi- nition as completely as would a constitution of Marcus Aurelius. With reference to the relation of a great Oriental tax- gathering empire to the village customs of its subjects, or to the more distinctly formulated laws of a con- quered province, it is necessary to draw a distinction. Disobedience to the village custom or the provincial law may either be forcibly repressed, or it may be acquiesced in, by the local authority. If it be habitually repressed by such local force as may be necessary, it follows that the local force must, if only for the preservation of the peace, be supported, in the last resort, by the whole strength of the empire. In this case the humblest vil- lage custom is a law which complies with the requirement of being enforced by the sovereign. If, on the other hand, disobedience be habitually acquiesced in, the rules which may thus be broken with impunity are no laws; and. 54 POSITIVE LAW. CHAP. IV. SO far as such rules are concerned, the tax-gathering empire is lawless, its organisation consisting merely of an arbitrary force, acting upon a subject mass which is but imperfectly bound together by a network of reUgious and moral scruples. It is convenient to recognise as laws only such rules as can reckon on the support of a sovereign political authority, although there are states of society in which it is difficult to ascertain as a fact what rules answer to this description. CHAPTER V. THE SOURCES OF LAW. The obscurity which has involved the whole subject Ambi- of the origin of law, and the mutual relations of cus-fhetenn ternary, judge-made, and statute law, is largely due to'^°"'''^^-' the ambiguous uses of the term 'Source.' The uses are fourfold. (i) Sometimes the word is employed to denote the How quarter whence we obtain our knowledge of the law, e. g. °^ whether from the Statute-book, the Reports, or esteemed Treatises. (z) Sometimes to denote the ultimate authority which Ultimate gives them the force of law, i. e. the State. (3) Sometimes to indicate the causes which have, as it Remote were automatically, brought into existence rules which have subsequently acquired that force; viz. i. Custom, ii. Religion, lii. Scientific discussion. (4) Sometimes to indicate the organs through which the State State either grants legal recognition to rules previously unauthoritative, or itself creates new law; viz. by i. Ad- judication, ii. Equity, iii. Legislation. S6 THE SOURCES OF LAW. CHAP. V. As to No. (i), no explanation is necessary. As to No. (2), it will be sufficient to remark that until the State is constituted there can be no law, in the strict sense of the term. There may be, and doubtless always have been, morality and customary rules of conduct. After the formation of the State, such rules as receive its sanction and support, whether promulgated for the first time by the governing body, or already in operation among the people, become, in the proper sense of the term, 'laws.' Nos. (3) and (4) will require further consideration. (3) Remote causes \ Custom. i. Usage, or rather the spontaneous evolution by the popular mind of rules the existence and general accep- tance of which is proved by their customary observance. • Of. Cic. Top. 5; Auct. ad Herenn. ii. 13; Dig. i. i. 7; Gai. i. 2. The ' roots ' enumerated in the Institutes of Manu (ii. 6) are four : Revelation, or the uttered thoughts of inspired seers; the institutes of revered sages, handed down by word of mouth from generation to generation; the approved and immemorial usages of the people : and that which satisfies our sense of equity, and is acceptable to reason. Tagore Lectures, 1880, P- 137- In Doctor and Student, i. 4, it is said that the 'law of England is grounded on six principal grounds: first, it is grounded on tlie law of reason ; secondly, on the law of God ; thirdly, on divers general customs of the realm ; fourthly, on divers principles that be called maxims ; fifthly, on divers particular customs ; sixthly, on divers statutes made in Parlia- ment.' It may be observed that St. Germain makes here no mention of ' the Law of Nature.' Attention has been recently called to a passage (i. s) in which this author makes his 'student' explain that 'it is not used among them that be learned in the laws of England to reason what thing is commanded or prohibited by the Law of Nature . . . but, when anything is grounded upon the Law of Nature, they say that Reason will that such and such a thing be done ; and if it be prohibited by the Law of Nature, they say it is against Reason, or that Reason will not suffer that to be done.' Sir P. Pollock, The Expansion of the Common Law, 1904, p. 100. At p. no, ib., he cites the interesting remarks of Farwell, J. in Bradford Cwrpar. v. Ferraud, [1902] 2 Ch. 6sSi on ms naturae. CUSTOM. 57 is no doubt the oldest form of law-making. It marks chap. t. the transition between morality and law. Morality plus a State-organisation enforcing the observance of certain parts of it is customary law. Two questions are much debated with reference to usage. First, as to the mode of its growth as usage. Secondly, as to its transformation into law. Its chief characteristic is that it is a generally observed Its course of conduct. No one was ever consciously present^ ' at the commencement of such a course of conduct, but we can hardly doubt that it originated generally in the conscious choice of the more convenient of two acts, though sometimes doubtless in the accidental adoption of one of two indifferent alternatives; the choice in either case having been either deliberately or accidentally repeated tUl it ripened into habit \ The best illustration of the formation of such habitual courses of action is the mode in which a path is formed across a common. One man crosses the common, in the direction which is suggested either by the purpose he has in view, or by mere accident. If others follow in the same track, which they are likely to do after it has once been trodden, a path is made. Before a custom is formed there is no juristic reason for its taking one direction rather than another, though doubtless there was some ground of expediency, of reli- gious scruple, or of accidental suggestion. A habitual course of action once formed gathers strength and sanctity every year. It is a course of action which every one is accustomed to see followed: it is generally believed to be salutary, and any deviation from it is felt to be abnormal, immoral It has never been enjoined by the ' 'EiTTi Si rh i0os yviifni /ikv tuv xpufjiivav Koivi], vd/xos Si Hypa^as ibvovs fi ■ir6\ews . . . eSpriiia Sh avBpdrav ovSev6s, liWci $lov Kal xpivov. Dio Chrys. Orat. 76, quoted by W. L. Newman, Arist. Pol. i. p. 75 n. 58 THE SOURCES OF LAW. CHAP. V. organised authority of the State, but it has been un- questioningly obeyed by the mdividuals of which the State is composed. There can in fact be no doubt that customary rules existed among peoples long before nations or states had come into being. At first no distinction ■was made between such of these rules as relate to in- dividual character and such as concern society. Morality and customary rules were the same thing, but the dis- tinction between the two was more and more sharply drawn as time went on. Its legal After the organisation of States, many of the customary au on y. j.,^gg gf society still continued to be recognised, and acquired a further sanction. They had previously been enforced only by popular opinion, or by the licensed revenge of injured parties. They were now enforced by the political authority. They became law; and were doubtless for the time the only laws known. They were the unwritten, but well knoAvn, opinions of the community as to social right and wrong. KiipiSeeacritiqueuponmyviewbyProf.Dewey,9Pol.Sci.Quarterly,p.47- ' On the ' custom of merchants,' once supposed to be incapable of further growth, but in recent cases recognised as being susceptible of, even rapid, modification, see Goodwin v. Robarts, L. R. lo Ex. 337; Edelstein v. Schuler & Co., [1902] 2 K. B. 144: 'The law merchant is not fixed and stereotyped. It has not been arrested in its growth by being moulded into a code.' For Lord Holt's refusal to follow it with reference 62 THE SOURCES OF LAW. CHAP. V. When, therefore, a given set of circumstances is brought into Court, and the Court decides upon them by bring- ing them within the operation of a custom, the Court appeals to that custom as it might to any other pre- existent law. It does not propria motu then for the first time make that custom a law; it merely decides as a fact, that there exists a legal custom, about which there might up to that moment have beeii some question, as there might about the interpretation of an Act of Parliament. It then applies the custom to the circum- stances just as it might have applied an Act of Parlia- ment to them. A good custom or an intelligible Act of Parliament either exists or does not exist objectively, before the case comes into Court; although it is from the decision of the Court in the particular case that a subjective knowledge is first possible for the people of the existence or non-existence of the alleged custom, or that this or that is the meaning of the Act of Parliament. The legal character of reasonable ancient customs is to be ascribed, not to the mere fact of their being reason- able ancient customs, but to the existence of an express or tacit law of the State giving to such customs the effect of laws. We have described the mode in which the State usually acts in giving to custom the force of law. It also may occasionally do so in express terms. It sometimes in express terms denies them any such force, and some- times limits the force which has hitherto been ascribed to them. In some States grsater force has been allowed than in others to custom as compared with express legisla- te promissory notes, see Buller «. Crips (1703) 6 mod. 30; corrected by 3 & 4 Anne, c. 9. The old German Handelsgesetzbuch expressly directed the custom of merchants to be followed where the Code was silent. So the Codice di Commercio. But the n'ew Handelsgesetzbuch omits this provision, and it was omitted in a revision of the Itahan code. RELIGION. 63 tion. The theory of English law is that no statute chap. v. can become obsolete by desuetude. The contrary view is maintained in Germany, and even in Scotland. Such an account of the growth of custom and its Theories transformation into law will not content a certain school ■ historical of theorists, of whom Savigny and Puchta are the most^'''^°°'-' illustrious. They tell us that the growth of Law (Recht) has no dependence upon individual arbitrary will or accident ^ It is begotten in the People (Volk) by the Popular intelligence (Volksgeist) ^ The People, however, has no actual existence apart from its bodily form, the State ^. Law has its existence (Daseyn) in the general- wiU (Gesammtwille) ; customary observance is not the cause of Law, but the evidence of its existence''. It does not make its first appearance in the form of logical rules ^ Or, going still further afield, we are told by Hegel to see in the rise of Law the evolution of the Deity. We are in fact told that the principle is anterior to its applications. The true reply to which Ave conceive to be, that the principle is nothing else than a generalisa- tion from the applications. The only unity antecedent to the circumstances is the common constitution of man- kind. The element of truth in the view of the so-called 'historical school' of Germany is that the adoption of customary rules of conduct is unconscious. It takes place in accordance with no deliberate plan, but comes into being piece-meal, as it is called for by the natural wants of mankind. We may remark as results of its mode of formation, first, that it is hence better adapted to national feeUng than law which is otherwise manu- factured. Secondly, that its importance declines with the growth in a nation of conscious critical power. ii. Religion. The description of law as 'a discovery Religion. ' Savigny, System, i. p. 15. ' lb. i. pp. 17S> i77- ' lb. i. p. 22. ' lb. i, pp. 35, 168. Cf. Windscheid, Pand. i. p. 40. ' Savigny, i. p. 16. 64 THE SOURCES OF LAW. CHAP. V. and gift of God ' well expresses the view of the Greeks \ The influence of the priestly colleges can never be left out of account in studying the development of the law of Rome^ nor has the Corpus luris Canonici failed to afEect the secular systems of modern Europe. It has long been laid down, and has only recently been questioned, that ' Christianity is part of the law of England V though few judges have gone so far as Chief Justice Prisot in declaring that 'Scripture est commun ley sur quel touts manieres de leis sont fondes V But it is in the East that religion has been, to many nations besides the Jews, a direct and nearly exclusive source of law. The Penta- teuch finds its parallel in the Koran and the Institutes of Manu. Hence arises the impossibility of any general legislation for British India. 'The Hindoo Law and the Mahomedan Law,' it has been authoritatively stated, 'derive their authority respectively from the Hindoo and the Mahomedan religion. It follows that, as a British legislature cannot make Mahomedan or Hindoo religion, so neither can it make Mahomedan or Hindoo law. A code of Mahomedan law, or a digest of any part of that law, if it were enacted as such by the Legislative Council of India, would not be entitled to be regarded by Mahomedans as the very law itself, but merely as an exposition of law, which possibly might be incorrect'.' ' Supra, p. 43. 2 For a perhaps exaggerated estimate of the influence of religion on Roman law, see Fustel de Coulanges, La Cit6 antique. ' Cowan V. Milhoume, L. R. 2 Ex. 230, but see Lord Coleridge's charge in R. V. Ramsay & Foote, 15 Cox G. C. 231. ' Year Book, 34 Hen. VI. 40. ^ First Report of the Commissioners appointed to prepare a body of sub- stantive law for India, p. 60. The Statute 21 Geo. III. c. 70, sect. 17, in declaring the powers of the Supreme Court at Calcutta, provides that ' in- heritance and succession to lands, rents and goods, and all matters of contract and dealing between party and party, shall be determined in the case of Mahomedans by the laws and usages of Mahomedans, and in the ADJUDICATION. 6$ iii. Scientific discussion, ' Wissenschaft,' ' Jurisprudence,' chap. v. has from time to time played a useful part in the develop- |fa™'sfoQ ment of rules which have often heen adopted as laws. The ' responsa prudentium,' before they were clothed with an official character, received at Rome a deference similar to that which has been conceded in England to the ' practice of conveyancers \' and to the writings of such sages of the legal profession as Lord Coke ' and Sir Matthew Hale.^ Of a similar character is the weight attributed to the ' obiter dicta ' of English Judges, i. e. to such statements of law made by them as are not necessarily called for by the case before them.^ (4) State Organs. i. Adjudication : ' Res ludicatae,' ' Gerichtsgebrauch,' Adjudica- ' Jurisprudence des Tribunaux,' 'Usus fori.' As to the '°°" nature of this source of law there are two theories. According to the old English view, as stated by Black- stone, the judges are ' not delegated to pronounce a new law, but to maintain and expound the old one^' They are the depositaries of a body of customary principles case of Genttis by the laws and usages of Genttls, and when only one of the parties shall be a Mahomedan or Gentfl, by the laws and usages of the defendant.' Similar provisions with reference to the Courts at Madras and Bombay are contained in 37 Geo. III. c. 142. ' See Wilhughby v. Willoughiy, i T. R. 771. ' On the similar function of the Commentators upon Hindoo law, see Sir W. Markby, Elements of Law, § 83. On the influence exercised upon the formation of judge-made law by the writers of text-books, see some interesting remarks in Prof. Dicey's Law of the Constitution, ed. viii, p. 370. ' Such, for instance, as the treatise upon Bailments imported by Holt C. J. into his judgment in the case of Coggs v. Bernard, i Sm. L. C. 176. * I Comm. 69. For a defence of |this theory by Professor Hammond of Iowa, see his edition of Lieber's Hermeneutics, p. 312. Lord Esher, M. R., goes so far as to say: 'There is in fact no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable.' Willis v. Baddeley, [1892] 2 Q. B. (C. A.) 324, 326. 1950 F 66 THE SOURCES OF LAW. CHAP. V. which have only to be applied to each new case as it arises. Most modern writers, on the other hand, agree with the criticisms of Austin, upon what he describes as: 'the childish fiction employed by our judges, that judiciary or common law is not made by them, but is a mira- culous something made by nobody ; existing from eternity, and merely declared, from time to time, by the judges \' In point of fact, the Courts in all countries have neces- sarily been entrusted with a certain power of making rules for cases not provided for previously; and even of modifying existing laws from time to time in order to carry out the current ideas of what is equitable, or to adapt them to the changing needs of society^. So it was said in a modern English case : ' When merchants have disputed as to what the governing rule should be, the Courts have applied to the mercantile business brought before them what have been called legal prin- ciples, which have almost always been the fundamental rules of right and wrong ' ; ' and it has even been judicially ' Lectures, ii. p. 655. Cf. Bentham: "a fiction of law may be defined as a wilful falsehood, having for its object the stealing legislative power by and for hands which could not, or durst not, openly claim it.' Works, vol. V. p. 13. 'Spurious interpretation, while it is the chief means of growth in the formative period, ... is an anachronism in an age of legis- lation. . . . Jhering has called the process when applied in a period of growth by juristic speculation, juristic chemistry.' R. Pound, upon 'spurious interpretation,' in Col. Law Rev. vii (1907), p. 382. ^ It has indeed been suggested that law always begins as a generalisa- tion from a series of judicial decisions. Cf. Maine, Ancient Law, p. $. On the almost necessary connection between judicial decision and the production of law, see Dernburg, Lehrbuch des Preuss. Privatrechts, i. p. 43. Under art. 4 of the Code Civil, a judge cannot refuse to decide a case by reason of the silence, obscurity, or inadequacy of the law. On the various species of ' interpretation,' see infra, c. xviii on ' The Applica- tion of Law,' ad fin. See also Lieber's Hermeneutics, and especially the learned supplemental Note B, by Professor W. G. Hammond in his edition of the work, 1880. ' Robinson v. Mollett, L. R. 7 E. and I. App. 816. So the German Civil Code lays it down that a contract is to be interpreted 'wie Treu und Glauben, mit Riicksicht auf die Verkehrssitte, es erfordern.' Art. 157. Cf. art. 242. " - -- - ADJUDICATION. dj stated that 'justice, moral fitness, and public convenience, when applied to a new subject, make common law with- out a precedent '.' This power the Courts have rarely exercised avowedly ^ but rather under cover of exercising one or other of the functions with which they are more distinctly entrusted, viz. first, of deciding upon the existence or non-existence of such customs as they are authorised to recognise as binding; and, in the second place, of expounding, and applying to particular instances, laws which are necessarily expressed, or conceived of, in general terms ^ 1 Per Willea J., in Millar v. Taylor, 4 Burr. 2312. With reference to this dictum, Pollock C. B. in Jefferys v. Boosey, 4 H. L. 936, said: 'I en- tirely agree with the spirit of this passage, so far as it regards the repress- ing of what is a public evil . . . but I think the Common Law cannot create new rights and hmit and define them, because, in the opinion of those who administer the law, such rights ought to exist according to their notions of what is just, right, and proper.' Cf. per Bowen L. J. in Dashwood v. Magniac, [1891], 3 Ch. 367. Mr. Justice Holmes of the U. S. Supreme Court has expressed himself as follows : ' I do not think it de- sirable that judges should undertake to renovate the law, but I think it most important to remember, whenever a doubtful case arises, that what is really before us is a conflict between two social desires . . . the said question is which desire is strongest at the point of conflict. When there is doubt, the simple test of logic does not suffice, and, even if it is dis- guised and unconscious, the judges are called on to exercise the sovereign prerogative of choice.' Harvard Law Review, xii. p. 452. Sir P'itzjames Stephen thought it unlikely that any attempt would be made by the bench to create new offences at the present day. 3 Hist. Grim. Law, P- 359- ' Lord Bacon mentions that when the French Parlements intended their decisions to make law they delivered them en robe rouge. Aug. Sci. viii. Aph. 7. These were the arrets de rbglement, which were thus solemnly delivered on the eves of the great festivals. Denisart, Collection de Jurisprudence, s. v. Arrest. ' By §§ 47, 48, of the Introduction to the Landrecht, which were repealed in 1798, judges were forbidden to interpret doubtful provisions, but were to refer their difficulties to a royal commission, and be bound by its decisions. See E. Schuster, in L. Q. R. xii. p. 22. On the vexed question of the value of judge-made law, see Hale, Pref. to RoUe's Abridgment; Bentham, Works, v. p. 477; Austin, Lectures, ii. p. 348; Prof. Hammond, in Lieber's Hermeneutics, Note N.; Prof. Clark, Practical Jurisprudence, p. 255; 8 Harvard Law Review, 328, dealing with Svnfl V. Tyson, 16 Peters, i; Gelpeke v. Dubuque, i Wallace, F 2 68 THE SOURCES OF LAW. CHAP. V. In the weight which they attach to the decision of a The force ^^^^^ ^^^^^ systems differ very widely. While in England cedents. and in the United States a reported case may be cited with almost as much confidence as an Act of Parliament, on the Continent a judgment, though useful as showing the view of the law held by a qualified body of men, seems powerless to constrain another court to take the same view in a similar case*. The Continental view is an inheritance from the law of Rome; for although Cicero enumerates 'res iudicatae' among the sources of law^ and the Emperor Severus attributes binding force, in the interpretation of ambiguous laws, to the ' rerum perpetuo similiter iudecatarum auctori- tas^' the contrary principle was finally established by a Constitution of Justing The Codes of Prussia' and Austria " expressly provide that judgments shall not have 17s, and Drummond v. Drummond, L. R. 2 Eq. 335; also an art. by Prof. Tiedeman, on 'stare decisis,' in University Law Review, Jan. 1896, p. II, and a paper, read at St, Louis in 1904, by E. B. Whitney. For an ingenious parallel between the uniformity of judicial decision, which renders a science of case-law possible, and the uniformity of nature, see Sir F. Pollock's Essays, p. 239. For suggested classifications of precedents as 'authoritative,' 'quasi-authoritative,' &c., see E. Wambaugh, The Study of Cases, ed. 2, 1894, and J. W. Salmond in 16 L. R. p. 376. ' In Scotland, the older practice approximated to the Continental, the later to the English- system. Cf. Ersk. Prino. I. i. § 17, Inst. I. i. § 47, with Mr. Rankine's (1890) edition of the first-named work. See T.C.Clay in Harvard L. R. ix. p. 27. A curious work by Dr. J. Unger, Der Kampf um die Rechtswissenschaft, citing Bartolus in favour of leaving much to the ' Voluntarismus' of the judges, is reviewed in the Deutsche Juristenzeitung for Feb. 15, 1906. ' Top. c. 5. The Auct. ad Herenn. ii. 13 discusses the weight to be ascribed to 'res simili de causa dissimiliter iudicatae,' by comparing 'iudioem cum iudice, tempus cum tempore, numerum cum numero iudiciorum.' = Dig. i. 3. 38. * ' Nemo index vel arbiter existimet neque consultationes quas non rite iudicatas esse putaverit sequendum, et multo magis sententias eminentis- simorum praefectorum, vel aliorum procerum; non enim si quid non bene dirimatur, hoc et in aliorum iudicum vitium extendi oportet, cum non exemplis sed legibus iudicandum sit.' Cod. vii. 45. 13. Cf. Dig. 1. 18. 12. * Landrecht, Einl. § 6. ' Biirgerl. Gesetzbuch, 12. ADJUDICATION. 69 the force of law, and although the Codes of France, Italy chap. v. and Belgium are silent on the point, the rule in all these countries is substantially the same, viz. that preYious decisions are instructive, but not authoritative; subject to certain special provisions of a strictly limited scope *. In England cases have been cited in court at least as early as the time of Edward I ^ They are however stated by Lord Hale to be 'less than law,' though 'greater evidence thereof than the opinion of any private persons, as such, whatsoever';' and his contemporary, Arthur Duck, remarks, that the Common Law judges, in cases of difflculty, 'non recurrunt ad ins civile Romanorum, ut apud alias gentes Europeas, sed suo arbitrio et conscientiae relinquuntur ^' But in Blackstone's time the view was established that "the duty of the judge is to abide by former precedents ^ ; ' and it has long been well understood that our courts are arranged in this respect in a regular hierarchy, those of each grade being bound by the decisions of those of the same or a higher grade, while the House of Lords is bound by its own decisions"; as is also. * E. g. the French law of 27 Ventdse, Ann. viii, art. 88; the Prussian Cabinet Orders of 1836, &c.; and similar Austrian ordinances. The Gerichtsverfassungsgesetz fur das Deutsche Reich, art. 137, requires a court, wishing to override a precedent, to refer the case to a higher tribunal. On the distinction between fos consid4rants in a French decision and the judgment of an English court, see Proceedings in the Behrin^'s Sea Arbitration, Ft. v. p. 1051. ^ In Year Book 32 Ed. I, ed. Horwood, p. 32, the court is warned by counsel that its decision 'servira en chescun quare non admisit en Engleterre.' ' Hist. Comm. Law, ch. 4. * He continues : ' Rerum per priorum aaeculorum iudices iudicatarum exemplis non semper tenentur praesentis saeculi iudices, nisi coram se agitatis exiatimaverint convenire, neque enim par in parem imperium habet.' De Usu et Auct. ii . c. 8. 6, 8. ' I Comm. 69. ' On the finality of the decisions of the House of Lords, see B. v. Millis, 10 CI. & F. 534; Beamish v. Beamish, 9 H. L. Ca. 274; Caledonian By. Co. V. Walker's Trustees, L. R. 7 App. Ca. 259. The doctrine was laid down in the most unqualified manner by Halsbury C. in London Street Tram- ways Co. V. London County Council, [1898] A. C. 375- He would, how- 70 THE SOURCES OF LAW. CHARV. apparently, the Supreme Court of the United States*. This is not the case in the Privy Council*. Precedents may, however, it is said, be disregarded in which the ratio decidendi was that certain acts were held to be against public policy ". There have been of late some symptoms of an ap- proximation between the two theories. While on the Continent judicial decisions are reported with more care, and cited with more effect, than formerly, indications are not wanting that in England and in the United States they are beginning to be somewhat more freely criticised than has hitherto been usual *- If a decision is reversed by a higher court, a curious question arises as to the position of persons who have in the meantime acted in accordance with the original decision. Was that decision good law till it was reversed, or was it a mere mistalte, upon which persons acted at their peril; their inability to predict the result of the appeal being 'ignorantia iuris'^? ever, narrow the applicability of a case to 'wliat it actually decides,' continuing ' I entirely deny that it can be quoted for a proposition that may seem to logically follow from it.' Quinn v. Leathern, [igoi] A. C. at p. So6- 1 So Dr. Hannis Taylor, citing Wright v. Sill, 2 Black, 544, and other cases, The Science of Jurisprudence, p. 511; but see Lord Bryce's Ame- rican Commonwealth, i. p. 364. ' Bisdale v. Clifton, 2 P. D. 306, 307; nor are Privy Council decisions binding upon other courts, Leask v. Scott, 2 Q. B. D. 380. ' ' A series of decisions based upon grounds of public policy, however eminent the judges by whom they were delivered, cannot possess the same binding authority as decisions which deal with and formulate principles which are purely legal.' Maxim-Nordenfelt Co. v. Nordenfelt, [1894] A. C. S3S- On 'Public policy,' see infra, c. xii. * The astounding growth of Reports in the United States must of itself tend to produce this result. ' It has been held in America that a 'subsequent decision is a legal adjudication that the prior one was not law at the time it was made,' Woodruff V. Woodruff, 52 N. Y. Ct. App. 53. In Gelpeke v. Dubuque (1863), I Wall. 17s, and in Douglass v. Co. of Pike (1879), loi U. S. 677, the position of such persons was held by the Supreme Court to be untouched; so also in a case in the Q. B. Division, Henderson v. Folke- EQUITY. 71 ii. Equity. As old rules become too narrow, or are chap. v. felt to be out of harmony with advancing civilisation, ^I'^'ty- a machinery is needed for their gradual enlargement and adaptation to new views of society. One mode of ac- complishing this object on a large scale, without appearing to disregard existing law, is the introduction, by the prerogative of some high functionary, of a more perfect body of rules, discoverable in his judicial conscience, which is to stand side by side with the law of the land, over- riding it in case of conflict, as on some title of inherent superiority, but not purporting to repeal it. These rules consist in reality of such of the principles of received morality as are applicable to legal questions, and commend themselves to the functionary in question. Such a guide to interference with a strict application of law was known to the Greeks as imeUaa, which, according to Aristotle, is not different from Justice, but a better form of it\ The term, variously distorted, reappears in mediaeval dis- cussions ', coupled, however, latterly, with its equivalent in classical Latin *Aequitas',° whence the modern 'Equity.' Of the resort to this expedient the two great historical m- stone Waterworks Co., apparently reported only in Times Law Rep. 1884-S, p. 329; so also in Pierce v. Pierce, 46 Ind. 86. On the position of persons acting on a decision subsequently reversed, see Lieber, Hermeneutics, p. 326, Law Quarterly Review, i. p. 312, and Columbia Law Review, ix. p. 163. ' Oix ^s 4XXo Tt 7^»«E iv Pe\Ti6v iari toO SiKatov, Eth. V. C. lo. Since the generality of a law is not the only hardship in its applica- tion which is redressed by Equity, his definition of r6 iimiKis as iiTavbp8uiM vbiMv f iXSfbra 5i4 t4 xaSiKov, Eth. v. c. 10, is hardly adequate. Elsewhere he describes it as being rA vapi, rbv yeypannimv y6/u>v SlKatov, and as look- ing fii] irpbs rhv v6iu>v dXXi vphs T^v didvoiap rov voyj>6iTOv, xal /li) irplts rijv wpa^tv dXX4 irpbs ri/v irpoalptinv, xal pAj vpbs ri pipos iWi, vpbt tJ S\oy. Rhet. i. 13. * B. g. S. Thomas, See. Sec, LXXX. i, 'Aristoteles in v. Eth. c. 10 ponit Epicheiam iustitiae adiunctam.' Dante, De Monarchia, i. c. 14, similarly cites Aristotle upon Epyekia. So Gerson, Regulae Morales, op. ii. 7, ' Aequitas, quam nominat philosophus epikeiam, praeponderat iuris rigori. Est avtem aequitas iustitia pensatis omnibus drcumstantiis partic- idaribus, dulcore misericordiae temperata. Hoc intellexit qui dixit "ipsae enim leges cupiunt ut iure regantur".' ' E. g. Cic. De Oratore, i, 56. 'Placuit, in omnibus rebus praecipuam esse iustitiae aequitatisque quam stricti iuris rationem.' Cod. iii. i. 8. 72 THE SOURCES OF LAW. CHAP. V. stances are the action of the Praetor at Rome and of the Chancellor in England. The Prae- The Praetor, though technically without any authority to legislate, exerted, during his year of office, a power over all judicial process, which, at first confined within narrow bounds by the formality of the ancient system of pleading, became in later times almost unlimited. Each Praetor on entering upon his functions gave public notice in his edict of the modes in which he intended to give reUef against the rigidity of the established system. The practical devices thus employed were developed by a long succession of Praetors into a body of 'ius honor- arium ' equal in bulk, and more than equal in importance, to the stUl unrepealed 'ius civile.' Thus it was that, alongside of the proprietary rights open to Roman citizens alone, there was introduced a system of possession pro- tected by interdicts and fictitious actions which had all the advantages of ownership. Effect was given to con- tracts which could not be found in the limited list of those recognized by the law, and to wills which were neither sanctioned by the Comitia nor solemnised by a sale of the inheritance with copper and scales. While succession ab intestato still passed by law to the members of the artificial 'agnatic' family, its benefits were prac- tically secured to the blood-relations. 'Naturali aequitate motus proconsul omnibus cognatis promittit bonorum possessionem, quos sanguinis ratio vocat ad hereditatem\' The Chan- A very similar phenomenon of a double system of law, PGlIor the newer practically overriding the older, while affecting to treat it with the utmost deference", occurred also in England, where however its introduction was less easily managed than at Rome. No great officer in England was invested with the attributes which enabled the Praetor to announce beforehand the principles upon which he * Dig. xxxviii. 8. 2. ' 'Equity follows the law.' Cf. 'ius praetorium, quod ius civile sub- Ecquitur.' Dig. xxii. 5. 14. EQUITY. 73 intended so to administer the law as in efEect to modify chap. v. its operation. The Chancellor, with his clerks, could, it is true, frame new writs, but it was for the Common Law judges to decide upon their validity ^ He therefore con- tented himself with what proved to be the very sufBcient expedient of deciding each case that was brought before him, as nearly as he dared, in accordance with what seemed to him to be its merits. In his character of 'Keeper of the King's Conscience,' he was held justified in thus exerting the undefined residuary authority which in early times was attributed to an English king.'' So it was sung of St. Thomas a Becket: 'Hie est qui regni leges canceUat iniquas, Et mandata pii principis aequa facit'.' And Sir Christopher Hatton asserts: 'It is the holy conscience of the Queen that is in some sort committed to the Chancellor ^' On this foundation was built up that vast and complex theory of Trusts which is peculiar to the law of England, and that system of interference by means of * Injunctions ' by which the process of the Common-Law Courts was brought to a standstill, when it seemed likely to work injustice. The principles by which the Chancellors were guided in the exercise of their powers may best be gathered from their own mouths. Lord Hardwicke said : ' When the Court finds the rules of law right, it will follow them, but then it will like- wise go beyond them^' Lord Cottenham: 'I think it is the duty of this Court to adapt its practice and course of proceeding to the ' Spence, Equitable Jurisdiction, i. p. 325. ' Cf. Sir H. Maine, Ancient Law, c. iii, and Early Law and Custom, c. vii. p. 605. ' lo. Sarisburiensis, Policraticus, Auctor ad opus suum. * Spence, i. p. 414. Cf . ' the general conscience of the reahn, which is Chancery.' Fenner J., cited in Bacon's Beading on Uses, Works, vii. p. 401. ' Paget v. Gee, Amb. App. p. 810. 74 THE SOURCES OF LAW. CHAP. V. existing state of society, and not, by too strict an adher- ence, to decline to administer justice, and to enforce rights for which there is no other remedy. This has always been the principle of this Court, though not at all times sufficiently attended to^' It is not surprising that claims to a jurisdiction thus elastic should have given occasion to some criticism. 'Equity,' said Selden, 'is a roguish thing. For law we have a measure, we know what to trust to: equity is accordiag to the conscience of him that is Chancellor, and as that is larger or narrower, so is equity. 'Tis all one as if they should make the standard for the measure, a Chancellor's foot. What an uncertain measure would this be! One Chancellor has a long foot, another a short foot, a third an indifferent foot; 'tis the same thing in the Chancellor's conscience ^' To this charge Lord Eldon replied in a judgment which traces the lines on which his own administration of equity proceeded: 'The doctrines of this Court ought to be as well settled and made as uniform, almost, as those of the Common Law, laying down fixed principles, but taking care that they are to be applied according to the circum- stances of each case. I cannot agree that the doctrines of this Court are to be changed with every succeeding judge. Nothing would inflict on me greater pain, in quitting this place, than the recollection that I had done anything to justify the reproach that the equity of this Court varies like the Chancellor's foot'.' Lord Nottingham had said, long before : ' With such a conscience as is only naturalis et interna this Court has nothing to do : the conscience by which I am to proceed is merely civilis et poliiica, and tied to certain measures *.' 1 Walworth v. Holt, 4 My. and Or. 635. ' Table Talk, tit. 'Equity.' ' Gee V. Pritchard, 2 Swanst. 414; of. Davis v. Duke of Marlborough, ib. 152; Grierson v. JSyre, 9 Vesey, 347. * Cook V. Fountain, (1676), 3 Swanst. 600. EQUITY. 75 The latest authoritative exposition of the principles chap. v. by which the court is guided approximates more nearly to the views of Lord Cottenham. Speaking of 'the modern rules of equity,' the Master of the RoUs (Jessel) said in a recent case: 'I intentionally say modern rules, because it must not be forgotten that the rules of Courts of Equity are not like the rules of the Common Law, supposed to be established from time immemorial. It is perfectly well known that they have been established from time to time — altered, improved, and refined from time to time. In many cases we know the names of the Chancellors who invented them. No doubt they were invented for the purpose of securing the better administration of justice, but still, they were invented. Take such things as these — the separate use of a married woman, the restraint on alienation, the modern rule against perpetuities, and the rules of equitable waste. We can name the Chancellors who first invented them, and state the date when they were first introduced into Equity jurisprudence ; and, therefore, in cases of this kind the older precedents in Equity are of yery little value. The doctrines are progressive, refined, and improved; and if we want to know what the rules of Equity are we must look, of course, rather to the more modern than the more ancient cases '.' As Sir Henry Maine points out, it was greatly owing to Lord Eldon himself, during his long reign in the Court of Chancery, that equity became a body of rules scarcely more elastic than the Common Law. A similar stage was reached in the history of Roman equity when the edicts of the Praetors were consolidated by Salvius lulianus in the time of the Emperor Hadrian". The subsequent history of both systems is also not dissimilar. ' Re Hallett's Estate, L. R. 13 Ch. Div. 710. ' ' Ancient Law, c. iii. 76 THE SOURCES OF LAW. CHAP. V. The work of the Praetors was finally adopted into the body of the law by the legislation of Justinian, as were the doctrines of the Chancellors into the law of England by the Judicature Act of 1873. In either case equity ceased to exist as an independent system, but bequeathed its principles to the system into which it was absorbed. ' Graecia capta ferum victor em cepit.' Legisla- iii. Legislation tends with advancing civilisation to become the nearly exclusive source of new law\ It may be the work not only of an autocrat or of a sovereign Parliament, but also of subordinate authorities permitted to exercise the function. The making of general orders by our Judges, or of by-laws by a rail- way company, is as true legislation as is carried on by the Crown and the estates of the realm in Parliament. Rules made by a subordinate legislative authority are, however, valid only in so far as that authority has acted within its delegated powers in making them, and it is the duty of the Courts of Law to declare, when occasion arises, whether the rules are in this respect well or ill made. This function of the Courts is every day exercised with reference to the by-laws of railway companies or municipal corporations. It is no less systematically, though not so frequently, exercised in testing the legality of laws made by the Governor-General of India in CouncU, by the Parliament of the Dominion of Canada, or by that of the Commonwealth of Australia. When under a federal government the power of even the supreme 1 On the relation of Legislation to Nature, Custom, and Utility, see Cicero, de Inv. ii. c. 22. For differing views as to the comparative effi- cacy of Legislation and Adjudication, as instruments for bringing law into harmony with social progress, see Mr. Justice Baldwin, in Two Cen- turies' Growth of American Law, p. 6, and Mr. R. Pound's article on Common Law and Legislation, in 21 Harv. Law Rev. 383. TiU Parlia- mentary draftsmanship and procedure are vastly improved, the prefer- ence will hardly be given to Legislation. LEGISLATION. 77 legislature to make laws is strictly defined by a written chap, v. constitution, this function of the courts is of the first importance. Hence the commanding position occupied in the United States by the federal Supreme Court. Con- gress, unlike the British Parliament, is not omnipotent. Its powers are circumscribed by a constitution which it cannot alter, and it is for the Supreme Court, in the last resort, to say whether a given act of Congress has the force of law, or, as being ' unconstitutional,' is mere waste paper \ In legislation, both the contents of the rule are 'Written' devised, and legal force is given to it, by acts of^itt^'" the sovereign power which produce 'written law.' AU'*^* the other law sources produce what is called 'unwritten lawV to which the sovereign authority gives its whole legal force, but not its contents, which are derived from popular tendency, professional discussion, judicial in- genuity, or otherwise, as the case may be. Rules thus developed obtain the force of law by complying with the standards which the State exacts from such rules before it gives them binding force. Having so complied, these rules are laws, even before the fact that they are so has been attested by a Tribunal. The State has in general two, and only two, articulate organs for law-making purposes — the Legislature and the Tribunals. The first organ makes new law, the second attests and confirms old law, though under cover of so doing it introduces many new principles. 1 The relation of subordinate legislatures to the Law Courts is fully dis- cussed in Professor Dicey's Law of the Constitution, c. 2, and Lord Bryce's American Commonwealth, vol. i. c. 23. * Cf. Hale, Hist. 'C. L., p. 55; Blackstone, Comm. i. p. 63; Austin, Jurisprudence, i. p. 19s ; Lieber, Hermeneutics, by Hammond, p. 323. The Roman writers, on the other hand, give to these terms a merely accidental and literal meaning. Their ' ius scriptum ' is that which is committed to writing, by whomsoever, at the time of its origin. CHAPTER VI. THE OBJECT OF LAW. Law as re- The most obvious characteristic of Law is that it is coercive. 'It vras added because of transgressions'' ' lura inventa metu iniusti f ateare necesse est *.' 'Law was brought into the world,' says Hobbes, 'for nothing else, but to limit the naturall liberty of particular men, in such manner, as they might not hurt, but assist one another, and joyn together against a common enemy V Even when it operates in favour of the legitimate action of individuals, it does so by restraining any interference with such action. It is accordingly defined by Kant as 'the totality of the conditions under which the free-will of one man can be united with the free-will of another, in accordance with a general law of freedom';' and by Savigny, as 'the rule which determines the invisible limit within which the existence and activity of each individual may obtain secure and free play^' Both of these high authorities make the function of Law to be ' Hor. Sat. i. 3. iii. ' Leviathan, p. 138. Cf. 'Factae sunt autem leges ut earum metu humana coerceatur audacia, &c.' Decretum, Pars i, Dist. i, c. i. ' Rechtslehre, Werke, vii. p. ay. * System, i. p. 114. SOCIAL WELL-BEING. 79 the preservation from interference of the freedom of the chap. vi. ■will. This conception is purely negative, and a wider and positive conception is needed to embrace the operation of PubUc as well as of Private Law. The Kantian definition is wide enough to cover all rules which regulate the relations of individuals one to another, but it is too narrow to cover enactments pro- viding, for instance, for the organisation of a ministry of education, or giving to certain great libraries a claim to a copy of every new book that is published. A school of writers, among whom Krause ' and Ahrens ' Law as or- ganising, are representative men, demands that Law shall be con- ceived of as harmonising the conditions under which the human race accomplishes its destiny by realising the highest good of which it is capable. The pursuit of this highest good of the individual and of society needs a controlling power, which is Law, and an organisation for the application of its control, which is the State. The truth which is contained in these somewhat obscure speculations is capable of much simpler expression; and to find a definition of the function of law which would leave these writers nothing to desire, we have only to turn to Lord Bacon, who says: 'Finis et scopus quem leges intueri, atque ad quem iussiones et sanctiones suas dirigere debent, non ahus est quam ut cives feliciter degantl' The same idea is expressed by Locke, who asserts that 'Law, in its true notion, is not so much the limitation as the direction of a free and intelligent agent to his proper interest, and prescribes no further than is for the general good of those under the law ... so that, however it may be mistaken, the end of the law is, not to abohsh or restrain, but to preserve or enlarge freedom *.' • Abriss des Systemes der Philosophie des Rechtes, 1828. ' Cours de droit naturel, 1840. " De Aug. lib. viii. aph. 5. Cf. S. Thorn, i. a. q. 90. ao concl. • Of Civil Government, i. § 57. 8o THE OBJECT OF LAW. CHAP. VI. So Bentham: 'Of the substantive branch of the law the only defensible object or end in view is the maximisation of the happiness of the greatest number of the members of the community in question'.' StUl better perhaps is the statement of Leibnitz: 'humanae societatis custodiam non esse principium lustitiae, sed tamen iustum esse quod societatem ratione utentium perflcit ^' Law is something more than police. Its ultimate object is no doubt nothing less than the highest well- being of society: and the State, from which Law derives all its force, is something more than a 'Rechtsversicherungs- anstalt,' or 'Institution for the protection of rights,' as it has not inaptly been described. It is however no part of our undertaking to discuss the question how far Law may properly go in its endeavours to promote the weU- being of those within its sphere. The merits of a paternal government, of centralisation, of factory acts, of State churches, are topics for the politician rather than the jurist '. Rights. Jurisprudence is concerned not so much with the pur- poses which Law subserves, as with the means by which it subserves them. The purposes of Law are its remote objects. The means by which it effects those purposes are its immediate objects. The immediate objects of Law are the creation and protection of legal rights *- ' Works, ii. p. 6. ' Obs. de Princ. luris, § ii, Opera, ed. Deutens, t. iv. p. 272. Cf . Portalis, Discx)urs pr^liminaire sur le Code Civil. ' With the advance of civilisation the State naturally extends the sphere of its activity. It is represented by some -writers as having been successively devoted to War, to Law, and to Culture and Well-being. The danger of a State which has attained this last stage is its tendency towards Communism. For an attack upon this tendency, amounting to an attack upon anything like a ' Kultur- oder Wohlfahrtsstaat,' see Her- bert Spencer, The Man versus the State, 1884. ' The creation and enforcement of legal duties is of course the same thing from another point of view; and a point of view from^which some writers prefer to regard the operation of Law. Cf . infra, pp. 85 n, 86. CHAPTER VII. RIGHTS. "What then is a 'legal right'? But first, what is a A right right generally ? genera y. It is one man's capacity of influencing the acts of another, by means, not of his own strength, but of the opinion or the force of society. When a man is said to have a right to do anything, or over anything, or to be treated in a particular manner, what is meant is that public opinion would see him do the act, or make use of the thing, or be treated in that particular way, with approbation, or at least with acquiescence; but would reprobate the conduct of any one who should prevent him from doing the act, or making use of the thing, or should fail to treat him in that particular way. A 'right' is thus the name given to the advantage a man has when he is so circumstanced that a general feeUng of approval, or at least of acquiescence, results when he does, or abstains from doing, certain acts, and when other people act, or forbear to act, in accordance with his wishes; while a general feeling of disapproval 1950 G 82 RIGHTS. CHAP. vii. results when any one prevents Mm from so doing or abstaining at Ms pleasure, or refuses to act in accord- ance wjth Ms wishes. Further than tMs we need not go. It is for Psychology to inquire by what, if any, special faculty the mind is capable of affirming or deny- ing the existence of rights. History may also to some extent unravel for us the growth of such conceptions as to rights as are now prevalent ; and these are among the most vexed questions of Psychology and of the History of Civilisation respectively. Jurisprudence is absolved from such researches. The only conception of a Right wMch is essential to her arguments is that which we have already propounded, and about the truth of which, as far as it goes, there can be no question. A legal Jurisprudence is specifically concerned only with such ngnii. •rights as are recognized by law and enforced by the power of a State. We may therefore define a 'legal right,' in what we shall hereafter see is the strictest sense of that term, as a capacity residing in one man of controlling, with the assent and assistance of the State, the actions of others. That wMch gives vahdity to a legal right is, in eveiy case, the force wMch is lent to it by the State. Any- thing else may be the occasion, but is not the cause, of its obligatory character'. Sometimes it has reference to a .tangible object. Some- times it has no such reference. Thus, on the one hand, the ownersMp of land is a power residing in the land- owner, as its subject, exercised over the land, as its object, and available against all other men. So a father has a certain power, residing in himself as its subject and exercised over his child as its object, available ' As Thomasius says of ' Pactum,' 'non est causa sed tantum occasio obligationis.' The contrary view is strongly put by Demburg, Lehrbuch, § 39: 'Die Rechtsordnung gewahrleistet und modelt die Rechte im subjectiven Sinne, aber sie ist nicht ihr Scbopfer.' A LEGAL RIGHT. 83 against all the world besides. On the other hand, a chap. vn. servant has a power residing in himself as its subject, over no tangible object, and available only against his master to compel the payment of such wages as may be due to him. This simple meaning of the term 'a right' is for theAmbigu- purposes of the jurist entirely adequate. It has how- of the ever been covered with endless confusion owing to its*^"™' similarity to 'Right'; an abstract term formed from the adjective 'right,' in the same way that 'Justice' is formed from the adjective 'just.' Hence it is that Black- stone actually opposes 'rights' in the sense of capacities, to 'wrongs' in the sense of 'unrighteous acts\' We in England are happily spared another ambigtdty which in many languages besets the phrase expressing 'a right.' The Latin 'lus,' the German 'Recht,' the Italian 'Diritto,' and the French 'Droit' express not only 'a right' but also 'Law' in the abstract. To ex- press the distinction between 'Law' and 'a right' the Germans are therefore obliged to resort to such phrases as 'objectives' and 'subjectives Recht,' meaning by the former. Law in the abstract, and by the latter, a concrete right. And Blackstone, paraphrasing the distinction drawn by Roman Law between the 'ius quod ad res' and the 'ius quod ad personas pertinet,' devotes the first and second volumes of his Commentaries to the 'Rights of Persons' and the 'Rights of Things,' re- spectively. If the expression of widely different ideas by one andResultjng confusion, the same term resulted only in the necessity for these clumsy periphrases, or obviously inaccurate paraphrases, no great harm would be done ; but unfortunately the identity of terms seems irresistibly to suggest an identity ' The absurdity is carried a step further by people who write to the newspapers about ' copy-rights and copy-wrongs.' Gx 84 RIGHTS. CHAP. VII. Defini- tions. bet-ween the ideas which are expressed by them, German writers have evidently the greatest difificulty in keeping apart Law and the rights which it is the business of Law to regulate. Jurisprudence is vnth them indifferently the 'science of rights' and the 'science of Law.' To this source of confusion they add that which has already been indicated as being a hindrance to our- selves. They have a vague impression of a more than merely etymological connection between 'a right' and the eulogistic adjective 'right.' The following are definitions of 'a right' by various authors: — ' Potentia Boni, lustitiae regulis consentanea.' — Zouche *. ' QuaUtas ilia moralis qua recte vel personis imperamus vel res tenemus, aut cuius vi aUquid nobis debetur.' — Puffendorffl 'Quaedam potentia moraUs.' — Leibnitz'. 'Qualitas moralis activa ex concessione superioris personae competens ad aliquid ab altero homiue cum quo in societate vivit iuste habendum vel agendum.' — Thomasius *. 'Die Befugniss zu zwingen.' — Kant'. 'Eine physische Macht, welche durch die Gebote der Autoritat nicht alleia sittlich verstarkt ist, sondern welche auch diese ihre Macht durch Anwendung von Zwang Oder Uebel gegen den Verletzer schiitzen kann.' — Kirchmann '. ' Elementa luris prudentae, p. 19. ' De I. Nat. et Gent. i. c. i. 20. • Oi)era, i. p. 118. * lurispr. Div. lib. iii, c. i. i. 82. 8 'The authority to compel.' Rechtslehre, Werke, vii. p. 29. ' ' A physical power, which through the commands of authority not only is morally strengthened , but also can protect this its power against a transgressor by the application of compulsion or evil.' Die Grundbegriffe des Rechts und der Moral, p. iii. DEFINITIONS. 8S * Eine Macht liber einen Gegenstand, der vermbge dieses chap. vii. Rechts dem Willen des Berechtigten unterworfen ist.' — Puclita^ 'Ein rechtlich geschiitztes Interesse.' — Jhering". It may be as well to re-state in a few words precisely Explana- what we mean by sapng that any given individual has right, 'a right.' If a man by his own force or persuasion can carry out his wishes, either by his own acts, or by influencing the acts of others, he has the 'might' so to carry out his wishes. If, irrespectively of having or not haviag this might, public opinion would view with approval, or at least vrith acquiescence, his so carrying out his wishes, and with disapproval any resistance made to his so doing; then he has a 'moral right' so to carry out his wishes. If, irrespectively of his having, or not having, either the might, or moral right on his side, the power of the State will protect him in so carrying out his wishes, and will compel such acts or forbearances on the part of other people as may be necessary in order that his wishes may be so carried out, then he has a 'legal right' so to carry out his wishes'. If it is a question of might, all depends upon a man's own powers of force or persuasion. If it is a question • ' A power over an object, which by means of this right is subjected to the will of the person enjoying the right.' Instit. ii. p. 393. ' ' A legally protected interest.' Geist des romischen Rechtes, iii. § 60. ° Maine points out how much more prominent in early Roman law was the idea of duty than that of right. The Japanese seem to have possessed no word for legal right till the term ' Ken-ri,' meaning ' power-interest,' was coined by Dr. Tsuda, when, after a course of study at Leyden, he published in 1868 his Treatise on Western Public Law. The term, and the idea expressed by it, were accepted, and the Japanese Civil Code takes 'Rights' as the basis of its classifications. See Professor N. Hozumi's lecture on that Code delivered at the St. Louis Exposition in 1904. 86 RIGHTS, CHA.P. vn. of moral right, all depends on the readiness of public opinion to express itself upon his side. If it is a question of legal right, all depends upon the readiness of the State to exert its force on his behalf. It is hence obvious that a moral and a legal right are so far from being identical that they may easily be opposed to one another. Moral rights have, in general, but a subjective support, legal rights have the objective support of the physical force of the State. The whole purpose of laws is to announce in what cases that objective support vsdll be granted, and the manner iu which it may be obtained. In other words, Law exists, as was stated previously, for the definition and protection of rights. Of a duty. Every right, whether moral or legal, implies the active or passive furtherance by others of the wishes of the party having the right. Wherever any one is entitled to such furtherance on the part of others, such furtherance on their part is said to be their 'duty.' Where such furtherance is merely expected by the public opinion of the society in which they live, it is their 'moral duty.' Where it will be enforced by the power of the State to which they are amenable, it is their 'legal duty.' The correlative of might is necessity, or susceptibility to force; of moral right is moral duty; of legal right is legal duty. These pairs of correlative terms express, it will be observed, in each case, the same state of facts viewed from opposite sides. A state of facts in which a man has within himself the physical force to compel another to obey him, may be described either by saying that A has the might to control B, or that B is under a necessity of submitting to A. So when public opinion would approve of A com- manding and of B obeying, the position may be described either by saying that A has a moral right to command, LAW AND RIGHTS. 8/ or that B is under a moral duty to obey. Similarly, chap. vii. when the State will compel B to carry out, either by act or forbearance, the wishes of A, we may indifferently say that A has a legal right, or that B is under a legal duty. It is unimportant in theory whether a system of law starts with a consideration of rights or of duties. It is important only that whichever point of view be adopted should be consistently adhered to. "We shall take Eights rather than Duties as the starting-point of our classifica- tion, although some authority may be adduced in favour of the opposite method'. Law has been for centuries described as a ' command,' The rela- . . tion of la-w but this description, though essentially true, is inadequate to rights. to the extent of being misleading. Austin, who very properly analyses a command into (i) a desire conceived by one rational being that another rational being should do or forbear, (2) an evil to proceed from the former and to be incurred by the latter in case of non-com- pliance v?ith the wish, and (3) an expression of the wish by words or other signs, is unable to discover these characteristics in laws which are merely declaratory, or which repeal pre-existing law, or which, because they can be disobeyed with impunity, are said to be 'of im- perfect obligation^.' Similar difficulties have been raised by Austin's critics with reference to other classes of laws : by Mr. Frederic Harrison, for instance, with refer- ence to enabling statutes, laws conferring franchises, and rules of interpretation or of procedure ^ Such cases will however cease to be anomalous if we recognise that every law is a proposition announcing ' See Bentham, Works, iii. p. 181; Comte, Phil. pos. ed. 2, vi. p. 4545 Am. Law Review, vii. p. 46. Prof. Terry, formerly of Tokio, Some Leading Principles of Anglo-American Law, combines the two methods. ' Jurisprudence, Lect. i. ' Fortnightly Review, 1878, p. 684. 88 RIGHTS. the will of the State, and implying, if not expressing, that the State will give effect only to acts which are in accordance with its will, so announced, while it will punish, or at least visit with nullity, any acts of a con- trary character. The State thus makes known what advantages it will protect as being legal rights, what disadvantages it will enforce as being legal duties, and what methods it will pursue in so doing. The announcement may be made in many different ways. A law may be imperative, as 'Honour thy father and thy mother ' ; but it may also be in the indicative mood, as 'No contract for the sale of any goods, wares and merchandises, for the price of £10 sterling or up- wards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such con- tract, or their agents thereunto lawfully authorised ' ; or 'From and after the commencement of this Act the several jurisdictions which by this Act are transferred to and vested in the said High Court of Justice and the said Court of Appeal respectively shall cease to be exercised, except by the said High Court of Justice and the said Court of Appeal respectively, as provided by this Act.' The real meaning of all Law is that, unless acts con- form to the course prescribed by it, the State will not only ignore and render no aid to them, but will also, either of its own accord or if called upon, intervene to cancel their effects. This intervention of the State is what is called the 'sanction' of law*. It is true that the State intervenes not only with a view to punishment, ' ' Li5gum eas partes quibus poenas constituimus adversus eos qui contra leges fecerint, sanctiones vocamus.' lust. Inst. ii. i. lo. LAW AND RIGHTS. 89 and occasionally to prevent anticipated illegality, but also chap. vii. to effect restitution, and this is perhaps its principal function ; but before the commission of the wrong the announcement of State intervention in case of its com- mission operates upon the general mind by way of threat of punishment. It is a punishment to a wrongdoer, or to one who neglects to comply with prescribed courses of procedure, if his wrong be merely undone, or his faulty procedure fails of its effect, so that he has, as the saying goes, 'his trouble for his pains.' Law is, in fact, formulated and armed public opinion, or the opinion of the ruling body. It announces not only that certain states of things and courses of action are viewed by it with favour, but also that, in case of the invasion of these states of things, or in case of contrary courses of action being pursued, it vrill not only look on with dis- favour, but will also, in certain events, actively intervene to restore the disturbed balance. It defines the rights which it wiU aid, and specifies Substan- . tive and the way in which it wiU aid them. So far as it defines. Adjective thereby creating, it is 'Substantive Law.' So far as *^' it provides a method of aiding and protecting, it is 'Adjective Law,' or Procedure. CHAPTER Vin. ANALYSIS OF A EIGHT. "We have seen that a 'moral right' implies the exis- tence of certain circum.stances, with reference to which a certain course of action is viewed with general approba- tion, and the contrary course with disapprobation; that a 'legal right' exists where the one course of action is enforced, and the other prohibited, by that organised society which is called 'the State.' The We have next to consider more particularly what is of a right, the character of those elements from which a Right results. They are : (i) A person 'in whom the right resides,' or 'who is clothed with the right,' or who is benefited by its existence. (2) In many cases, an object over which the right is exercised. (3) Acts or forbearances which the person in whom the right resides is entitled to exact. (4) A person from whom these acts or forbearances can be exacted; in other words, agaiust whom the right is available; in other words, whose duty it is to act or forbear for the benefit of the subject of the right ELEMENTS OF A RIGHT. 9I The series of elements into which a Right may be chap. vin. resolved is therefore: The Person I The Object. | The Act I The Person entitled. | | or Forbearance. | obliged. It will be observed that the first and the last terms A series - , , . of four 01 the series are a person. The second term is the object terms. of the right (whether it be a physical thing, or what the law chooses to treat as such) if any (for there exist large classes of rights which have reference to no object, either physical or assimilated to such); and the third term is made up of the acts or forbearances to which the person in the fourth term is bound. It will be convenient to call the person entitled ' the ^'"'P?^^'^ termin- person of mherence * ; and the person obliged, * the person ology. of incidence.' The intermediate terms may be shortly referred to as 'the object' and 'the act' respectively. That this series is no technical abstraction but a simple formula for the representation of the indisputable elements of a right, may be more apparent from an example. A testator leaves to his daughter a silver tea-service. Here the daughter is the ' person of inherence,' i. e. in whom the right resides; the tea-service is the 'object' of the right ; the delivery to her of the tea-service is the ' act ' to which her right entitles her; and the executor is the 'person of incidence,' i. e. the person against whom her right is available. Or take an example of a right where, as we stated to be often the case, the second term of the series is wanting. B is A's servant. Here A is the 'person of inherence,' reasonable service is the 'act' to which he is entitled, and B is the 'person of incidence,' against whom the right is available. The nature of the right varies with a variation in any one of the four terms which may be implied in it, and the variations in the nature of the right give rise to the main heads or departments of law. 92 ANALYSIS OF A RIGHT. CHAP. viii. The preceding analysis of the nature of a right implies the ideas of 'Person,' 'Thing,' and 'Act.' These are the permanent phenomena of a right; its statical elements. A right, conceived of as at rest, postulates — a Person of inherence and a Person of incidence; Acts to which the former is entitled, and which the latter is obliged to perform; and often, though not always, an Object or Thmg. Facts. But if the right is put in motion, phenomena of a new kind intervene. They are shifting, dynamical, and may be expressed by the general term Tacts'; under which are included, not only the ',Acts' of persons, but also the 'Events' which occur independently of volition. It is, as we have seen, by 'Acts' that rights are en- joyed. And we shall see that it is through the agency of 'Acts' or of 'Events' that rights are created, trans- ferred, transmuted, and extinguished. In order therefore to understand, not only the nature of a right and the mode of its enjoyment, but also the manner of its crea- tion, transfer, and extinction, it is necessary to acquire clear ideas of the full meaning of the following terms : — I. Person. II. Thing. III. Fact, under which term are included — Event, Act, of omission as well as of commission. "With reference to the important term 'Act' it is neces- sary to consider the relations of the will to its conscious exertion and its expression. It -will also be necessary to classify acts. Person. I. A 'Person' is often defined as being the 'Subject or Bearer, of a right^'; but this is to narrow the signi- ficance of the term. Rights not only reside in, but also ' E. g. Savigny, System, ii. p. i; Puchta, Inst. ii. p. 291. PERSONS. 93 are available against, persons. In other words, there are chap. viii. persons of incidence as well as of inherence. Persons are the subjects of Duties as well as of Rights. In persons rights inhere, and against them rights are avail- able. For the benefit of persons duties are created, and it is on persons that duties are imposed. Persons, i. e. subjects of Rights or of Duties, are in general individual human beings ; but, in imitation of the personality of human beings, the law recognises certain groups, of men or of property, which it is con- venient to treat as subjects of rights and duties; as Persons in an artificial sense*. i. A 'natural,' as opposed to an 'artificial,' person is Natural persons, such a human being as is regarded by the law as capable of rights or duties: in the language of Roman law as having a 'status.' As having any such capacity recognised by the law, he is said to be a person, or, to approach more nearly to the phraseology of the Roman lawyers, to be clothed with, or to wear the mask (persona) of legal capacity^. Besides possessing this general legal capacity, or status, a man may also possess various special capacities, such as the 'tria capita' of liberty, citizenship, and family rights. A slave having, as such, neither rights nor liabilities, had in Roman law, strictly speaking, no ' status,' 'caput,' or 'persona.' 'Pro nullo isti habentur apud praetorem,' says Ulpian'. On the day of his manu- mission, says Modestinus, 'incipit statum habere ^' Before manumission, as we read in the Institutes, ' nullum caput habuitl' So Theophilus: ol okfrat dirpoVwTrol Svres «k ' Thus Ulpian opposes ' persona singularis ' to ' populus,' ' curia,' 'collegium' or 'corpus.' Dig. iv. 2. 9. i. 2 Cf . Cic. de Off. i. cc. 30, 32. The equivalent of ' persona' in the Insti- tutes of Theophilus is vpiactirov. ' Dig. xxviii. 8. 1. * Dig. iv. s. 4. • '• '^- 94 ANALYSIS OF A RIGHT. CHAP. VIII. Character- istics of. Twv Trpoa-dirwv tZv oiKetwv SearTrorZv ^apaKrripL^ovTai^. It must however be remembered that th'e terms 'persona' and ' caput ' were also used in popular language as nearly equivalent to 'homo,' and in this sense were appUed to slaves as well as to freemen ^ Many writers have sup- posed that Koman law recognised, besides the ' tria capita ' which they distinguish as 'status civUes,' innumerable varieties of status, depending upon age, health and similar circumstances, which they describe as 'status naturales.' This view finds now little favour ' ; but the modern employment of the term 'status' in this flexible sense, apart from any supposed authority for it in the law of Rome, is both common and convenient*. It is true to say that 'unus homo plures sustinet personas,' i. e. one individual may be clothed with different kinds of legal capacities ^ A natural person is therefore well defined as 'homo cum statu suo consideratus ".' A natural person must combine the following character- istics : — (i) He must be a living human being: i. e. (a) he must be no monster I (b) He must be born alive (vivus) ', • iii. 17; of. ii. 14. 'Servos quasi nee personam habentes.' Nov. Theod. tit. 44. 'Servos qui personam legibus non iiabebant.' Cassiodor. Var. vi. 8. 'O SovKos iropi ro7s v6itois hirp6 So Theophflus: iiriinaTov di iiTTiv S vf fi6v(f yvapll:erat, oSre Si i Dig. xliv. 7. 1; 1. 17. S et 40. ' Dig. xli. 2. 3a. ' 'Der Irrthum ist unrichtige oder mangelnde Vorstellung.' Zitel- mann, p. 327. ' Dig. xxii. 6. 9. Lord King C, in Lansdoume v. Lansdowne, Moseley, 364, is reported to have said that the maxim means that ignorance cannot be pleaded in excuse of crimes, but that it does not hold in Civil cases. But this is certainly not law. < Dig. xxii. 6. X. no ANALYSIS OF A RIGHT. CHAP. VIII. not recover the payment upon discovering that there was no law compelling him to make it\ Persons have even been convicted of what became an offence only under an Act of Parliament passed subsequently to the fact; in accordance with the rule, since altered, that the operation of an Act of Parliament, ia the absence of express provision, relates to the first day of the session in which it was passed ^ The very artificial reason alleged in the Digest for the inexcusability of ignorance of law is that 'law both can and should be limited iu extent"; and so Blackstone says, that 'every person of discretion, not only may, but is bound and presumed to know the law.' The true reason is no doubt, as Austin points out, that 'if ignorance of law were admitted as a ground of exemption, the courts would be involved in questions which it were scarcely possible to solve, and which would render the administration of justice next to impracticable.' It would be necessary for the Court to ascertain, first, whether the party was ignorant of the law at the time of the alleged wrong, and if so, secondly, was his ignorance of the law inevitable, or had he been previously placed in such a position that he might have known the law, if he had duly tried. Both of these questions are next to insoluble. 'Whether the party were really ignorant of the law, and was so ignorant of the law that he had no surmise of its provisions, could scarcely be determined by any evidence accessible to others, and for the purpose of discovering the cause of his ignorance (its reality being ascertained) it were incumbent upon the tribunal to unravel his previous history, and to search his whole life for the elements of ' Brisbane v. Dacres, 5 Taunt. 143. ' Attorney-General v. Panter, 6 Bro. P. C. 489; Lailess v. Holmes, 4 T. R. 660; R. V. Thurston, 1 Lev. 91. Cf. R. v. Bailey, Russ. and Ry. Cr. Ca. i; and, as to By-laws, Motteram v. E. Counties Ry. 29 L. J., M. C. S7- • Dig. xxii. 6. 2. CHANCE. Ill a just solution ^' The stringency of the rule was in Roman chap. vni. law modified by exceptions in favour of certain classes of persons 'quibus permissum est ius ignorare.' Such were women, soldiers, and persons under the age of twenty- five, unless they had good legal advice within reach ". Results may also follow from acts without being Chance, intended. Such results, if the person acting had no means of foreseeing them, are ascribed to 'chance,' and no responsibility attaches to him in respect of them'. If they are such as he might have foreseen had he taken more pains to inform his mind before coming to a decision, they are attributed to his ' negligence.' This term, like its Latin equivalent 'culpa,' has beenNegli- used to indicate a state of mind, the description of^^'^''^ which has taxed the ingenuity of many generations of commentators. It covers all those shades of in- advertence, resulting in injury to others, which range between deliberate intention (' dolus '), on the one hand *, ' Jurisprudence, ii. p. 171. So Lord Ellenborough: 'There is no saying to what extent the excuse of ignorance might not be carried.' Bilbie v. Lundey, 2 East. 472. As against Austin's view, Mr. Justice Holmes maintains that 'every one must feel that ignorance of the law could never be admitted as an excuse, even if the fact could be proved by sight and hearing in every case,' and thinks the true explanation of the rule to be the same as that which accounts for the law's indiffer- ence to a man's particular temperament and faculties. The Common Law, p. 48. For an argument by Mr. Melville M. Bigelow in favour of extending the (in England) very rudimentary doctrine of equitable re- lief for mistake of law, see i Law Quarterly Review, p. 298. ^ Dig. xxii, 6. 9. ' 'Impunitus est qui sine culpa et dolo malo casu quodam damnum committit.' Gains, iii. 211. Sir F. Pollock, Torts, ed. x, pp. 142-155, shows that while the earlier English decisions incline to admit some lia- bility for the accidental consequences of an act, later cases, e. g. Stanley V. Powell, [1891] 1 Q. B. 86, incline towards the view prevalent in the United States which is in full accordance with that of the Roman lawyers. So it was held by the Supreme Court that 'no one is respon- sible for injuries resulting from unavoidable accident, whilst engaged in a lawful business.' The NUro-glycerine Case, 15 Wallace, 524. ' 'Culpa' in the widest sense included 'dolus'; and a high degree of 112 ANALYSIS OF A RIGHT, IS measur- ed by an objective standard CHAP. vin. and total absence of responsible consciousness, on the other ^- The state of mind of the doer of an act is often the subject of legal enquiry with a view to ascertainiag whether it exhibits the phenomena of 'intention^.' From the nature of the case, a similar enquiry can hardly be undertaken with a view to detecting the psychological phenomena of 'negligence.' Lawyers have therefore long been content, in enquiring into the alleged negUgence of a given individual, to confine themselves to ascertaining whether or no his acts conform to an external standard of carefulness. Two such standards were employed by the Roman lawyers to measure that ' diUgentia ' the failure to attain which they called 'culpa.' In some cases they measured due diligence by the amount of care which the person whose conduct was called in question was wont to show in the management of his own affairs, ' quantam ia suis rebus adhibere solet.' Conduct falling short of this is described by modem 'culpa' is said to resemble, and even to be, 'dolus.' Cf. Dig. xi. 6. i. i; rdi. I. 29; xlvii. 4. i; 1. 16. 226. ' According to Austin, 'negligence' is the inadvertent omission to act as one ought, 'heedlessness' is the inadvertent acting as one ought not, while 'rashness,' 'temerity,' or 'foolhardiness' is the acting as one ought not, adverting to the consequences which may follow from the act, but assuming, upon insufficient reflection, that those consequences will not follow in the particular instance. Thus, I take up a rifle and shoot AB. This act may be accompanied by very different mental conditions. I may see AB, point the rifle at him and expect him to faU dead if I fire. Here I 'intend' his death. Or I may be firing at a target, and omit to make the signal which would have prevented AB from passing behind it and receiving my bullet. Here the death is due to my 'negligence.' Or I may fire without thinking of the likelihood of any one passing that way. The death is then due to my 'heedlessness.' Or, it may occur to me that some one may pass by, but I may think the chance so shght that it may be disregarded. The death of AB is here the result of my 'rashness.' These distinctions are interesting, but do not appear to be adopted in any system of positive law. See Austin's Lectures, ii. p. 103; Bentham, Pr. Morals and Legisl. c. ix. ' E. g. to establish the cancellation of a ■will, actual malice in libel, or the 'animus furandi.' But see Holmes, Common Law, p. 138. NEGLIGENCE. II3 civilians as ' culpa in concrete' But a far more im- chap. vni. portant measure of ' dUigentia ' is afforded by the care ^g^^^y^g^^ which would be exercised under the circumstances by ideal one. the average good citizen, conduct falling short of which is the so-called 'culpa in abstracto.' This abstract, or ideal, objective test is that which is applied in modern codes, and is stated with growing clearness in the decisions of English and American Courts. So it was laid down by Tindal C. J., as early as 1837, that 'the care taken by a prudent man has always been the rule laid down: and as to the supposed difficulty of applying it, a jury has always been able to say whether, taking that rule as their guide, there has been negligence on the occasion in question. Instead of saying that the liability for negUgence should be co-extensive with the judgment of each individual, which would be as variable as the length of the foot of each individual, we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe V Actionable negligence has been weU described as 'the omission to do something which a reasonable man would do, or the doing of something which a reasonable man would not doV In a recent case in the Supreme Court of Massachusetts, Holmes J. explained that ' so far as civil liability is concerned at least, it is very clear that what we have called the external standard would be applied, • Vaughan v. Menlove, 3 Bingham, N. C. 468. In this case the question of the test of negligence was distinctly raised. The argument, unsuccessfully urged in favour of a new trial, having been that the jury should have been asked 'not whether the defendant had been guilty of gross negligence with reference to the standard of ordinary prudence, a standard too uncertain to afford any criterion, but whether he had acted bona fide to the best of his judgment; if he had, he ought not to be responsible for the misfortune of not possessing the highest order of intelligence.' ' Per Alderson B. in Blyth v. Birmingham Waterworks Co., 11 Ex. 781. Cf. Grill V. Gen. Iron Screw Collier Co., L. R. i C. P. 600; Brown v. Kendall, 6 Gush. 293. 1950 I 114 ANALYSIS OF A RIGHT. CHAP. VIII. and that if a man's conduct is such as would be reckless in a man of ordinary prudence, it is reckless in him. Unless he can bring himself within some broadly-deflned exception to general rules, the law deUberately leaves his personal equation or idiosyncrasies out of account, and peremptorily assumes that he has as much capacity to judge and to foresee consequences as a man of ordinary prudence would have in the same situation.^ ' The de- The care and skill which people are required to exhibit MgK-° i^ their conduct (' diligentia ') has two degrees ^ : that which gence. jg ^^g from persons generally; and that which is due from persons occupying positions which mark them out as being exceptionally reliable with reference to the matter in question ('exacta dUigentia ')• A person of the former class is liable only for ' culpa lata,' i. e. ' nimia negligentia' id est, non inteUigere quod omnes intelligunt ',' for ' gross negligence *.' A person of the latter class, of whom the Romans spoke as 'homo diligens et studiosus paterfami- • Commonwealth v. Pierce, 138 Mass. 165, S. C. 52 Am. Rep. 264. Knox V. Mackinnon, 13 A. C. 733. ' The view of the degrees of negligence given in the text is in the main that of Hasse, whose work, Die Culpa des Romischen Rechts, first published in 1815, is the foundation of the modem literature of the subject. An admirable r4sumi of Hasse's theories, with ample illustra- tion from English and American decisions, will be found in Dr. Francis Wharton's Treatise on the Law of Negligence, of which much use has been made by the present writer. ' Dig. I. 16. 213, 223; cf. ix. 2. 31. * Objections have been made of late years to the employment of this term. 'Gross' has been said to be a 'word of description and not of defi- nition,' Willes J. in Grill v. Gen. Iron Screw Collier Co., L. R. 1 C P. 600. But the Supreme Court of the U. S., while admitting 'that such expressions as ' ' gross " an d " ordinary ' ' negligence are indicative rather of the degree of care and diligence which is due from a party, and which he fails to perform, than of the amount of inattention, carelessness, or stupidity, which he exhibits,' went on to say that 'if the modern authorities mean more than this, and seek to abolish the distinctions of degrees of care, skill, and diligence required in the performance of various duties, and the fulfilment of various contracts, we think they go too far.' New York Cent. R. Co, v. Lockwood, 17 Wallace, 357, cited by Wharton, u. s. § 49. NEGLIGENCE. I15 lias *,' but who has been shortly described by some modern chap. vin. writers as a ' speoiaUst V is liable for even a slight deviation from the high standard to which he holds himself out as attaining, i. e., for * culpa levis,' or ' ordinary negligence V Although, as a matter of fact, he may have done his work as well as he could, yet he is liable for his failure to do it better, ' spondet peritiam artis.' In his case, ' imperitia culpae adnumeratur *.' His assumption of duties for which he is unquaUfied is in itself negUgence. The test of true diligence (or conversely of undue negligence) is in both cases, as has been already ex- plained, an objective one. The ordinary person must exhibit what, in the opinion of the judge or jury, is the average care of a person of that class, and a speciahst must similarly attain to the standard to which speciahsts are expected to conform ^ Negligence may consist either 'in faciendo' or 'in non faciendo,' being indeed either non-performance, or inad- equate performance of a legal duty. An attempt has been made to generalise the law of actionable neghgence, which, though not accepted, will doubtless influence judicial speculation upon the subject. 1 E. g. Dig. xxii, 3. 25; xlv. i. 137. 2 Wharton, § 32. Cf. Hasse, § 24, on the 'diligentia diligentis.' ' Hasse is at much pains to disprove the existence of a third grade of culpa, viz. 'levissima.' In § 25 he ridicules the attempt of Salicetus to distinguish further a 'culpa levior.' There is however no doubt that the three grades of negligence, 'gross,' 'ordinary,' and 'slight,' favoured by Lord Holt and Sir W. Jones, are usually recognised in the English and American Courts. Cf . Wharton, § 59. Three grades are recognised in the Prussian Code, but two only in the, more modern, Codes of France, Italy, and Austria. The German Code, 823, does not distinguish grades of 'Fahrlassigkeit.' * lust. Inst. iv. 3. 7. Cf. Dig. ix. 2. 8. § i; 1. 17. 132. On the skill and care expected from physicians or attorneys, see Hart v. Frame, 6 CI. and F. 193; Lamphier v. Phipos, 8 C. and P. 475. 5 On the ideal character of the standard, see Holmes, The Common Law, p. 108. Compare the maxim that 'every man is supposed to intend the necessary and reasonable consequences of his own acts.' I2 ii6 ANALYSIS OF A RIGHT. CHAP. vm. According to Brett M. R., ' When one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognise that, if he did not use ordinary care and skUl in his own conduct with regard to those circumstances, he would cause danger of injury to the person or property of the other, a duty arises to use ©rdiaary care and skill to avoid such danger \' Expres- sion. Agency. 3. The will must be manifested, or expressed; and in some cases may be expressed by some one other than the party wUling, i. e. by an agent, whence the maxims 'qui facit per ahum facit per se,' ' respondeat superior.' Imputa- tion. For an act, in the sense of a manifestation of conscious volition, a man is said to be ' responsible.' The attributing of responsibility is 'imputation,' i. e. 'the judgment by which any one is regarded as origiaator (causa libera) of an act, which then is called "deed" (factum) and is regulated by laws^' Classifica- tion of acts. Acts are divided by Jurisprudence into those which are 'lawful' and those which are 'unlawful.' The juristic result of the unlawful acts is never that aimed at by the doer. In the case of some lawful acts, their operation is independent of the intention of the doer; m the case of others, his intention is directed to the juristic result '. Juristic act. In the last-mentioned case, the act is technically described as 'negotium civUe,' 'actus legitimus,' 'acte juridique,' 'Rechtsgeschaft'; the nearest EngUsh equivalent for which » Heaxen v. Pender, L. R. ii Q. B. Div. 506, per Brett M. R., diss. Cotton and Bowen L. JJ. * Kant, Rechtslehre, Werke, vii. p. 24. • Cf. infra, pp. 260, 266, 276. JURISTIC ACTS. 117 terms is probably ' Juristic Act V A recent writer has chap. vm. used for this purpose the phrase ' act in the law I' It has been defined, by a high authority, as ' an act the intention of which is directed to the production of a legal result'.' But this definition, as it stands, is wider than the received use of the term would warrant. The judg- ment of a Court, or an order of the King in Council might fairly be so described. A better definition is 'a manifestation of the will of a private individual directed to the origin, termination, or alteration of rights ^' A ' Juristic Act ' has also been well described as ' the form in which the Subjective Will develops its activity in creating rights, within the limits assigned to it by the law.' The same writer continues : ' only in so far as it keeps within these limits does it really operate ; beyond them its act is either barren of result, is an empty nuUity, or its operation is turned negatively against the vidll, as an obligation to 1 It is not to be wondered at that no vernacular equivalent is available for the expression of an idea which, indispensable as it is, has hardly yet been naturalised in this country. On ' dispositiones lure efficaces,' see Leibnitz, Praef. ad Cod. lur. Gentium, p. 16. 2 Sir F. Pollock, Contract, c. i. This term would be convenient enough, Qould it be disentangled from its conveyancing associations, and were it not that 'act in law' has a special use as opposed to 'act of the party.' Hale, Analysis of the law. Sect, xxvii. Mr. Jenks, A Digest, &c., 1905, uses 'legal act.' * ' Handlung, deren Absicht atif eine rechtliche Wirkung gerichtet ist.' Puchta, Inst. ii. p. 342. 'Erlaubte Willensausserung, durch welche ein Rechtsverhaltniss, d. h. eine gewisse zufolge der Rechtsbestimmung gel- tende Beziehung der WUlen der Rechtssubjecte, begriindet, geandert, Oder beendet wird.' Bocking, Inst. p. 44. * 'Die auf die Entstehung, den Untergang, oder die Veranderung von Rechten gerichtete PrivatwiUenserklarung.' Windscheid, Pandekten, i. p. 174. 'Erlaubte WiUenserklarung einer Partei, welche unmittelbar auf eine rechtliche Wirkung gerichtet ist.' Baron, Pand. i. p. 81. 'Eine Handlung, oder ein Complex von Handlungen, welche, oder welcher, nach den rechtlichen Auslegungsgrundsatzen betrachtet, die Absicht ausdriickt, einen vom objectiven Rechte zum Schutze der Wirksamkeit solcher Handlungen verheissenen Erfolg herbeizuftihren.' Leonhard, Der Irrthum bei nichtigen Vertragen, i. p. 250. Ii8 ANALYSIS OF A RIGHT. CHAP. VIII. Requisites of. Mistake. undo what has been done, by suffering punishment or making reparation \' Juristic Acts (Rechtsgeschafte) must, of course, exhibit, in common with all Acts (Handlungen), an exertion of Will, accompanied by consciousness, and expressed^; and any circumstances which prevent the free and intelligent exertion of the will may either prevent the occurrence of the Juristic Act, or may modify the consequences which result from it. What might appear to be a Juristic Act is thus ' null,' or ' void,' i. e. has, as such, no existence, if due to such actual violence as excludes an exertion of will, or if accompanied by states of consciousness, such as lunacy, drunkenness, and certain kinds of mistake, which are incompatible with an intelligent exertion of will^. So also a Juristic Act, which does come into existence, is 'voidable,' i. e. is liable to be attacked, and prevented from producing its ordinary results, if attended at its inception by ' duress per minas ' (metus), by fraud (dolus) *, and, in some exceptional cases, by mistaken motives. Of the circumstances which may thus affect the ex- istence, or the operation, of a Juristic Act, that which has given rise to most discussion is 'mistake,' or 'error.' The language of the Roman lawyers upon this subject ^ is ' Jhering, Geist des R. R. iii. p. 132. ^ See R. Saleilles, De la declaration de volont6. Contribution ^ l'6tude de I'Acte Juridique dans le Code Civil Allemand, 1901. • In Roman Law a similar effect might be produced by anger: 'Quid- quid in calore iracundiae vel fit vel dicitur non prius ratum est quam si perseverantia apparuit indicium animi fuisse.' Dig. xxiv. 2. 3. * Dig. iv. I (De in integrum restitutionibus) : 'Sub hoc titulo pluri- fariam praetor hominibus vel lapsis vel circumscriptis subvenit; sive metu, sive caUiditate, sive aetate, sive absentia, inciderunt in oaptionem, sive per status mutationem, aut iustum errorem.' Cf . Dig. iv. 2 (Quod metus causa gestum erit); ib. 3 (De dolo malo); xliv. 4 (De doU mali et metus exceptione); Story, Equity Jur., §§ 184, 238. As to the effect of fraud upon wills, see Melhuishy. Milton, 3 Ch. D. 33 ; upon a judgment, ex parte Banner, 17 Ch. D. 480. As to the effect of duress and fraud on contracts, see infra, Chapter xii. ' See especially, Dig. xxii. 6; Cod. i. 18. JURISTIC ACTS. 119 by no means clear, and has also been much misunderstood, chap. vm. It is obvious that such a proposition as 'nulla voluntas errantis est\' if taken literally, -would sweep away a number of transactions which every one admits to be per- fectly valid, and would, as has been pointed out, render superfluous the whole doctrine of fraud I Savigny did good service in critically examining the passages in the Corpus luris which bear upon the point, and in carefully dis- tinguishing between the error, whether 'in negotio,' 'in persona,' or 'in corporeV which prevents a Juristic Act from coming into existence, and the error in motive, which may prevent such an act from producing its usual effects*. Error of the former kind he calls 'spurious' or 'negative,' as being merely the accompaniment of that absence of correspondence between the will and its expression which, as we shall see, is in his opinion fatal to the existence of a Juristic Act. Error of the latter kind he describes as 'genuine,' or 'positive,' because, though, as a rule, it produces no effect upon such an act ('falsa causa non nocet ') ^ yet in some exceptional cases, e. g. in testa- mentary matters ', and in ' condictio indebiti,' it is in itself ground for an interference with the operation of the act. It was laid dovra by Savigny that, in order to theThecorre- production of a Juristic Act, the will and its expression of^U and must be in correspondence'. This view is in accordance ^j^®^' with the prima fcuAe interpretation of most of the relevant passages in the Roman lawyers ', and is still predominant > Dig. xxix. 3. 20. * Savigny, System, iii. p. 342. ' Of. Dig. xviii. i. 9. * System, iii. pp. 263, 441. 5 Of. Dig. xii. 6. 65. 2: 'Id quoque quod ob causam datui, puta quod negotia mea adiuta ab eo putavi, licet non sit factum, quia donari volui, quamvis false mihi persuaserim, repeti non posse.' ' Dig. v. 2. 28; xxviii. 5. 92; xxxv. i. 72. 6; Inst. ii. 20. 4, 11, 31. Cf Story, Equity Jur., § 179. ' System, iii. p. 368. Cf. tn/ro, p. 260. 8 E. g. Dig. xxxiv. s. 3. 120 ANALYSIS OF A RIGHT. CHAP. viiL in Germany *, but certainly cannot be accepted as uni- versally true. An investigation into the correspondence between the inner wUl and its outward manifestations is in most cases impossible ^ and where possible is in many cases undesirable. This was so clearly perceived as long ago as the sixteenth century, that Brissonius, in order to adapt the phraseology of Roman law to practical exigencies, boldly explains the term 'veUe' as meaning ' espressis et disertis verbis testari et proflteri se velle '.' The cases in which the "WUl and its expression may differ have been distingushed as follows^: i. The difference may be intentional, resulting from (i) a mental reservation ^ : (2) a use of words which would usually amount to a Juristic Act, with an obvious absence of an intention that they should have this effect, e. g. when legal phrases are used in jest, or on the stage, or in the lecture-room; or when phrases appropriate to a Juristic Act of one kind are employed notoriously with a view to the production of a Juristic Act of another kind, e. g. in the sale of an inheritance by ' mancipatio,' or in the ' See e. g. Windscheid, Pand. i. § 75, and his Essay on Wille und WiUenserklarung, 1878; Zitelmann, Irrthum und Rechtsgeschaft, 1879. ' 'The intent of a man is uncertain, and man should plead such matter as is or may be known to the jury.' Y. B., 4 Ed. IV. 8. 9. 'Warum kann der lebendige Geist dem Geist nicht erscheinen? Spricht die Seele, so spricht, ach! schon die Seele nicht mehr.' Schiller (Votivtafeln), cited by Jhering, Greist des R. R. iii. p. 445. ' Brissonius, De Verborum Significatione, s. v. Cf. Gliick, Pand. iv. p. 147. * See e. g. Savigny, System, iii. p. 258; Windscheid, Pand. i. §§ 75-77. " This case Savigny declines to consider, since it amounts to a lie, iii. p. 258, and Windscheid, Wille und WiUenserklarung, p. 29, puts it aside as a case of fraud. So the German Civil Code, 116: 'Eine WiUens- erklarung ist nicht deshalb nichtig, weU sich der Erklarende insgeheim vorbehalt, das Erklarte nicht zu woUen. Die Erklarung ist nichtig, wenn sie einem Anderen gegeniiber abzugeben ist, und dieser den Vorbehalt kennt.' The only authority for the nulUty of a contract when there was a mental reservation seems to be the decision against a marriage so contracted, in Decretals, iv. i. 26. WILL AND EXPRESSION, I2I proceedings which took place in a 'common recovery'; or, chap. vm. lastly, when several persons are agreed to put a meaning upon their act other than that which it would naturally bear (' simulatio 'X when the rule of Roman law was ' plus valere quod agitur quam quod simulate concipitur '.' ii. The difference may be unintentional, i. e. it may be the result of essential mistake. The prevalent theory would seem to be that a want of correspondence between the will and its expression is in every case, except when the result of a mental reservation, a ground of nullity. It can, however, hardly be disputed that aU the other cases of intentional non-correspondence must, to be ground for nullity, be known, or knowable, to others. There is in fact here no non-correspondence ; if we remember that expression consists not in the literal, or surface, meaning of words and deeds, but in the meaning which, under aU the circumstances, other persons are justified in putting on those words and deeds \ It would therefore seem that unintentional non- correspondence, i. e. such non-correspondence as arises from mistake, can alone be represented as preventing the production of a Juristic Act. Whether even this can be conceded is open to doubt. There is something to be said for the view, maintained by a recent school of writers, that, in enumerating the requisites of a vaUd Juristic Act, we may leave out of account the inscrutable will, and look solely to what purports to be its outward expression'. We shall hope ' Cod. iv. 22. ' ' In emptis et venditis potius id quod actum quam id quod dictum sit sequendum est.' Dig. jcviii. i. i. ' This view has been maintained, with reference to all Juristic Acts, by SchaU, Der Parteiwille im Rechtsgeschaft, 1877; to Juristic Acts inter vivos, by Rover, Ueber die Bedeutung des Willens bei Willenserklarungen, 1874; to Contracts, by Regelsberger, CivUr. Erorterungen, I. pp. 17-23, 1868, and Bahr, in Jhering's Jahrb. xiv. pp. 393-427, 1875; to obligatory Contracts, by Schlossmann, Der Vertrag, pp. 85-140, 1876. See Wind- scheid, Wille und Willenserklarung. It is temperately advocated, prin- cipally with reference to Contracts, by Leonhard, Der Irrthum bei nichtigen Vertragen, 1882-3. I am unable to share the view of the learned 122 ANALYSIS OF A RIGHT. 'chap. VIII. later to establish that this is at all events the case with that species of Juristic Act which is caUed a * Contract ^' Form. The mode in which the will ought to be expressed for the production of any given act is its 'form.' In some cases a special form is required by law, as in Roman law for a ' stipulatio,' and in Enghsh law for a contract not to be performed witliin a year, for a marriage, or for the probate of a will. The form may be such as to preclude certain classes of persons from doing the act, as ' peregrini ' were incapable of pronouncing the solemn formula of the stipulation. In other cases the form of the act is im- material, and the determination of will is sometimes expressed only by a course of conduct ^ Most, but not all, juristic acts may in modern times be performed through a Representative. A representative whose authority extends only to the communication of the will of his principal is a mere messenger, 'nuntius.' A representative whose instructions allow him to exercise an act of will on behalf of Ms principal, to act to some Agency. extent, as it is said, 'at his own discretion,' is an 'Agent.' His authority may be express or implied, and he may, in his dealings with third parties, disclose, or he may not disclose, with different results, the fact that he is acting on behalf of another. The scanty and gradual admission of agency in Roman law is a well-known chapter in the history of that system I The tendency of modern times RepreseHi tation. author that Savigny is to be interpreted as agreeing with the newer theory, although Savigny confesses that a difference between Wille and Willenserklarung is important only when it can be known to others, System, iii. p. 258. So also Windscheid, u. s., has to define 'Willens- erklarung' as 'Der Wille in seiner sinnenfalligen Erscheinung.' » Infra, Chapter xii. ' So the acceptance of an executorship will be inferred from acting as an executor. In some cases the natural inference from a course of conduct may be rebutted by 'Protest,' or 'Reservation.' Cf. Dig. xxix. .i. 20; XX. 6. 4. ' Cf. the distinction drawn by Prof. Sohm between what he calls CHARACTERISTICS OF ACTS. 123 is towards the fullest recognition of the principles pro- chap. vin. claimed in the Canon law: 'potest quis per alium quod potest facere per seipsum'; 'qui facit per alium est perinde ac si faciat per seipsum ^' Juristic Acts are distinguished into 'one-sided,' where One-sided the will of only one party is active, as in making a will, gided jur- accepting an inheritance, or taking seisin ; and ' two-sided,' '^*"' ^^^' where there is a concurrence of two or more wills to produce the effect of the act, which is then a 'contract,' in the widest sense of that term. The characteristics of a juristic act of any given species Character- are divided into those which are ' essentialia,' ' naturalia,' and ' accidentalia negotii.' The ' essentialia ' of the act are the facts without which Essen- it cannot exist, e. g. according to Roman law there could '^ '^' be no contract of sale without a price fixed. The 'naturaUa' are those facts which are always pre- Naturalia. sumed to be part of the transaction in question, though the presumption may be contradicted, e. g. the presumption in Roman law that the property in goods sold did not pass till the price had been paid. The 'accidentalia' are those facts which in the given Acciden- cases are not presumed and must therefore be proved. A pretended act which is deficient in any one of the Nullities, 'essentialia negotii' is a 'nullity,' 'void ab initio'; when, as a rule, the deficiency cannot be supplied by any sub- sequent change of circumstances, ' quod initio vitiosum est non potest tractu temporis convalescere V In exceptional 'tutelary representation,' in cases where the principal is himself incap- able of performing a juristic act, which was early recognised in Roman law, and what he calls 'procuratorial representation,' in the case of an agent appointed by a principal under no such disqualification, which was admitted by that system only for the purpose of acquiring pos- session. Institutionen, § 32. Transl. p. 145. > C. 68, de R. I. in Sext.; c. 72, eodem. 2 Dig. 1. 17. 29. 124 ANALYSIS OF A RIGHT. CHAP. VIII. cases the deficiency can be waived, or is cured by lapse of time. In certain other cases the act, though not ipso facto void, is ' voidable ' at the option of a party concerned. Condi- The 'naturalia' and ' accidentaha ' can alone be varied tions. by the wiU of the parties to the act. The variations which may thus be superadded to necessary portions of the act are its 'conditions.' Some of them, such as ' dies ' (a future event which is certain to happen) and ' modus ' (a direction for the apphcation in a certain manner of property received), affect only its operation ; others, which are conditions in the most accurate sense of the term, affect also its very existence. Such a ' condition ' may be defined as 'the presupposition of a future uncertain cir- cumstance, upon which the Will of the party makes the existence of his juristic act, or of its contents, whoUy or partially to depend ".' A condition is ' suspensive ' when the commencement, and 'resolutory' when the termination, of the operation of the act is made to depend upon its occurrence. • Puchta, Inst. ii. p. 365; Sohm, Inst. § 30. CHAPTER IX. THE LEADING CLASSIFICATIONS OF BIGHTS. The possible modes of classifying Rights are almost infinite, but four only are of first-rate importance. These depend respectively — I. Upon the public or private character of the persons concerned. II. Upon the normal or abnormal status of the persons concerned. III. Upon the limited or unlimited extent of the person of incidence. IV. Upon the act being due for its own sake, or being due merely ia default of another act. These various modes of dividing Rights have, be it observed, nothing to do with one another. They are what are called cross divisions, such as would be divisions of liquids into viscous and non- viscous, hot and cold, fermented and non-fermented; and consequently, though any given right can only exhibit one of the alternative characteristics of each mode of division, yet it may combine this with either of the characteristics of each of the other modes. Just as a liquid may be viscous, fermented, and cold; or viscous, fermented, and hot ; or non- viscous, non-fermented. 126 THE LEADING CLASSIFICATIONS OF RIGHTS Choice of a classifi- cation. CHAP. IX. and hot ; and so forth, through all the possible combina- tions of viscosity, fermentation, heat, and their opposites. Since therefore every Right exhibits either the positive or the negative characteristic of each of the above-men- tioned modes of division, i.e. since every Right may be classified in accordance with its relations to each and all of the above-mentioned distinctions, it becomes a question which of these is to be adopted by the Jurist as being the radical distinction, and in what order the others are to be subordinated to it ; just as a writer on fluids might have to determine whether he would set out by classifyiug them into viscous and non-viscous, or into fermented and non-fermented. The question is to be decided upon grounds of convenience. Whichever division is most fertile in results should obviously be selected as the radical one, to which the rest should be subordinated in the order of their relative importance. The relative importance of the four modes of division will perhaps be self-evident when the nature of each has been fuUy explained. Public and Private Persons. I. A very radical division of Rights is based upon a broad distinction between the public or private character of the persons with whom the Right is connected. By a ' Public person ' we mean either the State, or the sove- reign part of it, or a body or individual holding delegated authority under it^. By a ' Private person ' we mean an individual, or col- lection of individuals however large, who, or each one of whom, is of course a unit of the State, but in no sense represents it, even for a special purpose. ' Of. Wolff: ' Imperium publicum nihil aliud est quam ius universis in singulos competens, quatenus eorum actiones ad finem civitatis diri- gendae.' Ius Naturae, Praef. ad Part. viii. All authority is of course exercised by permission of the State, e. g. of a father over his family, but it is better to see here only a relation of private life, sanctioned by the sovereign, not a delegation of the sovereign power. PUBLIC AND PRIVATE LAW. 127 When both of the persons with -whom a right is con- chap. ix. neoted are private persons, the right also is private. When ^^^'^.'*™S one of the persons is the State, while the other is a private Rights, person, the right is public. Prom this division of rights there results a division of and of Law. Law, as the deflner and protector of Rights, which, when they subsist — (1) Between subject and subject, are regulated by 'Private' law. (2) When between State and subject, by ' Public' law. And this distribution of the whole field of law is of The radi- , . , . , , . . cal divi- such capital unportance that we have no hesitation insion. adopting the division of rights out of which it springs as the radical division of them. We have now to explain the application of the distinc- tion, and to justify our assertion that this is the radical distinction between Rights, and consequently between the departments of Law. By adopting this subdivision of municipal law, its whole Value field falls at once into two natural sections. On the one 2i^ig|^jj_ hand is the law which regulates rights where one of the persons concerned is ' public ' ; where the State is, directly or indirectly, one of the parties. Here the very power which defines and protects the right is itself a party in- terested in or affected by the right. That is to say, it is at the option of one of the persons who are concerned with the right to uphold or to extinguish it. If the State is the 'person of inherence,' it will naturally, though of course not of compulsion, protect its own right. If the State is the 'person of incidence,' it may conceivably refuse to uphold the quasi-right of the person of inherence against itself. If the State executes laws which protect rights against itself, it is acting upon the maxim applied to their own conduct by the Roman Emperors: 'Legibus soluti legibus vivimus '.' Opposed to this is the law which regu- ■ Inst. ii. 17. 8; of. Dig. i. 3. 31, xxxii. 23; Cod. i. 14. 4. 128 THE LEADING CLASSIFICATIONS OF RIGHTS. CHAP. IX. lates rights where hoth of the persons concerned are 'private' persons. Here the parties interested in or affected by the right have nothing to do with protecting it. This is done by the State, whenever the person of inherence invokes its aid. Examples. The punishment, for instance, of a traitor is a matter of pubhc law. The right violated by him is a pubhc right, because the person in whom it resides is the State, The State has a right not to be conspired against. The traitor violates this right, and the same State whose right has been violated iatervenes to protect itself and to punish the offender. If, on the other hand, a carrier damages my goods, the question raised is one of private law. My right to have my goods safely carried is a private right, because both the carrier and myself are private indi- viduals ; though I am entitled to call for the intervention of the State to obtaia compensation from him for the injury I have sustained \ It is necessary, in order to obviate a frequent confusion upon the point, to mention that the same act may often infringe both a public and a private right. Thus an assault or a Hbel upon an individual is a violation of two distinct rights, i. e. of the private right of the individual to be unmolested, and of the pubUc right of the State not to be disturbed by acts constituting, or tending towards, breaches of the public peace. The distribution of Law which has been thus shown to be logically consistent possesses other advantages also. A moment's consideration wih show the convenience of an arrangement in accordance with which constitutional, ecclesiastical, criminal, and administrative law, on the one hand, and the law of contracts, of real and personal ' It is noteworthy that in the Articles of Union between England and Scotland (art. i8) a distinction is drawn between Scots laws ' concerning public right, policy, and civil government, and those which concern private right.' PUBLIC AND PRIVATE LAW. 129' property, of wills and successions, and of torts, on the chap, ix, other hand, form two groups, to one or other of which every legal topic may be readily referred'. In recognising as the primary principle of the division of our science the distinction between public and private persons, resulting, through the severance of pubUc and private rights, in the opposition of public and private law, we have the irrecusable authority of the Roman jurists. 'Publicum ius,' says Ulpian, and his words adopted by Justinian have influenced the legal speculation of the world, 'est quod ad statum rei Romanae spectat; priva- tum quod ad singulorum utilitatem pertinet^' Or as Paulus says : ' Alteram utilitas privatorum, alteram vigor publicae disciplinae postulat'.' But indeed the distinction is much older. It is beauti- fully worked out by Aristotle, who classifies offences according to those against whom they are conmiitted. They are committed, he says, either against the State (ro Koivov) or an individual (Jva tZv koivwvovvtwv). An assault is an injury to an individual, while avoiding military ser- vice is an injury to the Stated Although clearly grasped and stated by the Romans, and borrowed from them by most of the continental nations as the fundamental basis of legal division, the distinction has been relegated by writers of repute to a subordinate position, if not altogether rejected. Thus Austin divides primarily ■ the whole field of law Austin's into the law ' of Persons ' and that ' of Things,' subordinat- of the dis- ing to the law of Persons the mighty cleavage between *""'*''°'*' ■ For Sohm's eccentric identification of Private Law with the Law of Property, see his Institationen, § 19. Transl. p. 98. ' Inst. i. I. 4; cf. Dig. i. i. i. . • Dig. xxxix. iv. 9. s; cf. God. i. 2, 23. * Rhet. i. c. 13. So Demosthenes: ^o-ti Sio eTSr) irepl &v elah al vifiot, Zv rh n4v 4ffri, Si' &v xpi^/teda &X\^Aois Kal ffwaWdTTO/Msv Kal vepl ruv iSiav & XP^ voiftv Suaplff/ieOa Ka\ C^fiev S\ws rh irphs Tifias aiiTois, rh 8' hv Tp6irov Set T^ Koip$ TTJs w6\eus eva tuaarov fi/uiy XP^"^'* ^ Timocrat. p. 760, 1950 K 130 THE LEADING CLASSIFICATIONS OF RIGHTS. CHAP. IX. Public and Private law. * Public law,' he says, ' is the law of political status'.' Our reasons for disapproving of this arrangement will probably be sufficiently apparent when we have explained the distinction which Austin thus treats as the primary one ; we may however at once observe that when so secondary a function is assigned to the division of law into PubUc and Private, it is impossible to find a satisfactory position in the Corpus luris for the law of Crimed His abso- Connected with Austin's choice of a primary principle lute and .,....,.,. , , relative of division is his doctrine of absolute' and relative' duties. duties ^ which he explains as follows: 'A relative duty is incumbent upon one party, and correlates with a right residing in another party. In other words, a rela- tive duty answers to a right or impUes and is impUed by a right. . . . Where a duty is absolute, there is no right with which it correlates. There is no right to which it answers. It neither implies, nor is implied by, a right \ ... A relative duty corresponds to a right, i. e. it is a duty to be fulfilled towards a determinate person, or determinate persons, other than the obliged, and other than the sovereign imposing the duty. . . . All absolute obligations are sanctioned criminally. They do not correspond with rights in the sovereign I' He classifies absolute duties as being (i) towards self, (2) to- wards persons indefinitely, or towards the sovereign; (3) duties not regarding persons, but regarding God or the lower animals °. All this is unsatisfactory. Not only are we quite ' Austin, ii. p. 71. He fortifies himself by the authority of Hale and Blackstone. * See Austin, ii. p. 72. On the difference between civil and criminal law see Ed. Rev. vol. 54 (1831), pp. 220, 221. ' See Bentham, Traitfe de L^islation, i. pp. 154, 247, 305 ; Princ. Morals and Leg., pp. 222, 289, 308. * Austin, ii. p. 67. ^ lb. U. p. 73. » lb. ii. pp. 74-75. PUBLIC AND PRIVATE LAW. 131 willing to concede that a man can have no * relative ' duty chap. ix. towards himself, towards God, or towards the animals. We go further, and maintain that he can have no legal duty at all towards these beings, whatever may be his moral or religious obligations towards them\ But we deny that there can be no relative duties to persons indefinitely, or, what seems to amount to the same thing, to the sovereign ^ In other words, we assert that the The State sovereign may be clothed with a right'. That this is ' so may be seen from the form of indictment, which in England runs 'The King on the prosecution of A. B. against C. D.'; in America 'The State (or The People) against E. F. ''.' The State is surely as capable of possess- ing a right as is the Corporation of London. The State has rights, and duties owed to it are as relative as any others. Indeed it is not improper to talk of the State as having and duties, namely such as it prescribes to itself, though it has the physical power to disregard, and the constitutional power to repudiate them^ Such duties we often see ' Cf . Hermogenianus : ' Cum igitur hominum causa omne ius constitu- tum sit.' Dig. i. 5. 2; and cf, supra, p. 90. It is obvious that laws against suicide, blasphemy, or cruelty to animals, confer no rights capable of being enforced at the discretion of the beings for whose benefit they may appear to be intended. ' As laid down by Austin, ii. p. 59. ' ' Inter subditos et Rempublicam obligationes non minus quam inter homines singulos contingunt.' Zouche, Elementa lurisprudentiae, iv. § viii. * So some Recognizances are in the nature of an acknowledgment of debt to the Crown, upon which, if it be broken, the Crown can take proceedings. ' This view is supported by Jhering, who says that the State may advantageously make laws applicable to itself as well as to its subjects. ' Recht, in diesem Sinne des Wortes, ist also die zweiseitig verbindende Kraft des Gesetzes, die eigene Unterordnung der Staatsgewalt unter die von ihr selber erlassenen Gesetze.' The motive of the State in submitting itself to law is self-interest, since it can prosper only through security. ' Das Recht ist die wohlverstandene Politik der Gewalt.' Der Zweck im Recht, i. pp. 344, 3^- 132 THE LEADING CLASSIFICATIONS OF RIGHTS. enforced, e. g. in England, principally but not exclusively, by a Petition of Right, which is lodged with the Home Secretary, and, after due investigation, receives, in suitable cases, the Royal fiat 'let right be done.' The subsequent proceedings follow the course of an ordinary action ^ This remedy is inapplicable to cases of tort I Interna- tional Law. The field of law, strictly so called, may be thus ex- haustively divided between the law which regulates rights between subject and subject (civis and civis) and that which regulates rights between the State and its subjects (civitas and civis). But there is a third kind of law which it is for many reasons convenient to co-ordinate with the two former kinds, although it can indeed be described as law only by courtesy, since the rights with which it is concerned cannot properly be described as legal. It is that body of rules, usually described as International law, which regulates the rights which prevail between State and State (ci^atas and civitas) °. 1 Of. m/ra, ch. xvi. It is a maxim of American law that ' the State, being a Sovereign, cannot be sued.' Claims against the United States, or the States individually, could therefore be arranged only by legislative action. The practical inconveniences hence resulting seem to have been considerable, and led to the institution in 1855 of a 'Court of Claims,' which has partially relieved the Congress of the United States from the decision of questions arising upon government contracts. As long ago as 1793, Judge WUson, in the Supreme Coiu-t, said: 'On general principles of right, shall the State, when summoned to answer the fair demands of its creditors, be permitted, Proteus-like, to assume a new appearance, and to insult him and justice by declaring "I am a Sovereign State"? Surely not.' See an article on 'Suing the State,' by Mr. Davie, in the American Law Review, 1884, xxviii. p. 814. An Act of 1887 has given concurrent jurisdiction with the Court of Claims to aU District and Circuit Courts of the U. S. lb., 1891, vol. xxv. Cf. Bryce, Am. Commonwealth, i. p. 231. ' Tohin V. The Queen, 16 C. B. N. S. 310. For a review of the cases dealing with the immunity of the head of a government office for de- faults of his subordinates, see Bainbridge v. Postmaster-General, [1906] I K. B. 178 (C. A.). ' A statement remarkable for its date (1594) as to the nature of Inter- national law is to be found in Hooker's Ecclesiastical Polity,i. e. x. § 12: NATURE OF INTERNATIONAL LAW, 133 The differences between these three kinds of Law, Pri- chap. ix. vate, Public, and International, depend upon the presence or absence of an arbiter of the rights of the parties. In Private law, which in many respects is the only typically perfect law, it will be observed that both the parties concerned are private individuals, above and be- tween whom stands the State as an impartial arbiter. In Public law also the State is present as arbiter, although it is at the same time one of the parties interested. But in International law there is no arbiter at all, but both parties are equally judges in their own cause. The law where a political arbiter is present, be he, or be he not, identical also with one of the parties, is often called ' Municipal,' to distinguish it from the so-called law which is described as 'International,' and which has no arbiter to which it can appeal other than the opinion of the civilised world. It is plain that if Law be defined as we have defined Nature of it \ a political arbiter by which it can be enforced is of tional its essence, and law without an arbiter is a contradiction^*'^- in terms. Convenient therefore as is on many accounts the phrase ' International Law,' to express those rules of conduct in accordance with which, either in consequence of their express consent, or in pursuance of the usage of the civilised world, nations are expected to act, it is ' Besides that law which simply concemeth men as men [morality] and that which belongeth unto them as they are men linked to others in some political society [municipal law], there is a third kind of law which toucheth all such several bodies politic, so far as one of them hath public commerce with another, and this third is the law of Nations.' R. Zouche, in his Elementa lurisprudentiae (1629), Pars i. sect. 6, divides the 'communio humana quae virtute lurisprudentiae sustinetur' into: ' privata,' ' publica,' and ' generalis quae inter diversos Principes et Res- publicas exercetur.' Montesquieu distinguishes 'droit civil,' 'droit politique,' 'droit des gens.' Esprit des Lois, i. c. 3. D'Aguesseau, CEuvres, i. p. 268, had employed the preferable terminology: 'droit public,' ' droit priv6,' ' droit entre les nations.' ' Supra, p- 41. 134 THE LEADING CLASSIFICATIONS OF RIGHTS. CHAP. rx. impossible to regard these rules as being in reality any- thing more than the moral code of nations. Of the three departments therefore into which la"u" may be divided, having regard to the iwlitical or non-political character of the persons whose rights it regulates, it must be borne in mind that what is not very happily described as 'Municipal law,' in its two departments 'Private' and 'Public,' is alone properly so called, while ' International law ' is law only by analogy. Law of n. The status of the persons concerned is, as we before and of observed, another basis of the division of rights. ^^^^' That is to say, there are some rights in which the status of the persons concerned has to be specially taken into consideration, while in others this is not the case. This distinction has led to a division of Law into the 'law of persons' and the 'law of things'; but in order to trace the steps by which this result was obtained, we must go back to our analysis of a Right into its elements. and to the differences which exist between the first and last elements of a Right on the one hand, and its two intermediate elements on the other*. We see at once that, while the intermediate elements consist of an object and an act, each of the two extreme elements is a person; and it becomes apparent that an > Supra, p. 91. LAW OF PERSONS AND OF THINGS. 135 important step will have been taken towards understand- chap. rx. ing the variations in Rights if we reduce the four terms upon which those variations depend to two only, by con- solidating the two extreme elements into what has been called, distinctively enough, the ' law of persons,' and the two intermediate elements into what has been much more ambiguously called the ' law of things.' Although the distinction, as now drawn, is of modern The ter- date, the phraseology in which it is expressed is as old""™""^" as the time of Gains, and probably much older '. There has been considerable discussion as to the precise meaning put by the Roman lawyers upon the terms 'ius quod ad personas,' and 'ius quod ad res pertinet.' It is certain that this early attempt to map out the field of law was rather popularly than scientifically conceived. It was obvious enough to put on the one side the 'persons' for whose sake all law exists, and on the other, the 'things' about the enjoyment of which persons may dispute. When the analysis was pushed a little further, persons were divided into several classes, with reference mainly to their position in the Roman family, and it was observed that since things, in the literal sense, are not the only enjoyable objects, the term might receive an artificial extension, so as to cover ' incorporeal things,' and even obligations. Each of the terms in question is open to objection on the ground of ambiguity. The 'Ius quod ad personas pertinet' aptly enough ex- Ius quod presses the law as to those variations in rights which sonas, ' ' Omne autem ius quo utimur vel ad personas pertinet, vel ad res.' Inst. i. 8. He adds ' vel ad actiones,' i. e. to Procedure, which does not interfere with hia division of the field of substantive law. The distinc- tion was probably drawn in the edictum perpetuum. See the fragm. of Hermogenianus, ' Primo de personarum statu, et post de ceteris, ordinem edicti perpetui secuti.' Dig. i. 5. 2. From the use by Gains of 'vel' rather than 'aut,' it has been argued that the passage is an enumera- tion rather of points of view than of distinct classes. See Dr. Emerton's tract on 'The threefold division of Roman law,' 1888, 136 THE LEADING CLASSIFICATIONS OF RIGHTS. CHAP. IX, arise from varieties in the Persons who are connected with them. But it is unfortunately also used by the Roman jurists to express what the Germans call ' Familien- recht'; i. e. to express, not only the variation in rights which is caused by certain special variations in personality, but also the special rights which belong to certain personal relationships \ "Not merely, for instance, the legal exemp- tions and disabilities of infants and femes covert, but also the rights of a father over his son, a husband over his wife, and a guardian over his ward. Such questions, however, as how far a woman's capacity for contracting is affected by coverture, and what are the mutual rights of husband and wife, are radically different in character. Quod ad The 'lus quod ad res pertinet' very ambiguously in- net. dicates the department of law which treats of such modi- fications of rights as result from varieties in the objects or in the acts with which they are concerned. That the Roman jurists meant to cover these modiiications by this phrase is quite clear from their own explanation of what they include under the term 'Things.' 'Res,' they tell us, are either 'corporeal,' things which can be touched, such as a farm, a slave; or 'incorporeal,' which cannot be touched, consisting in right only, such as a right of servitude, a right of action, a right arising out of con- tract ^ Now 'corporeal' things are obviously what we have called the ' objects ' of the right ; ' incorporeal ' things are the advantages which the person entitled can insist upon ; in other words, ' the acts or forbearances ' to which he is entitled. We may identify, therefore, though only approximately. • The opinions as to what Gaius meant by 'Jus quod ad personas pertinet' are summed up by Savigny, System, i. p. 398, cf. ii. App. v, who asserts that the term is equivalent to ' Familienrecht.' » Inst. ii. 2. pr. Cf. ' Habetur . . . quod peti potest.' Dig. 1. 16. 143; and the phrases chose in possession and chose in action. LAW OF PERSONS AND OF THINGS. 137 the two extreme members of our series with what the cha.p. ix. Romans called the 'law of Persons' and the two inter- mediate members with what they called ' the law relating to Things.' The division turning upon the distinction between, on the one hand, the persons in whom a right resides or against whom it is available ; and, on the other hand, the objects over which it is exercised and the acts by means of which it is enjoyed. It will be observed that though the Roman writers shorten 'ius quod ad personas pertinet' into 'ius per- sonarumV they never abbreviate the 'ius quod ad res pertinet' into 'ius rerum.' Yet their later followers have talked of 'ius rerum,' as well as of 'ius personarum,' thereby causing not a little confusion; and Sir Matthew Hale, adopting these phrases, mistranslates them ' Rights Equiva- of Persons and of Things,' and is followed by Blackstone ^ . phrases. The distinction, which probably made its first appear- ance in the Edict, which was adopted by Justinian, and is recognised more or less by almost all modern jurists', has also been expressed in other ways. Bentham's distribution of the law into 'particular' and 'general' amounts to much the same thing*. M. Blondeau means to indicate the same distinction when he divides the law into that of 'capables' and of ' incapables ''.' Mr. Westlake defines ' status ' as ' that peculiar condition of a person whereby what is law for the average citizen is not law for him ^' Mr. Poste, guided perhaps by reminiscences of Aristotle, opposes the law of ' equals ' to that of ' unequals V • Inst. ii. I. pr. ' Coram, i. p. 122. ' See Thibaut, Versuche, ii. Uber ius rer. et pers.; Savigny, System, i. p. 393; Austin, ii. pp. 383, 398. * Traitds, i. pp. 150, 259, 294, 299; Austin, ii. p. 418; iii. p. 225. ' Cited by Austin, ii. pp. 411, 417. ' Private International Law, ed. i. § 89. ' Gaius, i. § 8. 138 THE LEADING CLASSIFICATIONS OF RIGHTS. Normal and ab- normal rights. The dis- tinction explained. The order of study. It is not easy to find apt terms to express the true nature of the distinction. None of those already enu- merated are satisfactory, and we would venture to suggest the adoption in their place of 'normal' and 'abnormal.' "Why we prefer these terms to any others will appear from the closer examination of the subject upon which we are about to enter. A Right yaries with a variation in any one of the series of its constituent elements. The possible variations in the two extreme terms of the series are, however, far fewer than in the two intermediate terms. This is the case, first, because both of the extreme terms are Persons, so that they are subject to the same sets of variations; and, secondly, because as a matter of fact the possible varieties in juristic personality are far fewer than those in the juristic character of objects or acts. The Law of Persons, as a source of variety in rights, is therefore distinct from and much smaller than the residue of the Law, which is generally called the Law of Things. The jurist may make either one or the other species of characteristics his starting-point in considering the aggregate of rights which make up the whole field of Law. He may consider seriatim the possible varieties in the persons with whom rights may be connected; Law of Things. IS I Ship- ping. Bank- ing. Torts. Family. Succes- sion. &c. Normal. Lunatic. Alien. Covert. Infant. &c. Artificial. THE ORDER OF STUDY. 139 treating under each personality of the various objects chap. ix. and acts with which it may be combined : or, he may start from the variations in objects and acts ; considering by way of supplement the modifications which the rights connected with these undergo in each case from varieties in personality. Thus the aggregate of rights may be likened to a figure of two dimensions : the shorter of these dimensions representing the Law of Persons ; the longer the Law of Things. And the figure may be sup- posed to be marked off into squares, like a chessboard, by the intersection of a few horizontal Unes expressing the possible varieties of personality, and of a multitude of vertical Unes expressing the possible varieties of object or act. It is a mere choice of the more convenient course, whether the jurist makes the 'personal' dimension of the right or its ' real ' dimension the basis of his classification. Now as a matter of fact the personal dimension is one which in the majority of cases needs no consideration at alL When the Persons both of inherence and of in- cidence are human beings who are citizens of full age and sound mind, not under coverture, or convicted of crime, in other words when their personality is 'normal,' the personal dimension of the right in question is wholly disregarded. It is only when one or both of the Persons concerned are ' abnormal,' i. e. are ' artificial ' persons, or infants, or under coverture, or convict, or lunatic, and so forth, that the special effect upon the right in question of this abnormal Personality has to be considered. Since therefore in most cases Personality is not considered at all; and since, when it is considered, because abnormal, its aberrations are confined within very narrow hmits of possibility ; it would form a most inconvenient basis for the classification of rights, compared with those characteristics which depend upon the Object or act with which the right is concerned. The variations of these characteristics are 140 THE LEADING CLASSIFICATIONS OF RIGHTS. CHAP. IX. incalculably numerous, and to an account of the right in question, founded upon these, it is easy to add, by way of supplement, any modification which it may receive on account of abnormal personality. What has been said may be made clearer by an in- stance. The right of an infant to build on his land so as to obstruct the windows of the house of his neigh- bour who is a person of unsound mind, is capable of being considered from at least four potats of view, viz. as a branch of the law (i) of Infancy, (2) of Ownership, (3) of Servitudes, (4) of Lunacy. But it is clear that the first and the last points of view, (i) and (4), belong to one and the same department of law, viz. the way in wliich rights are varied by variations in the conditions of Persons ; and a little reflection will show that these variations are not very numerous ; infancy, lunacy, cover- ture, alienage and a few more, nearly exhaust the list of varieties in personality; while, on the contrary, the in- termediate points of view, (2) and (3), raise classes of questions which are of almost unlimited extent, because they are bounded only by the varieties of physical objects and the modes in which they may be treated. By abstracting the law of Persons from the rest of the law the description of a right is thus much sunpUfied. Two terms only, instead of four, have primarily to be considered, viz. the physical object and the act. Only v/hen there is any peculiarity in the condition of the person of inherence or of incidence need the first or fourth terms of the series, now consolidated into tlie ' Law of Persons,' be considered at all. The inquiry into the law of Persons is thus supple- mentary and secondary to that into the residue of the law, commonly called the law of Things. The order of exposition, either of the science of Jurisprudence, or of a body of law, should, therefore, be : first, the law generally, without regard to peculiarities of personality; secondly. THE TEST OF A STATUS. 14I the law of Persons. Austin is doubtless right in pointing chap. ix. out that Blackstone made a mistake in discussing what he calls 'the Rights of Persons' before the 'Rights of Things'; herein following the Roman institutional writers, but departing from the better arrangement of his great forerunner Sir Matthew Hale. Assuming it to be convenient to draw a line between Where the law of Things and that of Persons, where is the line Une be to be drawn? The tests which have been proposed of^*^"^' the characteristics of the law that ought to be treated of under the latter head are various and unsatisfactory. The marks of a status or condition are, according to Austin, three. ' First, it resides in a person as a member of a class. Secondly, the rights and duties, capacities and incapacities, composing the status or condition, regard or interest speci- ally the persons of that class. Thirdly, these rights and duties, capacities and incapacities, are so considerable in number that they give a conspicuous character to the in- dividual, or extensively influence his relations with other members of society.' This last quality is, he thinks, not essential, and would not be regarded in a body of law rationally constructed \ These marks are however not sufficiently distinctive, as they will be found not only in infants or lunatics, to whom a special status is generally attributed, but also in land- lords or stockbrokers, to whom as members of a class nothing of the sort is conceded. It has been ingeniously suggested that 'the essential feature of a status is that the rights and liabilities affecting the class which con- stitutes each particular status are such as no member of the class can vary by contract".' But something more is necessary. ' Jurisprudence, Lect. xl. p. 712, ed. iii. Cf. Bentham, Princ. Morals and Legislation, c. 16. ' Sir W. R. Anson, Principles of Contract, ed. i. p. 328. Mr. Hunter's proposed use of 'status' as covering 'those cases where a permanent 142 THE LEADING CLASSIFICATIONS OF RIGHTS. CHAP. IX. The true test is surely this. Does the peculiarity of the Personality arise from anything unconnected with the nature of the act itself which the person of inherence can enforce against the person of incidence ? In order to determine, for instance, whether the rights of landlords should be considered under the law of persons, we must ask whether landlords as a class have any juristic peculiarities unconnected with the acts which they are entitled to demand from their tenants; such as the pay- ment of rent, the observance of covenants, &c. They clearly have not. A landlord merely means a person who is entitled to these acts. On the other hand, suppose the landlord to be an infant; here at once a whole set of characteristics are present, modifying the right to rent, &c. and quite unconnected with it. Nor is it only because the same person sustains the two characters of infant and landlord that this is the case ; a man may be a pawn- broker and landlord, but the rights as landlord will not be affected by his occupation as pawnbroker. The per- sonality recognised in the law of persons is such as modifies indefinitely the legal relations into which the individual clothed with the personality may enter. Classes of Of such affections of Personality there are two classes : — aiity. " (i) The person may be 'artificial,' i. e. may be not a human being. (2) The person may be under disability, or may enjoy exemption, on account of age, sex, mental in- capacity, crime, alienage, or public station. All of these are abnormal deviations from the ordinary case of both parties concerned in a right being human beings, under no special and far-reaching disability or exemption. When the disability or exemption is not of a far-reaching character, it will not be treated in practice as relationship is created by the law : when duties imposed upon a person are imposed upon him as a member of a class' (Roman Law, p. 475), ia etill more vague than those above mentioned. THE TEST OF A STATUS. 143 founding a special status, although, upon the principles chap. ix. above stated, otherwise capable of being so treated. Thus, as a rule, soldiers, or blind, or illegitimate, persons are not held to occupy a status, although in several respects, and in particular with reference to testamentary powers and rights of succeeding ab intestato, they may respectively exhibit peculiarities which are not involved in the state- ment that they are in military service, blind, or illegitimate \ We have already pointed out what we conceive to be Austin's mistake in subordinating to the distinction now under discussion, what is in our opinion the still more radical one between ' Public,' ' Private,' and ' International' Law; a mistake to which we attribute much of the im- perfection which mars the result of the labours of this great jurist. The contrast between the law of persons and of things. The dis- or between ' normal ' and 'abnormal' law, i. e. the law ' of tja^(.gj^(jig normal ' and ' of abnormal persons,' is sharply defined only in one of the departments into which the whole subject may be divided in accordance with this threefold distinc- tion, though something analogous to it may be detected in the others. In Private law, where all the characteristics of law are in Private Law, •■ The modem civilians recognise status founded upon physical characteristics as 'naturales,' opposing them to the 'status civiles' (libertatis, civitatis, and familiae) recognised in the older Roman law. Savigny objects to this, and to the vague definition of status as ' a quality by means of which a man has certain rights,' that the list of status would be interminable, and the law of status would become identical v/ith the whole body of the law. System, ii. p. 445, Appendix. His objection would not apply to such a definition as is now proposed. Prof. A. V. Dicey, in a most able review of the first edition of this book, points out that status as here defined would be one of the 'real kinds' of J. S. Mill, 'which have, besides the patent qualities which have led us so to class them, an indefinite number of common characteristics which we have not before our minds, and may not even have within our knowledge.' Law Mag. and Rev., 1880, p. 400. 144 THE LEADING CLASSIFICATIONS OF RIGHTS. in Public law, CHAP. rs. fully present, the law of Persons is, as we have already described it, a statement of the ways in wMch the general law is modified by varieties of status; while the law of Things is a description of the various kinds of rights enjoyed in private capacities by persons as being within the jurisdiction of the State, but not as being in any way representative of the sovereign power of the State. In Public law, which, as we have seen, possesses the characteristics of law in a lower degree of development, the distinction is but faintly traceable. "What is analogous to the law of Persons here consists in a description of the State as a whole, of its ruling body, of bodies or persons enjoying delegated ruling power, and of its constituent members as such; in short, in what is usually known as 'Constitutional' law. On the other hand, the residue of Public law has its analogies to the law of Things. It consists in — (i) A description of the way in which the different dele- gacies of the governing body are set in motion. This may be called ' Administrative ' law. (2) A description of those rights of the community at large which are violated by injuries done to it as a whole, or to any member of it, and of the pimishments with which infractions of such rights are visited. This is commonly called * Criminal ' or ' Penal ' law ; because the usual mode of stating and circumscribing such rights is by defining violations of them, and by pre- scribing the punishment due to such violations. The nearest approach to a law of Persons in Inter- national law is contained in that portion of the science which describes the characteristics of a fuUy Sovereign State, and the modes in which the rights of a State are affected by the absence of such characteristics. in Inter- national law. Rights in rem and personam. III. Another grand division of rights turns upon the limited or unlimited extent of the person of incidence, by RIGHTS IN REM AND IN PERSONAM. 145 "which phrase, as may be rememhered, we mean the person chap. ix. against wliom the right is available. A right is available either against a definite person or persons, or against all persons indefinitely. A servant, for instance, has a right to his v/ages for the work he has done, available against a definite uidividual, his master; while the owner of a garden has a right to its exclusive enjoyment available against no one individual more than another, but against everybody. This distinction between rights has been expressed by calling a right of the definite kind a right in personam, of the indefinite kind a right in rem. And these terms, though not perfectly satisfactory, have obtained a currency which is of itself a recommendation, and moreover are perhaps as good as any substitutes which could be sug- gested for them. The former term indicates with tolerable perspicuity a right available 'in personam (certain),' against a definite individual, while the latter impUes that the right is capable of exercise over its object, ' in rem,' with- out reference to any one person more than another. The use of these terms to distinguish between two History of classes of rights is of comparatively recent date, but is ® '^^™^' quite in harmony with their use by the classical Roman jurists, in distinguishing between different classes of stipu- lations, pacts, actions, exceptions and edicts. Any of these are said to be 'in personam' if referring to the duties of a given individual, 'in rem' if operating generally. Thus we are told : ' Praetor in hoc edicto,' i. e. quod metus causa, 'generaliter et in rem loquitur, nee adicit a quo gestum.' 'Pactorum quaedam in rem sunt, quaedam in personam. In rem sunt, quotiens generaliter paciscor ne petam; in personam quotiens ne a persona petam, id est ne a Lucio Titio petam'.' This use is also analogous to the description of judgments as being in rem or in per- ' Dig. iv. 2. 9;ii. 14.7. 8. Cf. ii. 14. 57; vii. 9. s; xxxix. i. lojxxxix. a. 19; xliv. 4. 2. 2; xliv. 4. 4. 33; Gai. Inst. iv. i. 4. 1950 L 146 THE LEADING CLASSIFICATIONS OF RIGHTS. CHAP. IX. Equiva- lent terms. sonam, and to the mediaeval distinction between ' statuta realia ' and personalia^' The same opposition has also been denoted by the less descriptive terms ' ius in re ' and ' ius ad rem,' which first occur in the canon law^; and by the terms 'absolute' and 'relative,' which by employment with many other meanings are too void of precision for the purpose. Longer, but more complete, expressions are 'rights against individuals,' and 'rights against the world,'. and these, originally suggested by Hugo ^ are perfectly un- objectionable. If the terms 'in rem' and 'in personam' were to be discarded, we should prefer to speak of 'rights of de- terminate,' and ' rights of indeterminate incidence.' Rights antece- dent and remedial. IV. The last of the great divisions of rights dis- tinguishes those where the act is due for its own sake, from those where it is made due merely on default of another act. The former kind have been by various writers styled rights 'primary,' 'sanctioned,' 'of enjoy- ment'; the latter kind have been described as rights 'sanctioning,' 'secondary,' ' restitutory,' 'of redress.' We prefer to distinguish them as rights 'antecedent' and rights 'remedial.' The nature of the distinction is sufficiently simple. The rights of the owner of a garden not to have it trespassed upon, of a servant to have his wages paid, of a purchaser to have his goods delivered to him, are all of the former kind, viz. rights 'antecedent,' which exist before any ' See Chapter xviii, infra. 2 The distinction is thus explained by Huber: 'Ius in re est facultas homini in rem competens, sine respectu ad certam personam. Ius ad rem est facultas competens in aliam personam ut nobis aliquid det vel faciat.' Praelect. Pars. I. ii. i. 12. His references to the Sext. are in- accurate. 'Ius in re' is classical, e. g. Dig. xxxix. -z. 19. Of. Gliick, Pan- dekten, ii. § 175; Thibaut, Versuche, ii, p. 26. ' Lehrbuch eines civilistischen Cursus, v. p. 72. RESULTING DIVISIONS OF LAW. 147 wrongful act or omission. They are rights which are chap. ix. given for their own sake. The right of the owner of a garden to get damages from a party of men who have broken into his grounds, of a servant to sue his master for unpaid wages, of a purchaser to get damages from a vendor who refuses to deliver the goods sold, are, on the other hand, of the latter kind, or rights 'remedial'; they are given merely in substitution or compensation for rights antecedent, the exercise of which has been impeded, or which have turned out not to be available. If all went smoothly, antecedent, or primary, rights would alone exist. Remedial, or sanctioning, rights are merely part of the machinery provided by the State for the redress of injury done to antecedent rights. This whole department of law is, in an especial sense, 'added because of transgressions.' Out of each of the four grand divisions of rights there The result- arises also a grand division of law. Including therefore gj'ojjg'^' the distinction between ' substantive ' and ' adjective ' law, '^^• explained in a former chapter \ we have five main prin- ciples upon which the field of law may be divided, viz. into — Substantive and Adjective law ; Private, Public, and International law ; Normal and Abnormal law; The law of rights 'ia rem,' and of rights 'in per- sonam ' ; The law of rights ' antecedent,' and of rights ' remedial.' One or other of these principles must be selected as determining the fundamental division. Each limb of the subject may be then subdivided in accordance with the other principles one after another. Adopting as the primary division of rights that which The pri- turns upon the distinction between the political or non-^gf,^ *" • p. 89. La 148 THE LEADING CLASSIFICATIONS OF RIGHTS. CHAP. IX. political quality of the persons with whom they are con- nected, we shall divide law, in the first instance, into — Private, Public, and International ; and shall deal with each of these great topics in the order in which we have enumerated them. But before doing so, we propose to call attention to certain characteristics of rights generally, which may be now most conveniently explained, once for all. CHAPTER X. BIGHTS AT BEST AND IN MOTION. Rights may be regarded under two aspects, either as The na- at rest or as in motion. In other words, the jurist has causes of to consider not only the nature, or scope, of any given "^'S^*^- right, but also the causes which originate or terminate its connection with the person in whom it resides' He must include, for instance, in a survey of the law of real property, not only an account of the various rights of the owner of land, but also a description of the various kinds of * titles.' He has therefore to determine whether to Method of divide his work into two halves, one of which shall deal "^'^""^'*'' with rights, and the other with the causes by which rights are connected or disconnected with persons ; or whether to make rights his sole topic, bringing in under each kind of right all needful information as to the causes by which it is set in motion. We propose to adopt the latter alternative, as presenting, upon the whole, the fewer difficulties. We shall, at any rate, be spared the awkwardness of discussing possessory rights apart from the acts of possession out of which they arise, or contractual rights apart from the agreements to which they owe their existence. Some repetition is no ' Supra, p. 92. ISO RIGHTS AT REST AND IN MOTION. CHAP. X. Prelimin- ary state- ments. doubt inseparable from the proposed method, but it is hoped that the amount of this may be considerably- lessened by the general statements respecting both the nature and the movement of rights which will be com- prised in the present chapter. Rights at rest. Orbit. Infringe- ment. I. A right which is at rest has to be studied with reference to its 'orbit' and its 'infringement.' By its ' orbit,' we mean the sum, or extent, of the advantages which are conferred by its enjoyment. By its 'infringe- ment,' we mean an act, in the strict sense of the term\ which interferes with the enjoyment of those advantages. A knowledge of the former necessarily imphes a know- ledge of the latter, and vice versa, since the one is always precisely correlative with the other. It is obvious that to linow the whole extent of the advantage conferred by the enjoyment of a right is the same thing as to know what acts are infringements of it. Thus the right may be such as to exact from the world an abstention only from any deliberate interference with it, or it may be such as to exact an abstention even from such an in- fraction of it as may result from want of care. Again, the person of inherence may be entitled absolutely to abstention on the part of others from certain acts, although they may 'cost him nothing, no not so much as a httle diachylon^'' or only to abstention from those acts when they occasion him actual loss, not only iniuria but also damnum^. If it be estabUshed that a solicitor has an ' Supra, p. 107. ' See Lord Holt's remarks in Ashby v. White, Lord Raymond, 938. ' Of. the liability which arises upon subsidence of land, caused by the otherwise innocent excavations of the owner of the subsoil, Bonomi v. Backhouse, g H. L. C. 503; and upon damage done by the bursting of a reservoir, the storage of water in which gives, of itself, no right of action, Fletcher v. Bylands, L. R. 3 H. L. 330, or by the "escape from custody of an animal of known dangerous propensities, May v. Burdett, g Q. B. loi. Damage so done is actionable without proof of negligence. The excava- tion is made, and the dangerous substance, or animal, is kept 'at one's ORBIT AND INFRINGEMENT, 151 absolute right that no one shall falsely impute td him chap. x. professional misconduct, irrespectively of any pecuniary loss resulting, or not resulting, from the charge, and that a street passenger has a right not to be run over by negU- gent driving, it follows that slander of a solicitor, though unaccompanied by loss, and negligent driving causing injury to a street passenger, are alike wrongful acts. On the other hand, the orbit of a right may be, and very generally is, ascertained by an enumeration of the acts -which are violations of it ; as a right of property is consecrated by the commandment ' Thou shalt not steal.' It is necessary to observe that what might appear to Apparent be an infringement of a right often turns out upon^g^™5^" investigation not to be one. This may be the case, because the apparent act is no act at all, or because it is not the true cause of the damage complained of, or because the right which seems to have been infringed has been waived, or because the right has been forfeited, or is dis- allowed on grounds of public policy. 1. "When the apparent act is really the result of cir-Act. cumstances over which the apparent agent had no control; as, for instance, if the horse which he is driving is frightened by the sudden noise of a cart driven furiously along the street, and becoming unmanageable does injury to persons and property, he is not responsible. The result here is a mere accident, since a true act must be accom- panied either by intention, or at least by negligence '. 2. No one circumstance in this world can be called with Cause, perfect accuracy the cause of any other. Even if I fire a pistol at a man and kiU him, many other causes are at work besides the agency of my will upon my finger, and so upon the trigger of the pistol. There must be, peril' : and such seems to be the rule of Scots, and of Roman-Dutch Law, E. and S. Africa Tel. Co. v. Cape Town Tramways Co., [1902] A. C. 381. But see Cork v. Blossom, 162 Mass. 330. * Supra, pp. 108, III. Cf. Holmes v. Mather, L. R. 10 Ex. 261. 152 RIGHTS AT REST AND IN MOTION. CHAP. X. for instance, the explosive power of the powder, the law of gravitation permitting the passage of the bullet, the manufacture and sale of the pistol, and so forth. In many cases the share of the person whom we wish to make answerable is mixed up in a far more complex manner with the other events and acts which have led to the result. In a case in which a squib was thrown by A at B, and B, to get rid of it, threw it at C, and it was thus passed on, till it ultimately hit and injured Z, it was held that A was liable. 'He who does the first wrong,' said the Court, 'is answerable for all the consequential damages. AU that was done subsequently to the original throwing was a continuation of the first force and first act, which will continue till the squib was spent by bursting, and I tlnnk that any innocent person removing the danger from himself to another is justifiable \' It is conceivable that the decision in this case might have been otherwise, and it must be remembered that the law will refuse to consider an act to be the cause of a result which is either, in the language of EngUsh law, 'too remote,' or to which the injured party has 'contributed' by liis own negligence. Remote- As to remoteness, it was said by Lord Bacon: 'It were infinite for the law to consider the causes of causes, and their impulsions one of another; therefore it con- tenteth itself with the immediate cause, and judgeth the acts by that, without looking at any further degree^.' The wrong and the damage must be, it has been said, 'concatenated as cause and effect'.' The difficulty is, of ' Scott V. Shepherd, i Sm. L. C. 399; cf. the opinion of Labeo: 'Si, cum vi ventorum navis impulsa esset in funes anchorarum alterius, et nautae funes praecidissent, si nullo alio mode nisi praecisis funibus explicare se potuit, nullam actionem dandam.' Dig. ix. 2. 29. 3. lb. 49. I. 2 Maxims, Reg. i. • Gerhard v. Bales, 2 Eli. & B. 490. ness, CONTRIBUTORY NEGLIGENCE. 153 course, to decide when this can fairly be said to be the chap. x. case. Lord EUenborough held that where special damage must be shown, it must be the legal, as well as the natural, consequence of the act complained of, and accord- ingly that A had no action against B for the utterance of slanders which had caused A to be wrongfully dismissed from his situation*. Much doubt has however been thrown upon the correctness of this view ^. A person is said to contribute to his own injury, when Contribu- he so acts as to become a 'co-operative cause' of it. Forggnce. instance, the owner of cattle which have been injured by a railway train cannot recover from the Company if they have strayed on to the line through his own negligence in not shutting gates '. But the negligence of the sufferer is not held to be contributory, when the result complained of might have been avoided by the exercise of ordinary care on the part of the wrong-doer *, nor is ' contributory negligence ' a defence where the injury complained of was the result not of the defendant's negligence, but of his unconditional responsibility for damage from things kept by him, and known by him to be dangerous '. The contributory negligence of a third party is no Of third excuse for the negligence of the defendant \ To this ^^^ ^' 1 Vicars v. Wilcox, 8 East, 3; cf. Ward v. Weeks, 7 Bing. 211. ' Knight v. Gihhs, 1 Ad. & E. 43; Lynch v. Knight, 9 H. L. C. S77; Pollock, Torts, Ed. vii, p. 237.' The cases on remoteness of cause were elaborately considered by Cockburn C. J. in Clarh v. Chambers, L. R. 3 Q- B. 327. ' EUis V. London and S. W. Ry., 2 H. & N. 424. * Radley v. L. & N. W. Ry. Co., i App. Ca. 754. 6 Lynch v. McNaUy (1878) 73 N. Y. 347; Spring Co. v. Edgar (1878), 99 U. S. 645. Cf. supra, p. 150. Even here it has, however, been held that acts on the part of the plaintiff which amount to a voluntary assumption of risk will exonerate the defendant. Dra/ce v. Auhurn City Ry. (1903), 173 N. Y. 466, Malloy v. Starin (1906), 35 N. Y. L. J. 1071, where a child had gone close to a cage of bears. • Burrows V.March Gas Co., L. R. 5 Ex.67; Bakerv.Snell {igo&),gg L. T. 7S3. 154 RIGHTS AT REST AND IN MOTION. Appor- tionment of negli- gence. rule two exceptions have been recognised. First, when the cause of action is derived from a negligent third party, which is the case where a parent or guardian sues for injury to a chUd, caused by its own carelessness^; and secondly, where the plaintiff has 'identified himself' with the negligent third party, as where the plain- tiff was a passenger in a vehicle the driver of which contributed by his negligence to the injury caused by the driver of another vehicle, who was the defendant in the action^. This latter doctrine, which is disapproved of in Scotland^ and generally in the United States ^ has at length, after a currency of forty years, been repudiated by the House of Lords ^ The Admiralty practice in cases of contributory negli- gence was to apjwrtion the liability equally between the plaintiff and defendant (the rusticorum iudidum) °, and this rule was extended by the Judicature Act of 1873 to all such cases of collision between two ships, but was reversed, for aU purposes, by the Maritime Conventions Act, 191 1, in pursuance of a Convention to that effect, signed at Brussels in the preceding year'. In other cases, according to the law of England, a plea of the contributory negUgence of the plaintiff is, if supported, fatal to his right of action^ ' Mangau v. AtherUm, L. R. i Ex. 239, but cf. Lyrich v. Nurdin, I Q. B. 29. ^ Thoroitghgood v. Bryan, 8 C. B. 115. Cf. Armstrong v. Lane, and Yorks Ry. Co., L. R. 10 Ex. 47. ' Hobbs v. Glasgow Ry., 3 Ct. of Session Cases, Ser. 4. 215. * Webster v. Hvdson Ry., 19 N. Y. Rep. 341. ' The Bemina, 12 Prob. Div. s8, confirmed in H. L., as Mills v. Arm- strong, 13 App. Ca. I. * The doctrine extends to cargo-owners, whose remedy is against both ships in equal moieties. The Milan, i Lush. 388. ' I & 2 G. V. c. 57. Cf. The Sargasso [1912] P. 192. For a review of the cases on the Admiralty practice, see L. Q. R. ii. p. 357. The prin- ciple of the rusticorum iudidum has recently been extended by the Su- preme Court of the U. S. to all cases of maritime tort. The Max Morris, 137 U. S. Rep. r. On the different systems for apportionment of liabil- ity prevailing in different countries, see L. Q. R. xii. p. 260, xiii. p. 17. 8 See the notes to Ashby v. White, i Sm. L. C, and an able article by FORFEITURE. 155 Roman law seems to have arrived at the same result chap, x in practice, though on somewhat different theoretical grounds. The question is treated in the Digest not as one of causation but as one of set-off, in which the negligence of the plaintiff balances that of the defendant \ * Quod quis ex culpa sua sentit, non intelligitur sentire,' says Pomponius ^ 3. 'Volenti non fit iniuria.' If a right is waived, an Waiver, act which would otherwise be an infringement of it becomes permissible*. Thus consent on the part of the husband was a good plea in bar of the old action for criminal conversation. So 'leave and licence' is an answer to an action for trespass, and a similar defence may be pleaded for what might appear to be a breach of covenant. The waiver must of course be given freely and with knowledge of the circumstances. 4. If a right is forfeited, or suspended, by misconduct, For- an act which would previously have been a violation of it ceases to be unlawful. An assault may be justified on the ground that it was committed upon a person who had forced his way into one's house and refused to leave Mr. E. H. Crosby in the American Law Review for 1880, p. 770. In Illinois, and some other states, it seems that the courts weigh the question of 'comparative negligence,' allowing a plaintiff whose negU- gence is 'slight' to recover against a defendant whose negligence is 'gross.' It has lately been held that the plaintiff is bound not only to prove the negligence of the defendant, but also to disprove any contributory negli- gence of his own; Davey v. L. andS. W. Ry., 12 Q. B. Div. 70; Wakelin v. L. andS. W. Ry., 12 App. Ca. 41; but see Dublin, &c. Ry. v. Slattery, 3 App. Cases, 115$. ^ This is sometimes described as ' Culpa-compensation.' See Pernice, Zur Lehre von den Sachbeschadigungen, p. 38. 2 Dig. 1. 17. 203. So Ulpian : 'Si in loco periculoso sellam habenti tonsori se quis commiserit, ipse de se queri debere,' Dig. ix. 2. 11. pr.; and Paulus: 'Multa huiusmodi deprehenduntur quibus sommovetur petitor si evitare perioulum poterit.' lb. 28; cf. his Sent. Rec. i. is. 3. The culpa of the plaintiff is immaterial when the defendant is in dolo. Dig. ix. 2. 9. 4. • On the difference between 'voluntas' and 'scientia,' see Smith v. Baker, [1891] A. C. 323. 156 RIGHTS AT REST AND IN MOTION. Public policy. it, or an arrest by the production of the warrant of a competent authority. 5. A right may also be suspended on grounds of public policy. So a trespass on land adjoining a highway may be justified if the highway is impassable. Responsi- bility. Common employ- ment. The responsibility for an infringement does not always attach exclusively to the visible wrong-doer. In ac- cordance with the maxims ' respondeat superior ' and ' qui facit per alium facit per se,' a person is liable for those acts of his agents or servants which either were expressly authorised by him, or which were done by them in the course of their employment ^ By way of exception to this principle, it was for many years settled English law that ' one fellow servant could not recover for injuries sustained in their common em- ployment from the negligence of a fellow servant, unless such fellow servant is shown to be either an unfit or improper person to have been employed for the purpose"; the reason given being that an implied contract is entered ' Mr. Justice Holmes brings forward a mass of curious evidence, beginning witli Exodus xxi. 28, to sliow that the remedy was in early times against the immediate cause of damage, even inanimate, tlie owner of wliieh was therefore bound to surrender it ('noxae deditio'), tliough in later times he was allowed to redeem tlie offending property by a money payment. Common Law, pp. 7-35. Cf. Fitz. Abr. 'Barre,' 290. On the connected institution of the 'Deodand,' see i Comm. , 300. A steam-engine which had caused death was forfeited to the Grown by way of deodand as lately as 1842 : R. v. E. Counties Ry. Co., 10 M. & W. 58; but deodants were abolished by 9 & 10 Vict. c. 62. See Homes J. in Harvard L. R. xii. p. 445, and infra, p. 168. ' Feltham v. England, L. R. 2 Q. B. 36. This view, first held in the case of Priestley v. Fowler, 3 M. & W. i (1837), is not wholly unknown on the Continent. With Parliamentary Papers, 1886 [c. 47S4], compare an instructive article by W. G. Clay, in Journal of Comp. Legisl. ii. p.i, especially pp. 93, 99, with reference to art. 1384 of the Code Civil. It is settled law in the U. S. See Murray v. S. C. Rail. Co., i McMullan (South Carol.), 38s (1841), and Farwell v. Boston and Wore. Rail. Co., 4 Metcalf (Massachusetts), 49. Cf. an important art. in Michigan Law Review, ii. p. 79, on 'the fellow-servant doctrine in the U. S. Supreme Court.' FACTS. 157 into by servants to accept the consequences of the chap. x. negligence of a properly selected fellow servant, as an ordinary risk of their employment. The exception was, however, much restricted in its operation by the Employers' Liability Act, 1880, and still further by the Workmen's Compensation Act, 1897 \ Under the latter Act, in certain specified dangerous employments, and subject to certain exceptions, an employer was made liable, irrespectively of any question of negligence, to compensate his workmen for accidental injuries. No contracting out of the Act was to be permissible, unless with reference to some scheme of Insurance approved by the Registrar of Friendly Societies. An Act of 1900 applied the provisions of the last-mentioned Act to agricultural and cognate employments \ but the whole topic is now governed by the consolidating and amending Act of 1906 1 The tendency on the Continent is to substitute systems of State Insurance for any direct liability of a master, either for negligence or under an implied contract of indemnity. II. The origination, transfer, and extinction of rights. Rights in or, as the Germans would say, the connection and dis- ™° '°°" connection of ' Rechtsverhaltnisse ' with their Subjects *, are due to Facts, but may be the result of either of the two species of Facts, L e. either of an Event or an Act ". A fact giving rise to a right has long been described as a 'title'; but no such well-worn equivalent can be found for a fact through which a right is transferred, or for one by which a right is extinguished. A new nomenclature was accordingly invented by Bentham, which is convenient • 43 & 44 Vict. c. 42 ; 60 & 6i Vict. c. 37 ; 63 & 64 Vict. c. 37. ' 63 & 64 Vict. c. 22. « 6 Ed. 7. c. 58. • Cf. Savigny, System, ii. p. 374; ii. p. i; Windscheid, Pand. i. p. 170. ' Supra, pp. 92, 102. tive. 158 RIGHTS AT REST AND IN MOTION. CHAP. X. for scientific use, although it has not found its way into Disposi- ordinary language. He describes this whole class of facts ue ac s. ^^ 'Dispositive'; distinguisMng as 'Investitive' those by means of which a right comes into existence, as 'Divesti- tive' those through which it terminates, and as 'Trans- lative ' those through which it passes from one person to another \ Invest!- i- An 'investitive fact' finds its nearest equivalents in classical Latin in the terms 'iusta causa,' 'iustum initium,' and 'titulus.' In some, but not in all, cases, it is possible to detect two stages in the acquisition of a right, a more remote and a nearer, and it has been proposed to distinguish them by describing the 'causa remota' as 'titulus,' the 'causa proxima' as 'modus adquirendi.' 'Cavendum est ante omnia,' says Heineccius, 'ne con- fundamus titulum et modum adquirendi, quippe qui toto coelo differunt' ; and he goes on to assert that 'dominium' can never be gained without the combination of a 'titulus,' giving a 'ius in personam,' and a 'modus adquirendi,' which superadds the *ius in rem.' These two stages are undoubtedly traceable in such a transaction as a Roman contract of sale followed by delivery, but they are by no means universally present in the acquisition even of real rights, and it is now admitted that the importance of the distinction has been much overrated \ A right may be conferred either by a direct act of the sovereign power, or by some fact which brings a particular instance within the operation of a general law. In the former case the investitive fact would be properly described ' His further distinction of ' Investitive ' facts into ' collative ' as conferring rights, and ' impositive ' as imposing duties, and of ' Divesti- tive' facts into ' destitutive ' or 'ablative' as extinguishing rights, and ' exonerative ' as extinguishing duties, seems to be of less value. Cf. Works, iii. p. 189. • Hein. Recit. ii. tit. 2. 339. ' Der vergebliche Versuch, jede Rechts- erwerbung auf einen iustus titulus und s. g. modus adquirendi zurtick- Eufiihren, ist nun allgemein aufgegeben.' Booking, Inst. p. 44. TRANSLATIVE FACTS. 159 as a ' privilegium,' in the latter case as a 'title.' The chap. x. grant of a monopoly would be a fact of the former kind, the death of an ancestor, bringing into operation the law of inheritance, would be a fact of the latter kind, and would be an instance of what is described by some writers as 'Qualification,' i. e. the substitution by the course of events of a definite individual instead of an 'incerta persona ' as the person entitled to a right \ 2. A 'divestitive fact' puts an end to a right altogether ; Divesti- so the right of a tenant terminates with the expiration*'^®' of his lease, and the right of a creditor is at an end when his debt has been paid. 3. Rights are more commonly transferred than altogether Transla- extinguished, so that a divestitive fact is very often capable '^®" of being regarded, from another point of view, as ■ investi- tive also. A conveyance of land not only terminates the rights of the vendor, but also originates those of the purchaser. A fact which fulfils this double function is called by Bentham ' translative,' and the right which results from such a fact is said to be acquired ' derivatively '.' Translative facts may be regarded from several points of view, and may be classified with reference to their voluntary or involuntary character, to the persons between whom the right passes, and to the extent of the right passed. The fact may be involuntary, i, e. as far as the parties Voluntary to the right are concerned, it may be a mere external yoiyJj°'_ event, such as a bankruptcy, the death of an intestate, accession, adjudication, escheat ; or it may be a voluntary act on the part of the person from whom the right passes, such as a contract of sale, or a testament. In the latter ' Austin, iii. pp. 93-98. ' Puchta, Inet. ii. p. 325, points out that in all derivative acquisitions there is a legal relation between the auctor and the person acquiring ; not merely a loss by one and gain to another, as in usucapio. i6o RIGHTS AT REST AND IN MOTION, The per- sons. The ex- tent. 1 Succes- sion. Singular. Universal. case it is called 'Alienation^': which again may be gratuitous, when the resulting acquisition is said to be ' ex lucrativa causa,' or for an equivalent. The distinction between involuntary and voluntary investitive facts is expressed by the English law-terms 'act of law' and 'act of party.' A translative fact may operate wholly 'inter vivos,' or it may pass a right from a deceased to a living person or from a natural to an artificial person, or from one artificial person to another. The artificial person may in some cases be the State itself. The right passed by the translative fact cannot, as a rule, be of greater extent than the right whence it is derived. ' Non debeo melioris conditionis esse quam auctor meus a quo ius in me transit I' It may however either be of less extent, as when a leasehold interest, or an easement, is granted by an owner of land; or it may be the very right itself, in which latter case the translative fact is called a ' Succession.' When, as is usually the case, the succession passes one or more separate rights, as the ownership of an estate, or a leasehold interest in a house, it is caUed ' singular,' and was described in Roman law by the phrases ' succedere in rem,' ' in rei dominium.' But there is a more complex kind of succession, known as 'universal,' which the Romans described by the phrases 'succedere per universitatem,' 'in universum ius,' 'in universa bona',' 'adquirere per universitatem \' What here passes is what German jurists call the ' Gesammtheit ' On Alienation, cf. infra, p. 209. ' Dig. 1. 17. 175. I. But Casaregia would substitute in mercantile transfers the principle ' possession vaut titre.' This theory seems to have been carried very far, in the interests of commerce, by recent German decisions. Vierteljahresschrift fUr Rechtswissenschaft, &c., N. F. vii. p. 204. ^ Dig. xii. 2. 8.; xxi. 3. 3. i; xxxix. 2. 24. i; xliii. 3. i. 13. * Gai. ii. 97. INTESTATE SUCCESSION. l6l des Vermbgens,' the whole mass of a man's property chap. i. whether consisting of rights 'in rem' or of rights 'in personam,' or of both combined; and with the property, or assets, ' bona activa,' the liabilities, ' bona passiva,' pass also. Such a 'universal succession' takes place when an executor, or administrator, or trustee in bankruptcy succeeds to a whole group of the rights and liabilities of a testator, or an intestate, or a bankrupt respectively. Many forms of universal succession have now only an antiquarian interest. This is the case, for instance, with the 'addictio bonorum libertatium conservandarum causa*,' with the Senatusconsultum Claudianum^ with the ' bonorum venditio.' Other forms, such as confiscation to the State, bankruptcy and heirship, can never be out of date. The passage of the rights of a deceased person to his Intestate heirs, the 'successio in universum ius quod defunctus gion^ habuit',' which is the most important of all universal successions, is brought about either by an involuntary fact, the man's death intestate, or by a voluntary act, the making of his wiU. Intestate is chronologically anterior to testamentary succession. Recent investigators, and especially Sir Henry Maine, have abundantly shown that there is in early times but little trace of individual ownership. Even grown-up children had only the most precarious interest during their lives in the property which they were allowed to handle, and on their deaths their father took possession of it as a matter of course. When the father himself died, his property passed of right to his survi^ang children, or if he left no children, then to certain precisely designated collateral members of his family, or in default, to that wider family which is known as a 'gens' or clan. The idea that property really belongs to a family group, and • Inst. iii. II. ' Inst. ii. 12. ' Gaius, Dig. 1. 16. 24. 1950 ; l62 RIGHTS AT REST AND IN MOTION. CHAP. X. Testamen- tary suc- cession. that the right of an individual is merely to administer his share of it during his lifetime, may be said still to survive in those provisions against the total disinheriting of relations vi^hich modern systems have borrowed from Roman law \ and less obviously in the rights given to next of kin under statutes of distribution. The feudal doctrine as to the succession of the heir-at-law to real property, and of escheat, in default of an heir, to the lord of the fee, is widely different in character. It is as a consequence of this latter doctrine, that no one individual has been recognised by English law as succeeding to all the rights of an intestate who dies leaving both real and personal property, and that the heir and the administrator have divided between them what under the Roman system devolved wholly on the 'heres.' A great inroad has been made upon this system by the Land Transfer Act, 1897, under which real estate, vested absolutely in a testator or intestate, passes to his personal representatives '. The principle that a' man may voluntarily select the person on whom his property is to devolve after his death' is of later origin than the principle of intestate succession. Such a selection had at first to be ratified by legislative authority, in order to oust the rights of the relatives. The gradual growth of the power of mailing a will, from the days when it could only be made in the 'comitia calata,' or in the face of the people dra'vvn up in ' E. g. Code Civil, liv. iii. tit. 2. chap. 3, *de la Portion de Blens disponible et de la Reduction.' ' 60 & 61 Vict. c. 6s, ' An Act to establish a Real Representative, and to amend the Land Transfer Act, 1875.' ' ' Le testament est unacte parlequel letestateur dispose, pour le temps ot il n'existera plus, de tout ou partie de ses biens.' Code Civil, art. 895. ' Neque enim aliud videtur solatium mortis quam voluntas ultra mortem.' Quint. Declam. 308. A curious o priori justification of Wills is given by Leibnitz : 'Testamenta mero iurenuUius essent momenti,nisi animaesset immortalis. Sed quia mortui revera adhuc vivunt, ideo manent domini rerum, quod vero heredes reliquerant, concipiendi sunt procuratores in rem suam.' Nova Methodus lurisprudentiae, P. II. § 20. WILLS. 163 battle array, 'in procinctu,' through the twelve tables, chap. x. and the praetorian relaxations, down to the wide liberty enjoyed under the later Empire, is one of the most in- teresting topics of the history of Roman law. The points to which attention must be directed in studying the subject of testamentary disposition in its fully de- veloped form, and with reference to each of which very various provisions are contained in actual systems of law, are the following : (i) The capacity of the testator, as to age, freedom from ' patria potestas,' ' coverture,' or the like. (2) The effect, if any, to be given to proof that the testator acted under mistake or imdue influence \ (3) The formalities necessary for the execution of a will, such as signing, sealing, attestation, or enrolment in a public oflQce; and the special cases in which fewer or more formalities than ordinary are insisted upon ^ (4) The contents of the wilL Whether any relatives must be expressly, or may be only tacitly, disinherited; whether the heir must be instituted before other matters are mentioned ; and so forth. (s) The capacity of the heir, or other person who is to take beneficially under the will. The incapacities, under various systems, of ' incertae personae,' corporations, priests, witnesses, charities and churches. (6) The modes in which a will, when once well made, may subsequently become invalid; as in Roman law by the agnation of a new ' suus heres,' and in English law by marriage; or in which it may be set aside, e. g. by the ' querela inofSiciosi.' ' On the differences between Roman and modern English law on this point, see Lord Hardwicke's judgment in Milner v. Milner, i Vesey, 106, and Story, Equity Jurispr. § 179. ^ The formalities will, for instance, be more elaborate in the case of a blind man, Cod. vi. 22. 8; less so in the case of a soldier on active service, 7 W. IV. and i Vict. 0. 26. § 11. Ma l64 RIGHTS AT REST AND IN MOTION. CHAP. X. (7) Whether the inheritance devolves immediately through the operation of the will, or whether any act is necessary on the part of the heir or executor, such as the 'cretio' or 'aditio' of heirs other than the 'necessarii' in Roman laM'S or the procuring of probate from a judicial authority, which is demanded from an English executor ". (8) Whether the heir can refuse to accept, and how far he can claim to be reUeved from liabilities in excess of assets. It may be well to observe that although an English executor did not take the whole property of a person who dies leaving real as well as personal property, yet he might well have been regarded as a universal successor, so far as relates to the personal property and the claims upon it '. Legacies. One form of singular succession is so closely connected •with universal succession under a testament as to be unin- telligible apart from it*- A Legacy, 'donatio quaedam a defuncto rehcta^' is a deduction from an inheritance for the benefit of some one. It is the creation of a claim upon the universal successor °, and a distinction is drawn ' Before which the hereditas was described as ' iacens,' and was treated as a juristic person. ' He may also render himself liable by intermeddling with the estate, when he is said to become ' executor de son tort.' ' As to his position with reference to real property, under the Land Transfer Act, 1897, v. supra, p. 162 n. 2. The early history of the English executor is discussed with great learning by Mr. Justice Holmes in The Common Law, p. 344, and in the Harvard L. R. xii. p. 446, where he traces tlie executor from the ' sale-man ' of the Lex Salica. * 'Quae pars iuris extra propositam quidem materiam videtur: nam loquimur de his iuris figuris quibus per universitatem res nobis adqui- runtur: Bed cum omnimodo de testamentis . . . locuti sumus, non sine causa sequenti loco poterat haec iuris materia tractari.' Gai. ii. 191. ' Inst. ii. 20. I. » Although, according to Neratius, • ea quae legantur recta via ab eo qui legavit ad eum cui legata sunt transeunt.' Dig. xlvii. 2. 64. LEGACIES. I6S between the 'vesting' of the legacy, 'dies cedit,' and its chap. x. becoming payable, 'dies venit.' It may be revoked by the testator, or it may 'lapse.' It will be void if incon- sistent with any rule of law as to the amount of legacies, or as to the proportion which they may bear to the property which is to remain with the heir, or as to the persons who may receive them. A Legacy must be dis- tinguished from a 'donatio mortis causa" which, though Dona- it takes effect on the death of the donor, does not do soj^o^fs by way of deduction from the inheritance. causa. Having now considered the general characteristics of law and of rights, we are in a position to enter upon a more detailed examination of our subject, under the three great heads of ' private,' ' public,' and ' international ' law. ■• ' 'Cum magis se quis velit habere quam eum cui donatur, magisque eum cui donat quam heredem suum.' Inst. ii. 7. i. On the evils of the wide applicability to securities of ' donatio mortis causa ' at the present day, see L. Q. R. ii. 444. y CHAPTER XI. PRIVATE LAW : EIGHTS ' IN REM.* Substan- tive, adjective, law. Normal, abnormal, rights. Antece- dent, remedial, rights. The great department of law, upon a detailed examin- ation of which we are about to enter, may be most conveniently studied if we distinguish at the outset the main topics which are contamed in it. These are to be ascertained by a successive application of the principles of division which were explained in a preceding chapter, in the order which seems best suited to the subject. Private law, as thus treated, is either 'substantive' or 'adjective,' that is to say, it either defines the rights of individuals, or indicates the procedure by which they are to be enforced. The rights dealt with by substantive law may be either 'normal' or 'abnormal,' as the persons with whom they are connected are of the ordinary type, or deviate from it. Both classes of rights are either ' antecedent ' or ' remedial.' A right of the former kind, it will be remembered, is one which exists irrespectively of any wrong having been committed. It is an exceptional advantage granted to the person who is clothed with it. The devisee of a house in Middlesex, or the merchant who has bought a cargo THE ORDER OF STUDY. 167 of rice, is, by virtue of being thus devisee or purchaser, in chap. xi. enjoyment of powers which are not possessed by the rest ' of the population. A right of the latter kind is one which is given by way of compensation when an 'antecedent' right has been violated. Antecedent rights are either 'in Rights rem' or 'in personam'; that is to say, they are available p'^^ow^ either against the whole world or against a definite individual. Thus the proprietary right of the owner of a house is good against aU the world, while the right of a landlord to his rent is good primarily against his tenants Remedial rights are most usually available only 'in per- sonam,' though proceedings against a ship in the Court of Admiralty, or to obtain a divorce, are undoubtedly 'in rem,' as was the 'actio quod metus causa 'in Roman law^ Ulpian pointed out that aU interdicts, 'licet in rem videantur concepta, vi tamen ipsa personalia sunt'.' Our distribution of the subject may be more shortly expressed as foUows : Private law is either Substantive, defining rights, which are Normal Antecedent (in rem, ' in personam. Remedial. Abnormal. Adjective, providing for the protection of rights. We shall begin with the consideration of the substantive law of the various species of normal rights. We shall then treat of the law of abnormal rights, and conclude with the topic of Adjective law or Procedure. Normal rights may be, as has been already explained, either Antecedent or Remedial, and rights of the former ' See Mr. T. Cyprian Williams' learned article in 13 L. Q. R. 288, upon a landlord's remedies other than those against his tenant. 2 'Cum autem haec actio in rem sit scripta, neo personam vim fa- cientis coerceat, sed adversus omnes restitui veUt quod metus causa factum est.' Dig. iv. 2. 9. 8. • Dig. xliii. i. 1. l68 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. kind may be either ' in rem ' or ' in personam.' The study of Private law will naturally commence with an examina- Rights in tion of normal antecedent rights ' in rem,' i. e. of rights firat ex- ^ which, irrespectively of any wrong having been committed, amined. ^^g available for the benefit of the person of inherence against a person of incidence so unlimited as to comprise the whole world '. Rights of this kind are both numerous and important, and must be examined in due order. A distinction is very generally drawn by German writers between what they call ' Urrechte ' and ' erworbene Rechte ^' Rights of the former kind, which are also said to be 'inborn,' 'fundamental,' 'inalienable,' 'natural,' 'immediate,' ' universal,' ' essential,' ' unconditional,' or ' absolute,' are such as every human being possesses independently of any act of his ovsTi ; while rights of the latter kind, described also as ' derivative,' ' mediate,' ' alienable,' ' accidental,' or 'hypothetical,' are the result of some free act. The line between the two classes of rights is however so variously drawn, and must always be drawn subject to so many qualifications and reservations, that the distinction is of little value. We have called attention to it only as illus- trating that graduated intimacy of relation between the right and its subject which we shall take as our guide in determining the order of the investigation upon which we are about to enter. We shall begin with the right which is most closely connected with the personality of the individual entitled to it, and shall proceed to consider, one after another. ' The new CSvil Code for Germany, by an inconvenient inversion of the order of treatment hitherto accustomed, deals with 'Sachenrecht' after the ' Recht der Schuldverhaltnisse.' This order is followed in the Digest of English Civil Law, edited by Edward Jenks, of which Book I appeared in 1905; as also in the German edition of the same work (Daa burgerliche Recht Englands) with a commentary by Dr. Schirrmeister. Continuations of this work have appeared from 1906 to 1916, almost yearly. • 'Officia et iura connata . . . acquisita.' Wolfius, lus Naturae, Pars i. c. i: Roder, Naturrecht, i. p. 174; but see Savigny, System, i. p. 335. > PERSONAL SAFETY. 169 those rights which are progressively less connected with chap, xi his proper personality, and are more connected with the control which he is allowed to exercise over the actions of others, and with the advantages which he is allowed to derive from the world in which he lives \ Taken in this order, the rights of the class now under Classifica- consideration may be ranked as follows : antece- dent I. To personal safety and freedom. "S^ts •' 171 rem. II. To the society and control of one's family and dependents. III. To reputation. IV. To advantages open to the community generally; such as the free exercise of one's calling. "V. To possession and ownership. VI. To immunity from damage by fraud. In each case we shall have to consider not only the nature of the right in question, but also the character of the act by which it is violated, and the modes of its origination, transfer and extinction". Our illustrations will here, as elsewhere, be drawn chiefly from the law of England. I. Rights to personal safety and freedom are the most Personal widely enjoyed of any. They are possessed by every ^^^^*^" one who has not waived or forfeited them. They are acquired at the moment of birth, and are therefore said to be ' innate,' though they are limited, during the earlier years of life, by the right of parents and guardians to chastise and keep in their custody persons of tender age. Similar rights of custody, and even of chastisement, have ' In his opinion in AUen v. Flood, [1:898] A. C. i, Cave J. suggests a division of rights into those relating respectively to Mind, Body, and Es- tate. On the essential difference between the right to personal safety and the right to property, see Brunsden v. Humphrey, 14 Q. B. D. 141. Cf. 'Dominus membrorum suorum nemo videtur.' Dig. ix. 2. 13. pr. ' Cf. infra, ch, xiii. I/O PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. been at various periods recognised also with, reference to •women. These rights are of course, from their nature, incapable of transfer. They may be partially waived. A person who engages in a lawful contest of strength waives, by so doing, as against his antagonist, his right not to be assaulted and battered \ and any complaint made by him in such a case would be well answered by the defence of 'volenti non fit iniuria,' or 'leave and licence.' So a saUor who enters on board ship waives for the voyage his right to direct his own movements. An unlimited waiver of rights of this kind, such as a self-sale into slavery, or a self-dedication to monkish seclusion, though recognised in early systems of law, is discountenanced by modem civilisation^. They may be temporarily forfeited. In other words complaints founded upon a violation of them may be met by a plea of 'justification ' ; as in English law a complaint of assault is well answered by a plea of son assault demesne, provided always that the violence complained of is not out of all proportion to the violence first used by the complainant. They terminate with death. They are, in many cases, violated by acts exhibiting only that degree of wUl which is called negligence. In enumerating the rights of this kind which are recog- nised in advanced states of society, it will be convenient to begin with those which have the widest extent, L e. where the injury is an act of the slightest kind, and to proceed in order to rights more and more restricted in scope, L e. where there is no injury unless the act is of a dis- tinctly violent character, or is accompanied by actual damage. Menace. ^' -A. man has a right not to be even menaced by gestures, as by the shaking of a fist, the brandishing ' Similarly by submission to a surgical operation. See Pollock, Torts, ed. viii. p. 167. ' For limitatioQs on the rule 'liberos privatis pactis non posse servos fieri,' see Dig. xl. 13. 3, Inst. i. 3. 4. PERSONAL SAFETY. 171 of a stick, or the presenting of a pistol. Such acts may chap. xi. however be deprived of any wrongful character, if the parties be so distant that no contact is possible S or if words are used showing that no harm is intended, as where a man laid his hand on his sword in a threatening manner, but said, ' If it were not Assize time I would not take such language from you^' 2. A man has a right not to be touched, pushed, or Assault, struck in a rude or hostile manner, thus sustaining a 'battery' in English law. This right is not interfered with by one who is pushing his way gently in a crowd, or who touches his neighbour to attract his attention, or gives him a jocular and friendly blow, 3. A man has a right not to be wounded or disabled, Wound- whether by deliberate assault, or by negUgence^, such as'°^" that of a reckless cab-di-iver, or of a railway company, which sends a train over an inadequately protected level crossing*. 4- A man has a right to go where he pleases, so long imprison- as he does not interfere with the rights of others, and™®"*' any one who prevents him from so doing, whether by constraint actually applied, or by such show of authority or force as has an effect on the "will equivalent to actual constraint, is said in English law to be guilty of 'false imprisonment.' An act which appears to infringe a right of one of the three last mentioned kinds often does not really do so. It may be justified on the ground of self-defence, of defence of a friend or of property, of preservation of the peace. 1 Cobbett V. Cfrey, 4 Ex. 744. ' Tyberville v. Savage, i Mod. 3. ' Supra, p. 112. * A passenger in a motor-omnibua, injured by its skidding on a greasy road, has no claim for compensation, although the tendency of the vehicle to skid on a road in that condition is notorious. Wing v. London Gen. Omn. Co., [1909] 2 K. B. (C. A.) 652. On perils from air-ships, see articles by Judge Baldwin and A. K. Kuhn, in the Am. Joum. of Int. Law, iv. pp. 9S, 109- 172 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. Dangerous things. Dangerous places. or of the execution of legal process \ The right is in fact to be taken subject to qualification on various grounds. The heads pf right hitherto mentioned may be violated ■without causing actual damage. This is not the case with those which we are about to describe. 5- A man has a right not to receive injury from any dangerous substance or animal kept by another. Any one who stores up a great bulk of water in a reservoir, or keeps a caravan of beasts ferae naturae^ is said, by English law, to do so 'at his perU,' and will be liable, should damage be done by the bursting of the reservoir, or the escape of a tiger, although he may have taken the greatest possible care to prevent the mischief '. The same liability would attach to the keeping of animals mansuetae naturae, if known to be vicious". 6. A man has a right that his personal safety shall not be infringed by the negligent exercise on the part of others of their own rights, or rather of what might appear to be their own rights; as when a person allows his house to be in such bad repair that it falls on a passer-by, or allows the existence of latent dangerous places in his house or land, whereby damage is Sustained by persons ' ' Is qui iure publico utitur non videtur iniuriae faciendae causa hoc facere, iuris enim executio nemini facit iniuriam.' Dig. xlvii. lo. 13. Cf. Williams v. Jones, Hardw. 301. 2 Cf. supra, p. ISO n. In Baker v. Snell (1Q08), 77 L. J. K. B. 726, the owner of a known vicious dog was held to be liable, although it had been, by his servant, wantonly set on to the plaintiff. 3 The need for proving the scienter, when damage is done by dogs to cattle or sheep, has been dispensed with by 28 & 29 Vict. c. 60. The distinction drawn by English law between animals ferae and mansuetae naturae, and the similar distinction drawn (for a different purpose) by Rom'an law between feritas genitalis and that which is contra naturam, Inst. iv. 9, finds no place in continental systems. See tJife Code Civil, art. 138s, and the German Civil Code, 833. The American Courts do not accept the view that wild animals are kept 'at one's peril.' See an article by E. O. S. in the Journal of Comparative Legislation, N. S. No. i. p. 54, citing Scribner v. KeUey, 38 Barbour N. Y. 14. Cf. supra, p. ISO. PERSONAL SAFETY. 173 having lawful business there, or exercises a statutory chap. xi. power without due care ^ Not dissimilar is the narrowly limited right of a man not to be damnified through breach of a contract to which he is not a party, as by the sale of an imperfect article by which he is eventually injured". It might perhaps be supposed that since a man has Not to be a right not to sustain personal injury, he has a fortiori^^^^^"^ a right not to be killed. This is however hardly the case, since no 'antecedent' right can be said to exist, unless its infringement gives rise to a 'remedial' right; but the right, if any, to redress for the infringement of the right in question dies with the injured man at the very moment when it vests in him *. It would seem that a man has no right of immunity from needless mental suffering*, unless, perhaps, from a ' nervous shock ' causing bodily illness '. ' On a wider liability for injuries sustained for licensees who are young children, see R. R. Co. v. Stowt, 17 Wall. 667, Coohe v. Midi. G. W. Ry. 0/ Ireland, [igog] A. C. 229. May an occupier's knowledge that trespass is habitual convert a trespasser into a licensee? Lowery v. Walker, [1909] 2 K. B. 433. ' See Langmeid v. Holliday, 6 Ex. 761; Thomas v. Winchester, 6 N. Y. 397; George v. Skimngton, L. R. s Ex. i. ' In this, as in most other cases of delict, actio personalis moritur cum persona, i. e. the remedy ceases to be enforceable upon the death of either the party injured or the wrong-doer. For criticisms upon the applica- tions of this maxim, see Pollock, Torts, ed. x, pp. 64-70, and T. F. Mar- tin, in 33 L. Mag. & Rev., p. 23. Lord Campbell's Act, 9 & 10 Vict. c. 93, does not keep alive the right for the benefit of executors, but creates a new right, on the analogy of what was already common law in Scotland, for the benefit of the 'wife, husband, parent and child,' and no other person, to compensation for the shortened life and labours of the de- ceased. It is, however, held that if the deceased has accepted compen- sation for his injuries, his representatives have no further right of action. Read v. Gt. E. Ry. Co., L. R. 3 Q. B. S5S- * So held in the Supreme Court of Maine (1880), in Wyman v. Leavitt, 36 Am. Rep., 303; where see the learned note, citing dicta in Lynch v. Knight, 9 H. L. 598. (Ridiculously enough, damages were awarded ^ for the disappointment of a bride, who did not receive her trousseau in time, in Lewis v. Holmes, 109 La. 1030.) Cf. Victorian Railways Com- missioners v, Coultas (1888), 3 App. Ca. 222; Mitchell v. R. R. Co., 151 N. Y. 107; Ferguson v. W. Union Tel. Co., 60 N. E. 416. s This distinction has been drawn in certain later cases in Texas, Am. 174 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. II. Rights to the society and control of one's family. BiStJ These family-rights 'in rem ' must be carefully distinguished from those rights 'in personam' which a member of a family may have against its other members, and with which we have at present no concern. They all result, directly or indirectly, from the institution of marriage, which, as Bentham well said, 'has drawn woman from the severest and most humiliating servitude, has distributed the mass of the community into distinct families, has created a domestic magistracy, has formed citizens, has extended the views of men to the future through affection for the rising generation, has multiphed social sympathies '.' They may be distinguished as 'marital,' 'parental,' 'tute- lary,' and ' dominical.' Marital. i- The marital right of a husband, as against the world, is that no other man shall, by force or persuasion, deprive him of his wife's society ^ stU] less be criminally intimate with her. An analogous right might of course be con- ceivably recognised as vested in the wife, and has been so recognised in recent American cases '. Law Review, 1895, p. 209; and where a wife had become iU from a shock to her nervous system, caused by a statement falsely and wantonly made to her that her husband had met with a serious accident, the informant was held by Wright J. to be liable in damages for having ' wilfully done an act calculated to cause physical harm to the plaintiff: that is to say, to infringe her right to personal safety.' Wilkinson v. Dovmton, [1897] 2 Q. B. 57. So in Dulieu v. White, [1901] 2 K. B. 669, where shock had caused premature confinement with a child bom an idiot. • Bentham, Principes du Code Civil, par Dumont, iii. c. 5. '■' Cf. the interdict 'de uxore exhibenda ac ducenda,' which could be obtained even by a fihusfarailias against his father. Dig. xliii. 30. 2. ' See Westlahe v. WesUake, 34 Ohio St. R. 621; Kneesy v. Exner, Brooklyn Superior Court, N.Y.; Mehrhoff v. Mehrhoff, U. S. Circuit Court, 26 Federal Reporter, 13 (with a reference to which the author was kindly furnished by Mr. Roger Foster, of New York) ; Foot v. Card, 58 Conn.; and an article on 'The Husband-seducer,' in 26 Am. Law Review (1892). The proposed Civil Code for the State of New York expressly forbids, Pt. ii. § 32, 'the abduction of a husband from his wife, or of a parent from his chUd.' (Professor F. M. Burdick of Columbia University, kindly informs me that this Code has been adopted in FAMILY. 175 The right is acquired by Marriage, the nature of which chap xi. has varied with varying civilisation. In primitive races Marriage, it seems to have consisted in the forcible capture of the woman by the man. Later the capture becomes a sjrmbolical ceremony, following on a voluntary sale or gift of the woman by her relatives to the man. The still more modern form of marriage, possible only when the individuahty of the woman has received recognition, is that of a mutual and voluntary conveyance, or dedication, of the one to the other'. The contract of marriage, giving rise, as it does, to a status, must obviously be governed by rules varying somewhat from those governing contracts generally. It is indeed voidable, i. e. the marriage may be declared to be a nullity, for any reasons which negative a true consent, such as are lunacy and duress ^ As to mistake, according to the canon law: 'non omnis error consensum excludit, sed error alius est personae, alius fortunae, aUus conditionis, alius quali- tatis I' It is admitted on all hands that mistake as to the person whom one mtends to marry is fatal to the validity of the contract*. It is equally admitted that mistake as to social or pecuniary position has no effect upon the con- tract ". Mistake as to condition, i. e. beUef that a person is free who is leally a slave, could not now occur. Doubt can California, Montana and North and South Dakota.) Cf . Lords Campbell and Brougham, in I/ynch v. Knight, 9. H. L. 577. 1 The discussion of the question how far marriage is something more than a contract led to the theory of Gratian that sponsalia are only an initial marriage, needing to be perfected by physical consummation; to Peter Lombard's distinction between verba defuturo smdverbadepraesenti; and to the requirement by Vacarius of a mutual traditio, suggested doubt- less by the in domum deductio of the Civil Law. See F. W. Maitland in the Law Quarterly Review, xiii. 133. Cf. also infra, chap. xii. ' Scott V. Sebright, 12 P. D. 21. On duress, see Cases collected in Columbia, L. R. vii. p. 128; on fraud, ib. ix. p. 552- Cf. C. A. H. Bart- lett in 33 L. Mag. & Rev. p. i. ■ Decretum, Causa, xxix. q. i. Cf. Ayliffe, Parergon, p. 361. ' The decree of nuUity, on the ground of misnomer, in Wilson v. Horn, 41 Scottish Law Reporter, would seem to be questionable. » Cf. R. Browning, The Ring and the Book, ii. 1309-13 19. 176. PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. therefore only arise with reference to what Gratian calls 'error qualitatis,' as to which he lays down, apparently only onhis own authority : ' qui ducit in uxorem meretricem vel corruptam, quam putat esse castam vel virginem, non potest earn dimittere et aliam ducere.' This view has been by no means generally accepted, at any rate when the woman proves to be pregnant aliunde, by Courts, whether Catholic or Protestant, administering the Canon Law. It is contradicted by the interpretation placed upon the Code Civil, art. 180, the Codice Civile, art. 105, the Austrian Civil Code, art. 58, and the German Civil Code, art. 1333; as well as by a course of American decisions \ It was, however, followed in the Privy CouncU in 1835 °, and in 1897 by Sir. F. Jeune, in the case where the husband had unwittingly married a woman far advanced in pregnancy by another man". Marriage has been very generally associated with some religious observance, and in modern times is, as a rule, valid only when performed in the manner prescribed, and in the presence of officials recognised, by the State ; e. g. where the decrees of the Council of Trent are accepted, the ceremony must take place in the presence of a priest. The law of Scotland, a survival from prae-Tridentine times, demands for a valid marriage only the mutual con- sent of competent parties, which may be established not only by a declaration de praesenti, but also by verba de ' E. g. Reynolds v. Reynolds, 3 Allen (Mass.) 60s, extended by Smith V. Smith, 171 Mass. 404. Di Lorenzo v. Di Lorenzo, 174N.Y. 473. So also at the Cape, in Horah v. Horah (1861), 3 Searle, 389. In the recent case of Shaw V. Shaw, in the Natal Law Reports, it appeared that early Dutch authorities held aaitenuptjal incontinence, unknown to the husband, to be a ground of nulhty ; but this effect, is now allowed only to antenuptial pregnancy, known to, and un-condoned by, him. The U. S. cases are attacked by L. M. Friedman in American L. R. xxxii.. p. 568; defended by F. G. Fessenden in Harvard L. R. xiii. p. 110. 2 Swift V, Kelly, 3 Knapp, 256' ' Moss V. Moss, [1897] P- 263, in which the authorities were carefully considered. FAMILY. 177 futuro subsequente copula, and even by cohabitation with chap, xl 'habit and repute*.' The contract is generally only bind- ing between persons who have attained a certain age, and who are outside of certain degrees of consanguinity or affinity ^ among which 'fosterage' has sometimes been reckoned. The consent of parents or other guardians is often also prescribed '. Marriage is defined by Modestinus as ' Coniunctio maris et feminae et consortium omnis vitae, divini et humani iuris communicatio * ' ; by Kant as 'die Verbindung zweier Personen verschiedenen Geschlechts zum lebenswierigen wechselseitigen Besitz ilirer Geschlechtseigenschaften ^' Polygamy, L e. polygynaeky or polyandry, has been and is recognised as marriage in many parts of the world, but the tendency of the higher races of mankind is doubtless towards a recognition of monogamy as alone legitimate "• Of marriage for a definite period but shght traces occur in legal systems '. Under the marriage law of ancient Egypt, which was strictly monogamous, the woman seems regularly to have been taken on probation for a year, after which she was ' established as a wife V ' Eisk. Inst. i. 6. 2-6. ' So not between a man and his deceased wife's sister, prior to 7 Ed. VII, c. 47. * But the Council of Trent, Sess. xxiv, Decretum de Reform. Matr., c. I, anathematises ' qui falso affirmant matrimonia a filiisfamilias sine consensu parentum contracta irrita esse.' See A. Rivier, Droit de Famille Romain, p. 142. * Dig. xxiii. 2. i. ' Werke, vii. p. 76. * So the English Courts have refused recognition in Hyde v. Hyde, L. R. I P. & M. 130, to a Mormon, and in Bethel v. HiUiard, 38 Ch. D. 220, to a Baralong marriage. On the other hand, a Japanese (monogamous) marriage was declared valid in BrinUey v. Atty. Gen., 15 P. D. 76. ' Such marriages are regulated with the utmost precision by the Shiah system of Muhammadan law. Tagore Lectures, 1874, p. 373. But it is expressly enacted by art. 13 of the Egyptian 'Statut personnel du droit Musulman,' that 'le mariage temporaire, celui dont la dur^e est limit^e h. un temps d6termin6, ne se contracte pas valablement.' 8 Revillout, Chrestomathie D¬ique, 1880, p. cxxxii. 1930 N ■178 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. The marital right is of course inalienable, and incapable of waiver'. It terminates on the death of one of the parties, or their divorce. As to the permissibility of divorce, and the grounds on which it ought to be granted, the widest difference has prevailed in different systems. At Rome either party might repudiate the relation- ship at pleasure \ while according to the canon law it is a sacrament, indissoluble under any circum- stances '. Under some systems marriage may have a retroactive effect, in legitimating previously born children *. The right is infringed by so injuring the wife as to deprive the husband of her services ; also by abduction or harbouring of, or by criminal intimacy with, another man's wife '. The ' co-respondent,' as the adulterer is now called in English law, is not liable for his act if he was unaware that the woman was married \ ' No damages will however be granted against a co-respondent if collusion is shown. ' ' Libera matrimonia esse antiquitus placuit, ideoque pacta, ne liceret divertere, non valere.' Cod. viii. 39. 2. In the older Roman law, a paterfamilias could divorce a son or daughter in his power; but see Dig. Ixiii. 30. I. 5. ' Divorce is still unknown in Italy, as was the case in France (except during the interval 1792-1816) till the year 1884, and in England (except by Act of Parliament) till the institution of the Court for Divorce and Matrimonial causes, in 1857. In Germany divorce has long been generally and readily permitted, as it is in most of the States of the American Union. See the interesting work of Dr. Theodore D. Woolsey, Divorce and Divorce Legislation, 1882 ; and D. W. Amram, The Jewish Law of Divorce according to the Bible and Talmud, 1898. On the laws of marriage and of divorce in different countries, see Pari. Papers 1894 (c. 7392), and Sir D. Fitzpatrick, in Journal of Comp. Legisl., N. S. Nos. v. p. 359, viii. p. 157. On Indian marriage laws, see ib. viii. p. 271. * On 'legitimatio per subsequens matrimonium,' see Journal Comp. Legisl., N. S. No. vi. p. 23. ' This last mentioned infringement of the right, besides giving rise to a right of redress, may also affect indirectly the matrimonial status itself; as will appear hereafter. « But see Lord v. Lord & Lambert, [1900] P. 297, drawing a distinction between damages and costs. FAMILY. 179 2. The parental right extends to the custody and control chap. xi. of children, and to the produce of their labour, till they ^^''^°*^*- arrive at years of discretion. In case of disagreement between the parents, it becomes necessary to determine to which of them the right shall belong, or to apportion it between them. It is acquired on the birth, and also, under some systems, on the adoption of a child. It is, under some systems, alienable by emancipation of the child to another person who adopts him, or by the father giving himself, together with his children, in adoption to another. It may be delegated ; for instance, to a schoolmaster, or to the master of an apprentice. It terminates with the death of the parent or child, with the emancipation of the child, or by his attaining full age, by marriage, also by judicial sentence. It is infringed by an act which interferes with the control of a parent over his children, or with the advantage which he derives from their services. The much- abused English action for seduction is quite in harmony with legal principles. The person wronged is not the girl herself, who ex hypothesi has consented to the act, but her parent, or other person entitled to her services, who is damnified by its results '. It is true that English law has, on grounds of policy, allowed damages to be recovered in this action far in excess of the value of the lost serviced 3. The right of a ' tutor,' or guardian, defined by Servius Tutelary, as ' ius ac potestas in capite libero ad tuendum eum qui propter aetatem se defendere nequit V is of course given to 1 So no action lies against a seducer who is also the girl's employer. WkKbimme v. WiUiams, [1901] 2 K. B. 722. By Scots law a woman seduced, with professions of honourable intentions, has herself an action. Gray v. Brmm (1878), s Rettie's Rep. 971. ^ ' See Dicey, Parties, p. 329 n. » Dig. xxvi. i. i. Ma i8o PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. him not for his own benefit, but for that of his 'pupillus,' or ward', whose want of understanding he supplements, and whose affairs he manages. It is an artificial extension of the parental power, and may be conferred by the last wiU of the parent, or by a deed executed by him", or by a judicial act, or by devolution on certain defined classes of relatives, or may vest in a tribunal, such as the Court of Chancery. According to some systems, the guardian cannot refuse to accept the ofBce, which is regarded as being of a public character. In French law a 'subroge tuteur' is appointed by the family council as a check on the * tuteur '.' The right terminates on the death of tutor or ward, on the resignation or removal of the former, and on the marriage of the latter or his attainment of a certain age. By the older Roman law, a woman was under per- petual guardianship. Under those systems which release the ward at an early age, generally at fourteen in the case of a boy and twelve in the case of a girl, from the superintendence of his guardian, he may be placed for a further period under the lighter control of a 'curator,' whose duties cease when the ward attains the age of full majority. Such curators, and the curators, or com- mittees, of lunatics or persons interdicted as prodigals, are generally appointed by a court of justice. The right is infringed by any interference with the control of the tutor or curator over the person or property of the ward, lunatic, or prodigal *. Domini- cal. 4- The right of a master over his slave was, in early ' The lord's wardship in chivalry, without account of profits, was, on the contrary, for his own benefit. ' See Stat. 12 Car. II. c. 24. s. 8, as varied, in favour of the mother, by 49 & 50 Vict. c. 27. ' C!ode Civil, art. 420. * On the writ of 'ravishment of gard,' see 2 Inst. 440. When the tutelary right has been vested in a Court, any infringement of it becomes a matter of public law. Thus interference with a ward of Chancery is treated as ' contempt of Court.' CONTRACTUAL. l8i law, of precisely the same extent and character as that chap, xl ■which he had over his cattle. It was also acquired, lost and transferred in the same way, except that the slave was capable of being manumitted; and the peculiarities of the subject all had reference to the modes of manu- mission, and the legal position of those who had ceased to be slaves. The disabilities of ' libertini,' and their diity towards their ' patroni,' fill a large chapter in Roman law. The right is infringed by killing the slave, by injuring him so that he becomes less valuable \ or by enticing him away '. Certain rights arising out of contract strikmgly resemble Contrao- the two classes of family rights last considered. They*"*'" must be mentioned in this place in so far as they are available against aU the world, and are therefore capable of being violated by third parties; although the mode in which such rights are acquired and lost, and their effect as between the contractors themselves, can be explained only at a later stage of our inquiry. A master has a right, as against the world, to the services of his servant, and can sue not only any one by whose act the servant is rendered less capable of °, or is hindered from*, performing his duties, but also any one who entices him away from the performance of them': ' Acts for whicb remedies were provided by chapters i and 3 of the Lex Aquilia. * In which case the owner had in Roman law an action 'servi cor- rupti.' * It was held in Osborne v. GiUett, L. R. Ex. 8, diss. 88 Bramwell, B., that a master has no redress for an act which causes the immediate death of his servant. So also in The America, [1914] P. 167 (C. A.), after full consideration of the authorities. As to Lord Campbell's Act, see supra, p. 173 n. 3. * Of. 'quare tenentes suos verberavit per quod a tenura sua recesse- runt' in the writ 14 Ed. IV. pi. 13, and similar phraseology cited by Sir F. Pollock, Torts, ed. x. p. 245; also his remark that 'picketing,' when amounting to physical intimidation, may be a trespass at common law against the employer, lb. 244 n. ' The seduction of a maid-servant may give a right of action to her master. Fores v. Wilson, Peake, 55. l82 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. and this principle has been declared to apply not only to domestic service, but also to any kind of employment. In a modern English case, when a celebrated singer had agreed with the manager of an opera to sing for him during a definite period, and for no one else, but had been persuaded by the manager of another opera to break her contract, it was held that the first manager had a right of action against the second. The claim was resisted on the ground that the employment was not of such a nature as to warrant the application of the ex- ceptional remedy given against any one who wrongfully and maliciously entices a servant away from his master, indeed that this remedy was itself an anomalous rehc of the times of serfdom. But the majority of the Court adopted the view expressed by Mr. Justice Crompton, who said: — 'The nature of the injury and of the damage being the same, and the supposed right of action being in strict analogy to the ordinary case of master and servant, I see no reason for confining the case to services or engagements under contracts for services of any par- ticular description ^.' Later cases have established the broad principle that, apart from any question of domestic service, a person who induces a party to a contract to break it, causing damage thereby to the other party to it, with intent to injure that party, or to get a benefit for himself, commits an actionable wrong ^. Reputa- HI. A man has a right, as against the world, to his good name ; that is to say, he has a right that the respect, so far as it is well-founded, which others feel for him shall not be diminished'. The right is however • ImnUey v. Gye, 2 E. & B. 216, diss. Coleridge J.; Walker v. Cronin, 107 Mass. SSS- ' Bowen v. Hall, L. R. 6 Q. B. Div. 333, diss. Lord Coleridge C. J.; Temperton v. Russell, [1893] i Q. B. (C. A.) 715. But see infra, p. 186. ' The Twelve Tables recognised it to be a grave offence: 'si quis occentavisset, sive carmen condidisset quodinfatoiamfaceret fiagitiumve alteri.' Cic. de Rep. iv. 10. REPUTATION. 183 subject to two limitations. First, there are certain trivial chap. xi. imputations which do not infringe it. Secondly, there are certain circumstances under which an imputation which would otherwise be wrongful is held to be justi- fiable. Since the right is only to respect so far as it is well-founded, it is obviously not infringed by a truthful imputation*. It is innate, or common to all men, and lasts till death °. The infringement may consist not only in words, spoken or written, but also in gestures or pictures. It may be direct or indirect, L e. it may disparage the man himself or his family and belongings. So, according to Roman law, the heirs of a deceased person would have an action for any insult to his dead body, or to his funeral pro- cession ; and a son could sue for damage done to a statue of his father set up upon his tomb '. ' Publication ' is essential to an infringement of this right, which is there- fore not violated by abuse of a man in a letter addressed to himself, or uttered by word of mouth when no one else is near^ There is no infringement without a wrong intention, though it need not necessarily have been directed against the complainant ^ ' Iniuriam potest '■ ' Niemand ein Recht auf einen Scheinwerth und auf Liigen haben kann.' Dresch, Naturreeht, p. 158. Cf. Dig. jdvii. 10. 18 pr. ' On the question whether a representative may have an action for a libel on a deceased person, 'que celui-ci peut §tre pr6sum6 d'avoir abdiqud,' see Dalloz, 1127 and 11 28, s. v. 'Presse-outrage.' In 1914, damages were awarded by a French Court to a Mdme. Lauth against a playwright, on the ground that his play had revived the memory of cer- tain doings of her grandmother, George Sand, who had, however, her- self written freely about them. ' Dig. xlvii. I. 4; ib. 27. Cf. an art. in Am. Law Review, xxiii. p. 578. « Or uttered by a man to his wife, Wennhak v. Morgan, 20 Q. B. D. 635. Aliter in Scots law, cf . L. Q. R. xviii. p. 257. Defamation in a Will is no libel, goods of Honeywood, L. R. 2 P. & D. 251; and see Harvard L. Rev. xviii. p. 483. ' But see Jones v. HvUon & Co., [1909] 2 K. B. 444 (C. A.), affirmed in [1910] A. C. 20, when the words of Coleridge C. J. in Gibson v. Evans, 23 Q. B. D. 384, 'it does not signify what the writer meant; the question is whether the alleged libel was so published by the defendant that the world would apply it to the plaintiff,' were quoted with approbation. Repetition of a rumour may be actionable, Watkin v. Hall, L. R. 3 Q. B. 396. l84 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. facere nemo, nisi qui scit se iniuriam facere, etiam si nesciat cui faciat*'; and no more than this is meant by the English doctrine of 'malice' being essential to defa- mation, since malice will be ' presumed ' where there exists no legal justification. ' If I traduce a man,' said Mr. Justice Bayley, ' whether I know him or not, and whether I intend to do bim an injury or not, the law considers it as done of malice, because it is wrongful and intentional °.' Roman law classified acts of insult according to the rank of the person insulted, the place where, and the mode in which, the insult was given ', but did not clearly distinguish defamation from insult given by blows. The grades of defamatory statement recognised by English law may be probably summed up as follows : — Degrees of !• Some statements are wrongful irrespectively either tion!™^ of the mode in which they are published, or of their consequences, e. g. the imputation of an indictable offence, or of ignorance of one's profession, or of insolvency in trade. There is an absolute right that such statements shall not be made. 2. Others, short of these in importance and tending to make a man ridiculous rather than odious, are wrongful only if put into a permanent form, i. e. only if they are written, printed, or suggested by pictures*, when they are said to be a ' libel '.' 3. Others are wrongful only if special and 'temporal' loss can be shown to have resulted from their being made. It has been for instance laid down that, without ^ Dig. xlvii. s- 2; cf. ib. 10. 18. 3. ^ Bromage v. Prosser, 4 B. & C 255. ' Compare in English law the statutes against 'soandalum magnatum,' repealed, as obsolete, by 50 & 51 Vict. c. 59. * Or, by exhibiting a man's waxwork effigy in propinquity to effigies of infamous characters. Monson v. Tussaud, [1894] i Q. B. D. 671. ' This distinction, which seems to be purely English, is as old as the time of Charles II. King v. Lake, Hardr. 470, Skinn. 124; Thorley v. Lord Kerry, 4 Taunt. 335. See F. C. Carr, in L. Q. R. xviii. p. 388. As to disproof of negligence, see Weldon v. Times Bookclub, 28 Times L. R. 143- ORDINARY RIGHTS. 185 proof of special damage, it is not actionable to say of chap. xi. a man that 'he is a scoundrel, a blackguard, a swindler,' 'he is a disgrace to the town and unfit for decent society,' 'he has cheated his brother-in-law of ;£'2ooo\' Only by a recent statute" have words imputing unchastity to a woman been made actionable without proof of special damage.. The most important of the modes in which a defamatory Justifica- statement may be justified is by showing that it is*'™" 'privileged.' This can be done by showing either that the defendant was acting in a certain capacity, e. g. as a Judge, an advocate, or a witness ; or that the circum- stances are of a certain class, e. g. that a character was given to a servant, the presumption of malice is then rebutted, and the onus of proving actual malice is thrown upon the plaintiff. If, however, this can be proved', or if the statement was carelessly so made as to reach others than those to whom it might properly be addressed \ the plea of 'privilege' is unavailing. Statements made in the course of judicial proceedings or to or by a person having an interest in their being made, fair reports of trials, legislative debates, or public meetings, fair comments on public men, and fair criticisms of literary and artistic productions are privileged.* IV. The next class of rights is of a vaguer character Exercise of and a wider range than those which have already been°fgijts. ^ See Savile v. Jardine, 2 H. BI. 532; Lumley v. Allday, i Cr. and Jer. 301; Hopwood V. Thorn, 8 C. B. 316. 'Defamation was also a common subject for spiritual censures, and the fact that it was so explains the rule of the common law that no action lies for words spoken unless they impute a crime, or relate to a man's profession or trade, or cause special damage.' Stephen, History of the Criminal Law in England, ii, p. 409. = 54 & 55 Vict. c. 51. ' See Taylor v. Hawkins, 16 Q. B. 321. * Williamson V. Freer, L. R. 9 C. P. 393; Heidilch v. Mcllwaine, [1894] 2 Q. B. 55. * See 3 & 4 Vict. c. 9, the Newspaper Libel and Regulation Act, 44 & 45 Vict. c. 60, and the Law of Libel Amendment Act, 51 & 52 Vict. c. 64. 1 86 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. considered. Every one is entitled without molestation to perform all lawful acts and to enjoy aU the privileges which attach to him as an inhabitant of the country in which he lives. Liveli- I. The most specific right of this kind is to the unmo- hood. lested pursuit of the occupation by which a man gains his livelihood. The EngUsh law upon this subject is thus explained by Lord Holt : — ' He that hinders another in his trade or livelihood is Uable to an action for so hindering him. , , . There are two sorts of acts for doing damage to a man's employment, for which an action Hes ; the one is in respect of a man's privilege, the other in respect of his property. In that of a man's franchise or privilege, whereby he hath a fair, market or ferry; if another should use the like liberty, though out of his limits, he shall be hable to an action though by grant from the king. But therein is the difference to be taken between a liberty in which the public hath a benefit, and that wherein the public is not concerned. The other is where a violent or malicious act is done to a man's occupation, or profession, or way of getting a livelihood. There an action lies in all cases. But if a man doth him damage by using the same employment, no action will lie ^.' Much doubt has been, however, thrown of late upon Lord Holt's views as to injury to occupation. In a case which attracted much attention, an attempt so to extend this principle as to render actionable persuasions and threats on the part of members of a trade-union, unaccompanied 1 Keeble v. HickeringiU, ii East, S7S n. Cf. Lumley v. Gye, ^ E. & B. 216; Temperton v. Russell, [1893] i Q. B. 715. The innocence of commer- cial competition, causing, even intentionally, loss to others, was conclu- sively established in the Mogul Steamship Co. v. McGregor, [1892] A. C. 25; but in America the tendency is strong against 'unfair competition,' by means of 'Trusts' and 'Combines.' See, with especial reference to the Sherman Anti-Trust Law of 1890, Journal of Comp. Legislation, ii. p. 330. For the confused state of the law on this point in America, see Harvard Law Review, vii. p. 338. , ORDINARY RIGHTS. 187 by either fraud or violence, whereby an employer was induced to terminate, as he had a right to do, the engage- ments of certain of his workmen, and not to employ them again, was unsuccessful. This decision was largely explained away in subsequent cases, from which it might be deduced that a trade-union, though not a corporation, might be sued in a representative action, and that, as a general rule, in the absence of justification, coercion, and even persuasion, leading to the breach of a contract of service, on the part of either employer or servant, or perhaps if merely preventing the formation of such a contract, would be an actionable wrong, if productive of actual damage to the party thereby intentionally, though indirectly, mjured^ The law has, however, heen revolu- tionized by the Trade Disputes Act, 1906, which, to use the language of Darling J., 'has relieved all registered trade-unions from the humiliating position of being on a level with other lawful associations of H. M. subjects They are now supra legem V • AVen V. Flood, [1898] A. C. i, so held in the House of Lords by 6 to 3, after two arguments, and hearing the opinions of the Judges. Of the twenty-one Judges, however, who heard the ease at its various stages, thirteen differed from the final decision, which largely turned upon disputed facts. * TaS Yale Ry. Co. v. Amalg. Soc. Ry. Servants, [1901] A. C. 426; Quinn V. Leathern, ib. 495; Glamorganshire Coal Co. v. S. Wales Miners' Federa- tion, [1903] 2 K. B. 54s; Giblan v. Nat. Labourers' Union, ib. 600. So also in Vegelahn v. Guntn-er, 167 Mass. 92 {diss. Holmes, J.). On an untrue report as to a trader's credit, see Greenlands v. Wilmshurst, &c., Assoc, [1913] 3 K. B. S07. ' Bussy V. Amalg. Soc. Ry. Servants & Bell, 24 T. L. R. 417. For the French doctrine of 'I'exercice abusif d'un droit,' see an article in the Journal of Comp. Legisl. N. S. vi. citing Joosl v. Le Syndicat de Jallieu, Sirey 1893, i. 42, in which the Cour de Cassation lays down that although 'les menaces de grftve sont licites quand elles ont pour objet la defense des intfir^ts professionels, elles ne le sont pas lorsqu'elles ont pour but d'imposer au patron le renvoi d'un ouvrier, parce qu'il s'est retire de I'association et qu'il refuse d'y rentrer'; citing also the new art. 642 of the Code Civil, and art. 226 of the German Civil Code, to the effect that 'Die Ausiibung eines Rechtes ist unzulassig, wenn sie nur den Zweck haben kann, einem Anderen Schaden zuzufugen.' Cf. also Michigan Law Review, ii, p. 305. CHAP. XI i88 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. Highways. Abuse of legal pro- cess. Not dissimilar to the acts just discussed are statements in disparagement of title to property, giving rise to the action for ' slander of title V 2. Every one has a right to the free and unobstructed use of the public highways and of navigable rivers. Not only is any interference with the use of them a public wrong, which may be redressed criminally, but each one of the community has also a private-law right not to be inconvenienced by such interference ". This right has been held to be violated where a traveller found his accustomed road blocked up, and was forced to go by a longer way to his destination; where an omnibus was wilfully so driven as to hinder the progress of another omnibus; where damage was caused by a house which was so built as to intrude upon the highway, and where a vessel was injured by piles which had been driven into the bed of a river during the doing of some work, and had been left there after its completion. 3. Every one has a right that the machinery of the law, which is established for his protection, shall not be maliciously set in motion to his detriment. This right is infringed by the act known in English law as 'malicious prosecution,' the essence of which is that it is done both maliciously, i. e. from some motive other than that of bringing an offender to justice, and without reasonable and probable cause ^ A prosecution, though it originated bona ' Which is supported by proof of malicious statements made to third parties respecting not only the property, strictly so called, but also in- tangible rights of the plaintiff, such as goodwill, or a trade name, whereby he is injured in his business. Cf. Dig. iv. 3. 32 ; and, on the stringent provisions, especially § 6, of the German Law of ' unfair com- petition,' ' zur Bekampfung des unlauteren Wettbewerbs,' of 1896, Law Quarterly Review, xiii. p. 160. Cf., as to an allegation that a house was haunted, Barrett v. Assoc. Newspapers, 23 T. L. R. (C. A.) 666. • He may, however, become a trespasser if he abuses his right of pas- sage by, e. g., preventing the owner of the soil of the road from shooting his preserves. Harrison v. D. of Rutland, [1893] 1 Q. B. (0. A.) 142. . _ ' See Abrath v. N. E. By. Co., 11 App. Ca. 247. PROPRIETARY. 1 89 fide^ may subsequently become malicious, 'if the prosecutor, chap. xi. having acquired positive knowledge of the innocence of the accused, perseveres malo animo in the prosecution, with the intention of procuring per nefas a conviction '.' > A malicious arrest, malicious proceedings to cause a bank- ruptcy, and abuse of a writ of execution, are acts of the same character'; as is the statutory wrong called 'main- tenance,' i. e. assistance rendered in a suit by a stranger to it, without lawful cause'. The vexatious institution of a civil action was redressed in the earlier Roman law by, amongst other methods, the institution of a cross action, 'calumniae indicium,' which might be brought by the defendant, either during the progress of the principal action, or after judgment in his favour, against a dishonest plaintiff*. But by the time of Justinian the chief restraint upon malicious or frivolous suits was the iafliction of costs upon the losing party', and this is also the policy of the law of England'. Sometimes the plaintiff is compelled to give security for the costs for which he may become liable in case he should lose his action '. V. Many of the rights which have hitherto engaged Proprie- our attention, although of the highest importance, relate 1 Fitz-John v. MacUnder, 9 C. B. N. S. 531. " Cf. Quartz Hill Oold Mining Co. v. Eyre, 11 Q. B. Div. 674. ' But charity is such cause: Harris v. Brisco, 17 Q. B. D. 504- See Pollock, Torts, ed. x. p. 350. * 'Qui intelligit non recte se agere, sed vexandi adversarii gratia.' Gaius, iv. 178. Cf. the authorities quoted by Mr. Amos, Journal Comp. Leg. N. S. vi. p. 4S9, on the French doctrine of 'plaidoirie t6m6raire.' ' Cod. iii. I. 13. Both plaintiff and defendant, as well as their counsel, had also to take an oath as to the goodness of their cause. 'Nam sacra- menti timore contentiosa litigantium instantia compescitur.' Cod. ii, S9- « It seems that there may be cases in which a combination of malice, groundlessness, and special damage will entitle a defendant to an action; see WilUams J., in Cotterell v. Jones, 11 C. B. 730. According to the older law the plaintiff found pledges, who were amerced if his claim was not sustained. Cf. infra, c. xv. ' Such security, under the name 'cautio iudicatum solvi,' is commonly exacted on the Continent from a foreign plaintiff. So also, as a rule, in England, under Order 65, r. 6. igo PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. to no tangible external object. One's good name, for instance, though invaluable, may be regarded from this point of view as an 'airy nothing'.' The same remark will not apply to the group of rights which we are now about to consider. Proprietary rights are extensions of the power of a person over portions of the physical world. These rights, like all others, are made available by means of the acts or forbearances of the person of incidence; but such acts or forbearances are, in this case, due with especial reference to an object, or thing, from which the person of inherence derives some advantage ". It is not every portion of the material world which is capable of being thus appropriated. The air, the sea, and the water of rivers have been said to be for the common use of all men, but to belong to none. This statement is, however, so far at any rate as it relates to air, by no means incontrovertible. The passage in the Digest to the effect that 'naturali iure sunt omnium com- munia ilia: aer, et aqua profluens, et mare, et per hoc litora maris",' must be compared with other passages, which seem to connect spaces of air with the subjacent land*, so suggesting the old maxim of English law, • Still less tangible would be the 'right to privacy,' or 'right to be let alone,' which, it has been suggested, ought to be so far recognised as to sliield a man from the publication, without his consent, of his portrait, or of the details of his private life. See Pollard v. Photographic Co., 40 Ch. D. 345; Corelli v. Wall (1906), 22 T. L. R. 532; andcf. Harvard Law Review, iv. p. 19s; vii. p. 182. A French law of 1868 provides that 'toute publication dans un 6crit p^riodique, relative & un fait de la vie priv^e, constitue une contravention punie d'une amende de iso francs.' On a right not to have one's portrait published, see Col. L. Rev. ii. pp. 437 and 486, citing a series of N. Y. cases. An Austrian law of 1896 requires the consent of the sitter. Cf. Prince Albert v. Strange, i McN. & G. 25, where the wrong alleged by the plaintiff was the publication by the de- fendant of a catalogue of etchings kept private. Cottenham C. here said that 'privacy is the right invaded.' , * Supra, p. 92. • Dig. i. 8. 2. Cf. Bracton, i. c. 12. Puchta would apply these words to air rather than to the space occupied by it. Inst. ii. p. 525 «■ Cf. Ovid, Metam. i. 135. vi. 349. ' Dig. viii. 2. I. pr., xliii. 24. 22. 4. PROPRIETARY. 191 'cuius est solum eius est usque ad coelumV The tech- chap. xi. nical truth of this maxim, notwithstanding the doubt thro^vn upon it by a dictum of Lord EUenborough (at Nisi prius) '\ and a disrespectful description of it in a recent obiter dictum, as 'a fanciful phrase,' has been abundantly- affirmed in modern cases by such Judges as Blackburn, Brett, Bowen, and Fry.' It figures also in many Codes, often with certain qualifications, e. g. in the Code Civil, art. 552*, the Japanese Civil Code, art. 207, the Swiss Code of 19 12, art. 667. Cf. the German Burgerliches Gesetzbuch, art. 9°S. The novel art of aerostatation has led to much discussion of rights over air, though prin- cipally in their international aspects ^ It has also led to legislation, primarily for the protection of occupiers of land." Most things, on the other hand, are capable of subjection to the human will, and in them proprietary rights may be acquired which vary in extent from absolute ownership to a narrowly limited power of user. The essence of all such rights lies not so much in the enjoyment of the thing, as in the legal power of excluding others from interfering with the enjoyment of it. ' If a man were alone in the world,' says Kant, 'he could properly hold or acquire nothing as his own; because between himself, as Person, and all other out- ward objects, as Things, there is no relation '.' The relation is between him and other people whom he excludes from ' Cro. Eliz. 118, Co. Litt. 4. a, Shep. Touchst. 90, 2 Bl. 18. ' He did not think it was a trespass to interfere with the superincum- bent column of air, otherwise 'an aeronaut would be liable to trespass qu. cl. {r. at the suit of the occupier of every field over which his balloon might happen to pass.' The remedy for damage would be by action on the case. Pickering v. Rudd, 4 Camp. 219. ' Kenyan v. Hart, 6 B. & S. 249; Wandsworth Board of Works v. United Tel. Co., 13 Q. B. Div. 904. Cf. Pollock, Torts, ed. x. p. 364 n. * The right under this article was in 1914, in Heurtcbien v. Esmault- Pellerie & Others, held to extend only to the height of trees and buildings. ' See infra, chap. xvii. « See the 'Aerial Navigation Acts,' 1911 and 1913. ' Rechtslehre, Wprke, vii. p. 60. ' Mein — Dasjenige womit ich so verbunden bin, dass der Gebrauch, den ein Anderer ohne meine Ein- willigung von ihm machen mCchte, mich ladiren ■B'tirde.' lb. p. 44. 192 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. the thing. The whole class of rights may be said to be an extension of the advantage which a man has when a physical object is actually within his grasp. As was well observed by Bentham: — 'The savage who has hidden the game that he has killed may hope to keep it for himself, so long as his cave is imdiscovered; so long as he watches to defend it, or is stronger than his rivals; but that is all. How wretched and precarious is such a possession M' In an advanced state of society a man is secured in the exclusive enjoyment of an object to an extent far beyond what he can assert for himself by his own force. His personality, as some writers would say, is extended over a wide circle of matter. What had up to this time been a mere fact now begins, by the aid of the law, to assume the character of a right. In its lowest form it is a right of Possession, in its highest form a right of Ownership. The former is indeed included in the latter, but may also exist apart from it ; in which case its nature is so peculiar that some deny it to be a right at aU. The owner of an object has, as we shall see presently, the right, unless he has expressly parted with it, to the possession of that object. But a person who is in possession, merely as a matter of fact, has also a right to continue in possession, and to be restored to possession, should he have been deprived of it ; and this sometimes even as against the owner. SIOH. The right of the owner to possess is technically called the ' ius possidendi.' The right of the possessor to continue to possess is called the 'ius possessionis.' In order to ascertain what the right is, if any, which results from possession, it is necessary to enquire what that possession is which is recognised as having legal consequences. This^ as Bentham says, ' is no vain speculation of metaphysics. Everything which is most precious to a man may depend 1 Bentham, Principes du Code Civil, par Dumont, c. ix. POSSESSION, 193 upon this question: his property, his liberty, his honour, chap. xi. and even his life. Indeed in defence of my possession I may lawfully strike, -wound and even kill, if necessary '.' The ascertainment of the nature of legal possession is, in fact, indispensable in every department of law. It is as essential to the determination of international contro- versies arising out of the settlement of new countries, or to the conviction of a prisoner for larceny, as it is to the selection of the plaiutiff in an action of trover or trespass. It is therefore not surprising that the literature of the topic is a very large one, and its intricacies not a few. We shall endeavour to present it in as simple a form as possible. A moment's reflection must show that ' possession,' in Its ele- any sense of the term, must imply, first, some actual power over the object possessed, and, secondly, some amount of will to avail oneself of that power. Neither the mere wish to catch a bird which is out of my reach, nor the mere power which I have, without the least notion of exercising it, to seize a horse which I find standing at a shop door, will suffice to put me in posses- sion of the bird or the horse. The Romans, by whom this topic was treated with great fulness and subtlety, describe these essential elements of possession by the terms 'corpus' and 'animus' respectively. i. The corporeal element presents the fewer difficulties. Corpus. He who is popularly said to be in possession of an object, though he need not be in actual contact vdth it \ must doubtless have it so far under his control as to be able, unless overpowered by violence, to exclude others from its enjoyment. But this requirement has long been, for ' Bentham, Works, v. p. 188. ^ No one would deny that a soldier lying on the ground with his rifle within easy reach of him, is in possession of the rifle. Cf. 'Non enim corpore et actu [tactu?] necesse est apprehendere possessionem, sed etiam oculis et affectu.' Dig. xli. 2. i. 21. 1950 O 194 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. legal purposes, very liberally construed. It was admitted by the Roman lawyers that possession acquired in the first instance by exclusive physical appropriation might be continued by something falling far short of this, as the possession of a mountain pasture may continue uninter- rupted, although it remains unvisited during the months of winter ^ ; and a possession is in many cases recognised by them which, even at its inception, never amounted to full physical control over its object; so the purchaser of a quantity of wheat is put into possession of it by being given the keys of the warehouse in which it is stored ^, and the donee of an estate may take possession of the whole by entering upon any one portion of it, or even by having the land shown to him from some neighbouring point of view ". A long succession of writers has maintained that the acquisition of possession in these cases is symbolical, or fictitious; that the 'claves horrei,' for instance, are a mere symbol of the contents of the warehouse. The error of attributing this view to the Roman jurists was conclusively shown by Savigny*, and the reason why in English law delivery of the key of bulky goods has been allowed as delivery of the possession IS stated by Lord Hardwicke to be ' because it is the way of coming at the possession or to make use of the thing '. On the same principle it was said that a man who has purchased goods acquires possession of them by their delivery at the hoiise where he is residing, though no one has touched them on his behalf °. He does not ' 'Saltus liibernos aestivosque animo possidemus, quamvis certis tem- poribus eos relinquamus.' Dig. xli. 2. 3. 11. 2 Dig. xviii. 1. 74; xli. 2. i. 21. ' Dig. vi. I. 77; xli. 2. 3. I, and 18. 2. * Recht des Besitzes, § 17. ^ He adds: 'and therefore the key is not a symbol, which would not do.' Ward v. Turner, 2 Ves. Sen. 431, cited in Pollock and Wright on Possession, p. 63. On the other hand, when a locked box was delivered, the owner retaining the key, it was held that the contents of the box had not been delivered. Reddel v. Dobree, 10 Sim. 244, cited ibid. p. 68. » Dig. xli. 2. 18; xxiii. 3. 9. 3. POSSESSION. I9S acquire possession of a treasure or other object which is chap. xi. buried in liis land, since this is not within his exclusive control in the same way that a house is, unless he actually digs it up 1 ; nor of a wild animal which he has wounded, till he actually catches it^ The distinction between the cases has been said to turn upon the greater or less probability of the power to exclude others from the object being interfered with. 'Every one will acknowledge that a wounded hare may easily get away from him, or that he may search in vain for hidden treasure so long that some one else may forestall him; but that the sanctity of his house should be interfered with by force, or that in the short space of time necessary to enter an adjoining field, a new possessor should spring up, who was not previously to be seen, are circumstances so improbable that no one would take their probability into consideration'.' The distinction must obviously be a fine one. On the one hand, it has been held that when fish were nearly surrounded by a seine with an opening of seven fathoms between the two ends, at which point boats were stationed to frighten them from escaping, they were not reduced to possession as against a stranger who rowed in and helped himself. On the other hand, it has been decided that the custom of the American whalemen in the Arctic ocean is a good one, which gives a whale to the vessel whose iron first remains in it, provided claim be made before cutting in*. If an object be under the control of a servant, exercised on behalf of his master, it is under the control of the master. ii. Mere juxtaposition is not possession. ' Furiosus, et Animua. pupUlus sine tutoris auctoritate, non potest incipere pos- 1 Dig. xli. 2. 3. 3. ' lb. xli. i. s- ' Savigny, § 19. * Young v. Hiehens, 6 Q. B. 606; Smft v. Clifford, 2 Lowell, no; cited in a very valuable article upon Possession contributed by Mr. Justice Holmes to the American Law Review, vol. xii. See also his 'Common Law,' p. 206. O2 196 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. sidere, quia affectionem tenendi non habent, licet maxime corpore suo rem contingant, sicuti si quis dormienti aliquid in manu ponatV To some possibility of physical control there must, at any rate for the commencement of posses- sion, be superadded a wUl to exercise such control. This mental element in possession may conceivably be manifested in three degrees. Degrees of. In its lowest degree of manifestation, the intent of the holder of an object goes merely to the length of meaning to protect it against violence, without asserting any right over it on his own behalf. Such is the intent of a servant who is entrusted with the property of his master. Such possession as he may seem to have is fitly described as 'representative.' A higher degree of iatention is exhibited by those persons, other than servants, to whom objects are delivered for various purposes. A usufructuary, a borrower, the lessee of land, a carrier, all intend to dispose of the object over which they are given a control otherwise than as they may be from time to time directed, although none of them deny the title of the 'dominus proprietatis,' or of the person who has delivered the objects to them, as the case may be, to be still outstanding. The highest degree of intention is a denial of the right of any other than the possessor himself ; inasmuch as the possessor means to pay no regard to any other right than his own. This is the intention manifested, on the one hand, by a person who thinks himself, rightly or wrongly, to be the owner of the object in question, and on the other hand, by a thief who well knows that he has stolen it. So far there is little room for varieties of opinion. The controversies begin when we proceed to enquire what, if ' Dig. xli. 2. I. 3. Such a relation between a person and an object was described by the Glossators as 'possessio asinina,' i. e. the possession which a donkey could be said to have of its saddle. POSSESSION. 197 any, differences of legal result flow from a difference chap. xi. between these several degrees of intention. We have to consider, in the first place, the view of the question taken by the Roman lawyers and modern civilians by whom the enquiry has till quite lately been almost ex- clusively conducted ; and, secondly, how far similar ideas have influenced other legal systems, and more especially the common law. (i) There is no doubt that the classical Roman jurists The recognised two degrees of control over an object, the of Roman lower of which they described by such phrases as, 'In'*^- possessione esse,' ' naturaUter possidere,' ' corporaliter tenere,' 'alieno nomine possidere ^' The higher degree was alone recognised by them as 'possessio,' properly so called'', and such possession alone was protected by the Interdicts, irrespectively of the justice or injustice of its origin ^ against any one from whom it had not been acquired 'vi clam aut precario^' The lower degree of possession is called by modern civilians 'Detentio' (In- habung), whUe they distinguish the higher as 'Possessio,' properly so called (Besitz). According to what may perhaps still be called the ac-Savigny. cepted view, these two degrees were differentiated by the intention of the possessor. Mere detention, or 'naturalis * 'Nee idem est possidere et alieno nomine possidere: nam possidet cuius nomine possidetur, procurator alienae possessioni praestat mini- sterium.' Dig. xli. 2. 18. Cf. 'Generaliter quisquis omnino nostro nomine sit in possessione, veluti procurator, hospes, amicus, nos possidere videmur.' Dig. xU. 2. 9. ^ Improperly described by the earlier commentators as 'possessio civilis,' a term which, as Savigny has shown, § 7, is used in the sources to describe possession exhibiting those additional characteristics which enable it by means of 'usucapio' to ripen into ownership. ' 'lusta enim an iniusta adversus ceteros in hoc edicto [sc. uti possi- detis] nihil refert, qualiscunque enim possessor, hoc ipso, quod possessor est, plus iuris habet quam ille qui non possidet.' Dig. jdiii. 17. 2.; cf. ib. xli. 2. 3, s- * The remedies, such as 'actio furti,' enjoyed by persons having only 'possessio naturalis,' were conferred upon them in respect of some inter- est beyond that of bare possession. See Savigny, § 42. 198 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. possessio,' exists when tlie intention to dispose of the object is limited by a distinct recognition of the out- standing right of another; and this equally whether the holder be a slave, a usufructuary or a bailee. ' Possessio ' exists, when the holder believes himself to be the rightful Civner of the object, or, having merely found it, means to keep it subject to the possibility of the owner making his appearance \ or, having stolen it, means to keep it against all comers^. The intention of such a possessor has been described by modern civilians as the 'animus domini ^' but more recently as ' animus possidendi,' a term for which there is classical analogy*. This view of the grounds of the distinction drawn by the Roman lawyers between the possession which would be and that which would not be protected by the Interdicts, is associated with the great name of Savigny, by whom it was for the first time luminously set forth. It is in general accordance Avith the language of the classical jurists, and is supported by the fact that the classes of persons to whom possessory remedies were denied, such as the fruc- tuary, the lessee, the borrower and the carrier, were just those whose intent to dispose of the object possessed is limited by a distinct recognition of the outstanding right of another. Savigny's theory is, however, open to the objection that it does not account for the fact that the Interdicts were also accorded to the 'emphyteuta,' the pledge holder, the 'precario tenens'tand the 'sequester,' to none of whom can the ' animus domini ' be attributed. Savigny was only able to reply by saying that for prac- ' Dig. xliii. 17. 2. ' ' Pro possessore vero possidet praedo, qui interrogatus cur possideat responsurus sit, quia possideo, . . . neo ullam causam possessionis possit dioere.' Dig. v. 3. 11-13. ' Apparently coined by Cuiacius, Obs. ix. 33. It was doubtless sug- gested by the phraseology of Theophilus, Siatpopi, ybip tov Kpariiv koX toO viiifffBai. airif Sri, Kparav pAv kari t6 0viriKi3s kot^x""! "ip^fcSai Si t6 \j'vxv Setrvli- l^ovTos Karix^v, iii. 29. 2; cf. ii. 9. 4. Cf. 'opinione domini,' Dig. ix. 4. 22. * ' Animus possidentis 'occurs in Dig. xli. 2.1. 20; 'animus possessionem adipiscendi'inDig.xiii. 7. 37; and 'animus possessoris'in Dig. xli. 2. 18.3. POSSESSION. 199 tical reasons what he calls a 'derivative' (' abgeleiteter ') chap.xi. possession was admitted in these cases'. This and other difficulties in the current view have recently led a writer of great vigour and originality to attack Savigny's account of the Roman theory of possession as a whole. In a work pubUshed nearly fifty years ago^ Profes- jhering. sor von Jhering showed that Savigny's requirement of actual control can only be discovered in the writings of the Roman jurists by doing considerable violence to their language; and that the amount of control demanded by Roman law varied, as it reasonably should vary, according to the nature of the object in question, so that cut timber in a wood might well be held to remain in the possession of a purchaser who had left it lying where he cut it, although his watch, if found in the same place, might be treated as lost property'. In going on to assert that possession was protected merely as the 'actuality of ownership ^' or as being to ownership what an outwork is to a fortress ^ Jhering appears to us to come into conflict with clear statements in the sources, to maintain an anachronism, and to be inconsistent with his own maturer views upon this point as incidentally stated in his latest work, 'Ueber den Besitzwillen *.' It is in this work that Jhering has delivered a long-prepared attack upon the key to Savigny's position, the ' animus domini.' Shortly stated, von Jhering's thesis ' is that the difference between Detention and Interdict-Possession has nothing to do with the will; that whoever so far exerts his will over an object as to obtain Detention of it, possesses it for all purposes, except in so far as possession is denied » § g. ' Grund des Besitzessohutzes, 1867. ' Cf . ' by possession is meant possession of that character of which the thing is capable.' Ld. Adooc. v. Young, 12 App. Ca. ss6. * Grund des Besitzesschutzes, p. 45. ' lb. p. 64. May it not rather be compared to an earthwork, worth defending, whether or no the fortress of ownership lies behind it? « Jena, 1889, v. p. 327- ' Which he describes as the 'Objectivitatstheorie,' as opposed to the 'Subjectivitatstheorie' of Savigny and his predecessors. 200 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. to him by some special rule of law. For just as Savigny was obliged to allow a fictitious 'derivative' posses- sion in the case of pledge holders and others who on principle would not be possessors, so does Jhering pray in aid a variety of special rules of law to explain the denial to borrowers, lessees, and the like, of the possessory remedies to which in accordance with his theory they are prima facie entitled. The arguments of von Jhering will have to be reckoned with by any future writer upon the subject, but it would as yet be premature to proclaim the victory of his views over those of Savigny as to the true meaning of the classical jurists. It is also impor- tant to remember that a theory more nearly approaching that of Savigny than that of his critic has derived new interest from its long acceptance in the countries ruled by modernized Roman law \ and especially from the ineffaceable imprint which it has left upon modern codes ^ Teutonic (2) The jurists of the Teutonic races seem never to ^°'^^' have recognised the two grades of possession which have ' Cf. Jhering, Besitzwille, pp. 429, 457. * E. g. The Prussian Landrecht, I. 7. § i, 'Wer das physische Ver- mogen hat, tlber eine Sache mit Ausschliessung Anderer zu verftigen, der hat sie in seinem Gewahrsam und wird Inhaber derselben genannt.' § 3, ' Wer aber eine Sache, in der Absicht dariiber fiir sich selbst zu verfugen, unmittelbar oder dutch Andere, in seinen Gewahrsam nimmt, der wird Besitzer der Sache.' §§ 6, 7, distinguish between the 'imperfect' and the 'perfect' Besitzer, the latter being defined as 'welcher eine Sache, Oder ein Recht, als sein eigen besitzt.' The Austrian Civil Code, § 309, ' Wer eine Sache in seiner Macht oder Gewahrsam hat, heisst ihr Inhaber. Hat der Inhaber einer Sache den Willen, sie als die seinige zu behalten, so ist er ihr Besitzer.' The French and Italian Codes are less clear. Code Civil, §§ 2228, 2234; Codice Civile, §§ 685, 2115. The tendency of the Codes, while retaining in terms the distinction between Detention and Possession, is to assimilate their legal results. The explicit phraseology of the Draft Civil Code for Germany, 797, that 'Der Besitz einer Sache wird erworben durch die Erlangung der thatsachlichen Gewalt Uber die Sache (Inhabung) in Verbindung mit dem Willen des Inhabers, die Sache als die seinige zu haben (Besitzwille),' has given place in the Code as adopted, § 834, to the mere statement that 'Der Besitz einer Sache wird durch die Erlangung der thatsachlichen POSSESSION. 201 given so much trouble to the civilians. They granted chap.: possessory remedies without scruple to persons v?ho in Roman law could never have profited by the Inter- dicts. Under the Salic law the person from whose custody cattle were stolen, irrespectively of his hav- ing any further interest in them, seems to have been the only person entitled to have them restored to him; and Bracton says that, in suing for stolen goods, it makes no difference whether the goods belonged to the plaintifiE or not, provided only they had been in his custody '. The theory of English law at the present day is not English dissimilar. Possessory rights are, it is true, denied to ^^' servants'; but, with this exception, the common law ignores the distinction between Detention and Possession, Gewalt uber die Sache erworben.' Cf. art. gig of the new Swiss Code: 'Wer die tatsachliche Gewalt tiber eine Sache hat, ist ihr Besitzer.' On the question whether this 'actual control' must be 'subjective' as well as 'objective,' see the remarks in L. Q. Rev. xiii. p. 338, upon M. R. Salailles' work, De la possession des meubles, Etudes de Droit aUemand et de Droit frangais, igo7. ' Dum tamen de custodia sua.' Bract, fol. 151. Cited by Mr. Justice Holmes, Am. Law Rev. u. s. ' See Dicey, Parties, pp. 335-358; Pollock and Wright, Possession, p. 5g. Mr. Justice Holmes, Common Law, p. 227, thinks the rule ex- plicable only as a survival from the times when a servant was a slave, since ' the servant has as much the intent to exclude the world at large as the borrower.' But see Pollock and Wright, u. s. The non-attribution of possession to servants is well established in criminal law, e. g. if goods are stolen from a servant to whom they have been entrusted by his mas- ter they are alleged in the indictment to be 'the property,' i. e. in the possession, of his master, though some doubts upon this point led to the Statute 21 Hen, VIII. c. 7. (A new offence of embezzlement was created by 3g G. III. c. 85 to meet the case of misappropriation by a servant of goods delivered to him for his master, but of which the latter had not yet taken possession) ; but there are cases in private law which can with diiSculty be reconciled with the rule as now stated, and suggest the dis- tinction, said now to be obsolete, once drawn between servants at home and servants sent on distant errands. See Y. B. 21 H. VII. 14, pi. 21, cited in Holmes, u. s., p. 226. Thus the master of a fly-boat hired at weekly wages by a canal company was allowed to bring trespass for the ' cutting of a tow-rope, the property of the company. Moore v. Robinson, 2 B & Ad. 817. Persons, such as guests at an inn, who have there the use of plate and other objects, as bare licensees without bailment, have no possession. Holmes, u. s. p. 226. 202 PRIVATE LAW: RIGHTS 'IN REM.' CHAP, 33. Wrongful posses- sion. granting possessory remedies to all persons in occupation of land or having the custody of goods. Previously to the invention in the thirteenth century of the writ 'de eiectione firmae,' the tenant of a farm was regarded as a mere bailiff for the landlord, but by means of the writ he acquired what in the phraseology of that day could be described as a 'seisin' of his term\ and he alone can now bring trespass for interference with his possession". A similar right in the case of bailees of goods seems to have a much older pedigree". 'In all these instances,' says Blackstone, 'there is a special qualified property transferred from the baUor to the bailee, together with the possession. And on account of this qualified property of the baUee, he may, . . . maintain an action against such as injure or take away these, chattels. The tailor, the carrier, the innkeeper, the agisting farmer, the pawn- broker, the distreinor, and the general bailee, may aU of them vindicate in their own right this their possessory interest *.' Alike in Roman and in the comman law, a mere finder, or even a wrongful taker, has a possession which will be protected against a stranger ; nor will such stranger be allowed to allege a superior ius tertii, unless he can » Bracton, fol. 220. See Digby, History of the Law of Real Property, ed. 4, p. 17s; Maitland, on the Seisin of Chattels, L. Q. R. i. p. 333. ' Dicey, Parties, p. 334. ' Holmes, Common Law, p. 166, citing Laband, Vermagensrechtliche Klagen, § 16, and Heusler, Gewere, 487, 492. ' 2 Comm. 453. He continues, ' For being responsible to the bailor, or if the goods are lost or damaged by his wilful default or gross negligence, or if he do not deliver up the chattels on lawful demand, it is therefore reasonable that he should have a right of action against all other persons who may have purloined or injured them ; that he may always be ready to answer the call of the bailor.' This reasoning, though found also in Beaumanoir, xxx. i, and in Y. B. 11 H. IV, seems to be erroneous. See Holmes, Common Law, pp. 167, 170. It is probably derived from a mis- understanding of the remedies given in Roman law to certain bailees for the protection of interests other than those resulting from bare possession. Cf. Inst. iv. 1. 14 and 17; Dig. xlvii. 2. 46. The right of the bailee was held to be irrespective of his liability to the bailor in The Winkfield, [igoz] P. 42. POSSESSION. 203 show that he was aotiag under the authority of the chap. xi. person having such a right *. After being a topic of controversy between the Proculian Possessio and Sabmian schools, it was finally determined in Roman P'"""™- law that only one person can possess the same object at the same time, 'non magis enim eadem possessio apud duos esse potest, quam ut tu stare videaris in eo loco in quo ego sto, vel in quo loco ego sedeo tu sedere videaris I' The strictness of this rule seems not to have been followed in the indigenous law of Germany', and was departed from at an early date in the law of England. When the tenant farmer acquired the writ of ejectment, his lord none the less retained his possessory remedy by Assize of novel disseisin*; and in the time of Edward III, we find that bailors had gained the right to bring tres- pass concurrently with their bailees against a third party I In modern times, at any rate, this right is restricted, as would seem more in accordance with principle, to the case of simple bailments, i. e. those in which the bailor is at liberty to resume possession at any momenta When ' Dig. xliii. 17. 2. Amory v. Ddamirie, i Sm. L. C. 301; BucMey v. Groas, 32 L. J. Q. B. 131; Dicey, Parties, pp. 334, 354, 356; Pollock and Wright, pp. 49, 148. ' Dig. xli. 2. 3. 5; cf. xliii. 26. 15. 4. The possession by several of different parts or shares of a thing is a different question. Savigny, Be- aitz, § 11; Puchta, Inst. ii. p. 564. ' See authorities cited by Piol. Maitland, L. Q. R. i. p. 344, and the German Civil Code, 868. * 'Poterit enim quilibet illorum sine praeiudicio alterius in seisina esse eiusdem tenementi, unus ut de termino, et alius ut de feudo vel libero tenemento.' Bracton, fol. 220. See Maitland, L. Q, R. i. p. 341. But note that the landlord cannot bring trespass or ejectment during the continuance of the term. Dicey, Parties, pp. 337, 489. » Y. B. 48 Ed. III. 20, pi. 8, 22. Ed. IV. s, p. i6, cited in Holmes, Common Law, p. 170. He thinks this an anomaly, p. 175. The reason usually given) for it is that 'a right of immediate possession without possession is sufficient.' Cf. Smith v. Milles, i T. R. 480. So the purchaser of goods may bring trespass before delivery. Dicey, p. 348; akter as to a purchaser of land before entry, Pollock and Wright, p. 28. ' NichoUs v. Bastard, 2 C. M. & R. 659; Dicey, Parties, p. 345. 204 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. during the bailment the right of the bailee is good even against the bailor, the former can alone sue for any interference with his possession \ Reasons for pro- tecting posses- sion. More than one motive may have induced the law to give protection to possession. The predominant motive was probably a regard for the preservation of the peace. 'The ground of this protection,' says Savigny, 'and of this condition similar to a right, has to be ascertained. Now this ground lies in the connection between the above condition of fact and the party possessing, the inviolability of whose person extends to those sorts of disturbance by which the person might at the same time be interfered with. The case occurs when the violence offered to the person disturbs or puts an end to possession. An in- dependent right is not, in this case, violated, but some change is effected in the condition of the person to his prejudice ; and if the injury, which consists in the violence against the person, is to be whoUy effaced in all its consequences, this can only be effected by the restoration or protection of the statrxs quo, to which the violence extended itself V The same view is also to be found, where anything so abstract would scarely be expected, in a volume of Meeson and Welsby's Reports. 'These rights of action,' said the Court of Exchequer Chamber, 'are given in respect of the immediate and present violation of possession, independently of rights of property. They are an extension of that protection which the law throws around the person '.' The suggestion that possession was protected because 1 Gordon v. Harper; 7 T. R. 9: 'It cannot be that two men can be entitled at the same time to maintain an action of trover fca: the same goods.' Lord v. Price, L. R. 9 Ex. 54. * Savigny, § 6, Perry's Translation (1843). ' Rogers v. Spence, 13 M. & W. 581 (1844). POSSESSION. 205 possessors are in most cases rightful owners \ is hardly chap. xi. in accordance with legal history. As to the place which the doctrme of possession should Place of occupy in a body of law, Savigny is of opinion that, fn thT'°° since it only conies in question as a condition to the?°^.P"* ^ luris. granting of Interdicts, it belongs to the department of 'obligationes ex delicto.' By what has preceded, it will have suflaciently appeared that we agree rather with those who, like Alciatus, Halm, and Gans, class possession among the ' iura in re.' The orbit of the right may be inferred from a list of Orbit, the acts which are recognised as infringing it. Among the acts so recognised in English law are those long known as 'trespass' and 'conversion.' A 'trespass to goods' would consist in their removal or injury, but might be justified, as done in the exercise of a rightful 'distress,' or in self-defence; while goods would be said to be 'converted' by any one who wrongfully assumed to act as their owner. The ' ins possessionis ' comes into existence on the occur- Com- rence of such a combination of control and intention as™g°tf" is demanded by a given system of law. The corporeal and mental elements of the act of acqui- sition may be separated, as where the former is exercised by an agent and the latter by his principal ; or both may be exercised by an agent, who has general authority from, or whose acts are subsequently ratified by, his principal ^ ' Jhering, Ueber den Grund des Besitzesschutzes, ed. 2, p. 45. At p. 4, he gives an exhaustive classification of the theories on this point. According to his own opinion, Possession is 'eine dem Eigenthilmer zugedachte Beweiserleichtening, die aber nothwendigerweise auch dem Nichteigenthiimer zu Gute kommt,' p. 45. ' Savigny, § z6. 206 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. Termina- tion. Quasi-pos- bession. The right of possession may be of course extinguished by an express abandonment of the object, but the same effect may be produced by tacit relaxation of corporeal control or of intention. The cases in which this occurs are defined by different rules in different systems of law \ The doctrine of possession has been extended, under the name of ' quasi-possession,' or of ' possessio iuris,' to the control which may be exercised over advantages, short of ownership, which may be derived from objects. A right of way, an advowson or perpetual right of appointment to a benefice, and similar rights, the nature of which will shortly have to be explained, are susceptible of a quasi- possession, the rules for which are analogous to those which govern possession properly so called. Owner- ship. Defini- tions. It is a great advance in civilisation when law throws around the mere fact of possession that protection which the possessor could previously have won for it only by his own right hand. It is a still further advance when law gives to a man that far ampler measure of right over an object, quite irrespectively of his having any actual, or even constructive, control over it, which is known as ' Ownership ^.' The higher is no doubt a development of the lower right. 'Dominium rerum ex naturali possessione coepisse Nerva Alius ait '.' It is usually defined as a plenary control over an object. ' Das Eigenthura ist eine totale Herrschaft iiber ' Thus Roman law, on grounds of policy, declined to treat the possession of the absentee owner of a farm as ousted by wrongful occupation by an intruder. It was a legal fiction that the possessor in such a case, though dispossessed in point of fact, was not to be regarded as dispossessed till he had received notice of what had occurred. Dig. xli. a. 46; ib. 3. 7 and 8 j Savigny, Besitz, § 33. ' So that Ulpian goes so far as to say : ' Nihil commune habet proprietas cum possessione.' Dig. xli. 2. 12. i. » Dig. xli. 2. I. I. Cf. Cic. De Off. i. 7. OWNERSHIP. 207 eine Sachet' 'La propri6te est le pouvoir juridique plein chap. xi. et entier d'une personne sur une chose corporelle ' ; ' Le pouvoir de droit d'une personne sur une chose d'apres tons les buts rationnels d'utilit6 possible, inherents a sa nature V The right of ownership is, however, unlimited only in How comparison with other rights over objects. In accordance ^™'*®'^" with the maxim ' sic utere tuo ut alienum non laedas,' it must always be enjoyed in such a way as not to interfere with the rights of others, and is therefore defined in the French Code as 'le droit de jouir et disposer des choses de la maniere la plus absolue, pourvu qu'on n'en fasse pas un usage prohibe par les lois ou par les reglements '.' It may also, as we shall see hereafter, continue to subsist although stripped of almost every attribute which makes it valuable, in which condition it is described in Roman law as ' nuda proprietas.' A really satisfactory definition of a right thus wide, yet necessarily limited in several respects and conceivably limited in many more, has per- haps never been suggested. It is difficult to do more than to describe it, with Austin, as a right ' over a deter- minate thing, indefinite in point of user, unrestricted in point of disposition, and unlimited in point of duration *.' "Various attempts have been made to enumerate theCompo- attributes or powers of an owner. He is said to havCrigjits. rights, 'utendi,' 'fruendi,' 'abutendi,' 'fructus percipiendi,' ' possidendi,' ' alienandi,' and ' vindicandi.' But what has to be said with reference to the orbit, or contents, of the ^ Puchta, Inst. ii. p. 581. 2 Ahrens, Droit Naturel, ii. p. 143; cf. ' Dominus inoipit plenam habere in re potestatem.' Inst. ii. 4. 4. ' Art. S44, followed by the Codioe Civile, art. 436; the Civil Code of Japan, art. 30; and the Swiss Code of 1912, art. 641. According to the Civil Code for Germany, 903, 'Der Eigenthumer einer Sache kann, soweit nicht das Gesetz oder Reohte Dritter entgegenstehen, mit der Sache nach Belieben verfahren und Andere von jeder Einwirkung ausschliessen.' • Jurisprudence, ii. p. 477; cf, iii. p. 2. It is hardly necessary to refute the answer given by Prudhon to the question propounded by the title of his book, Qu'est-ce-que la Propria t6? (1840), viz. 'La propri^t^ c'estle vol.' For discussions on the subject with a semi-socialistic tendency, see Property, its Duties and Rights, essays by various writers, 1913. 208 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. Enjoy- ment. right of ownership may be conveniently arranged under the three heads of possession, enjoyment, and disposition. 1. Of the right to possess, little more need be said than that it includes the 'ius vindicandi,' and that it is inherent in ownership unless expressly severed from it, as is the case when the owner has let, lent, or mortgaged his property. 2. The right of enjoyment implies rights of user, and of acquiring the fruits or increase of the thing, as timber, the young of cattle, or soil added to an estate by alluvion. The right is limited only by the rights of the State or of other individuals '. The State may of course, as is sometimes said by virtue of its 'dominium eminens,' take such portions of the produce of property, or even of property itself, as it may think fit ; or it may authorize undertakings in the neighbourhood, whereby the value of the property may be diminished without compensation". The State can also prohibit any particular use of the property, e. g. the growth of tobacco upon land in England and Ireland', or the carrying on of noxious trades ia towns. The rights of the owner may also be hmited by those of his 1 The right of freely using one's own land although to the detriment of one's neighbours, is very amply recognised by English law (see Chasemore V. Richards, 7 H. L. C. 349) ; but by Roman law, apparently, only 'si non animo vicino nocendi, sed suum agrum meliorem faciendi' (D. xxxix. 3. I. 12). Cf. Code Civil, art. 642 (new), and the Biirgerliches Gesetzbuch, art. 226. So Scots law prohibits what is done in aemulationem vidni. Ersk. Inst. ii. i. 2; but as to the limited application of this doctrine, see Mayor of Bradford v. Pickles, [1895] A. C. at p. 587. Cf. Pollock, Torts, ed. X. p. 160; Journal Comp. Leg. N. S. vi. p. 76 n. ^ E. g. by vibration caused by trains passing over a railway made in pursuance of an Act of Parliament, Hammersmith Railway Company V. Brand, L. R. 4 H. L. 171. So also it was held in Vaughan v. Taff Vale Ry. Co., s H. & N. 679, as to sparks from an engine; but compensation for damage thus caused to agricultural lands or crops may now be obtained under 'The Railway Fires Act,' 1905. ' By 12 Car. II. c. 34, rep. as to Ireland by 7 Ed. VII. c. 3. On the principle that when private property is affected with a public interest it ceases to be iuris privaii, see Lord Holt, De portibus maris, i Harg. Law Tracts; and on the recent application of this principle in the grain 'ele- vator' cases, see Munn v. Illinois, 4 Otto 113. OWNERSHIP. 209 co-owners, if the property is held jointly; or by those chap. xi. of strangers. The owner of land, for instance, may be restrained in the interest of neighbouring owners from dealing with it entirely at his pleasure; and this either in consequence of some exceptional advantage, such as a right of way, which may have been conferred upon another; or m consequence of the ordinary, or, as it is sometimes called, 'natural' right of his neighbours not to have their land deprived of its accustomed support from the land adjacent, to receive the water of a stream, or the like. 3. The right of disposition carries with it the right of Disposi- alteration or destruction, and also the right of alienatioa*'°°' Some objects are of course practically indestructible. The ahenation may either be total, when the right itself, or partial, when a fraction of it only, is transferred. Alienation for certain purposes is sometimes forbidden, e. g. in fraud of creditors, or in mortmain. Ownership is exercised, in its primary and fullest sense, Objects over physical objects only. It is also exercised, in agyp_ secondary and conventional sense, over certain collections of rights which it is convenient to treat upon the analogy of physical objects. In the primary sense of the term, a man may be owner of a house, in the secondary sense he may be owner of a patent for an invention. The object owned is in either case described as 'property,' which is defined by Mirabeau as signifying 'un avantage confere par les conventions sociales '.' The terms 'ownership ' and ' property ' are sometimes also used in a third, and still looser sense. The sum-total of a man's fortune, including not only the objects of which he is owner, but also the value of any claims which he may have against other persons, after deducting the amount of any claims which ' Hist. Parlementaire de la Revolution Franjaise, t. ix. p. 290. 1950 P P 209 210 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. might be made good against liimself, is described as his ' property,' and he is said to ' own ' it \ It will be desirable to discuss each of these kinds of 'property' separately. Tangible objects. Orbit. 1. It is not every physical object that wiU answer the description of property, as being ' un bien materiel sujet au pouvoir immediat d'une personne"-' Some tilings are in their nature incapable of appropriation. Air ° and, in most cases, water* are for the free use of aU mankind. Objects which are capable of becoming property are divisible upon various principles, as has been already explained \ The right of the owner of a physical object is of course modified by the character of the object. His right is in general that the object shall neither be taken away from him, nor impaired in value, nor shall his title to it be weakened. Among the acts by which his right is infringed are those known to English law as conversion, detinue, trespass, slander of title, and nuisance. Intangible property. 2. "We have already mentioned that the idea of owner- ship has been so far extended as to make it applicable to ' The Roman use of the term ' res' was equally ambiguous. Sometimes it is the thing itself (res corporalis), sometimes a right over a thing, or even to the performance of an act (res incorporalis). Cf. supra, p. loo. With the use of the term, as covering a mere right to performance, cf. the Code Civil (Art. 529) : ' sont meubles, par la determination de la loi, les obligations et actions qui ont pour objet des sommes exigibles,' &c. ; and the definition of 'Property' in 44 & 45 Vict. c. 41. § 1, and in 45 & 46 Vict. c. 39. § 2 (the Conveyancing Acts, 1881, 1882), as including 'any debt, and any thing in action, and any other riglat or interest.' Cf. also the Bankruptcy Act, 1883, 46 & 47 Vict. c. 52. § 168 (i). On the question whether shares in a Company are 'things in action,' under the Bank- ruptcy Act, see Colonial Bank v. Whinney, 11 App. Ca. 426. A power of appointment is not property, ex parte Gilchrist, 17 Q. B. D. 167 and $21. ' Ahrens, Cours, ii, p. 117. ' But see supra, p. 191, and infra, chap. xvii. * But see Ormerod v. Todmorden Mill Co., 11 Q. B. Div. 155. ' Supra, p. loi. INTANGIBLE PROPERTY 211 certain closely colierent masses of rights ; which are thus, chap. xi. by a legal fiction, treated, for certain purposes, as if they were tangible objects '. In modern times the inventor of a new process obtains Patents, from the State, by way of recompense for the benefit he has conferred upon society, and in order to encourage others to follow his example, not only an exclusive privUege of using the new process for a fixed term of years, but also the right of letting or selling his privilege to another. Such an indulgence is called a patent-right ', and a very similar favour, known as copy-right, is granted Copy- to the authors of books, and to painters, engravers, and"^^** sculptors, in the productions of their genius '. It has been a somewhat vexed question whether a 'trade-mark' is to Trade- be added to the list of intangible objects of ownership. '^^'''^' It was at any rate so treated in a series of judgments » ' The notion that nothing is property which cannot be ear-marked and recovered in detinue or trover, may be true in an early stage of society, when property is in its simple form, and the remedies for violation of it are also simple, but it is not true in a more civilised state, when the relations of life and the interests arising therefrom are complicated.' Erie, J., in Jeffreys v. Boosey, 4 H. L. Ca. 815. But see contra Pollock C. B. in the same case, and Windscheid, Pand. § 168. Cf. Velasqitez Ltd. V. Commissioners of Inl. Rev., [1914] 2 K. B. 404, citing Dicey's Conflict of Laws. On 'goodwill,' as a genus, of which patents, &c. are species, see J. F. IseUn, in Law Quarterly Review, xiii. p. 156. A man has no property in his name, see Du Boulay v. Du Boulay, L. R. 2 P. C. 430; Dockrell v. Dougall, 15 Times Rep. 333; nor is any right of a peer to that incorporeal hereditament, his dignity, infringed by the user of his title by his di- vorced wife, now married to a Commoner. Cowley v. Cowley, [1901J A. C. 450. The Copyright Act, 1911, 1 & 2 Geo. V. c. 46, repealing Acts from 1734 to 1889, consolidates the law of the subject, both national and in- ternational. On the defects of the law in 1901, see W. H. Draper, in 17 L. Q. R. 39. ' See the Consolidating Patents and Designs Act, 1907, 7 Ed. VII. c. 29. ' On the copyright retained in a letter by the writer of it, see Pope v. CutU, 2 Atk. 342; Oliver v. Oliver, 11 C. B. N. S. 139; Macmillan v. Dent, [1906] I Ch. loi. A painter's copyright in his pictures, under 25 & 26 Vict. c. 68, was held not to be infringed by the exhibition of tableaux vivants reproducing their effect, Hanfstaengl v. Empire Co., [1894] 2 Ch. i; nor by the publication of sketches of such tableaux, Hanfstaengl v. Baines, [1895] A. C. 20; but see now s. i of the Act of 1911. P2 212 PRIVATE LAW: RIGHTS 'IN REM,' CHAP. XI. by Lord TVestbury, which, it seems, are still good law. He says, for instance, ' Imposition on the public is indeed necessary for the plaintiff's title, but in this way only, that it is the test of the invasion by the defendant of the plaintiff's right of property'.' It is also so described throughout the ' Trade Marks Act,' 1905 ^ as it had been in the French law of 1857 relating to 'Marques de fabrique et de commerce.' The extension of the idea of ownership to these three rights is of comparatively recent date. Patent-right in England is older than the Statute of Monopolies, 21 lao. I. c. 3*, and copy-right is obscurely traceable previously to the Act of 8 Anne, c. 19*, but trade-marks were first protected in the nineteenth century. Violations of this sort of property are described in English law as ' infringements.' Fran- With such intangible property should probably also be chises. classified those royal privileges subsisting in the hands of a subject which are known in English law as ' francliises,' 1 Hallv. Barrows, 30L. J. Ch. 204. Cf . Oakeyv. Dcdlon, 35 Ch. D. 700. * S Ed. VII. c. IS, consolidating the law of the subject. So too in the, now repealed, 'Trade Marks Registration Act, 1875,' and in the relevant sections, now also repealed, of the 'Patents, Designs, and Trademarks Act, 1883.' On such right as a trader may have to an exclusive use of his name, see Burgess v. Burgess, 3 D. M. G. 896. ' On letters patent by Royal Prerogative in England, see an Art. in Law Quarterly Review, xii. p. 141. On the construction of certain letters patent granted by the States General in 1630, see The Opinions of Gro- tius, De Bruyn, p. 115. * On the curious question of a copyright at common law, now excluded by the Act of 1911, s. 31, see the case of Jeffreys v. Boosey, u. s., which decided, overruling Donaldson v. Beckett, 2 Bro. P. C. 129, against a considerable weight of judicial opinion, unfavourably to the existence of any such right, at any rate since the Statute of Anne. Cf. the Report of the Royal Commission on Copyright of 1878, embodj'ing a draft Digest of the existing law upon the subject, by Sir J. F. Stephen. On the ques- tion of a common law copyright in an orally delivered lecture, see Abernethy v. Hutchinson, i Hall & Tw. 28; Nichols v. Pitman, 26 Ch. D. 374; and Sime v. Caird, 12 App. Ca. 326, in which the House of Lords, on appeal from the Court of Session, held that the delivery of a Uni- versity lecture does not divest the author of his copyright in it. Cf. Dalloz, t. xl. P. 2.P.187. On copyright in a report of a public speech, see Waller v. Lane, [1900] 2 A. C. S39. INTANGIBLE PROPERTY 213 such as the right to have a fair or market, a forest, chap.m. free-warren or free-fishery. The once well-known privileges described in German law as 'Bannrechte,' e. g. of having all the corn of the neighbourhood brought to one's mill to be ground, ' Miihlen- zwang,' aU the bread brought to one's oven to be baked, 'Backofenzwang,' and the Uke, belong to the same category. 3. A still bolder fiction than those just considered was Bonorum familiar to the Romans. All that a given individual cantater''" be said to be worth, reckoning together not only all his rights of ownership, but also the value of any claims which he may have against others ('bona activa'), but deducting the amount of any claims which others may have agamst him ('bona passiva'), is sometimes said to be his 'property,' and he is said to be the 'owner' of the whole complex mass of rights 'in rem' and 'in personam,' less deductions '. Such a totality of property has been described by the phrases 'bona,' ' patrimoine,' 'avoir,' 'estate,' ' assets," Ver- mogen.' The last-mentioned term has been defined as 'alles was uns zusteht oder gehSrt"'; also as 'der InbegriflE der Rechte einer Person, die einen Sachwerth haben, oder deren Werth sich in Geld anschlagen lasst '.' Such a mass of property, should its subject die, becomes a ' hereditas.' ' ' La notion de la propridt^ est alors identifi^e avec celle de I'avoir, quoiqu'il faille toujours distinguer les biens mat6riels qui sont imm^diate- ment dans notre pouvoir de ceux par rapport auxquels nous avons des droits 4 faire valoir.' Ahrens, ii. 121. ' Bona intelliguntur cuiusque quae deducto aere alieno supersunt.' Dig. I. 39. i. ' Bonorum appellatio, sicut hereditatis, universitatem quandam ac ius successionis et non singulas res demonstrate Dig. 1. 16. 208. ' Bona autem hie, ut plerumque solemus dicere, ita accipienda sunt, universitatis cuiusque successionem, qua succeditur in ius demortui, suscipiturque eius rei commodum et in- commodum : nam sive solvendo sunt bona, sive non sunt, sive damnum habent, sive lucrum, sive in corporibus sunt sive in actionibus, in hoc loco proprie bona appellabuntur.' Dig. xxxvii. i. 3 pr.; cl. 1. 16. 49. So a contractual riglit to the transfer of suitable land in Roumania has been held to be 'property.' Danvbian Sugar Factories v. Inl. Rev, Commissioners, [1901] i Q. B., C. A., 245. » Roder, ii. p. 239. • Puchta, ii. p. 302; of. 578. 214 PRIVATE LAW: RIGHTS 'IN REM.' CBaP. XI. Com- mence- ment of the right, over physical objects. Although some few modes of acquisition, or 'titles,' are applicable to all three classes of property, each class has also a set of modes of acquisition appropriate to itself. It may be convenient to mention the special modes first, those, namely, which are respectively applicable to the acquisition of physical objects, of groups of rights treated as if they were physical objects, and of complex masses of rights and duties. Physical objects, ' res corporales,' ' res quae tangi possunt,' are capable of being acquired in a variety of ways, which are either ' original ' or ' derivative.' Original acquisi- tion. With pos- session. 1. Original acquisition takes place either with or with- out an act of possession. 1. "With such an act, the right is gained by: (a) ' Occupatio ' ; the taking of what previously belonged to no one: 'quod enim nullius est, id ratione natural! occupanti conceditur '.' Among ' res nullius ' are wild animals ; derelicts, which on abandonment cease to belong to their former owners; the property of enemies; and a 'thesaurus,' i. e. 'vetus quaedam depositio pecuniae, cuius non exstat memoria, ut iam dominum non habeatV It must be remembered that the right of the finder of such objects is by no means recognised as unqualified. Most systems of law hold that property taken from an enemy vests primarily in the nation, 'bello parta cedunt rei- publicae,' a rule which is the foundation of the law of booty and prize; and the right to capture animals 'ferae naturae,' or to appropriate a treasure-trove, is usually qualified by the rights of landowners and of the State itself '. (/3) ' Specificatio ' ; i. e. the working up of materials belonging to another into a new product. There is room for much difference of opinion as to the cases in which ' Dig. li. I. 3 pr. ' Dig. li. 31. i. ' Cf. A. G, V. Trustees oS British Museum, I1903] 2 Ch. 598. ORIGINAL ACQUISITION. 215 ownership may thus be acquired by manufacture, and chap. xi. a long controversy was carried on between the jurists of the Proculian and Sabinian schools upon the subject \ (y) ' Fructuum perceptio,' i. e. the rightful taking of the produce of property by a person who is not owner of the property. (8) Lawful possession, continued for such periods as may be recognised by law as sufficient for the purpose. So, in the older Roman law, the possession of an object which had been acquired botm fide and ' ex iusta causa ' gave in one or two years, according as the object was a moveable or an unmoveable, full ownership of it, by the title called 'usucapio.' And so English law, which does not favour this title, practically transmutes long possession of real property into ownership, by bringing to an end the right of the owner; for by the Statute 3 & 4 W. IV. c. 27. s. 34, it is enacted that, 'at the determination of the period limited by this Act to any person for making an entry or distress, or bringing any writ of quare impedit or other action or suit^ the right and title of such person to the land, rent or advowson, for the recovery whereof such entry, distress, action or suit respectively might have been made or brought within such period*, shall be extinguished.' This mode of acquisition, sometimes called 'acquisitive Prescription,' must be carefully distinguished from 'ex- tinctive Prescription,' or the ' Limitation of actions,' which, as will presently appear, causes not a transfer of a right, but merely the loss of a remedy. 2. The right is obtained without an act of possession by: Without (a) 'Accession,' when the owner of the principal object gjon. becomes also owner of its accessory '. • Settled by Justinian, Inst. ii. i. 34. ' I. e. afi a rule twenty years, which period has been reduced by 37 & 38 Vict. c. S7 to twelve years. ' It may be worth while to observe that ' accessio ' in Latin is not the name of a title, but signifies the accessory thing. Of. Dig. xxxiv. 2. 19. 13. 2l6 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. Immoveables may accede, or adhere, to immoveables, as is the case when soil is carried from one bank of a river to another, 'alluvio,' 'avulsio'; or an island is formed, 'insula nata,' and is divided between the riparian pro- prietors, or assigned to him to whose land it is nearest; or a river leaves its bed, ' alveus derelictus,' which is then shared by the owners of the banks. Moveables may accede to immoveables. So beams and other objects fastened into a house become part of it by ' inaediflcatio,' except so far as they come within the in- dulgence granted by the law of 'fixtures'; and trees and crops become inseparable from the soil in which they are planted by ' satio ' or ' plantatio ' ; in pursuance of the maxim ' quidquid plantatur solo cedit.' Moveables may accede to moveables, as an embroidery to a garment. On the other hand, ' proprietas totius navis carinae causam sequitur '.' The rule and the exceptions to it were discussed by the Romans under the heads of ' scriptura,' ' pictura,' ' partus ancillae,' ' adiunctio.' (/3) 'Confusio' and 'commixtio,' which usually produce j oint-owner ship. Derivative 2. Derivative acquisition may take place inter vivos or tion. upon death. In the former case, it is often described as ' alienation,' or ' conveyance,' and implies in Roman law the concurrence both of the alienor and the alienee. 'In omnibus rebus quae dominium transferunt, concurrat oportet affectus ex utraque parte contrahentium ''.' Such concurrence is a ' contract,' in the wider sense of that term, in which it has been defined as 'the union of several persons in a coincident expression of wiU by which their legal relations are determined ^ ' Derivative acquisition of ' Dig. vi. 1. 6i. ' Dig. xliv. 7. 55. As to English law, infra, chapter xii. " Savigny, Obligationenrecht, ii. p. 7. Kant defines contract, in the sense of conveyance, as 'Der Act der vereinigten WlUkuhr zweier DERIVATIVE ACQUISITION. 217 single objects upon death takes place by legacy or by chap. xi. ' donatio mortis causa '.' Alienation inter vivos required, according to Roman law, not only the agreement of the parties, but also a delivery of possession, 'traditio.' ' Traditionibus et usucapionibus dominia rerum, non nudis pactis transferuntur.' On the other hand, a mere delivery, without a valid accompanying agreement, was not enough. 'Nunquam nuda traditio transfert dominium, sed ita si venditio, aut ahqua iusta causa, praecesserit, propter quam traditio sequeretur ''.' So in English law, the gift of a chattel, unless it be by deed, must be accompanied by delivery of possession, and ' livery of seisin' was essential to pass a freehold estate in land. In the older French law, 'pour qu'une obligation transmit la propriete, elle devait 6tre suivie de la tradition. Celui qui achetait une maison, par exemple, n'en devenait proprietaire que du moment ou la maison lui etait livree ; si eUe etait livree a une autre personne c'etait cette personne qui I'acquerait. L'obligation n'etait alors qu'un titre pour se faire donner la propriete ; le moyen d'acquerir cette propriete etait la tradition V As a general rule, however, in English, and, it seems, also in modern French law*, the alienation of specific property is effected as soon as the alienatory contract is complete. A purchaser who chooses an article in a shop becomes the owner of it from the moment that he has agreed with the shopkeeper upon the price °. Special formalities are, however, superadded to the consent of the parties in particular cases. Thus, according to the law of Personen, wodurch uberhaupt das Seine des Einen auf den Anderen tibergeht.' Rechtslehre, Werke, vii..p. 71. » Cod. 2. 3. 30. ' Dig. xli. I. 41. • Code Civil, expliqu6 par Rogron, art. 711. « Code Civil, 1583, Codice Civile, 1448. Scots law was modified in the same direction by 19 & 20 Vict. c. 60, and is now assimilated to English law by the Sale of Goods Act, 1893, ss. 17, 18. 6 Giimour v. Supple, 11 Moo. P. C. 566. 2l8 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. England, a grant of land must be under seal, and the assignment of a ship must be by bill of sale. On the continent the presence of a notary public is often needed to give validity to the act, or it has to be registered in a public office*. A determined effort has been recently made to establish a system of compulsory registration of . title in England ". Ulpian gives a list of the modes of acquiring phy- sical objects, some of which are pecidiar to Koman law. ' Singularum rerum dominia,' he says, ' nobis adquiruntur mancipation e, traditione, usucapione, in iure cessione, adiudicatione, lege °.' Intangible Such property as may be had in inventions and in works proper y. ^^ ^^^ j^ recognised by law only after compliance with certain formalities, which are intended both to bring to a test the merit of the inventor or artist, and at the same time to define the right for which protection is claimed. The inventor has in England to present a petition to the Crown and lodge a description of the alleged invention at a pubhc office. After a certain time has elapsed and opportunity has been given for objections to be made, letters patent are issued, granting to the petitioner the exclusive right of using his invention for fourteen years, a term which is sometimes extended. The patentee may by a registered deed assign his right, or may grant licences for the manufacture of the article to which it relates. What is described as ' literary and artistic property ' is in general acquired by producing and making public a work of literature or art, although till a copy of the work ' On Registration of Title in Germany and Austria-Hungary, see the Reports presented to Parliament in 1896 [c. 8139]. ' By the Land Transfer Act., 1897, 60 & 61 Vict. c. 65, amending the Act of 1875, registration on sale may be made compulsory in any county or part of a county by Order in Council, unless the making of such Order is opposed as provided. An Order in Council has accordingly been made which on January i, 1900, took effect throughout the county of London. ' Reg. xix. 2; of. Varro, de R. R. ii. 10. DERIVATIVE ACQUISITION. 219 has been deposited or registered in a public office, the law chap. xi. in most cases gives it no protection. A copy-right is allowed not only in books, paintings, and sculpture, but also in architecture, casts, engravings, drawings, photographs, and designs for articles, whether of ornament or utility. And the right may be assigned. A trade-mark is acquired by use followed by registration, and is capable of assignment. The law of many countries will recognise foreign patents, copy-rights and trade- marks ; and treaties are made to arrange the conditions under which this favour will be granted.' A franchise can be acquired only by royal grant, actual or presumed, and may be assigned by deed. Those complex masses of rights and duties which are Complex sometimes treated as property, grow up gradually round rights and a man as a result of the various circumstances of his life. *^"*'^^- They are transferred from him, so far as they are capable of transfer, by some form of universal succession ^ Besides the ' dispositive facts ' which are thus proper to Disposi- each species of property, there are others of quite general of general application. These are either ' voluntary,' or ' involuntary,' app^ica- i. e. they are the result of the act of at least one of the parties concerned, such as purchase, or gift, or testament, or are the result of causes external to the parties, such as the decision of a Court, or the operation of a rule of law upon a given set of circumstances, such as bankruptcy, marriage, or proximity of relationship. It is hardly necessary to observe how large a space is occupied in every system of law by the definition of the right to succeed to property enjoyed by the various classes of heirs ' E. g. a Convention for an ' International Union for the protection of Industrial Property' was signed at Paris, on behalf of a number of Powers, 20 March, 1883. Great Britain acceded to it 17 March, 1884. Her accession to a Convention for an ' International Union for the pro- tection of Literary and Artistic Works,' signed at Berne, 9 September, 1886, was followed by the International Copyright Act, 1886, now super- eeded and repealed by the Copyright Act of 1911. * Supra, p. 160. 220 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. and next of kin, and how comparatively modem is the right to defeat the expectations of such persons by leaving the property away from them by will. Divesti- tive facts. Modes of owner- ship. As something has been said in a former chapter of ' divestitive facts ' generally \ it may be sufficient to add here that property of all kinds is lost not only by the death of its owner, but also by his ceasing to enjoy legal recognition as a person ; a consequence which, under some systems, follows from 'entering into reUgion,' from con- viction of serious crime, from outlawry, and generally from causes which produce forfeiture". It may also be lost not only by the various forms of alienation, but by abandonment. It is of course lost by the destruction of the object owned. The modes of acquiring and losing ownership vary, it need not be said, with the progress of civihsation, the tendency of which is generally towards their simplification. The attention of the student of Jurisprudence should be mainly directed to those modes which he finds to be more ' constant ' than the rest, most of which were recognised by the Romans as being institutes of the ' ius gentium '.' Ownership may be exclusive, or enjoyed in common with others, 'condominium.' In the latter case, either each of the co-owners may have a quantitative share in the property, as is the .case with English tenants-in- ' Cf . supra, p. 159. ' Cf. supra, p. 96 n. 1. ' It may perhaps be worth while to compare with what has been said in the text the classification of the titles to property (things) which was proposed by Bentham. He reduces them to the following heads: — I. Actual possession; 2. Ancient possession in good faith ; 3. Possession of the contents and produce of land; 4. Possession of what land supports and of what it regeives ; 5 . Possession of adjacent lands ; 6. Ameliorations of one's own property; 7. Possession in good faith with amelioration of another's property; 8. Exploration of mines in the land of anotlier; 9. Liberty of fishing in great waters; 10. Liberty of hunting upon unappropriated grounds; 11. Consent; 12. Succession; 13. Testament. Traits, par Dumont, t. i. p. 276. lURA IN RE ALIENA. 221 common, or no quantitative shares may be recognised, chap, xl as in the Indian village communities. In some systems a distinction is drawn between the strictly legal, and the beneficial, ownership of one and the same object, a distinction expressed in English law by the terms 'legal' and 'equitable,' and in Roman law by ' Quiritarian ' and ' Bonitarian,' property. One or more of the subordinate elements of ownership, lura in re, aliena. such as a right of possession, or user, may be granted out while the residuary right of ownership, called by the Romans 'nuda proprietas,' remains unimpaired. The elements of the right which may thus be disposed of without interference with the right itself, in other words, which may be granted to one person over an object of which another continues to be the owner, are known as 'iura in re aliena V The permanently important species of such rights are Classifica- ' Servitude' and 'Pledge.' Two others, 'Emphyteusis' and ' Superficies,' were peculiar to Roman law, and may therefore be dismissed in a few words. 'Emphyteusis' was the right of a person who was notEmphy- the owner of a piece of land to use it as his own in per- petuity, subject to forfeiture on non-payment of a fixed rent ('canon') and on certain other contingencies. The position of the ' emphyteuta ' presents obvious analogies to that of a feudal tenant or an Indian ryot. 'Superficies' was the right which one person might have, in perpetuity or for a very long term of years ^ over a building which. • For some interesting remarks upon the advantages derived from a recognition of such 'iura,' see Sohm, Institutes, Transl., p. 157. * In the latter case, paying a 'solarium.' The 'superflciarius' has not only detention of the buildings, but quasi-possession of the right over them, which is protected by interdicts. Dig. xliii. 18. i. The 'Chijo- ken' (translated 'superficies') of the Japanese Civil Code, arts. 265-269, defined as 'the right to use another person's land for the purpose of owning thereon structures or plantations of trees or bamboos,' is a right 222 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. having been erected on the land of another person, became, upon the principle 'quidquid inaedificatur solo cedit,' the property of the owner of the land, Servi- We have seen that the rights of the owner of a given piece of property sometimes involve a restriction on the rights of others to do what they will with their own. Thus the owner of land unburdened by buildings is said to have a 'natural right' that no excavation shpJl be carried on either under it or so near to it as to cause it to fall away. He has also a ' natural right ' that a stream which reaches his land shall not be intercepted in its course through the land of his neighbour \ Tlie earliest ' servitudes ' seem to have been artificial ex- tensions of such natural rights. They derive their name from imposing a sort of subjection upon the landowner whose rights they restrict in favour of his neighbour; or rather upon the plot of land itself in favour of the neighbouring plot, for it is said, ' non personae sed praedia debent ^' The land which benefits by a servitude is called the 'praedium dominans,' 'dominant tenement': the land which is burdened with it is the 'praedium serviens,' 'servient tenement.' These Servitudes, since they exist not for the benefit of any individual as such, but as giving increased value to a given piece of land, are called 'real,' 'praedial,' or 'appurtenant.' A later recognition seems to have been given to the class of servitudes described, by way of contrast, as being 'personal,' or the duration of which, if not fixed by the parties, nor terminated by the superficiary, may be fixed by a Court at not less than twenty or more than fifty years. The dissatisfaction of foreign holders of perpetual leases at being registered as ' superficiarii ' led to diplomatic correspondence in 1903. ' The French Code, art. 639, includes these rights under 'Servitudes,' or ' Services fonciers ' ; enumerating, among the ways in which servitudes may arise, ' de la situation naturelle des lieux.' ' Dig. viii. 3. 34. Cf. ib. i. 15. SERVITUDES. 223 ' in gross,' which may be enjoyed by an individual, as chap. xi. such, irrespectively of the ownership of land. A right analogous to servitude, though not reducible to either of these classes, is that which, in English law, the in- habitants of a given place may have, by custom, to go upon a neighbouring piece of land at certain times for a given purpose, e. g. to hold horse-races or to dance on the green \ A Servitude has been defined as 'a real right, consti- tuted for the exclusive advantage of a definite person or definite piece of land, by means of which single discretionary rights of user in the property of another belong to the person entitled V Certain characteristics applicable chiefly to real servi- tudes, and for the most part easily deducible from what precedes, are summed up in the following passages from the Roman law : — * Servitutum non ea natura est, ut aliquid faciat quis, sed ut aliquid patiatur aut non faciat '.' ' Nulli res sua servit V ' Servitus servitutis esse non potest V Servitudes may be classified in various ways. They may Classifica- be ' positive,' consisting ' in patiendo,' or ' negative,' consist- '°°" ing ' in non faciendo ' ; ' continuous ' or ' discontinuous ' ; 'rural' or 'urban'; 'apparent' or 'non-apparent.' Their most important division is, however, into 'real' and ' personal ^' ' Cf. Mounsey v. Ismay, 3 H. & C. 486. According to recent views, such customs are a survival of the old common use of the lands of a town- ship, rather than an intrusion on the rights of the lord. Cf. Pollock, Land Laws, p. 39; Wanoick v. Queen's College, Oxford, L. R. 10 Eq. 105. 2 Von Vangerow, Pandekten, iii. § 338. ' Dig. viii. I. 15. As to the one exception to this rule, see Dig. viii. 5. 6 and 8.; viii. 2. 33. < Dig. viii. 1. 16. ' lb. viii. 3. 33. i. ' 'Servitutes aut personarum sunt, ut usus et ususfruotus; aut renun, ut servitutes rusticonun praediorum et urbanorum.' Dig. viii. i. i. 224 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. Real Ser- vitudes. Profits. Ease- A real servitude is defined in the French Code as ' une charge imposee sur un heritage pour I'usage et I'utilite d'un heritage appartenant a une autre personne*.' Such servitudes may be divided, although the distinction is unknown to Roman law, or French, into what are techni- cally described, in the language of EngUsh law, as ' profits a prendre' and 'easements.' A right of the former kind imphes that the owner of the dominant tenement is entitled to remove certain tangible objects from the servient tenement. Of this kind are the English rights of 'common of pasture,' 'of piscary,' 'of turbary,' i. e. of digging turves, 'of estovers,' i. e. of cutting wood^. These, like the Roman 'iura pascendi,' 'calcis coquendae,' 'harenae fodiendaeV are aU for the benefit of agriculture. Of a somewhat different character are rights of 'common in the soil,' e. g. of quarrying, or digging for coal or minerals. That species of real servitude for which Roman law has no distinguishing name, but which English law calls an Easement, is defined in an ancient work of authority as 'a privilege that one neighbour hath of another, by writing or prescription, without profit, as a way or sink through his land, or the like \' The more important easements are rights of way, to the use of water, to the free reception of light and air^ to the support of buildings ^ The Roman distinction • Code Civil, Liv. ii. tit. 4, 'Des Servitudes et Services Fonciers.' ' A right to go on another's land to draw water is not a profit. ' ' Inst. ii. 3. 2; Dig. viii. 3. 1-6, 24. * Termes de la ley, p. 284. This definition would however be mislead- ing without explanation. See Goddard on Easements, p. 2. ' Now held by the House of Lords to be a right of enjoyment, not of property, infringed only when the obstruction amounts to an actionable nuisance. Colls v. Home & Col. Stores, [1904] A. C. 179. Cf. JoUy v. Kine, [1907] A. C. i. ' The doubt which was entertained as to the possibility of gaining a right by prescription to lateral support from land for land as burdened REAL SERVITUDES. 225 between ' rural ' and ' urban ' servitudes, as to the precise chap. xi. meaning of which more has perhaps been written than was necessary, turned upon the general suitability of the right for the enjoyment of land or of buildings respectively. English law wiU not allow of the creation of an easement of a kind hitherto unknown'. The list of analogous servitudes in Roman law was more elastic, and the French Code lays down that 'il est permis aux pro- prietaires d'etablir sur leurs proprietes, ou en faveur de leurs proprietes, telles servitudes que bon leur semble, pourvu neanmoins que les services etablis ne soient imposes ni a la personne, ni en faveur de la personne, mais seule- ment a un fonds et pour un fonds, et pourvu que ces services n'aient d'aOeurs rien de contraire a I'ordre public V Some things are too trivial to be the object of a servi- tude. So in EngUsh law there can be no easement of a fine view. 'For prospect,' it is decided, 'which is a matter of delight and not of necessity, no action lies for stopping thereof'.' Roman law was more indulgent to the pleasures of the eye*; although it refused to reckon among servitudes a right to gather apples, or to take a stroll, or to picnic, in the grounds of one's neighbour '. Real servitudes are usually acquired by grant, testament, or prescription. They may terminate in consequence of express release, of abandonment, or of a union of the ownership of the dominant and servient tenements. Rights of enjoyment exercisable by a given individual. Personal as such, over the property of another, are ' personal servi- tudes" tudes'.' They may be imposed upon moveable as well as by buildings has been set at rest by Angus v. Dalton, L. R. 6 App. Ca. 740. A similar right to lateral support from buildings was allowed in Lemaistre v. Davis, L. R. 19 Ch. D. 281. I Keppel V. Bailey, 2 My. & K. 535. ' Code Civil, art. 686. ' Aldred's Case, 9 Rep. 576. ♦ Dig. viii. 3. 15, 16. s lb. viii. I. 8. • 'Servitutes aut personarum sunt . . . aut rerum.' Dig. viii. i. i. Such servitudes, as being imposed upon a thing in favour of a person, 1930 Q 226 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. immoveable property ; not only upon lands, but also upon cattle, furniture, and slaves. 'Profits a prendre' may similarly, according to English law, be enjoyed by an individual, apart from his ownership of land ; but an easement, according to the modern defini- tion of the right which identifies it with a real servitude, can never be thus ' in gross \' Use. The Romans distinguished two grades of such rights. The lower, ' usus,' implied in strictness a user of the object itself, without any advantage from the products of the object. Usufruct. They defined the higher, ' ususf ructus,' as 'ius alienis rebus utendi fruendi salva rerum substantia'; and allowed to the ' fruetuarius ' rights of enjoyment of the object and its products, which, as long as they lasted, excluded that of the owner. In several modern systems of law, the grant of a usufruct answers the purpose which is attained in English law by the creation of a life interest. When an English testator gives to A a life estate with remainder to B, a Frenchman would leave the property to B subject to a 'usufruit' to A for life''. The Scots 'life-rent' in heritable objects or money, of which ' terce ' and ' curtesy ' are species, is of the same nature °. The servitudes recognised by Roman law under the names ' Habitatio ' and ' Operae servorum et animalium ' were somewhat abnormal species of ' usus.' ■were called by the mediaeval jurists ' mixed,' to distinguish them alike from Teal servitudes,' which are imposed upon a thing in favour of another thing, and from ' personal servitudes,' which, according to this terminology , are imposed upon a person, a slave, for the benefit of another person, his master. * See per Lord Cairns C, in Rangeley v. Midland Railway Co., L. R. 3 Ch. Ap. 306. * The French Code is so careful to prevent any revival of prae-revolu- tionary ideas, that it avoids recognising ustifruct or any other rights aa 'personal servitudes.' The same feeling dictated art. 638, 'La servitude n'6tablit aucune preeminence d'un heritage sur I'autre'; and art. 686, against the imposition of servitudes 'ni & la personne ni en faveur de la personne.' ' Ersk. Inst. ii. 9. § 40. PERSONAL SERVITUDES. 227 A personal servitude, as originally conceived of, could chap. xi. be enjoyed only over things which 'usu non consumuntur,' ^^^^^^.^^ and which would therefore be capable, on the termina- tion of the right, of being handed over to their proprietor in as good condition as they were in when received. A flock was, for this purpose, regarded as an ideal whole, capable of being restored as such, although the usufruc- tuary had replaced some of the individual sheep by new ones ; but wine, corn, dresses, and even money, since no use could be made of such objects without destroying or spending them, were not allowed to be susceptible of usufruct. A ' quasi-usufruct ' of such things was, however, authorised by a Senatus-consultum under the early Empire ; 'not that this enactment created a usufruct, properly so called,' says Gains, *for the Senate is powerless to vary natural reason, but a quasi-usufruct was introduced when an action was given for its protection '.' The usufructuary of perishable things has to give security that the proper quantity, or amount, of them shall be forthcoming at the proper time; and with this safeguard the principle of the later Roman law is adopted in the French Code. By art. 581, 'I'usufruit peut fetre etabli sur toute espece de biens, meubles ou immeubles.' The rights of a usufructuary, or other person enjoying analogous advantages over property which after his life- time, or at some otherwise determined epoch, will pass to another person, whether such other person be called the ' proprietaire,' or the 'remainder-man,' follow from the nature of the case. They may vary in detail under different systems of law, but the object of all systems is to give to the person who has the immediate interest in the property such advantages from it as are not in- consistent with the interests of the persons who will be entitled to it ultimately. Acts which are detrimental ' Dig. vii. S- 2. Cf. Inst. ii. 4. a. 228 PRIVATE LAW: RIGHTS 'IN REM.' to such expectant interests are sometimes described in English law as 'injury to the reversion.' A usufruct is an interest for life, or for a less period. Roman law did not allow it to be granted to a corporation for more than a hundred years, a period which is reduced in the French Code to thirty \ The usufructuary is entitled to the 'fruits' of the property ; whether ' natural,' as brushwood and the young of animals, 'industrial,' as crops and vintages, or 'civil,' as rent of land and interest of money. He has, in general, to exercise the right ' en bon pere de famille V The right may be left by will or granted inter vivos. It is some- times implied by law. So in France parents have the usufruct of the property of their children till they attain the age of eighteen'. It may be let or alienated. It comes to an end with the death of the usufructuary, or other termiuation of the period for which it was granted, with the destruction of the property over which it is enjoy- able, and with a ' consolidatio ' of the title of the proprietor with that of the usufructuary. It may also be forfeited by ^vrongful user, or by non-user. Real- las ten. Certaiu rights known to German law as ' Reallasten ' resemble servitudes, because they impose a duty upon a given piece of land. They are not servitudes, because the duty consists 'in faciendo.' A 'Reallast' is defined as 'a duty attached to a piece of land of periodically performing positive acts.' The owner of the land for the time being is bound to perform these acts, 'homo dat, sed fundus debet.' Of such a nature are the payment of ground-rent, the maintenance of dykes and sluices, * Deich- und Sielrecht,' and many feudal incidents. ' Code Civil, art. 619. ' As to the right of a usufructuary, and a life-tenant, to cut great timber, see per Bowen L. J. in Dashioood v. Magniae, [1891] 3 Ch. 307. » Code Civil, art. 3S4. PERSONAL SERVITUDES. 229 Another class of rights which somewhat resemble servi- chap. xi. tudes are those which are enjoyed by licencees. But a^^^^^'^^- 'licence,' as has been authoritatively stated, 'passeth no interest, nor alters, or transfers property in anything, but only makes an action lawful which without it had been unlawful'.' A canal company granted to one Hill the exclusive right of putting pleasure-boats on their canal. Another person having put boats there was sued by Hill, on the ground that, as the owner of an estate may grant a right to cut turves, or to fish or hunt, there was no reason why he should not grant such a right as that in question. The Court however held that no such right could be given. 'A new species of incorporeal heredita- ment cannot,' it was laid down, 'be created at the will and pleasure of the owner of property, but he must be content to accept the estate and the right to dispose of it subject to the law. A grantor may bind himself by covenant to allow any right he pleases over his pro- perty, but he cannot annex to it a new incident so as to enable the grantee to sue in his own name for an infringement of such a limited right as that now claimed ^.' The 'iura in re aliena' which have hitherto been con- pledge, sidered are given with a single purpose. Their object is to extend the advantages enjoyed by a person beyond the bounds of his own property. But there is also a right of the same class which is given, not with this object, but for the merely subsidiary purpose of enabling the person to whom it is granted to make sure of receiving a certain value to which he is entitled; if not otherwise, 1 r^omasv. SorreH, Vaughan, 351. The license granted by the sale of a ticket of admission to a place of entertainment includes a contract not to revoke it, unless for misbehaviour. The old common law requirement of a contract under seal to produce this result is no longer in force since the Judicature Act, 1873, and a wrongfully ejected licencee is entitled {dubi- tante Phillunore L. J.) to damages for the assault. Hurst v. Picture Thea- tres, Ltd., [1915] I K. B. I (C. A.), overruling Wood v. LeadbiUer, 13 M. & W. 838. ^ 2 Hill V. Tupper, 2 H. & C. 121. 230 PRIVATE LAW: RIGHTS 'IN REM.' CHAt. SI. then at all events by means of tlie right in question. The other rights 'in re aliena* enable the person entitled to them to enjoy the physical qualities of a thing. This right, which is known as Pledge, merely enables a person who is entitled to receive a definite value from another, in default of so receiving it, to realise it by eventual sale of the thing which is given to him in pledged The right of sale is one of the component rights of ownership, and may be parted vnth separately in order thus to add security to a personal obligation. When so parted with, it is a right of pledge, which may be defined as 'a right w rem, realisable by sale, given to a creditor by way of accessory security to a right in personam! It follows from this definition that the pledge-right sub- sists only as long as the right 'in personam* to which it is accessory^; that the right extends no further than is necessary for the sale of the thing pledged, not to its use or possession ; and that the reaUsation of the value of the thing by sale puts an end to the title of the original owner. The thing pledged need not be the pro- perty of the person who is Hable personally. Although it is usually a physical object, it may also be a 'ius in re aliena,' including even a right of pledge, or a right 'in personam,' in which last case the realisation of its value may take place rather by receipt of payment than by sale'. Purposes The objects aimed at by a law of pledge are, on the one hand, to give the creditor a security on the value of which he can rely, which he can readily turn into money, and which he can follow even in the hands of ' On the comparative law of Pledge, see Prof. J. H. Wigmore, in Harvard L. R. x. pp. 321, 389; xi. p. 18. ' This right need not arise out of contract, and it may consist in what is called a ' natural ' obligation , a term which will be explained hereafter. ' In "order to cover these possible varieties of objects. Pledge has been defined as ' das Recht an fremden Rechtsobjecten, sich ihren Werth in Gelde (durch Verkauf oder auf andere Weise) zur Befriedigung einer Forderung zu verschafPen.' Holtzendorff, Encyclopadie, Erster Theil, p. 311. PLEDGE. 231 third parties; on the other hand, to leave the enjoy- chap. xi, ment of the thing in the mean time to its owner, and to give him every facility for disencumbering it when the debt for which it is security shall have been paid. The methods by which these objects can best be attained, Varietiea and the degree in which they are attainable, must vary to some extent with the nature of the thing pledged. Probably the rudest method is that which involves an actual transfer of ownership in the thing from the debtor to the creditor, accompanied by a condition for its re- transfer upon due payment of the debt. Such was the 'fiducia' of the older Roman law, such is the Scotch Mortgage, wadset, and such is the English mortgage, of lands or goods, at the present day, except in so far as its theory has been modified by the determination of the Court of Chancery and of the Legislature to continue, as long as possible, to regard the mortgagor as the owner of the property.' Lord Mansfield was unsuccessful in attempt- ing to induce the Courts of Common Law to take the same view^ Another method, which must always have been practised. Pawn. is that in which the ownership of the object remains with the debtor, but its possession is transferred to the creditor '. This was called by the Romans ' pignus V As a rule the creditor cannot make use of the thing which is thus in his custody. If he is to take its profits by way of interest, the arrangement is called 'antichresis.' He had originally no power of sale without express agreement, but this became customary, and was at least presumed. ■ In vimim vadium, or Welsh mortgage, the creditor repays himself out of the profits of the property, which then reverts to the debtor. Bl. 2 Comm. iS7, but see Fisher, Mortg. § 13. In mortuum vadium if the debt be not paid by the time fixed, the property becomes absolute in the mortgagee, except that, by the intervention of the Court of Chancery, the mortgagor is still allowed during a further period an 'equity of redemption.' ' See Eaton v. Jacqiies, Doug. 4SS' • Though he may sometimes receive it back again to hold ' preoario.' • Ital. 'pegno,' Fr. 'gage,' Germ. ' Faustpfand,' Engl, 'pawn.' 232 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. A ' pignus,' or pawn, may result from the execution of a judicial sentence, ' ob causam iudicati pignoris iure teneri ac distrahi posse saepe rescriptum est^'; but more frequently arises from a contract, which under some systems must be in writing ^ The trade of lending money upon pledge is frequently placed under legislative restrictions, such as the Pawnbrokers' Acts in England, and the laws regulating ' Monts de Piete ' in some countries of the Continent. Lien. Another right which, like pawn, depends upon the possession of an object, is not dissimilar to it. Vendors of property, persons who have expended work and labour on goods, and others, are said to have a 'lien' on the property so long as they are stUl m possession of it; that is to say, they have a right of retaining it in their possession till their claims in respect of it have been satisfied. Lien must be allowed to be a real right, in so far as redress may be had against any one interfering with it ' ; but, as has been said by Lord Chief Justice Cockburn, 'a lien is a mere right to retain possession of a chattel, and which right is immediately lost on the possession being parted with. In the contract of pledge the pawnor invests the pawnee with much more than this. He is invested with a right to deal with the thing pledged as his own if the debt be not paid and the thing redeemed at the appointed time *.' Hypothec, Yet another mode of creating a security is possible, by which not merely the ownership of the thing but its possession also remains with the debtor. This is called by the Roman lawyers and their modern followers 'hypotheca.' Hypothecs may arise by the direct applica- ' Cod. viii. 23. ^. ' C!ode Civil, art. 2074; Codice Civile, art. 1878. ' The person enjoying it could maintain Trover. * Donald v. Suckling, L. R. 1 Q. B. 612. HYPOTHEC. 233 tion of a rule of law, by judicial decision, or by agree- chap. xi. ment. Those implied by law, generally described as ' tacit Tacit, hypothecs,' are probably the earliest. They are first heard of in Roman law in connection with that right of a landlord over the goods of his tenant, which is stiU weU known on the Continent and in Scotland under its old name, but in England takes the form of a right of Distress I Similar rights were subsequently granted to wives \ pupils, minors °, and legatees ^ over the property of husbands, tutors, curators, and heirs respec- tively ^ The action by which the praetor Servius first enabled Conven- a landlord to claim the goods of his defaulting tenant in order to realise his rent, even if they had passed into the hands of third parties, was soon extended so as to give similar rights to any creditor over property which its owner had agreed should be held liable for a debt. A real right was thus created by the mere consent of the parties, without any transfer of possession, which, although opposed to the theory of Roman law, became firmly established as applicable both to immoveable and moveable property'. Of the modern States which have adopted the law of hypothec, Spain perhaps stands alone in adopting it to the fullest extent. The rest have, as a rule, recognised it only in relation to immoveables. Thus the Dutch law holds to the maxim 'mobilia non habent sequelam,' and the French Code, following the coutumes of Paris and Normandy, lays down that 'les meubles n'ont pas de suite par hypothSque '.' But by • Which however implied no power of sale till 2 W. & M. sess. i. c. 5. ' Cod. V. 14. II. ' Dig. xxvii. 9. 3. * Cod. vi. 43. i. ' As to similar rights for recovery of funeral expenses, wages of the servants of a deceased person, &c., see Code Civil, arts. 2101, 2107. ' On the difference between 'pignus' and 'hypotheca,' see Dig. xiii. 7. 9. § 2;1. 16. 238. ' Code Civil, art. 2 119; of. Codice Civile, art. 1967. 234 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. Judicial. Registra- tion. the 'Code de Commerce,' ships, though moveables, are capable of hypothecation*; and in England what is called a mortgage, but is essentially a hypothec, of ships is recognised and regulated by the 'Merchant Shipping Acts,' under which the mortgage must be recorded by the registrar of the port at which the ship itself is registered I So also in the old contract of 'bottomry,' the ship is made security for money lent to enable it to proceed upon its voyage. Property may sometimes become subject to a hypothec by a judicial sentence. So under the older French law'; but under the Code, the judgment must be entered upon the register of ' hypotheques *.' An English judgment has analogous effects, but must be registered. According to Roman law, no real right was gained over the property till judgment had been followed by execution, L e. till possession of it had been gained by the creditor ^ A hypothec presents this great convenience, that it effects no change of ownership and leaves the debtor in possession. It labours under the disadvantage of easily lending itself to a fraudulent preference of one creditor over another, since it may be effected by an agreement of the parties concerned without the knowledge of any one else. It is also diflBcult for the creditor to whom the property is offered as security to make certain that it has not been already encumbered. The system of 'Registration,' 'Inscriptions,' or 'Hypo- thekenbiicher,' now general upon the Continent, has obviated these evils °. Every hypothec, in order to have any effect, must be entered by the proper oflBcer, and remains valid tiU it is removed from the register. Should ' Art. 190. » 17 & 18 Vict. c. 104. ' Pothier, Hypoth. c. i. art. 2. * Art. 2134. • Cod. viii. 23. i. ' They were inefFectually attacked by a constitution of the Emperor Leo, Cod. viii. iS. 11. HYPOTHEC. 235 a sale become necessary, this can no longer be effected by chap. xi. the creditor, but must be authorised by the Court. Mortgage shares with hjrpothec the disadvantages which result from secrecy; and, so far as relates to land, it is notorious that all attempts to establish in this coimtry a ' register of enciimbrances ' have hitherto failed '. Mort- gages of chattels, effected by an instrument called a Bill of Sale, which is in effect an assignment subject to a conditional right to call for a re-assignment, although not accompanied by a delivery of possession, were, till recently, good as against other creditors, unless fraudulent". A hotel -keeper might, for instance, mortgage the furniture of the hotel, arranging that it should remain in the house, so that he might continue to carry on the business. Since the year 1854 it has, however, been necessary that the Bill of Sale should be duly registered*. Since one object may be successively pledged to several Privileges, creditors, it becomes necessary to fix the order in which they may resort to the security. The obvious rule would be expressed by the maxim 'qui prior est tempore potior est iure'; and it seems to have been adopted in Roman law, to the extent of disregarding all considerations other than chronological order, even as between a creditor who had actual possession of a 'pignus'and one who enjoyed merely a 'hsrpothecaV ^ E. g. 25 & 26 Vict. c. S3- ' In which case they are void by 1 3 Eliz. c. 5, and under the Bankruptcy laws. ' By 17 & 18 Vict. c. 36, which recites that 'frauds are frequently committed upon creditors by secret bills of sale of personal chattels, the holders of which have the power of taking possession of the property to the exclusion of the rest of their creditors' ; and defines ' Bill of Sale' so as to include 'assignments, transfers, declarations of trust without transfer, or other assurances of personal chattels, and also powers of attorney, authorities or licences to take possession of personal chattels as security for any debt.' These provisions were repeated and extended in the ' Bills of Sale Act,' 1878, amended by subsequent Acts, * Dig. XX. I. 10. 236 PRIVATE LAW: RIGHTS 'IN REM.' To this rule a number of exceptions were made, called in later law ' privileges,' whicli took precedence irrespectively of date '. According to modem systems a pledge-holder with possession has a 'privilege^'; but the distinction between ' privileges ' and other securities has almost disappeared with the introduction of the system of regis- tration, according to which each charge takes rank only in accordance with the order in which it is entered. The English equitable doctrine of ' tacking ' introduces another exception to the chronological ranking of securities, by uniting securities given at different times, so as to prevent any intermediate purchaser from claiming a title to redeem, or otherwise discharge, one lien, which is prior, without redeeming or discharging the other liens also, which are subsequent to his own title \ Transfer and termi- nation. A security is usually transferable only together with the claim to which it is accessory. The right terminates by discharge of the claim to which it is accessory; by being released; by destruction of the thing pledged; by the creditor becoming owner of the thing ; or, if the right was limited in duration, by efflux of time *. Under a system of registration, it is further necessary that the charge be removed from the books. Immunity from Fraud. VI. But one more antecedent right 'in rem' remains for consideration. It differs essentially from those already described, in that while they are infringed only by acts done against the wiU of the person of inherence, this is infringed while the person of inherence is a consenting party to his own loss. It is the right not to be induced ' See Code Civil, Liv. iii. tit. 18, 'Des Privileges et HypotMques.' A Privilege is defined in art. 2093- ' lb. art. 2073; Codiee Civile, art. 1958. 4. ' Story, Equity Jurisprudence, § 412. • Cf. Code Civil, art. 2180. IMMUNITY FROM FRAUD. 237 by fraud to assent to a transaction which causes one chap, xi, damage. Its nature will be best understood from an examination of the nature of the act by which it is violated. Fraud may be said to be the intentional deter- mination of the will of another to a decision harmful to his interests by means of a representation which is neither true nor believed to be true by the person making it'. The essentials of a fraudulent representation, according Fraudu- to English law, are that it is (i) untrue in fact, (2) made pjesenta- with knowledge of its untruth, or without belief in its*'°°^- truth, or with recklessness as to its truth or falsehood, (3) made for the purpose of inducing another to act upon it''. It seems not to be material that the maker of the statement should know it to be untrue, or should have an interest in its being acted on, or have any wicked wish to injure. Nor need the statement be addressed specifi- cally to the person who suffers in consequence. So the directors of a company who, for the purpose of selling shares, publish fraudulent representations, may be sued by any one who, having been induced thereby to take shares from the company, has lost money '. On the question of knowledge, it has been laid down that 'if a man, having no knowledge whatever upon the subject, takes upon himself to represent a certain state of facts to exist, he does so at his peril, and if it be done either with a view to secure some benefit to himself, or to deceive a third person, he is in law guilty of a fraud : for he takes upon himself to warrant his own belief of the truth of that which he asserts. Although the person ' 'Dolus malus' is defined by Servius, 'machinatio quaedam alterius decipiendi causa, cum aliud simulatur et aliud agitur ' ; by Labeo, ' omnia calliditas.fallacia, machinatio ad circumveniendum.fallendum.decipien- dum, alterum adhibita.' Dig. iv. 3. 1. ' Such a representation, apart from contractual relations, was first recognised as actionable in Pasley v. Freeman (1789), 2 Sm. L. C. 74. » Aliter if the shares are bought in the market. Peek v. Gurney, L. R. 6 H. L. 377. 238 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. making the representation may have no Icnowledge of its falsehood, the representation may, nevertheless, have been fraudulently made ' '. A recent attempt to carry still further the responsi- bility for false statements has not been successful. The question raised was whether absence of reasonable ground for maiding a false statement which causes damage is in itself 'legal fraud,' or is only evidence from which an absence of belief in the truth of the statement on the part of the person making it may be hif erred. In other words, whether the actual state of mind of the defendant is material, or whether it is enough if the statement be such as an ordinarily careful man in the defendant's position would not have believed to be true. The latter view was taken by the Court of Appeal in the case of Peek v. Derry^, but the decision was reversed by the House of Lords °, which has thus re-established the rule that no liability for deceit can arise upon a statement made with an honest belief in its truth *. It will be worth while to indicate some of the more usual forms of fraudulent representation. I. When a man fraudulently represents that he is the agent of another, whereby a third i)arty suH'crs loss. For instance, a person pretends that he has aullioiiLy to order goods for another, and tlie goods having bocsn supplied accordingly, and the alleged principal having repudiated the transaction, the tradesman has an action against the pretended agent". And this is so even if ' Evana v. Edmonds, 13 C. B. 777. Cf. Arkwright v, Newbold, 17 Ch. D. 320, ' 17 Ch. Div. S4i and in the subsequent American case, Chatham Furnace Co. v. Majfatl, 147 Mass. 403. ' 14 App. Ca. 337. • The view of the Court of Appeal was strenuously supported by Sir F. Pollock, L. Q. R. V. p. 410, that of the House of Lords by Sir W. Anson, lb. vi. p. 72. The decision of the House of Lords gave riNO to the Directors Liability Act, 1890. » Randall v. Trimen, 18 G. B. 786. The more usual remedy in such a IMMUNITY FROM FRAUD. 239 the allegation of agency be bona fide, for it is equitable chap. xi. that the loss, which must fall on some one, should fall on him who has brought it about by an untrue statement, believed and acted on as he intended it should be, as to which he gave the other party no opportunity of judging for himself. 2. When false statements are made in the prospectus of a Company, to the detriment of persons who are thereby induced to become shareholders. 3. When false statements are made as to the credit or honesty of third persons, such as customers or servants, whereby loss is occasioned to tradesmen or employers '. 4. When a man who has a wife living, pretending that he is single, induces another woman to marry him ^ 5. When a master, by show of authority, gets his servant to do an illegal act *. 6. When dangerous articles are knowingly bailed, with- out due notice to the bailee of their quality \ 7. An untrue warranty, knowingly superadded to a con- Warranty, tract of sale ', was at one time held to be actionable, whether or no the vendor was aware of its untruth ° ; but it is now well settled that no one is liable for a statement which he believes, and has reason to believe, to be true '. case is now upon the implied warranty of authority, Collen v. Wright, 7 E, & V. 301, 8 E. & B. 674; Oliver v. Bank 0} England, [1902] i Ch. 6io. Cf. Dig. iv. 3. 8. ' Pasley v. Freeman, u. 8. Such statements must by 9 Geo. IV. c. 14 be in writing. ' Anon. Skin. 119. Statements as to a woman's chastity, false to the knowledge of the defendant, who thereby induced the plaintiff to marry her, have been held to be an actionable injury to the plaintiff. Kujek V. Ooldman, 9 Misc. 34 (New York, 1894). ' Adamson v. Jarvia, 4 Bing. 72. * Williams v. E. I. Co., 3 East, 192. Cf. Longmeid v. Holliday, 6 Ex. 766. ' Cf. Dig. iv. 3. 37. On Warranties, v. infra, pp. 289, 309. " Williamson v. Allison (1802), 2 East. 446. ' Collins V. Evans (1844), in Ex. Ch., s Q- B. 820; Weir v. BeU, 3 Ex. D. 243. Peek v. Derry (1889), 14 A. C. 337. 240 PRIVATE LAW: RIGHTS 'IN REM.' CHAP. XI. When implied. Trade- marks. A warranty is of course often implied. The seller of goods distinguislied by a trade-mark implies that it has been rightfully affixed to them, and a purchaser who is tuduced to give a higher price for the goods than they would be worth without the trade-mark has an action for deceit'. The action given to the proprietor of the trade- mark is also sometimes said to be founded on the deceit, but it will probably be sufficient to refer to what we have already said upon this subject in order to show that this right is not a right to immunity from a perver- sion of one's will by means of a fraudulent repre- sentation ". • This is so even independently of the Trade-marks Acts. Cro. Jac. 471. * Supra, p. 212. It is submitted that not only are trade-mark cases, so far as the proprietor of the mark is concerned, mistakenly said to turn upon fraud, but that a similar error has been made in such cases aa Collins v. Evans, u. s., and BuUerly v. Vyse, 2 H. & C. 42. In the former of these, a person who misinformed a sheriff's officer as to the ownership of goods, whereby they were wrongfully taken in distress, was held liable 'for the deceit' to their owner. In the latter, a builder was allowed to get damages, 'for the deceit' against a person who had fraudulently prevented an architect from granting a certificate, which was necessary to enable the plaintiff to be paid for his work. CHAPTER Xn. PRIVATE LAW : EIGHTS ' IN PERSONAM.' Wb have now arrived at a point where our method The parts company with that of the Roman jurists and their ^opted. followers. Adopting as the radical distinction of rights that which depends upon the restricted or unrestricted character of the person of incidence, they oppose to rights 'in rem' the topic of ' Obligations,' under which one term are included all rights 'in personam,' whether prior to wrong-doing or arising out of it*. We have ventured to pursue a different course. Our radical distinction of rights turns upon their existing or not existing antecedently to wrong-doing. Reserving all rights of the latter kind for separate treatment, we are now engaged in the examination of antecedent rights only, and having dealt with such of those rights as avail 'in rem' against the whole world, have next to describe ' E.g.' obligamur aut re, aut verbis, aut simul utroque, aut consensui aut lege, aut iure honorario, aut necessitate, aut ex peccato.' Modestinus, in Dig. xliv. 7. 52. According to R. Zouche, 'causae ex quibus oritur obligatio sunt contractus, delictum et ofBcium. El. lurisprudentiae, iii. 18. Cf. the more familiar list of the sources of obligation given in Inst. iii. 13. 2. The German Civil Code, Bk. ii, follows here the method of the Institutes. 1950 II 242 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. XII. such of them as avail ' in personam ' against ascertained individuals '. It win be readily understood that our ' antecedent rights in personam' will correspond to the 'obligationes ex con- tractu' and 'quasi ex contractu' of Roman law, while the Roman law of 'obligationes ex delicto' and 'quasi ex delicto,' and of obligations arising from breach of contract, for which last there exists no technical Latin name, will correspond to the rights which we call 'remedial^.' The Con- Although we propose to distinguish thus broadly be- Oblig^° tween topics which are more usually grouped together tion. under the head of ' ObUgations,' we are none the less able to make full use of the admirable analysis of the ideas conveyed by that term, which has been so potent a factor in the history of legal speculation. ' Obligationum sub- stantia,' says Paulus in a well-known passage, * non in eo consistit ut aliquod corpus nostrum faciat, sed ut ahum nobis obstringat ad dandum ahquid vel faciendum vel praestandum V Still better known is the definition of ' obligatio ' as ' iuris vinculum, quo necessitate adstringimur alicuius solvendae rei, secundum nostrae civitatis iuraV In the fuller language of Savigny, an obUgation is 'the control over another person, yet not over this person in all respects (in which case his personality would be destroyed), but over single acts of his, which must be conceived of as ■ subtracted from his free-will, and subjected to our will ' ' ; or, according to Kant, ' the possession of the wUl of another, as a means of determining it, through my own, in accord- • Supra, pp. 144, 167. ' Mr. Bishop published in 1889, at Chicago, a work entitled 'Com- mentaries on the non-contract law,' which tennis explained to be equiva- lent to ' Obligationes ex delicto.' ' Dig. xliv. 7. 3. pr. On obligations as measurable in money, see Dig. xl. 7. 9. 2. * Inst. iii. 13. Cf. Ivoxll ^cti Sefffihs Sixaiov Si' oS ris ivayxiCerM Karet rb iiroft\6/iei'ov. Theoph. iii. 13. ' Obhgationenrecht, i. p. 4. Obligations are considered by Bentham under the title ' Rights to Services.' ^ OBLIGATIONS. 243 ance with the law of freedom, to a definite act *.' An chap. xii. obligation, as its etymology denotes, is a tie; whereby one person is bound to perform some act for the benefit of another. In some cases the two parties agree thus to be bound together, in other cases they are bound without their consent. In every case it is the Law which ties the knot, and its untying, ' solutio,' is competent only to the same authority. There are cases in which a merely moral A natural duty, giving rise to what is called a 'natural,' as opposed yonf*" to a 'civil,' obligation will incidentally receive legal re- cognition. So if a person who owes a debt pays it in ignorance that it is barred by the statutes of Hmitation, he wUl not be allowed to recover it back. The right which, looked at from the point of view of lura in the Law which imposes it, is described as an obligation, is described, from the point of view of the person of inherence, as a ' ius in personam.' The difference between a right of this kiad and of the kind discussed iu the preceding chapter is obvious enough. When a man owns an estate, a general duty is laid upon all the world to refrain from trespassing on his land. If he contracts with a landscape gardener to keep his grounds ia order for so much a year, then the gardener owes to the landowner a special duty, over and above the duty owed to him by all the world. If a surgeon is practising in a town, while there is a duty incumbent on all not to intimidate patients from resorting to him, or otherwise molest him in the exercise of his profession, there is no general duty not to compete for his practice. Any one may legally estabhsh a rival surgery next door. Suppose, however, that the surgeon has bought his business from a predecessor, who, in consideration of being well paid, has covenanted not to practise within twenty miles of the town in question. Here the predecessor, beyond ' Rechtslehre, Werke, vii. p. 70. Rs 244 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. xn. and above the duties owed by others to his successor, owes him the special duty of not competing with him by the exercise of his profession in the neighbourhood. In the cases supposed, the landowner and the practising surgeon have respectively rights 'in personam,' against the gardener and the retired surgeon, over and above the rights ' in rem ' which they enjoy as against everyone. Arise in Most frequently antecedent rights ' in personam ' arise, wavs"^ as in the above cases, out of the agreement of the parties. They are however often due to some cause with which the parties have nothing to do. In these cases, although the person of incidence has not undertaken a special duty to the person of inherence, yet the Law casts that duty upon him, as if he had so undertaken it. There is a hgeance between two individuals, although the chain that binds them was not linked by their own hands. Every one has, for instance, a right that public ministerial officers, such as sheriffs, registrars, or postmen, shall exercise their functions for his benefit when occasions arise entitling him to their services. SimUar rights 'in personam' are enjoyed against persons flUing certain private fiduciary positions, such as trustees, executors, administrators, and trustees of bankrupts. So also against persons who happen to enter into certain transitory relations with others, such as persons to whom money has been paid by mistake, or whose affairs have been managed by a 'negotiorum gestor.' Finally, against persons who occupy certain family relationships to others, e. g. against wives and children, and vice versa against husbands and parents. May be Antecedent rights ' in personam ' are divisible, according under two to the investitive fact to which they owe their origin, into heads. ^^q g^.^^^ classes. Such rights either arise or do not arise out of a contract. In the former case they are described as rights 'ex contractu.' In the latter case, since they arise from facts of various kinds to which it DOMESTIC. 245 pleases the Law to affix similar results, we shall describe chap, xii them as rights "ex lege'; and it wUl he convenient to consider the rights which arise thus variously before treating of those which arise solely from contract \ I. The rights which we describe as arising ' ex lege ' Ex lege, were described by the Roman lawyers as arising ' quasi ex contractu,' and more simply, 'ex variis causarum figurisV We propose to subdivide them into four classes, which we shall distinguish as i. the Domestic ; ii. the Fiduciary ; iii. the Meritorious; and iv. the Official, respectively. i. We have already discussed those rights ' in rem,' i. e. Domestic, against the outside world, which arise from the family relations, and have stated how such relations commence and terminate^; but from the same relations there arise also rights ' in personam,' i. e. of one member of a family against another. Rights of this sort are of a somewhat undefined character, and their corresponding duties consist often in life-long courses of conduct rather than in lists of acts capable of accurate enumeration; nor are they reducible to a money value*. In advanced systems such ' A distinction, which does not quite square with the above, is some- times drawn between obligations which arise from certain positions, ' obligations d'6tats,' ' Zustandsobligationen,' and those which arise from certain acts, 'obligations d'affaires,' ' Geschaftsobligationen.' See now, some interesting remarks by Mr. J. C. Miles in Jenks' Digest, p. 315. ' Gains, Dig. xliv. 7. i. pr. Windscheid, Pandekten, endeavours to approximate them to contractual rights. They are sometimes, but improperly, described as 'Quasi-contracts.' SeeRamm, 'DerQuasi'con- tract,' Leipzig, 1882. See also 'A selection of cases on the law of Quasi- contract,' by Prof. Keener, Cambridge, U. S., 1889. The author defines ' a quasi-contract right, or right of restoration,' as 'a right to obtain the restoration of a benefit, or the equivalent thereof, conferred by the claimant, but unjustly retained by the defendant ' ; stating that it may arise from 'mis-reliance,' 'compulsion' or 'circumvention.' It is, how- ever, obvious that the right of a cestui que trust against his trustee arises in none of these ways. Chapter v of the Indian Contract Act deals with ' Certain relations resembling those created by Contract.' Cf . 30 L. Q. R. 242. ^ Supra, p. 174. * Cf. Sohm, Institutionen (Transl.), p. 278. 246 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. XII. rights are only to a limited extent enforced by law, and that rather by permitted self-help than by judicial process. Husband It may appear questionable whether the rights of husband and wife. ^^^ ^jjg ^^^ ^g reckoned among those which arise by operation of law rather than out of contract. It is however submitted that this is the true view. The matrimonial status is indeed entered upon, in modern times, in pur- suance of an agreement between the parties, accompanied by certain religious or civil formalities; but its personal incidents are wholly attached to it by uniform rules of law, in no sense depending on the agreement of the parties, either at the time of the marriage or subsequently. The effect of the contract, coupled with the other acts required by law, in producing a status, to which rights of definite kinds are incident, closely resembles that of a sale of property. In the one case, as in the other, the contractual act is complete, so far as its direct effects are concerned, when tlie status has been produced, or the ownership changed. The necessarily resulting rights of the person newly invested with the status, or newly become owner of the property respectively, are the creatures not of the will of the parties but of fixed rules of law*. The rights of husband and wife are summed up in the French code as foUows: 'Les epoux se doivent mutuellement fldelite, secours, assistance. Le mari doit protection a la femme, la femme obeissance a son mari. La femme est obligee d'habiter avec le mari, et de le suivre partout ou il le juge a propos de resider ; le mari est oblige de la recevoir et de lui fournir tout ce qui est n^cessaire pour les besoins de la vie, selon ses factdtes et son etatV The rights of a husband according to English law, as against his wife, ' See the remarks of Hegel, Phil, des Rechts, § 75, on the treatment by Kant, Rechtslehre, Werke, vii. p. 76, of marriage as an obligatory contract. The nature of marriage was discussed in Niboyet v. Niboyet, L. R. 4 P. D. 9. ' Code Civil, arts. 212-214. DOMESTIC. 247 seem to be that she shall associate with him, in default of chap. xii. which he can petition for 'restitution of conjugal rights,' and that she shaU not commit adultery, in which case he may, by obtaining a divorce, deprive her of any claim to his society or support. He might formerly have chastised her for levity of conduct, and in quite recent times was allowed to restrain her personal liberty, but his right so to do was first expressly negatived by a decision of the Court of Appeal in the year 1891 \ A wife also may petition against her husband for ' restitution of conjugal rights V or for a divorce. A decree for 'restitution of conjugal rights, is no longer enforceable by attachment'. Either party may petition the Divorce Division for a 'judicial separation ' ; and this relief may now be also obtained, but only by the wife, in courts of summary jurisdiction*. A parent acquires on the birth of a child a right, which Parent he may enforce by moderate chastisement or restraint, of controlling his actions while of tender years. Under some systems a child has a right to be supported by his parents, and a parent to be supported by his children. Under the French Code, a necessitous son-in-law may insist on being maintained by his father-in-law ' ; but a judgment in accordance with this provision having recently been obtained from the French Courts, the American Courts refused to give effect to it in the United States, as being contrary to the policy of the laws of that country". ' B. v. Jackson, [1891] i Q. B. 671. " On which see Orme v. Orme, 2 Addams, 382. There seems to have existed in the old French law a proceeding by which a wife might petition 'pour ^tre embesoign^e.' ' In Weldan v. Weldon, L. R. 9 P. D. 52, the cases upon this subject were reviewed, and an attachment was reluctantly granted by Sir J. Hannen. By 47 & 48 Vict. c. 68 disobedience to an order for restitu- tion of conjugal rights is no longer punishable by attachment, but is a ground for judicial separation. • Under the Summary Jurisdiction (Married Women) Act, 1895. • Code Civil, art. 206. • Journal du Droit Int. Priv6, t. vi. p. 22. 248 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. XXt. Guardian and ward. Fiduciary. Trusts. The relation of guardian and ward is an artificial imita- tion of that of parent and child, and is entirely regulated by law. Another artificial relationship, that of ' patronus ' and 'libertus,' is now obsolete; as is, for most purposes, that of feudal lord and vassal. ii. Express trusts were in Roman law created only by an act of a testamentary character. They were requests to the heir, or to a legatee, to hand over the inheritance, or portions of the property included in it, to the person intended to be benefited, and were resorted to in order to evade certain stringent rules which beset the iastitution of a legal heir and the bequest of legacies properly so called. According to the law of England, trusts may be created inter vivos as well as by testament, and their history is a curious one, beginning, like that of the Roman 'fidei- commissa,' with an attempt to evade the law. The Statutes of Mortmain, passed to prevent the aUenation of lands to religious houses, led to the introduction of 'uses,' by which the grantor alienated his land to a friend to hold ' to the use ' of a monastery, the clerical chancellors giving legal validity to the wish thus expressed. Although this particular device was put a stop to by 15 Ric. II. c. 5, ' uses ' continued to be employed for other purposes, having been found more malleable than what was called, by way of contrast, 'the legal estate.' They offered indeed so many modes of escaping the rigour of the law, that, after several other statutes had been passed with a view of curtailing their advantages, the 27 Hen. VIII. c. 10 enacted that, where any one was seised to a use, the legal estate should be deemed to be in him to whose use he was seised. The statute did not apply to trusts of personal property, nor to trusts of land where any active duty was cast upon the trustee, nor where a use was limited ' upon a use,' i. e. where the person in whose favour a use was created FIDUCIARY. 249 was himself to hold the estate to the use of some one chap. xii. else. There continued therefore to be a number of cases in which, in spite of the 'Statute of Uses,' the Court of Chancery was able to carry out its policy of enforcing what had otherwise been merely moral duties. The system thus arising has grown to enormous dimensions, and trusts, which, according to the definition of Lord Hardwicke, are 'such a confidence between parties that no action at law wUl lie, but there is merely a case for the consideration of courts of equity V are inserted not only in wills, but also in marriage settlements, arrangements with creditors, and numberless other instruments necessary for the comfort of families and the development of commerce^. Under a system of trusts, the person of inherence, ' fidei- commissarius,' 'cestui-que-trust,' enjoys a right 'in personam' against the person of incidence, ' fiduciarius,' ' trustee.' Very similar rights are enjoyed against executors, administrators, 'heredes,' trustees of bankrupts, and co- proprietors. Thus a legatee and a creditor of the estate of a testator have rights to be paid the amount of the legacy and the debt respectively by the executor. The creditor of a bankrupt has a right against the trustee in bankruptcy to be paid out of the assets. Co-heirs, or other joint owners, irrespectively of partnership, have rights against one another for the due management of the property; and similar rights result from the relation of proprietor and usufructuary, and from ' Bannrechte V In many cases a fiduciary relation is implied by law. J°^P''ed trusts. Thus, according to the law of England, where land is con- veyed on trusts not yet declared, the alienee is a trustee ' 2 Atk. 612. For a number of attempts bettw to define a Trust, see W. G. Hart in L. Q. R., xv. p. 294. ' By 29 Car. II. c. 3. 9 9, an express trust relating to land must be in writing. In Scots law a trust is said to be ' of the nature of depositation.' Ersk. Inst. iii. tit. i. § 32, i. e. of a contractual character. So also trusts are dealt with in American books on CJontract. Gf . Pollock, Contract, ed. viii, p. 220. » Supra, p. 213; cf. Savigny, System, iii. p. 338. 2S0 PRIVATE LAW: RIGHTS -IN PERSONAM.' CHAP. xn. for the alienor. So also the intending vendor of land, after executing an agreement for a sale of it, holds it in trust for the intending purchaser, and a person in whose name property is bought with the money of another is trustee for that other. It is a principle of English law that a trust shall never faU for want of a trustee. Some of the above fiduciary relations are an obvious result of the acceptance of the view expressed in the maxim 'lure Naturae aequum est neminem cum alterius detrimento et iniuria fieri locupletiorem *.' Hence also the right of one who has paid money under a mistake to recover it back again, a right which in English law is expressed by saying that the causeless receiver is a 'trustee' for the mistaken payer. In this and in a multitude of similar cases the money might be recovered as having been 'received to the use' of the person claiming it^ Meri- iii. According to Roman law, a 'negotiorum gestor,' or person who volunteered to render some necessary service to property, or to a business, in the absence of its owner, had a claim to be compensated by the owner for the trouble he had taken, and the owner had also a claim for any loss which had resulted from the interference of the 'negotiorum gestor ^' Of a simiLar character are the rights given by English law to salvors of ships in distress, to recaptors of ships which have been made prize by the enemy, and to those who have supplied necessaries to persons who, being lunatics ^ or in a state 1 Dig. 1. 17. 206; ct. Savigny, Obligationenrecht, i. p. 26. See also Keener, Quasi-contract, pp. 19, 20, 24; Turner v. Webster, 24 Kansas, 38. ^ See the long note upon the common comit for 'money had and received' in Bullen and Leake's 'Precedents of Pleadings.' Cf. the recognition in the U. S. of an equitable claim for improvements made under a mistaken belief of ownership of land. Bright v. Boyd, i Story, 478, 2 Story, 608. " So in Soots law. « Cf. infra, ch. xiv. MERITORIOUS. 251 of drunkenness, were incapable of entering into an agree- chap. xii. ment. ' A contract,' it has been said, ' may be implied by law in many cases even where the other party protested against any contract. The law says he did contract because he ought, to have done so. On that ground the creditor might recover against him when sober for necessaries supplied to him when drunk . . . the law makes a contract for the parties \' In a recent case, the Court, while justly complaining of the ambiguous use in these cases of the term 'implied contract,' employed the perhaps more objectionable term 'implied obligation ^' The obligation attaches by express judicial declaration, whatever may be the ground for it. 'This title to in- demnity,' says Bentham, 'is founded upon the best reasons. Grant it, and he by whom it is furnished will still be a gainer ; refuse it, and you leave him who has done the service in a condition of loss. Such a regulation is less for the benefit of him who receives the compensation than for the benefit of those who need the service. It is a promise of iademnity made beforehand to every man who may have the power of rendering a burdensome service, in order that a prudent regard to his own personal interest may not come into opposition with his benevolence. Three precautions must be observed in arranging the interests of the two parties. First, to prevent a hypocritical generosity from converting itself iato tyranny, and exacting the price of a service which would not have been accepted had it not been supposed disinterested. Secondly, not to authorise a mercenary zeal to snatch ' Per Pollock, C. B., in Gore v. Gibson, 13 M. & W. 623. As to lunatics, BB^Baxfer v. Portsmouth, s B. & C. 170. As to unrequested aid by a physician in an emergency, see Meyer v. Knights of Pythias (1904), 178 N. Y. 63. Cf . the liability of a husband for necessaries for a wife who is wrongfully obliged to live separate from him. Wilson v. Glossop, 20 Q. B. D. 354- ' Be Rhodes, 44 Ch. Div. 94. 252 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. XII. rewards for services which the person obliged might have rendered to himself, or have obtained elsewhere at a less cost. Thirdly, not to suffer a man to be overwhelmed by a crowd of helpers, who cannot be fully indemnified without counterbalancing by an equivalent loss the whole advantage of the service ^' The rule of English law upon the point was thus explained by Lord Justice Bowen: 'liabilities are not to be forced upon people behind their backs, any more than you can confer a benefit upon a man against his will. There is an exception to this proposition in the maritime law ^' Official. iv. Any member of the community who becomes entitled by circumstances to call upon a public official to exercise his functions on his behalf, acquires thereupon a right ' in personam' against such official to that effect. This right, in so far' as it is enforceable by action agaiast the official, is a private law right. Such rights are enforced in English law against all ministerial officers, as collectors of customs, registrars of births, bishops, lords of manors, sheriffs, or postmen ^ ; but high officials, such as the Post- master-General, are not responsible for the negligence of their subordinates. In Roman law, a suitor had a right, enforceable by action, that a judge should decide his cause properly. The judge was liable ' si litem suam fecerit,' and this was the case when he gave a wrong decision, either corruptly, 'si evidens arguatur eius vel gratia vel inimicitia, vel etiam ' Dumont's Theory of Legislation, Hildreth's translation, p. 191. 2 Fallce v. Scottish Imperial Insurance Co., 34 Ch. D. 234. In the same case, the L. J. criticises the note to Lampleigh v. Brathwaite in Smith's L. C, which lays down that if a party adopts and enjoys a benefit, his consent would be presumed. 'If that were the law,' he says, 'salvage would prevail at common law as well as in maritime law, which it certainly does not.' » See Ashhy v. White, 1 Smith, L. C. OFFICIAL. 253 sordes V or from ignorance, ' licet per imprudentiam V chap. xii. According to the law of England, however, no person holding a judicial office, be he judge, juryman, coroner, or arbitrator, unless he exceeds the bounds of his authority, is liable for his judicial acts. Special duties are sometimes imposed on particular classes of persons, in which case any individual who has a right to caU for the performance of those duties possesses a right 'in personam' against the person upon whom such performance is made incumbent. Thus, according to English law, an innkeeper, having room in his inn, is bound to receive every weU-conducted traveller who is ready to pay for his entertainment', and a 'common carrier' is bound to convey all suitable goods for which he has room and the carriage of which is duly paid. Duties of this sort are often created by statute. So, it having been enacted that shipowners must keep medicines on board for the crew, it was held that any sailor who suffers from a neglect of this duty may sue for the damage he has sustained ^ Under the Lands Clauses Consolidation Act, 1845, ^^^ similar statutes, a relation- ship of vendor and purchaser may be constituted without the concurrence of the owner of the land, by the exercise of the compulsory powers conferred by these acts upon railway and other companies*. The desirability has been suggested of recognising a right, which, if recognised, would belong to the class now under consideration, but is probably unknown to any system of law. 'When a person is in danger, why,' asks Bentham, ' should it • Dig. V. I. 15. ' Dig. xMv. 7. 5. ' But see Brown v. Brandt, [igoa] i K. B. 696. A traveller may by lapse of time become a mere lodger and lose his right to remain. Lomond V. Richard, [1897] i Q. B. 541. « Couch v. Steel, 3 E. & B. 415; sed vide Atkinson v. Newcastle Water- works Co., L. R. 2 Ex. Div. 441. 6 Cf . Sir Edward Fry's Specific Performance of Contracts, 3rd edit. p. 57. 254 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. XII. not be the duty of every man to save another from mischief, when it can be done without prejudicing himself, as well as to abstain from bringing it on him ' ? ' Torts Under the head of rights available against a definite oiTcon- person, which person is specifically ascertained before any tract. infringement of the right, one might be tempted to place those rights the violations of which have sometimes been called in English law ' torts founded on contract.' Actions against surgeons for want of skill, against carriers for want of care, and the like, have sometimes been treated as if brought in pursuance of a right existing against persons pursuing such vocations, independently of any contract. It has been said, for instance, that 'the right which a passenger by railway has to be carried safely does not depend on his having made a contract, but that the fact of his being a passenger casts a duty on the Company to carry him safely'"; and this is perhaps the accepted view. The simpler view, and one which does not lack authority \ would be to treat all such rights as contractual. What is called, with reference to carriers, the ' custom of the realm,' is really a term implied by law in the contract of carriage. Any one taking a railway ticket knows, or is presumed to know, what interpretation is put by the law upon the agreement with the Company into which he enters by the simple act of taking a ticket. He knows that, in return for his money, the Company not only undertakes to put him into a train and to start it for its destination, but also undertakes to neglect no reasonable precautions for ensuring his safety during the ' Works, i. p. 148. 2 Per Blackburn, J., in Austin v. Qreat Western Railway Co., L. R. 2 Q. B. 44.7. So in Ffoulkes v. Metr. Distr. By. Co., 5 C. P. D. 157; Taylor V. Manchester, Sheffield and Lincolnshire Railway Co., [1895] i Q. B. (C. A.) 134; Kelly v. Metr. Distr, Ry. Co., lb. 944; Turner v. Stallibrass, [1898] I Q. B. 56; Sachs v. Henderson, [1902] i K. B. (C. A.) 616. Cf. Harvard Law Review, ix. p. 215. ' E. g. Alton V. Midi. Ry. Co., 19 C. B. N. S. 213. EX CONTRACTU. 255 journey. If, through the negligence of the Company, chap. xu. what is called an accident occurs on the road, and the passenger's leg is broken, he may fairly say that the Company is just as much guilty of a breach of their contract with him as if they had stopped their train half way, and had told him that he must accomplish the rest of the distance as best he could. II. By far the most important class of rights 'in per- Ex Con- sonam ' are those which arise from that particular species of act which is called a ' Contract.' We have already explained that acts which are directed to the production of a legal result, ' Rechtsgeschafte,' may be either one- sided, when the will of one party only is active, or two- sided, when there is a concurrence of two or more wUls in producing a modification of the rights of the parties concerned. Such a two-sided act, having for its function the creation of a right, is a * Contract,' in the widest sense of that term, in which it would include not only the creation of rights 'in personam' but also assignments of property, marriage, and other transfers or creations of rights 'in rem*.' ' Supra, pp. 123, 216. So in English law 'contract of sale' is used to describe both a sale out and out, or, as it is sometimes described, 'a bargain and sale,' and a contract to sell. A similar ambiguity lurks in the term ' marriage contract,' which may denote either the marriage itself, or a contract to marry hereafter. The term is sometimes em- ployed in a very misleading manner. Thus, by 'The Married Women's Property Act, 1882,' it is provided that ' the word "contract "in this Act shall include the acceptance of a trust, or of the office of executrix or administratrix.' So it has been held that the incorporation of a College is a 'contract,' and therefore, under the Constitution of the United States, cannot be interfered with. Dartmouth College v. Woodward, 4 Wheat. 518. (On the attempts made by almost every State of the Union to evade the rule thus laid down, see 27 American Law Review, p. 857, and 29 lb. p. 236. On Trusts in American textbooks, see supra, p. 249, n. 2.) There is no contract to pay for the compulsory attendance of a child at school. London School Board v. Wright, 12 Q. B. D. 578. 'A statute liability wants all the elements of a contract, consideration and mutual- ity, as well as the assent of the party,' MeCoun v. R. R. Co., 50 N. Y. 176. On the necessity of acceptance for complete alienation in Roman law, 2S6 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. XII. Two senses of Contract. Obligatory contract. Thus if a man goes into a shop and buys a watch for ready money, a contract has taken place. The watch- maker and his customer have united in a concordant expression of will, and the result has affected once for aU their legal rights. The customer has, according to EngUsh law\ become owner of the watch, the watchmaker of its price, and the transaction is at an end. But suppose that, instead of the instantaneous sale of the watch, the agreement had been merely for its purchase at a future day, in this case also there is a contract, but the right to which it gives rise is not a vested right of ownership in the watch, but an outstanding, or contiauing, right in the customer to buy it at the time and for the price agreed upon, with a correlative right in the shopkeeper to receive the price in due course. In the former case, the contract has given rise to rights 'in rem,' and in so doing its force is instantaneously spent. In the latter case, the results of the contract are deferred. It produces merely claims, or rights ' in personam,' which continue to be operative tUl the thing agreed upon is performed. "We are concerned in the present chapter only with that narrower, and more usual, sense of the term con- tract, which restricts it to signify such a two-sided act as gives rise to rights 'in personam I' In this sense it is defined by Savigny as 'the union of several Lq an accordant expression of will, with the object of creating an obligation between them^'; by see supra, p. 216. In English law acceptance is not necessary. See Bijdler & Baker's Case, 3 Rep. 25 ; Thompson v. Leach, 3 Mod. 296; Siggers v. Evam, s E. & B. 367; Standing v. Bowring, 31 Ch. D. 283. 1 On the causes which led to the adoption of this rule, which seems not to have been fully established even in Elisabeth's reign, see Cochrane V. Moore, 25 Q. B. D. (C. A.) 65. ' This is by some writers maintained to be the only proper sense of the term, e. g. Vangerow, Pand. i. § 121. An ' Obligatorischer Vertrag' ia sometimes also described as a ' Schuldvertrag.' ' Obligationenrecht, ii. p. 8. Cf. Puchta, Inst. iii. p. 89. OBLIGATORY CONTRACT. 257 an old English authority as ' a speech between two chap, xn parties whereby something is to be done"; by Pothipr as 'I'espece de convention qui a pour objet de former quelque engagement " ; by M. Ahrens as ' le consentement exprim6 de plusieurs personnes a I'effet de creer entre elles un rapport obligatoire sur un objet de droit '.' ' When,' said Vice- Chancellor Kindersley, 'both parties will the same thing, and each communicates his will to the other, with a mutual engagement to carry it into effect, then an agreement or contract between the two is constituted*.' It is an expression of agreement entered into by several, by which rights ' in personam ' are created available against one or more of them. A contract can impose no liabihties upon any one who is not a party to it. Nor, as a general rule, can rights be originally acquired under it by such an one. Any doubt which may have existed as to the EngUsh law upon this point was set at rest, one might have supposed, some time since, by a decision to the effect that there is no authority for holding that rights can be acquired by third parties under a contract unless by the creation of a trust °. The federal Courts of the United States seem, on the whole, to take the same view °, but many of the States (though not Massachusetts or Michigan) have followed with approval a New York case, which estabUshes an exception to the rule in favour of certain beneficiaries under a contract to which they are not parties ' ; and a recent English case would seem to carry the exception still further °. 1 The Mirrour. ' Oblig. art. i. » Cours, ii. p. 226. * Haynes v. Haynes, i Dr. & Sm. 433. 5 Tweddle v. AtUnson (1861), i B. & S. 393. Of. Re Rotherham, Alum andChemical Co. (1883), 25 Ch. D. iii. 6 E. A. Harriman, Elements of the Law of Contracts (1896), pp. 215- 228. ' Lawrence v. Fox, 20 N. Y. 268. On this question, see the German Civil Code, 328, recognising the possibility of so framing a contract as to give to a stranger to it a right of action for its breach. On the com- parative law of this question, see S. Williston, in Harvard L. R. xvi. p. 43- 8 The ScUania, [1895] P. (C. A.) 248, [1897] A. C. SQ. 1950 S 258 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. XII. Cause and effect. Enforce- ment. It is necessary carefully to distinguish between the two- sided act itself and the results to which it gives rise. The act alone is the contract, the resulting contractual relation is quite a different thing; although, from the want of an appropriate terminology, the two things are sometimes confused with one another in English law. Thus we talk of 'assigning a contract,' while what is really meant is the assignment of the rights and Uabilities which arise out of the contract. In the language of Roman law, the two ideas are distinguished with the utmost precision. The 'contractus' is one thing, the 'obhgatio ex contractu' is another'. It has been paradoxically maintained by more than one writer of eminence that no assistance should be given by law to the enforcement of agreements, on the ground that they should be entered into only with those whose honour can be trusted; and the laws of Charondas and of the ancient Indians are stated to have proceeded upon this principle^. The contrary view, embodied in the maxim, 'pacta sunt servanda,' Kvpia elvai o n av Ircpos erepo) o/toXoyi^o-jj ', evcn apart from such solemnities as we shall have occasion shortly to mention, has, it is hardly necessary to say, long ago received the adhesion of the civilised world ^ • The lack of terminology to express this distinction must be responsible for the English barbarism a 'Contract of Record,' as descriptive of, among other things, a judgment. 'A judgment is a contract of the highest nature known to the law,' Taylor v. Root, 4 Keyes (N. Y.) 335. Cf. 3 Comm. 160. But 'a judgment is no contract, nor can be considered in the light of a contract'; for 'iudicium redditur in invitiun,' Bidleson v. Whyld, 3 Burr. iS4S- '' 05toi yap irapaxpijua KeXiiovcri SiSSvai Ka\ Ka/j-flivfiv, ihv Se Tis ■nareiiri, )Al (hat Siienv, avThv yhp aWiav efvoi Tijs oSik/'os. Stob. Flor., tit. 44. 21; Strabo, xv. p. 709; cf. Arist. Eth. Nic. viii. 15. 6, ix. i. 9. ' Demosth.inEuerg.p. 1162. 'Quidenimtamcongruumfideihumanae quam ea quae inter eos placuerunt servare?' Dig. ii. 14. i. Cf. Puffen- dorf, De Off. Hominis et Civis, i. c. 9. § 3. * By the Constitution of the United States, ■ no State shall pass . . . any law impairing the obligation of contracts.' Art. i. § 10. AGREEMENT IN CONTRACT. 259 The State lends its force to assure the performance of chap. xn. those promises of which it thinks fit to take cognisance. This it endeavours to do by putting some sort of pres- sure upon the will of the promisor, which is therefore indubitably so far subjected to the will of the promisee. The fact that the pressure thus appUed may often fail of its effect has given rise to an ingenious inversion of the theory of contract. According to Mr. Justice Holmes, a Mr. Jus- contract may be regarded as 'the taking of a risk.' 'Thejjolines' only universal consequence of a legally binding promise *''^°''y' is, that the law makes the promisor pay damages if the promised event does not come to pass. In every case it leaves him free from interference until the time for fulfilment has gone by, and therefore free to break his contract if he chooses \' But, as the able advocate of this view is compelled to admit, 'when people make con- tracts they usually contemplate the performance rather than the breach'; nor can it be seriously maintained that the performance of a contract is more optional than that of any other legal duty. Libel or assault, equally with breach of contract, are possible to any one who is pre- pared to be answerable in damages for the indulgence of a taste for defamation or violence. An obligatory contract is, as we have seen, a species of agreement. But many agreements produce no legal effect upon the relations of the parties one to another. It will therefore be necessary to enquire more minutely into the characteristics of those consensual acts which are recog- nised by law as giving rise to obligations. Savigny's analysis of contract, substantially accepted Savigny's by the majority of the more recent German authorities, a°ontra°t. is to the following effect. Its constituent elements are, ' The Common Law, p. 301. In support of this view he cites, in Har- vard L. R. X. p. 462, Lord Coke in Bromage v. Qenning, i RoUe Rep. 368; but, said Bramwell B., 'a person contemplates the performance, and not the breach, of his contract. He does not enter into a kind of second con- tract to pay damages.' HydraulicEngineer.Co.v. McHafflej^Q.B.D. 674. S2 260 PRIVATE LAW: RIGHTS 'IN PERSONAM.' Is con- sensus necessary? The older theory. he says : (i) several parties, (ii) an agreement of their wills (sie miissen irgend etwas, und zwar Beide dasselbe, bestimmt gewollt haben), (iii) a mutual communication of this agreement (sie miissen sich dieser TJebereinstimmung bewusst geworden seyn, das heisst der Wille muss gegen- seitig erklart worden seyn), (iv) an intention to create a legal relation between the parties '. In one point only does this analysis seem open to criticism. Is it the case that a contract is not entered into unless the wills of the parties are really at one? Must there be, as Savigny puts it, 'a union of several wills to a single, whole and undivided wiU ^ ' ? Or should we not rather say that here, more even than elsewhere, the law looks, not at the will itself, but at the will as voluntarily manifested ' ? When the law enforces contracts, it does so to prevent disappointment of well-founded expectations, which, though they usually arise from ex- pressions truly representing intention, yet may occasionally arise otherwise. If, for instance, one of the parties to a contract enters into it, and induces the other party to enter into it, re- solved all the while not to perform his part under it, the contract will surely be good nevertheless. Not only will the dishonest contractor be unable to set up his original dishonest intent as an excuse for non-performance, but should he, from any change of circumstances, become desirous of enforcing the agreement against the other party, the latter will never be heard to establish, even were he in a position to do so by irrefragable proof, that at the time when the agreement was made the parties to it were not really of one mind. This view, opposed as it is to the current of authority from Javolenus* to the writers of recent textbooks, , ' System, iii. p. 308. Cf. infra, pp. 266, 276. * Ibid. p. 309. ' Cf. suffra, p. 119. * 'In omnibus rebus quae dominium transferunt, concurrat oportet affeetus ex utraque parte contrahentium.' Dig. xliv. 7. 55; of. xiv. i. 3, AGREEMENT IN CONTRACT. 261 was originally put forward with some diffidence. It is chap. xn. now restated with more confidence, since English friends who were at first decidedly opposed to it are converts to its truth, while a similar view, after having been, as it seems, for some years academically debated ia Germany, has definitely come to the surface in the important work of Professor Leonhard'. Indeed when the question is once raised it is hard to see how it can be supposed that the true consensus of the parties is within the province of law, which must needs regard not the wiU itself but the will as expressed by one party to the other ^ taking care only that the expression of will exhibits all those characteristics of a true act which have already been enumerated'. * Der Irrthum bei nichtigen Vertragen, Berlin, 1882-83; and now J. Jitta, La substance des obligations dans le droit int. priv6, 1906-8, to which my attention has been called by Dr. T. Baty. Of. Rev. Droit Int., 1906, p. 601; 1909, p. 105. See also O'Donnellv. Clinton, 145 Mass. 461, where Holmes J. says that ' assent, in the sense of the law, is a matter of overt acts, not of inward unanimity in motives, design, or the inter- pretation of words'; and two articles by Hartmann, in the Archiv fur civilistische Praxis, Bd. 72, p. 161, and Bd. 77, p. 161, citing Fichte, System der Sittenlehre, p. 383. Cf. the following remarkable passage from Dr. Adam Ferguson's Institutes of Moral Philosophy, ed. 1800, p. 1 SS :' An action of any kind performed with a view to raise expectation, or by which it is known that expectations are naturally raised, is suflBcient to constitute a contract.' Cf. Bramwell B. in Browne v. Hare, 3 H. & N. at p. 495- ,. . ,, . 2 Sir W. Anson, Contract, ed. xiii. p. S n., m discussmg the views of the present writer upon this question, holds that 'the law does re- quire the wills of the parties to be at one, but that when men present all the phenomena of agreement, they are not allowed to say that they were not agreed.' Sir F. Pollock, Contract, ed. viii. pp. s n., 9 n., ex- plains 'the intent of the parties' as 'such an intent as a Court of Justice can take notice of.' ' If A,' he continues, ' being a capable person, so bears himself towards B that a reasonable man in B's place would naturally understand A to make a promise, no further question can be made about what was passing in A's mind.' Cf . Professor Langdell, Summary, § 180: 'Mental acts, or acts of the will, are not the materials out of which promises are made. A physical act on the part of the promisor is indis- pensable.' ' Supra, p. 107. So the innocent holder of a bill of exchange cannot recover its value from one who, without negligence on his part, has endorsed it, on being assured that it was a guarantee. Foster v. Mackin- non, L. R. 4 C. P. 711. 262 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. xn. Reasons for dis- senting from it. Roman law. English cases. An adequate discussion of the question whether a con- tract can be said to demand for its validity a true union of wills, would be out of place in the present work, which can attempt only to indicate the nature of the problem and the general character of the arguments by which one or other solution of it may be supported. The language of systems of positive law upon the point is generally ambiguous, nor is this to be wondered at. The question is practically a new one. The process of giving effect to the free acts of the parties to a contract, rather than to the fact that certain rigidly defined formaUties have been compUed with, has lasted so long that legal speculation has only recently begun to analyse the free act itself into its two factors of an inner wiU and an outward expression, and to assign to one or to the other a dominant place in the theory of contract. Just as the Romans used, without analysing them, the terms 'veUe,' 'consensus,' 'sententia',' so the modern Codes, though some appear to look rather to the inner will^ others rather to its outward expression ^ as a rule employ language which is capable of being interpreted in either direction. The same may be said of the English cases. In these one constantly meets with such phrases as 'between him and them there was no consensus of mind,' 'with him they never intended to deal^'; but one also meets with ' See Leonhard, i. p. ii; but on the other hand Windscheid and Zitel- mann, as cited, swpra, p. 120. ^ E. g. the Code CivU, art. 1109; the Co(hce CivUe, arts. 1098, 1114; the Codes of Prussia, §§ 4, 52-56, 75-79; of Saxony, §§ 91, 95, 843, 844; and of Zurich, § 926. ' E. g. the Austrian Code, art. 871; the Swiss Code F^^ral des obliga- tions, art. i; the Civil Code for Germany, 116, as compared with the draft Code, 77, 95-100; as to which see Prof. R. Leonhard, in the Jahrbuch der intemationalen Vereinigung fiir vergl. Rechtswissenschaft, 1897, p. 54. < In Cundy v. Lindsay, L. R. 3 App. Ca. 459- Cf . per Bowen, L. J., in CarlUl V. Carbolic Smoke-ball Co., [1893] i Q. B. 269. AGREEMENT IN CONTRACT. 263 much that supports the view of the question which we chap. xii. venture to hope may ultimately commend itself to the Courts as being at once the most logical and the most favourable to the interests of commerce. The class of cases in which this view may be traced may be said to commence with that of Pickard v. /Sears, decided in 1838 \ and the principle which they involve was thus stated by Chief Baron Pollock in 1859: 'If any person, by a course of conduct or by actual expressions, so conducts himself that another may reasonably infer the existence of an agree- ment or licence, whether the party intends that he should do so or not, it has the effect that the party using that language, or who has so conducted himself, cannot after- wards gainsay the reasonable inference to be drawn from his words or conduct I' Still clearer was the language held in 187 1 ui the case of Smith v. JBughea', when Mr. Justice Blackburn said: 'If, whatever a man's real intention may be, he so conducts himseE that a reasonable man wotdd believe he was assenting to the terms proposed by the other party, and that the other party on that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms *.' In other words : the legal meaning of such acts on The newer the part of one man as induce another to enter into a ^^^^ contract with him, is not what the former really intended, * 6 A. & E. 47s; cf. Freeman v. Cooke, 2 Ex. 654. 2 Cormsh v. Abington, 4 H. & N. 549. » L. R. 6 Q. B. 607. Cf . Carr v. London and N. W. Ry. Co., L. R. 10 C. P. 317. In Scott V. Littledale, 8 E. & D. 815, the contract was held good, although the vendor had by mistake shown a wrong sample. See also Leake, Contract, p. 12. * Dr. E. Schuster, in a very able article ' Der Vertragsschluss nach eng- lischem Rechte,' in the Archiv fur Handels- u. Wechselrecht, xlv. p. 324, seems to think that according to these cases it is necessary that the expression of will should be accompanied with an intention that it should induce the other party to act, and that the other party should, with a knowledge of this intention, undertake so to act. 264 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. XII. IS sup- ported by rules as to corre- spondence and agency and is con- sistent with the doctrine of mistake. nor what the latter really supposed the former to intend, but what a ' reasonable man,' i, e. a judge or jury, would put upon such acts \ This luminous principle at once sweeps away the ingenious speculations of several generations of moralists ^ while it renders needless long lists of subtle distinctions which have been drawn from decided cases'. The truth and practical importance of what may be called the objective theory of contact are confirmed by the generally received rules as to contracts made by post ; where the question, whether or no the contract is made, turns, as we shaU see \ not on the coincidence of the wills of the parties, but on the fact of their having exchanged expressions of intention : and by the law of Agency ; since the liability of a principal continues not merely so long as he continues mentally to empower his agent to act for him, but also so long as he has not, to the knowledge of third parties, revoked the agent's authority \ Nor is there any inconsistency between this view and the well-established effect of what is known as 'essential error ' in preventing a contract from coming into existence. When such error is present, it is no doubt true to say 'non videntur qui errant consentire *.' AH liability under the apparent agreement may be repudiated, and any • ' It may well be in contracts that a man may be bound to a meaning which demonstrably was not his.' Leonhard, i. p. 119. Cf. Lord Sel- borne's statement that 'the doctrine of reputed ownership does not require any investigation into the actual state of knowledge or belief of creditors, or of the outside world, ' as to the position of particular goods. It is enough for the doctrine if those goods are in such a situation as to convey to the minds of those who know their situation the repu- tation of ownership.' Ex parte WatHns, L. R. 8 Ch. Ap. 528. Cf. Turner v. Webster, 24 Kansas, 38. On the difference between the views of the author and Sir W. Anson, see the latter's Contract, ed. xiii. p. S "• ' E. g. Grotius, De I. B. et P. iii. 23. 4; Paley, Moral Phil. vol. i. c, sj Austin, ii. p. 123. • See, e. g. Anson, Contract, ed. xiii. p. 153. * Infra, p. 269. ' See Drew v. Nunn, 4 Q. B. D. 668, and of. infra, p. 273, ' Dig. 1. 16. 116; xliv. sSi 57- Cf. supra, p. n8. AGREEMENT IN CONTRACT. 265 payments made in pursuance of it may be recovered back. chap, xn. But we shall find that even here the failure of the contract is due not to the psychological fact of mistaken belief, which, as has been well observed, is a mere 'dramatic circumstance V but to other causes, which may be reduced to two. (i) The language employed is such as under the circumstances is meaningless, either from referring to an object not in existence, as in the case of the sale of a cargo of corn, supposed to be on its homeward voyage, while in reality it had become so heated that it had been unloaded and sold^; or from ambiguity, as in the case of the sale of a cargo of cotton 'to arrive ex Peerless from Bombay,' whereas there were two ships, either of which would have answered the description'. (2) The true meaning of the mistaken party is, or might be, knoM'n to the other party. This will cover the cases of 'error in persona,' 'in corpore,' 'in negotio,' &c., as, for instance, the case where a customer sent an order for goods to a tradesman with whom he had been accustomed to deal, but who had disposed of his business to a successor, who, having supplied the goods without any notification of the change, was not allowed to recover their price ^ The question in these cases should always be: was the expression of one party such as should fairly have induced the other to act upon it?* If so, but not otherwise, it is ' Holmes Common Law, p. 308. ' Ccmturier v. Hastie, 5 H. L. 673. 'Domum emi cum earn et ego et venditor combustamignoraremus. Nerva, Sabinus, Cassius, nihil venisse, quamvis area maneat, pecuniamque solutam condici posse aiunt.' Dig. xviii. I. 57. Cf. 'Nee emptio nee venditio sine re quae veneat potest intelligi.' lb. 8 pr. • Baffles v. Wichdhaus, 2 H. & C. 906. The judgment in this case merely supports the plea, which sets out the facts and avers a difference of intention between the parties. Cf. 'si Stichum stipulatus de alio sentiam, tu de alio, nihil actum erit.' Dig. xlv. i. 83. i. * Boullon V. J(me8, 2 H. & N. 564; Boston Ice Co. v. Potter, 123 Mass. 28. In such eases, as Leonhard says, 'the essentiality of error depends entirely on the question whether the absence of error is made a cognisable condition of the transaction.' Irrthum, ii. p. 586. « Professor Ashley, of New York, in his Law of Contracts, ign, sug- 266 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. xii. in the interest of society that the loss should fall upon the former. Elements of a contract. We shall therefore treat of the constituent elements of a contract as being : i. several parties ; ii. a two-sided act by wliich they express their agreement; iii. a matter agreed upon which is both possible and legal; iv. is of a nature to produce a legally binding result ; v. and such a result as affects the relations of the parties one to another; also, vi. very generally, either a solemn form, or some fact which affords a motive for the agreement. Parties. Joint con- tractors. i. The very idea of a contract demands for its formation at least two parties, a 'promisor' and a 'promisee,' who in Roman law are described as 'debitor' and 'creditor'; which terms have however a more general application. So it has been held that where one and the same company had two departments, one for insurance and one for annuities, an insurance effected by the latter department ■with the former was a nullity'. The promisee must not be an ' incerta persona,' e. g. ' the secretary for the time being,' but the offer may be, in the first instance, made to an unascertained member of a class, e. g. to the finder of a lost purse, whoever he may be^. There may be more parties than one to either side of a contract, ' plures rei,' ' joint contractors ' ; and these are, ac- cording to the position which they occupy, either 'correi cre- dendi,' 'joint creditors,' or ' correi debendi,' ' joint debtors '.' gests the desirability of adding here the words ' and ought he to have known that the other might reasonably act upon it? ', citing Reeply v. Daggett, 74 111. 263. 1 Grey v. Ellison, i Giff. 438. For a discussion 'liber die Theorie des Selbstcontrahierens' (i. e. the case of an agent contracting with himself as a stranger), see Umberto Pranzataro, in the Transactions of Int. Vereini- gung fur vergl. Rechtswissenschaft, &c., 1902, No. 6. ' Such a proposal is called in German 'Auslobung.' The same prin- ciple applies to the offer of a prize, to announcements in railway time- tables, and to sales by auction. ^ * On the vexed question of the true nature of a correal oblig&tion, see OFFER AND ACCEPTANCE. 267 ii. The two-sided act, expressive of agreement. This chap. xii. consists of an offer, ' pollicitatio V on one side, and an^^^|'*''** acceptance on the other ^ One party expresses his readi-ance. ness to be bound to a performance, and the other side expresses his acceptance of this readiness. An unaccepted Accept- offer creates no liabilities'. The rules upon this subject are as follows : — 1. The acceptance must unconditionally correspond toUncondi- the offer. An expression of readiness to buy a horse for fifty pounds is no acceptance of an offer to sell the horse for sixty pounds*. 2. The aceptance must be contemporaneous with the Contem- poraneous, offer, which may therefore be withdrawn at any tmie before it has been accepted. So it has been held that a bidder at an auction is not bound till the hammer has fallen. 'An auction is not inaptly called a locus poenitentiae. Every bidding is nothing more than an offer on one side, which is not binding on the other side till it is assented to V Several subordinate questions arise with reference to this rule, some of them giving rise to very fine distinctions. (a) How long does an offer which has not been expressly Tacit re- revoked remain open ? It is in accordance with common of offer, sense, and has been so held, that an offer is intended to remain open only for a reasonable time'. The German Savigny, Obligationenrecht, § 23; Moyle, Institutes of Justinian, excur- sus vii; Sohm, Institutionen (Transl.),§ 61; Hunter's Roman Law, p. 590. ' 'Pollicitatio est solius offerentis promissum.' Dig. 2. 12. 3 pr. ' An offer, 'Antrag,' may sometimes be confused with an enquiry about an offer, 'Aufforderung zu einem Antrage.' Vang. Pand. § 603. So an 'offer to be bound' with an 'offer to negotiate'; see Bowen, L. J. in the Smoke-baU case, u. s. ' 'Ex nuda polUcitatione nulla actio nascitur.' PaulR. S. v. 12. 9. But some curious exceptions to this rule were recognised in Roman law. Dig. 1. 1 2. As to the effect of an unaccepted offer by deed in English law, see infra, p. 279. * A reply to this effect would amount to a rejection of the offer and the making of a counter-offer. Hyde v. Wrench, 3 Beav. 334. So the civil Code for Germany, 150. ' Payne v. Cave, 3 T. R. 148. " Meynell v. Surtees, i Jur. N. S. 737; cf. Bamsgate Hotd Co. v. Monte- fiore, L. R. i Ex. 109. 268 PRIVATE LAW: RIGHTS 'IN PERSONAM.' Revoca- tion by death. Contracts by corre- spondence. Commercial Code keeps an offer made to a party at a distance open only till an answer to it could have been received in due course'. (/8) Is an offer revoked by the death before it has been accepted of the person who makes it? There is some difference of view as to this result following from the mere fact of death, uncommunicated to the acceptor ^ (y) Must acceptance be notified in every case to the offeror; or does the nature of the offer sometimes imply that acting on the proposal will be enough without notification ' ? (S) When the parties are at a distance, is the expression of intention by either party, or the communication of such an expression to the other party, to be regarded? This difBculty, which continues to the present day to exercise the ingenuity of the Courts and divide the opinions of jurists, was perceived and discussed by the earliest commentators on the civil law^ It arises chiefly with reference to acceptance of an offer, but also with reference to revocation either of an offer or of an acceptance. The views upon the subject are classified by German writers under three heads. According to the ' Aeusserungstheorie ' (' Declarations- theorie'), it is enough if an acceptance is posted; according to the ' Empf angstheorie,' the acceptance must reach the 1 Handelsgesetzbuch, art. 319. For a decision under this article, see Seuffert, Archiv. xxix. No. 60. So the German Civil Code, 147. A pro- mise by the ofieror to keep his offer open for a reasonable, or any, time, woiild be void in English law from want of consideration. * The Indian Contract Act requires communication. In English law the mere fact seems to be sufficient. See Dickenson v. Dodds, L. R. 2 Ch. D. 475- Some authorities would deny the existence of a contract, but would indemnify an ignorant acceptor. Windscheid, Pand. § 307. Of. the German Civil Code, 153. ' As e. g. in CarlUl v. Carbolic Smoke-ball Co., [1893] i Q- B. 256. Cf. German Civil Code, 151. ^ On 1. I of the title 'De Contr. Empt.' (Dig. xviii. i), Acoursius writes: 'Item quid si antequam literae vel nuntius ad eum perveniant venditor renuntiat? Quidam dicunt non valere contraotum. Sed Aid. dicit tenere, quod puto verum.' OFFER AND ACCEPTANCE. 269 offeror ; while according to the ' Vernehmungstheorie ' chap. xii. ('Rescissions-,' ' Agnitions-,' 'Recognitionstheorie') it must actually come to his knowledge \ The French authorities are similarly at variance, Merlin, for instance, holding that the contract is complete on acceptance, Pothier that the acceptance must become known to the other party ^ The English Courts, after a period of uncertainty, seem now to have arrived at conclusions which may he shortly stated as follows : An offer is irrevocable after it has been accepted. Acceptance must be no merely mental act, but a communi- cation to the proposer, which may however be sufi&ciently made by posting a letter contaming it ', although this letter be delayed'', or even fail altogether to reach its destination ^ A revocation of an offer, despatched before, but reaching the acceptor after, the posting of the acceptance comes too late°. A revocation of an acceptance, posted after, but reaching the proposer simultaneously with, the accept- ance, probably prevents the formation of the contract ^ Our judges, it will be observed, refuse to give effect to an expression of intention by one party unless actually communicated to the other, except that, in the case of an acceptance only, they hold the posting of an acceptance 1 Windscheid, Pandekten, § 306; cf. Vangerow, Pand. § 603; Baron, Pand. § 212. For a ttill and interesting discussion on the several theories of dichiarasione, spedisione, and recexione, see the Report upon the draft Code of Commerce, presented in 1878 to the Italian Senate by the Minis- ter of Justice, Mancini, pp. 115-143. « Cf. Dalioz, 'Obligations,' No. 98. • Brogden v. Metropolitan Ry. Co., 2 App. Ca. 691. The despatch of a telegram has the same effect. Cowan v. O'Connor, 20 Q. B. D. 640. • Adams v. Lindsell, i B. & Aid. 681. ' Dunlop V. Higgins, i H. L. Ca. 381; Household Fire and Carriage Co. V. Grant, L. R. 4 Ex. D. 2 16, where see the dissenting judgment of Bram- well, L. J. Cf. Tayloe v. Merchants Fire Insurance Co., 9 Howard S. Ct. Rep. 390. • Byrne v. Van Tienhoven, S C. P. D. 344; Henthome v. Fraser, [1892] 2 Ch. (C. A.) 27. ' Dunmore v. Alexander, 9 Shaw & Dunlop, 190. Cf. Handelsgesetz- bucb, art. 320. 270 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. xn. to be equivalent to such communication. They do not attribute a similar effect to the posting of a revocation. Those foreign jurists who, insisting upon a truly con- tinuing crnisensus of the parties, think that a proposer may revoke at any moment before the acceptance reaches him, grant to the acceptor of a contract which may thus fail to "come into being an indemnity for any loss which he may have sustained by the proposer's ' culpa in contra- hendo '.' The topic is dealt with in several of the modern codes ^. 3. There are circumstances which, while they do not, like those already mentioned, by negativing the presence of what is often described as a consensus ad idem, but would be more accurately described as a concordant ex- pression of will, render the apparent contract void ab initio, yet operate as flaws in its formation, rendering the resulting obligation voidable at the option of the party who is disadvantaged by it^ Fraud. "WTiere one party has been guilty of fraudulent mis- representation or concealment, he is not permitted to hold the other party to his bargain ^ The rhetorical phrases of a vendor are not necessarily fraudulent, ' simplex com- mendatio non obhgat,' nor is the contract voidable unless 1 Pothier, Contr. de Vente, § 32; Windscheid, Pandekten, § 307. ' Indian Contract Act, § 4; Handelsgesetzbuch, art. 318-321; the Italian Codice di Conunercio, art. 35; the Swiss Code F6d6ral des Obli- gations, arts. $-8; the German Civil Code, 147-153; the Japanese Civil Code, arts. 526, 527. For recent American cases, see C. Noble Gregory, in American Law Register, 1900. ' On the distinction between void and voidable acts, cf. supra, p. 124. The French and Italian Codes seem to give to 'essential error' no higher effect upon a contract than they attribute to fraud and duress. Plato mentions duress, fraud and haste, as grounds for avoiding a con- tract. Crito, 52 E. * Gf. German Civil Code, 119. An 'exceptio doli mali' was first per- mitted to actions upon formal contracts in the time of Cicero. On fraud as an infringement of a right 'in rem,' v. supra, p. 236. FLAWS IN CONTRACT, 271 it has been materially induced by the misrepresentation, chap. xii. The fraud of an agent will be imputed to his principal, although the latter may have acted with bona fides. In recent English cases it has been held that innocent misrepresentations are ground for setting aside a contract which they have induced, or for refusal of specific performance of it*. What is known in English law as * undue influence ' is also held to make a contract voidable. This consists in acts which, though not fraudulent, amount to an abuse of the power which circumstances have given to the will of one individual over that of another. In some relations, such as that of solicitor and cUent, or parent and child, the existence of this exceptional power is often presumed, but its existence is capable of being proved in other cases also^ Duress, which is another ground on which a contract Duress, is voidable, consists either in violence to the person, or in threatened violence of the same character, 'duress per minas.' It will not be enough if the safety of a man's house or goods only be threatened', and the fear caused must be, as has been said, 'not a vain fear, but such as may befaU a constant man'; 'vani timoris iusta excusatio non est^' According to English law the fraud or duress of a third party has no effect upon a contract; and this is the generally accepted rule as to fraud ^ though not as to duress ". 1 Redgrave v. Hurd, 20 Ch. D. i; Newhigging v. Adam, 34 Ch. D. 582. 2 On the doctrine of 'laesio enormis,' as applied in the contract of sale, V. infra, p. 288. » Aliter Code Civil, art. iiii; Codice Civile, art. 1112. * Dig. 1. 17. 184. Cf. supra, p. 108. ' Though it is criticised by some commentators on the French Code: see Dalloz, Repertoire, s. v. 'Obligation.' ' Dig. iv. 2. 9. I, ib. 14. 3; Code Civil, art. im; Codice Civile, axt. IIII. 272 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. XII. Mode of expres- sion. May be by agent. 4. The expression of agreement may be in writing, or by words, or by signs, or merely by a course of conduct in which last case it is called an 'implied contract V In an old case, it was said, with reference to an unexpressed acceptance, ' your having it in your own mind is nothing, for it is trite law that the thought of man is not triable, for even the devil himself does not know what the thought of man isV It must be expressed by the parties to one another: but in developed systems of law it is not necessary that the parties shall be face to face at the time. They may communicate, for the purpose of contracting, as well as for the purpose of otherwise affecting their legal relations, by letter, or by telegraph, or by means of a messenger or other go-between. This go-between, when entrusted with a certain amount of discretion, is called an agent, or mandatory, and he acts by virtue of the authority, or 'mandate,' oonflded to him by his principal'. The giving of this authority on the one hand, and its acceptance on the other, constitute a special contract, resulting in mutual rights and duties between the principal and the agent, which will have to be discussed hereafter. We are now only concerned with agents as being, for the purposes of * It is necessary carefully to distinguish from this appropriate use of the phrase, its use as descriptive of terms imported into a contract by the law {supra, p. 2$!, infra, pp. 289, 290), or of a transaction to which the law chooses to attach the consequences of a contract, although it is nothing of the kind (supra, p. 244). ' Per Brian, C. J., 17 Ed. IV. quoted by Lord Blackburn in Brogden v. Metropolitan Railway Co., L. R. 2 App. 692. ' Supra, pp. 116, 122. The distinction between Agency and Service is said to be that the former relates to transactions of business with third persons, the latter to action upon or about things: Mechem, Agency, § 2; and it has accordingly been held that a Telegraph Company is not responsible for the knowledge of its telegraphist. Western Union Tel. Co. v. Wofford, 74 S. W. Rep. 943, cited in Michigan Law Review, ii. p. 139. An agent need not be sui iuris, Co. Litt. 520, Code Civil, art. 1990. On 'agency by necessity,' see Anson, Contract, ed. xiii. p. 384. AGENCY IN CONTRACT. 273 all contracts alike \ capable of giving binding expression chap, xil to the will of their principals. Each party to a contract may be represented by an agent. It is a universally received maxim, that a person who at the time had no authority to act for another, may be retrospectively made his agent by subsequent ratification. 'Omnis ratihabitio retrotrahitur et mandato priori aequiparaturV An agent may in general be appointed without any Authority formality, though in English law an agent to execute a °^ ^S^J^'- deed must be appointed by deed, and for the purpose of binding his principal under the Statute of Frauds, sections I and 2, must be appointed in writing. Agency may also be implied from the acts of the principal, on the ground that if one person by his acts represents another person to be his agent, he ought to be liable upon the contracts into which third parties may enter on the faith of such a representation. A servant, for instance, who is in the habit of ordering goods for his master on credit, may continue to bind his master after his authority has been withdrawn, with reference to third parties who have had no notice of such withdrawal. So the master of a ship is, in emergency, an agent to pledge the credit of his employer for the good of the ship. It has however been held that mere necessity does not, in general, create agency; so a railway company is not liable for the fees of a surgeon Who has been called in by one of their station-masters to attend to the sufferers from an accident'. A wife, merely as such, has no authority to bind her husband's credit ; and it has been held accordingly that a prohibition ' Except the ' contract of marriage.' The ratification of the promise of an infant could not however, under Lord Tenterden's Act, be made by an agent. ' Of. Bird V. Brown, 4 Ex. 798; Fleckner v. U. S. Bank, 8 Wheaton, 363; and it seems that an imauthorised acceptance may be ratified even after the withdrawal of the offer. Bolton v. Lambert, 41 Oh. D. 295. ' Cox V. Midland Railway Co., 3 Ex. 268. On services rendered, e.g. by physicians, without request, see Quin v. Hill (N. Y.), 4 Dem. 69; Meyer v. Knights of Pythias, 178 N. Y. 63. 1950 T 274 PRIVATE LAW: RIGHTS 'IN PERSONAM.' Agents, special and general. CHAP. XII. to her to order goods, though uncommunicated to her tradesmen, is sufficient to relieve the husband from hability for her ptirchases, not made from persons induced by his previous conduct to suppose that she is acting by his authority \ The authority of an agent is terminated, in English law, by the death, or bankruptcy, and perhaps by the lunacy, of his principaL Before 1883 also by the marriage of a principal who was a woman. Agents are said to be 'general' when their authority is defined by their character or business, as in the case of factors, brokers, or partners ; or ' special ' when their authority is limited by the terms of their appointment. No private instructions, contrary to the usages of a general agent's business, will Umit the Uability of his principal. It follows from the nature of agency, that a contract made by an agent is regarded as the contract of his principal, who alone therefore can as a rule sue or be sued upon it. The agent, having done his part by acting as the intermediary, drops out of the transaction ^ The fraud of an agent will render voidable the contract of his principal. In marine insurance the insured may be responsible for non-disclosure of facts unknown to himself, if, but for the fraud or negligence of the agent through whom he has effected the insurance, they ought to have been known ' Jolly V. Rees, 19 C. B., N. S. 628. The principle of this case was aflBrmed by the House of Lords in Debenham v. Mellon, L. R. 6 App. Ca. 24. Where the dealing is, as a fact, authorised by the husband, the tradesman's ignorance of that fact will not enable him to treat the wife as having acted 'otherwise than as an agent,' under the Married Women's Property Act, 1893. Paquin v. Beauclerk, [1906] A. C. 149. But a hus- band is liable (quasi ex contractu) for necessaries supplied to a wife whom he has wrongfully deserted, as being his 'agent of necessity.' Eastland V. Burchell, 3 Q. B. D. 436. Cf. supra, p. 251 n. * For a list of the exceptions, real or apparent, to this rule recognised in English law, and a discussion of the difference between ' disclosed ' and 'undisclosed' principals, see Dicey 's Parties to an Action, pp. 134-143. POSSIBILITY AND LEGALITY. 275 to him \ If a man contracts avowedly as the agent of chap. xn. another, though without authority, neither can be charged upon the contract, but the pretended agent is liable for the deceits iii. "The matter agreed upon must be at the time of the Possibil- agreement both possible and legally permissible \ A thing Je|amy. is said to be impossible, not only 'quod natura fieri non concedit,' but also if it be practically out of the question, because it can only be accomplished at an unreasonable cost, e. g. the recovery of a ring which is known to be lying at the bottom of the sea; or if it imports to have a legal effect unknown to the law. A contract to do an act illegal because prohibited by law is equally void. So a sale of pork or wine is void according to Mohammedan law*; and the law of England will not enforce a contract of 'marriage brokage*,' or for assigning the salary of a public officer. Such contracts are sometimes said to Public be 'against public pohcy.' But this doctrine has been^"'**^' called 'a very unruly horse'; and in a recent case Sir G. Jessel observed : ' You are not to extend arbitrarily those rules which say that a given contract is void as being against public policy ; because, if there is one thing which more than another public policy requires, it is that men shaU have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred, and shall be enforced by courts of justice. Therefore you have this paramount public policy to consider, that you are not lightly to ' Blackburn v. Vigors, 12 App. Ca. 531. ' Cf. supra, p. 238. ' Inst. iii. 19. 1.; Dig. xliv. 7. 31, xlv. i. 35; German Civil Code, 306-9. So Agesilaus maiatained, with reference to an unjust promise, C\c{a /u^r, i>lto\6yri(ra S' oS. Plut. Apoph. Lac. p. 208 c. . * Hiddyah, ii. p. 429. ' Cf. Cod. V. 1. 6; Dig. xlv. i. 134. T 2 2;6 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP, XII. interfere with freedom of contract \' It must however be observed that a wide application is given to the requirement of French law that a contract shall have a 'cause licite" (the 'cause' is 'illicite, quand elle est prohibee par laloi, quand elle est contraire aux bonnes mceurs, ou a I'ordre public ' ') ; and to the article of the German Civil Code declaring ' null ' all juristic acts which offend against good morals *. Producing legal effects iv. The agreement must purport to produce a legally binding result. Thus the acceptance of an invitation to dinner, or an engagement to take a walking tour with a friend in Switzerland, are no contracts'. on the re- lations of the parties. V. It must be of a nature to produce a binding result upon the mutual relations of the parties ; therein differing from the agreement of a bench of judges, or of a board of directors, which has no reference to the relations of the judges, or of the directors, one to another. Form or ' causa.' vi. No system of law will enforce as a contract any trans- action which does not exhibit all of the five characteristics already described. Even when these are all present, the transaction will generally be treated as a ' nudum pactum,' unless it is either effected in compliance with certain 1 Printing Company v. Sampson, L. R. 19 Eq. 465. Cf . Janson v. Drie- fontein Cons. Mines Co., [1902] A. C. 484. But see Be Beard, [1908] i Ch. 383; Spiers v. Hunt, ib. i K. B. 720; and, with reference to voting in Parliament as directed, in consideration of a salary, Osborne v. Amalg. Soc. of By. Servants, [1910] A. C. 87. 2 Code Civil, 1108. Cf. Codice Civile, 1122. ' Ib. 1133. Cf. supra, pp. 256, 262. * Bttrgerliches Gesetzbuch, 138. See also the English Cases collected in Mr. Jenks' Digest of English Civil Law (1905), arts. 93, 96. ' ' Verborum quoque obligatio constat si inter contrahentes id agatur: nee enim si per iocum puta, vel demonstrandi intellectus causa ego tibi dixero "Spondes?" et tu responderis "Spondeo," nascetur obligatio.' Dig. xliv. 7. 3. Cf. Carliil v. Carbolic Smoke-ball Co., [1893] i Q- B- 256; German Civil Code, 118. For a criticism on 'unreal consideration,' see Col. L. R. 1907, p. 447. FORM. 277 prescribed formalities, or is the result of some underlying chap, xil fact, which the Roman jurists called 'causa.' First as to superadded formalities \ I. It is a topic of controversy whether 'formal' or Form, 'informal' contracts are historically the earlier. Roman legal speculation seems to have derived the informal contracts, which were attributed to the 'ius gentium,' from a primitive state of nature, formal contracts being regarded as later in date, because resulting from the idiosyncrasy of the Roman people. Recent investigators, after examination of a far wider range of facts than was formerly accessible, are led to the conclusion that complexity, rather than simplicity, is the characteristic of primitive customs, and that the consensual kernel of contract has only gradually dispensed with the husk of ceremonial with which during long ages it was almost identified. The evidence in support of this view is very strong, though it may be questioned whether its adherents have sufficiently noticed the fact that such baUments of everyday use as pledging and letting seem to have been made in very early times with no more formality than the mere transfer of the possession of an object, the ownership of which was probably notorious. A solemn form, be It observed, has two distinct advan- Advan- tages. In the first place, it prevents the bargain from being ^^ ° ' rashly struck; and in the second place, it facilitates the proof of what has occurred. The formal contract of the best ages of Roman law was the ' stipulatio,' or solemn question and answer, imitations of which may be found in the Marriage and Baptismal Services of the English Church. This, according to many writers, whose views were popularised by Sir Henry Maine ^, must have been a relic of a still more formal ceremony in which the solemn words were accompanied by the symbolic weighing • Cf. supra, p. 12a. • Ancient Law, p. 320. 278 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. XII. of pieces of copper in tlie presence of a balance-holder and five witnesses ; but Mr.W. A. Hunter lias well explained the reasons for thinking that the ' stipulatio ' was indepen- dent of, and as old as, the ' mancipatio ' itself ^ It became usual to draw up a written memorandum, 'cautio,' of the stipulation, and this was held to be presumptiye evidence that the contract had been entered into. The restriction which originally prevented a stipulation from being entered into by means of an agent was done away with in the later legislation. Varieties Among the Teutonic conquerors of the Roman empire, it seems that such contracts only were recognised as were either accompanied by a bailment, ' re praestita,' or entered into by means of a f ormaUty, ' fides facta,' ' Wette,' ' Treu- gelobniss,' consisting in the deUvery of a wand, 'festuca,' or similar object ^ This was represented in later times by a shake of the hand, ' Handschlag,' 'Handsel.' Part payment was represented by the ' Denier a Dieu,' ' Paumee,' or ' Weinkauf '.' Besides these methods the old French customary law recognised also obUgation by a writing under seal*. So also the most solemn form known to the law of England is a deed, or document sealed and delivered. An agreement if thus entered into is called a 'specialty contract,' whUe ' Roman Law, p. 336- Cf. Sohm, Institutes (Transl.), § 12. For a summary of the various views upon the subject, see Muirhead, Historical Introduction, ed. Goudy, p. 214. ' See the references to Sohm's 'Eheschliessung' and 'Lex Salica,' con- tained in two articles by M. Esmein, 'sur les contrats dans le trSs-ancien droit fran5ais,' Nouv. Rev. Hist, de Droit, &c., t. iv. p. 656, t. v. p. 21, whence are derived several of the statements in the text. See also Essays in Anglo-Saxon Law, p. 189 ; and now Pollock and Maitland, History of English Law, ii. p. 183. Cf. Holmes J. in Harvard Law Review,xii. p. 44$. ' ' Statuimus quod omnis emptio et venditio rata sit et firma perpetuo, si facta fuerit cum denario Dei iuridico et recepto.' Stat, munlcip. de la ville de Salon (1293). 'Emptio vel venditio non valet sine palmata, vel sine solutione pretii peculiari vel universali, vel sine rei traditione.' Gout, de Montpellier, cited by M. Esmein. * Beaumanoir, xxxv. i. CONTRACTS UNDER SEAL. 279 if made in any other way, even in writing, it is a ' simple ' chap. xn. or ' parol contract.' As Roman law enforced a ' stipulatio V so English law enforces a 'specialty contract,' without looking behind it to inquire into its equitableness, or into the motives which caused it to be made; although both stipulations and deeds may be impeached on the ground of fraud, mistake, or duress I The parties are also, as it is said, 'estopped' from denying the truth of the statements to which they have set their seals, and there is some authority for saying that an offer by deed is irrevocable, although it has not been accepted by the other party'. Certain agreements cannot be made other- wise than by deed *. A less solemn formality consists in the reduction of Writing, a bargain to writing °. The ' chirographa ' and ' syngraphae ' of Roman law, and Bills of the bills of exchange and promissory notes of modem ^^°^*' ' Tlie novel doctrine, that a stipulation needs a ' causa,' is combated by Savigny, Obligationenrecht, ii. pp. 249-266. ' ■ For a time, a man was bound by his seal although it was aflBxed against his will.' Holmes, Common Law, p. 272, citing Glanville, Britton, and other early authorities. In many States of the United States it is held that a mere flourish of the pen is a sufficient seal, and in some of them the distinction between sealed and unsealed instruments has been expressly abolished, lb. p. 273. ' Xenoa v. Wickham, L. R. 2 H. L. 296, in which some earlier cases are cited. It may however be hoped that this case wiU some day be ex- plained away. The doctrine to which it gives countenance has, not unnaturally, been stigmatised as 'ein juristisches Monstrum,' Schloss- mann, Der Vertrag, p. 150, cited by E. Schuster, Archiv fiir Handelsrecht, xiv. p. 21. * It has been given as the reason of the sufficient character of a deed that it 'imports consideration.' The statement is artificial on the face of it, and becomes doubly so when we remember that deeds were binding before the doctrine of consideration had been worked out. See Sir W.R.Anson, Contract, ed.xiii. p. 72. The necessity for a seal, as between individuals, has been, it seems, abolished in the State of Iowa. 5 The Schtar, a public act, signed by the parties and at least two wit- nesses, according to Jewish law takes precedence of antecedent informal contracts, and binds the debtor's property in the hands of a purchaser. L. Auerbach, Das jadisohe Obligationenrecht, Bd. i. 1871. 280 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. xn. L'Ordon- nance de Moulins. The Statute of Frauds. Europe, must be made in this way, or they could not be made at all ; but many agreements which might very well be entered into by word of mouth have been rendered by positive enactment void unless embodied in, or evidenced by, a written document. This has of course been done with a view to guard against deception and disputes. Increased freedom of contracting leads naturally to increasing difficulty in deciding whether a contract has been made or not. Hence in France the Ordonnance de Moulins, 1566, 'pour obvier a la multiplication des faits que I'on a vu ci-devant §tre mis en avant en jugement, sujets a preuve de temoins et reproches d'iceux, dont adviennent plusieurs iuconvenients et involutions de proces,' prohibits proof by witnesses when the matter in dispute exceeds 100 francs \ Hence also the English ' Statute of Frauds,' passed 'for the prevention of many fraudulent practices, which are comanonly endeavoured to be upheld by perjiiry and subornation of perjury,' provided that no contract for the sale of goods for the price of ten pounds or upwards, should 'be allowed to be good' unless there should be part delivery of the goods, or part payment of the price, or some note or memorandum in writing of the bargain made and signed by the parties, or their agents ^ By the same Statute, ' no action shaU be brought ' on a contract which makes an executor personally liable, or guarantees the debt or default of another, or creates a liability in con- sideration of marriage, or relates to an interest in land. ' Cf. C!ode Civil, arts. 1317, 1322, 1341; Blirgerliches Gesetzbuch, 126-128. ' 29 Car. n. c. 3. s. 17. This section has been repealed by the Sale of Goods Act, 1893, but is reproduced, with slight variations, in s. 4 of that Act, as follows: ' A contract for the sale of any goods of the value of ten pounds or upwards shall not be enforceable by action unless the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract be made and signed by the party to be charged or his agent in that behalf.' On the effect of this 4th section, see L. Q. R. xiii. p. 298. INFORMAL CONTRACTS. 28 1 or is not to be performed within a year, unless it, ' or chap, xil some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith,' or by his agent'. An acknowledgment of a debt barred by the statutes of limitation must also be written and signed ^• 2. Besides such agreements as were fortified by special Cause. formaUties, the earher Roman law recognised, as legally enforceable, only eight informal contracts, four of which, loan for consumption, loan for use, deposit and pledge, were accompanied by a bailment; while the other four — sale, letting, agency, and partnership — related to indis- pensable transactions of every-day occurrence. Certain other agreements, though never dignified by the name of contracts, were in later times enforced as ' pacta vestita °.' All of these were accompanied by a 'causa,' which, though often consisting in part performance, was in effect only the mark by which an arbitrarily defined class of agree- ments was distinguishable; and agreements where there was no 'causa' continued to be treated as 'nuda pacta,' on which, though they might be ground for a plea, no action could be founded*. Partly under the influence of the Canon Law \ partly from the strong sense of the obligation of a promise charac- teristic of the Teutonic races °, the nations of the continent early ignored the narrow definition of ' causa ' and the dis- tinction between ' contractus ' and ' nuda pacta ' which they ' 29 Car. II. c. 3. s. 4. • 9 Geo. IV. c. 14. s. I ; 19 & 20 Vict. c. 97. e. 13. Of. Code Civil, art. 134; Allg. Landrecht, i. tit. v. § 131. ' This term seems to have been invented by Azo, who says : ' si quidem pactum fuerit nudum, propter nimiam frigiditatem parere obligationem non potest, nisi mirabiliter hoc in quibusdam casibus accidat, ut in donatione, . . . siautemnonfueritnudum,sedvestltum, actionem parit, sic enim ei nomen recte impono.' Summa Cod., de pactis, fol. 67. • ' Sed cum nulla subest causa, propter [praeter ?] conventionem, hie constat non posse constitui obligationem : igitur nuda pactio obligationem non parit, sed parit exceptionem.' Dig. ii. 14. 7. 4. ' See cc. I, 3 X. de pactis. • Heineccius, Elem. luris. Germanici, Lib. ii. tit. 12, J 330. 282 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. XII. found in the writings of the Eoman lawyers. In France Beaumanoir could assert, towards the close of the thirteenth century : * Toutes convenences font a tenir, et por ce dit on "covenence loi vaintV exceptees les convenences qui sent fetes por malveses causes ' ^ ; and it was an old saying: ' verba ligant homines, taurorum comua funes. cornu bos capitur, voce ligatur homo ' : 'on lie les boeufs par les comes et les hommes par les paroles ' \ It has, accordingly, long been settled in French law that every permissible agreement is legally binding subject only to the proviso that every agreement must have a ' cause,' the precise meaning of which seems to be far from clear to the French commentators themselves*. The Dutch writers take a similar view ; Paul Voet roundly asserting that 'ex nudo pacto oritur actio'.' 'Causa' (oorzaak) signifies, according to these writers, nothing more than a reasonable and permissible ground for the consent of the parties. A curious divergence of opinion upon the point has, however, manifested itself between courts admin- istering the Roman-Dutch law in British possessions. The courts of the Transvaal", Ceylon', and British Guiana' adhere to the view, held also at the Cape previously to 1874°, that any agreement founded on a 'redelijke oorzaak,' which is also a ' causa legitima,' is legally binding. ' Beaumanoir, says M. Esmein, knowingly puts a new meaning on this phrase, which in the Assize of Jerusalem merely approves of assignment inter vivos of property to which the assignor's heirs would be entitled on his death. Nouv. Rev. Hist, de Dr. Fr. et £tr. t. iv. p. 683. ' Les Coutumes du Beauvoisis, xxxiv. 2. ' Loysel, Inst. Cout. liv. iii. tit. i, rfegle 2. He continues : ' autant vaut une simple promesseou convenance que les stipulations du droit romaln." * Code Civil, arts. 1108, 1131; Pothier, Oblig. art. 42. But see Dalloz, s. V. ' Obligation,' No. 498, where we are warned against taking 'cause' to be equivalent to 'motif,' to 'pourquoi,' or to 'objet.' ^ Ad. Inst. iii. 14. 5. ' Roodt V. Wallach (1904), 21 Trans. L. R. 137. ' Lipton V. Buchanan (1904), 8 New L. R. (Ceylon), 49. 8 De Cairos bros. v. Gas-par, in S. Africa L. J., xxi. 1905, p. 347. ' Louisa van den Berg {i%io), iM.enz. 472; Jacobson Y.Norton, 2ib. 221. CAUSA. 283 while the Supreme Court of the Cape Colony has laid down, chap. xii. in a long series of modern cases, that, except for a ' donatio,' the ' causa ' must be equivalent to the ' valuable considera- tion ' of English law K The binding force of a mere agreement, which in the Considera- days of Bracton was unenforceable in the Civil Courts '°°" 'nisi aliquando de gratia ^ is limited in another way by the law of England; which recognises no promise, unless it be under seal, for which there is no 'con- sideration'.' It has been laid down by the highest authority, that, although 'it is undoubtedly true that - every man is, by the law of nature, bound to fulfil his engagements, it is equally true that the law of this country supplies no means nor affords any remedy to compel the performance of an agreement made without sufficient con- sideration. All contracts are by the laws of England distiaguished into agreements by specialty and agreements by parol; nor is there any such third class as contracts in writing. If they be merely written and not special- ties, they are parol, and a consideration must be proved *.' ' Alexander v. Perry, Buchan. 1874, SQ! Tradesmen's Ben. Socy. v. Du Preez, s Sup. Ct. R. 269; Malan v. Secretan, Foord's Sup. Ct. R. 94; Col. Socy. V. Davidson, Buchan. 1876, 131; Scott v. Thieme, 21 Sup. Ct. R.. 370; Mtembu v. Webster (1904), 22 ib. 323. I am here much indebted for information and references to cases to the Hon. Sydney T. Jones, lately Judge-President of the E. Districts Court. ' Fol. 100 a. Cf. Glanville, liv. x. c. 18. On the early jurisdiction of the Court of Chancery in matters of contract, see an article by Mr. Justice Holmes in L. Q. R. i. p. 171. ' 'In one sense,' it has been said, 'everj^thing is form which the law requires in order to make a promise binding, over and above the mere expression of the promisor's will. Consideration is a form as much as a seal.' O. W. Holmes, Common Law, p. 273. Cf. the dictum of Lord Mansfield, 'I take it that the ancient notion about the want of consid- eration was for the sake of evidence only,' in Pillans v. Van Mierop, 3 Burr. 1663. In Harvard L. R., xiii. p. 448, Holmes maintains that, even in Blackstone's time, 'consideration' had not been generalised from the accumulating instances in which the need of it was recognised. Cf. now Pollock, Contract, ed. viii. c. 4. * Eann v. Hughes, 8 T. R. sso- After this decision it was impossible 284 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. XII. A ' consideration ' has been explained to be ' any act of the plaintiff from which the defendant, or a stranger, derives a benefit or advantage, or any labour, detriment, or in- convenience sustained by the plaintiff, however smaU the detriment or inconvenience may be, if such act is per- formed, or inconvenience suffered by the plaintiff mth the assent, express or implied, of the defendant, or, in the language of pleading, at the special instance and request of the defendant ^' The topic of consideration is one which is dealt with by the English and American Courts in great detail; most of the rules upon the subject may, however, be reduced to two principles. On the one hand, it is not necessary that the consideration be adequate : so where a person had undertaken gratuitously to carry for another, and deposit in a cellar, certain hogsheads of brandy, and he, or his servants, so carelessly performed his promise that some of the brandy was lost, it was held that the owner trusting him with the goods was a suflftcient consideration to oblige him to a careful manage- ment ^ ; and when, in consideration of receiving permission to weigh two boilers, a promise was given that they should be returned in good condition, the permission was held to be a sufficient consideration'. On the other hand, the consideration must have some value. A promise, there- fore, to perform an already existing legal duty is no Past con- consideration ; and a past fact, although it may be an SI era ion. influencing motive, can never be a good consideration, which must always be either present (' executed '). i- e. an act to admit of exceptions to the rule, as had been suggested by Lord Mans- field, u. supra, in favour of written mercantile contracts. As to negotia- ble instruments, however, see Anson, Contract, ed. xii, 73, 270. ' Per Tindal, C. J., Layihoarp v. Bryant, 3 Scott, 238. Cf. Currie v. Misa, L. R. 10 Ex. 162. ' Coggs V. Bernard, i Smith, L. C. On this case see Holmes, Common Law, pp. 196, 292. The principle upon which it proceeds has been acutely criticised by Professor E. Grueber in the L. Q. R. ii. p. 33. ' Bainbridge v. Firmstone, 8 A. & E. 743. RIGHTS RESULTING FROM CONTRACT. 285 or forbearance given for a promise, or future (' executory '), chap, xii, 1. e. a promise for a promise \ It has indeed been truly- observed that a consideration must always be present, since a future, or ' executory,' consideration consists in a present promise of the one party to do something in return for the present promise of the other party. In addition to the requisites insisted on by law as Modes of essential to the validity of a contract, other modes of entag^a strengthening its obligation have been resorted to by the ''°''*''*'^*' contractors themselves. Some of these are of a super- natural character, consisting in oaths, by which the Deity is as it were made a party to the bargaia. They are sometimes taken in consecrated buildings or in the pre- sence of sacred objects. The desired effect is however now more ordinarily produced by getting third parties to guarantee the contract, or by giving property by way of security for its due performance \ Supposing a contract to have been duly formed, what Rights re< is its result ? An obligation has been created between the from°| contracting parties, by which rights are conferred upon '^°°*'^^''*- the one and duties are imposed upon the other, partly stipulated for in the agreement, but partly also implied by law, which, as Bentham observes, 'has thus in every country supplied the shortsightedness of individuals, by doing for them what they would have done for them- selves, if their imagination had anticipated the course of nature'.' The character of those rights and liabilities depends of course in each case upon the special character of the contract. » On the alleged exception to this rule, supported by the case of Lamp- leigh v. Braithwait (1616), Hob. 105, the principle of which is adopted bv the Indian Contract Act, § 25, see Anson, Contract, ed. xiii. p. 122, and the remarks of Bowen, L. J., in Stewart v. Casey, [1892] i Ch. 104. » Vid. supra, p. 230; infra, pp. 307, 308. • Works, iii. p. 190. Cf. Hoadley v. Madeane, 10 Bing. 487. 286 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. xn. Possible principles of classifi- cation. Neglect of classifica- tion. Contracts have been classified upon many different prin. ciples. With reference, for instance, to — (i) The number of parties on either side, they are 'joint' or ' several ' ; (2) Both parties, or only one, being bound to a per- formance, they are 'unilateral*' or 'bilateral' ('synallag- matic') ; (3) Special solemnities being or not being required for their formation, they are ' formal ' or ' formless ' ; (4) Their being entered into on their own account, or necessarily presupposing some other contract, they are ' principal ' or ' accessory ' ; (5) Their object being liberality, or gain, they are * gratuitous ' or ' onerous ' ; (6) Their being accompanied or not being accompanied by the dehveryof an object, they are 'real' ('bailments") or 'consensual'; (7) Their depending or not depending upon an uncertain event, they are 'aleatory' or not; (8) Their being conditional or unconditional. (9) They may also be classified with reference to the particular kind of benefit promised, e. g. exchange, ren- dering of services, &c. Most Codes go through the heads of contract seriatim^ without attempting to arrange them upon any principle. The order of the French Code, for instance, is the following: marriage, sale, letting, partnership, loan for use, loan for consumption, deposit, wagering contracts, mandate, suretyship, compromise, pledge, antichrese, hypo- theque*. This is hardly an advance upon the list of contracts incidentally given by Aristotle, viz. sale, loan • Ex 'uno latere constat contractus.' Dig. jdx. i. 13. zg. ' Cf. infra, p. 298. Can there be a bailment without contract? See the cases cited in Pollock and Wright, Possession, p. 41 n. • Ck)de Civil, arts. 1387-2203. Cf. the German Civil Code, 494-779. CLASSIFICATION OF CONTRACTS. 287 of money, security, loan for use, deposit, letting for chap. xn. hire \ It is howeyer, not only possible, but instructive, to group the various contracts according to their natural afiSnities, which we shaU now endeavour to do ^ Contracts may be divided, in the first place, into those Classifi- which are 'principal,' that is to say, which are entered into^Jp^ij^ without an ulterior object, and those which are 'accessory,' L e. which are entered into only for the better carrying out of a principal contract. I. Principal contracts may be subdivided into six classes. Principal according as their object is, i alienation ; ii. permissive ''°^ ^^^ ' use; iii. marriage; iv. service; v. negative service; vL aleatory gain. L An alienatory contract may be a mere act of liberality Alienatory. on one side, or each party may intend by means of it to secure some advantage for himself. In the former case it is a contract to give ; in the latter, a contract to exchange. A contract to give is usually enforceable only in certain Liberali- rigidly defined cases. Thus in England it must be entered ^^' into by deed, in France before a notary ' ; in Roman law, though it may be made by word of mouth, it must be registered if dealing with a value exceeding five hundred solid! *. In Roman law and the derived systems ungrateful conduct on the part of the beneficiary would be ground for a rescission of the gift. Liberality is also often restrained by the claims of the family, or the creditors, • Eth. Nio. V. 2. 13. Other divisions will be found in Paley, Moral Phil. i. p. 161; Hegel, Phil, des Rechts, p. 119; Trendelenburg, Natur- recht, Th. ii. § 105 ; Jhering, Der Zweck im Recht, i. p. 32. ' The need of some reasonable grouping may be inferred from the fact that Mr. Story, jun., in his well-known work on Contracts, vol. i. p. 75, divides them into i. bailments, 2. sale and warranty, 3. guarantee, 4. between landlord and tenant, 5. between master and servant. ' Code Civil, art. 931. * Inst. ii. 7. 2. 288 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. XII. of the giver. Thus, according to the French Code, the father of one chUd cannot give more than half of his fortune to a stranger S and a 'voluntary' alienation is not allowed by the law of England to defeat the claims of creditors^. Gifts in contemplation of marriage, which is, in the language of English law, a 'valuable' consideration, are not considered to be mere liberalities. The rules therefore which regulate the presents made to the husband by means of the Roman 'dos,' and the presents made to the wife by means of an English jointure, or marriage settlement, are not those which would regulate merely 'voluntary' agreements. Exchange. The earliest form of Exchange, or commutative aUena- Barter. tion, is Barter, in which one commodity is given for another. So the Greeks before Troy are represented as bartering brass, iron, hides, oxen, and Slaves for wine'. The exchange of commodities for a price in money, which superseded this ruder form of dealing, ' quia non semper nee facile concurrebat, ut cum tu haberes quod ego desiderarem. Sale. invicem haberem quod tu accipere velles V is Sale. After a long controversy between opposing schools of the Roman jurists, it was finally settled that an agreement for barter, 'permutatio,' was a different contract from an agreement for sale, 'emptio venditio'.' The latter is an agreement for the future transfer of property, ' merx,' in consideration of the payment, or an undertaking for the future payment, of a price in money, 'pretium.' When the price falls utterly short of the true value of the thing sold, the contract is, under some systems, rescissible on the ground of 'laesio enormisV ' Code Civil, art. 913. ' 13 Eliz. c. 5. ' II. vii. 472. * Dig. xviii. i. 1. ^ Inst. iii. 23. ' This doctrine originated in 285 a. d., when a Rescript of Diocletian and Maximian ordered that a sale of land for less than half its value should be rescissible, unless the purchaser should elect to pay a fair ALIENATORY CONTRACTS. 289 Special formalities have been imposed upon contracts for chap. xn. the sale of certain kinds of property, such as ' res mancipi ' by Roman law, and ' real property,' and goods of the value of ten pounds or upwards^ by the law of England. The Anglo-Saxon laws directed every sale to be contracted before credible witnesses, and prohibited the sale of any- thing above the value of 20c?. except in market overt. Subject to the observance of such formalities, where re- quired, the contract is complete when the price is agreed upon^; and the vendor is bound to place the property at the disposal of the vendee, who is then immediately bound to pay the price, unless the sale was on credit. The vendor is usually protected by being given a 'lien' upon moveable property sold, i. e. a right to retain pos- session of it tiU the price is paid'. The law of England gives this further protection, known as the right of ' stop- page in transitu,' to the unpaid vendor, that he is allowed, even after he has parted with the possession of the goods, while they are stiU in transit and not delivered to the vendee, on hearing of the insolvency of the latter, to reclaim them and determine the contract. There is much divergence of view between different Warran- systems of law as to the extent to which a vendor im-*'^^' pliedly warrants his title to the property sold or its quality. ' The guarantee,' says the French Code, * which the vendor owes to the vendee is twofold. It regards, in the first place, the peaceable possession of the thing sold, in the second place, the latent faults of the thing, or its red- price. Cod. iv. 44. 2. For the application of the principle in modem codes, see HolzendorS, Rechtslexicon, ii. p. 623. It is excluded in com- mercial transactions by the Handelsgesetzbuch, § 286, and was abolished for Cape Colony by Act No. 8, 1879, § 8. For a note of a recent case is British Guiana, see Joum. Comp. Leg., N. S., xii. p. 506. ' Supra, p. 280 n. * On the actual transfer of ownership, vid. supra, p. 216. ' This was unnecessary in Koman law, where, unless credit was given, no property passed before payment. 1950 U 290 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. XII. hibitory vices V This is in general correspondence with the rules of Roman law, according to which the vendor, though he did not undertake to make the purchaser owner of the property, did guarantee him against being evicted from it^ and also against all latent defects in the thing sold, on discovery of which the purchaser might proceed against Mm by the actions ' redhibitoria,' for rescission of the contract, or ' quanti minoris,' for proportional reduction of the price. The law of England is more lenient to the vendor, its general principle being * caveat emptor.' With reference to quality, the exceptions to this principle are very few. A warranty of title was at one time held to be implied by a feoffment, and the use of the words ' grant ' or 'give' in a conveyance was treated as equivalent to a covenant for quiet enjoyment, but this construction has been negatived by a modern Act of Parliament*. The rules as to implied warranties, and conditions, as to title or quaUty on a sale of goods have been codified in the Sale of Goods Act, 1893 *. For use. ii. Contracts for permissive use are : i. Loan for con- sumption, 'mutuum'; 2. Loan for use, 'commodatum'; 3. Letting for hire, 'locatio conductio.' Mutuum. I. A Loan for consumption takes place when money or things ' quae pondere, numero, mensurave constant,' some- times called ' res fungibiles ^' are given to a man on the understanding that he shall on a future day return to the giver, not necessarily the things themselves, but their equivalent in kind. Since the object given becomes the ' Art. 1625. ' Dig. xxi. 2. r. ' 8 & 9 Vict. c. 106. B. 4. * 56 & 57 Vict. c. 71. ss. 12-15. On differences between English and Scots law (the latter not distinguishing between warranties and condi- tions), see Col. L. R. viii. p. 82, and Juridical R. xv. pp. 50, 397, xvi. p. 406. ' Supra, p. 106. The various theories as to the true meaning of these distinctions are exhaustively discussed in 'Les choses fongibles et lea choses de cousommation,' par E. Roguin, Lausanne, 1892. CONTRACTS FOR USE, zgi property of the borrower, the contract might be regarded chap. xn. as one of alienation. It is however practically one for use only, since either the identical object, or a similar object, has to be returned to the lender. The contract takes of course many forms. Thus money at a banker's is a loan for consumption to the banker, to be returned when, and as, it is called for by cheques. The loan is, as a rule, gratuitous, interest not being usually due upon it, in the absence of special agreement. The highest amount of Usury. interest which may be agreed upon has very generally been fixed by law; but the inefflcacy of thus attempting to protect borrowers against extortion was thought to have been established by Bentham, and the English usury laws were repealed by a Statute of Victoria \ The sole duty of the borrower, in the absence of any liability for interest, is to return objects of the same quantity and quahty as those which he has received, and no excuse will avail him for the non-performance of this duty. 2. In a Loan for use, which is essentially gratuitous, Commoda- the duty of the borrower is to return the identical thing '™^" lent, and to use it in the meantime in accordance with the terms of the contract. He is not generally responsible for ordinary wear and tear, nor for loss by theft, but, since the contract is wholly for his benefit, he will be gene- rally expected to bestow great care upon the thing. 3. Letting differs from Loan for use in being for the Letting, advantage of both parties, since the hirer pays a rent, 'merces,' to the latter ^ A hirer therefore is not bound, 1 17 & 18 Vict. c. 90. See, however, now 'The Money-lenders Acts,' 1900 and 1911. * Under ' locatio conductio ' Roman law included not only the hiring of the use of a thing, 'rei,' but the hiring of services, 'operarum' (which we shall treat separately), and agreements for the doing of a given piece of work, 'operis.' With reference to this last-mentioned apphcation of the contract, the usual terminology is inverted. The person for whom the work is to be done is the 'locator,' the person who undertakes to do it ia the ' conductor.' Cf. Code Civil, art. 1708. U2 292 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. xii. in the absence of express stipulation, to exercise the same care as is expected from a borrower. A lease of lands is usually accompanied by greater formalities than a letting of moveables. If for more than three years, it must, according to EngUsh law, be by deed. Different views are taken of the right of the hirer to sub-let ; of the effect of the accidental destruction during the term of the thing let; of the extent to which the lessor guarantees that the thing shall prove suitable for the purpose for which it is hired ; of the respective rights of landlord and tenant in the case of improvements effected by the latter, especially as to those additions to a building which English law calls 'fixtures,' and with regard to 'emblements,' or crops annually produced by the labour of the cultivator ('fructus iudustriales,' as opposed to 'fructus naturales'), which may be growing on the land at the expiration of the tenancy. To marry. Betrothal and mar- riage. iii. Engagements to marry, ' sponsalia V are easily dis- tinguishable from marriage itself. Just as an agreement for sale gives rise only to personal claims, while an actual conveyance creates new real rights, so an engagement is a contract 'per verba de futuro,' creating a right 'in personam' to its fulfilment at the appointed time, while marriage is entered into 'per verba de praesenti,' and creates a ' status.' The former is a true obligatory contract such as those which we are now considering. The latter is a contract only in that wide sense of the term ia which it may be applied to any agreement affecting the legal rights of the parties, but leaving no outstanding claims between them '. This theory, developed by the canonists from the 1 ' Sponsalia sunt mentio et repromissio nuptiarum futurarum.' Dig. sdii. I. I. ' Supra, pp. 123, 246. The canonists distinguish 'sponsaUa de future' (betrothal) from 'sponsalia de praesenti' (marriage). CONTRACTS TO MARRY. 293 doctrines of Roman law, has at length superseded the chap. xn. theory of the Teutonic races which attached more im- portance to the betrothal than to the subsequent wedding. Betrothal, 'Verlobung,' seems to have been a sale of the woman by her guardian for a 'pretium puellae,' 'Mund- schatz,' or ' Witthum.' This came to be represented by a handsel, and was not paid over till the wedding, 'Trauung,' actually took place. In later times the betrothal was the woman's own act, and the handsel was payable to herself \ The distinction between ' sponsalia ' and ' matrimonium ' Clandes- has been to some extent obscured by another which regular divides actual marriages into 'clandestine' and ' regular.' ™^™^2®^" A clandestine marriage is one which rests merely on the agreement of the parties. The Christian Church, adopting from Roman law the maxim that 'consensus facit matri- monium,' though it stigmatised such marriages as irregular, because not made 'in facie ecclesiae,' nevertheless upheld them as valid, till the Council of Trent declared all marriages to be void unless made in the presence of a priest and witnesses. Before the time of the Council, and after it in countries, such as France and England, where the decree in question was not received, either of the parties to a clandestine marriage ' per verba de praesenti ' could compel the other, by a suit in the ecclesiastical court, to solemnise it in due form. It has been judicially stated that the English common law never recognised a contract 'per verba de praesenti' as a valid marriage till it had been duly solemnised ^ although it recognised it, under the name of a ' pre-contract of marriage,' a term which" covered also promises 'per verba de futuro,' down to the middle of the last century, as giving either of the parties a right ^ See Baring-Gould, Germany, Present and Past, p. 98, citing Fried- berg, Verlobung und Trauung, 1876. » B. V. MUlis, 10 CI. & Fin. 655- 294 PRIVATE LAW: RIGHTS 'IN PERSONAM.' The action for breach of promise. CHAP. XII. to sue for celebration, and as impeding his or her marriage with a stranger to the contract \ It has been much discussed whether an engagement to marry ' per verba de f uturo,' as distinguished from an actual marriage, whether 'clandestine' or 'regular,' ought to be enforced by law. It seems to have been the old practice in Latium, and probably also at Rome, for the father of a girl to enter into a stipulation with her lover on which he could bring an action '. According to later Roman law ' sponsalia ' were entered into without any formalities, and could be repudiated at will by either party, though if 'arrhae' had been given, the party which broke off the match would lose twice the amount'. It must however be remembered that marriage itself could be dissolved with equal ease. Promises to marry were enforced under the canon law by ecclesiastical censures, which would be helped by the Court of Chancery *. Actions for breach of promise of marriage seem to have first gained a footing in England in the reign of Charles I, when it was held that the promise is a ' good ' and not merely a ' spiritual ' considera- tion, and that whether it be made to a man or to a woman '. Modern continental law admits very sparingly of such an action. It is recognised by the Prussian Landrecht", but expressly denied by the Code of Italy '. In the silence ' These consequences were removed by 26 Geo. II. c. 33. ' Gell. iv. 4; Dig. xxiii. 1. 2. ' 'Alii desponsatae renuntiare conditioni et nubere alii non prohi- bentur.' Cod. v. ±. i. Cf. Frag. Vat. 262; Cod. Theod. iii. 5; Dig. xxiii. I, xxiv. 2. 2. 2. According to Paulus, 'inhonestum visum est vin- culo poenaematrimonia obstringi, sive futura, sive iam contracta.' Dig. xlv. I. 134 pr. * Deer. Greg. lib. iv. 1. 10; Ayliffe, Parergon, p. 230. I am indebted for these two references to Mr. W. F. Webster, of Ldncoln's Inn. Cf. infra, p. 324 n. ' RoU. Abr. 22; 2 Bulstr. 48. In Wilson v. Camley, [1908] i K. B. (G. A.) 729, breach of a promise of marriage made by a man known to the promisee to be already married was held not to be actionable, on grounda of public policy. « Th. ii. tit. I. ss. 75. 82. » Art. 53. CONTRACTS FOR SERVICES. 295 of the French Code, the courts have expressed contradictory chap. xii. views upon the subject, but, according to the better opinion, interference with the freedom of matrimonial choice being contrary to public poUcy, no action wiU lie unless the plaintiff has sustained a ' prejudice reel V and the Austrian and German codes contain express provisions to this effect ''. iv. The more important contracts for services' are : i. for For care-taking; 2. fordoing work on materials; 3, for carriage ; ^^'^"''^^' 4. for professional or domestic services ; 5. for agency ; 6. for partnership. Service of any kind may be to be rendered either gratuitously or for reward, the respon- sibility of undertaking to render it being considerably greater in the latter case than in the former*. Thus the gratuitous contractor is, in English law, not liable for an omission to perform, and liable only for gross negligence in performing. I. Gratuitous care-taking of an object, commonly called Deposit, ' deposit,' is well defined as ' a naked bailment of goods to be kept by the bailee without reward.' Of this contract, ' sequestratio ' and the 'depositum miserabile,' or 'neces- sarium,' are recognised as species by the civilians*. The former occurs when an object, the right to which is disputed, is placed in the custody of a third party, pending the decision of the dispute ; the latter, when the deposit is made under circumstances, such as fire or shipwreck, which leave the depositor no choice. Care-taking for reward is exercised, for instance, by warehousemen, wharfingers, 1 i. e. it is held that the remedy, if any, is under art. 1382 of the Code, and not under art. 1142. ' Austrian Code, arts. 4S> 4^ i German Civil Code, 1297-1300. » On the question, 'who is a servant?' see Pollock, Torts, ed. x, p. 84. Cf. Simrrums v. Heath Lawndry Co., [1910] i K. B., 543, United Meth. Ch. Ministers, in re, 28 T. L. R. 539. * On contracts of service as affected by such provisions as those of the Code Civil, arts. 1133, 113s, andof theBurgerlichesGesetzbuch, 138,866 V. Brants, Le salaire usuraire devant la loi et les juges allemands, in the Bulletin del'Acaddmie Royale de Belgique (Classe des Lettres, &c.), 1905, P- 730- » I Dig. xvi. 3. 1; xxiv. 3. 22; Code Civil, arts. 1947-1963. Work on materials 296 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. xii. the ' cloak rooms ' of railway companies, livery-stable keepers, and inn-keepers. The very extensive liabilities attaching to the last-mentioned class of depositaries by the English common law have been much reduced by a modern Act of Parliament ^ 2. A gratuitous contractor to do work upon materials belonging to the other contractor is usually liable only for gross negligence in the doing of it. If the contract be for reward, each of the parties is responsible to the other for the exercise of a high degree of care \ English law gives to the person who does the work a ' lien ' upon the article upon which he has done it till he has been paid for his trouble ". A gratuitous agreement to do work upon materials belonging to the contractor, for the benefit of another, would amount to a promise to give an article as yet unfinished. If the work is to be done for reward, as when a builder undertakes to construct a house or a tailor to make a coat, it may be questioned whether the contract is one of sale, or for the performance of services *. Carriage. 3. A contract of carriage may relate to conveyance by land or by sea, and to goods or to passengers. Carriers of goods, besides their duty to carry, share many of the responsibilities of depositaries, and especially of inn- keepers, in respect of the property confided to them. The liabiUty of persons of all these classes in Roman law was introduced by the Praetor's edict: 'nautae, cau- pones, stabularii, quod cuiusque salvum fore receperint, nisi restituent, in eos indicium daboV According to ' 26 & 27 Vict. c. 41. ' This contract is narrower than 'locatio conductio operis,' which covers not only agreements for working upon materials, but also for doing any definite piece of work, such as navigating a ship from one port to another. » Supra, p. 232. * Inst. iii. 24. 4; Dig. xviii. i. 65, xix. 2. 22, 2. Cf. Lee v. Griffin, I B. & S. 272. > Dig. iv. 9. I. pr. Cf. an art. in L. Q. R. xii. p. 118. CONTRACTS OF CARRIAGE. 297 English law, a 'common carrier' is bound to take all chap. xn. goods of the kind which he usually carries, unless his conveyance is full, or the goods be specially dangerous ; but may charge diiferent rates to different customers. He is supposed to warrant 'safely and securely to carry,' and so is said to be 'an insurer against all loss not immediately caused by "the act of God^" or the king's enemies.' He is thus responsible, even though he is robbed, or the goods are accidentally burnt. By recent legislation his right of limiting his liabiUty by public notice has been much curtailed ; while, on the other hand, he is no longer to be liable for the loss of articles the value of which shall exceed the sum of ;£'io, unless the sender has declared their value and paid a higher rate for their carriage accordingly". An ordinary common carrier may stiU limit his liabihty by a special contract, but such a contract, if made by a railway or canal company, must not only be signed by the sender, but must also be such as the Courts will hold to be just and reasonable. And a railway is not allowed to charge different rates to different customers '. The carriage of goods by sea is usually regulated by a special contract between the ship-owner and the freighter called a 'charter party,' by which the owner is generally relieved from liabiUty for the act of God and the king's enemies. His liability has also been limited by English statute law to the value of £8 per ton of the ship's ton- 1 See the remarks of Sir F. Pollock, Contract, ed. viii. p. 436, on 'Act of God,' which he is unable to define more precisely than as 'an event which, as between the parties, and /or the purpose of the matter in hand, can- not be definitely foreseen or controlled.' Cf . Bailey v. De Crespigny, L. R. 4 Q. B. 185. 'Vis maior,' says Gains, 'quam Graeci ffeoC piav appellant, non debet conductor! damnosa esse, si plus quam tolerabile est laesi fuerint fructus.' Dig. xix. 2. 25. 6. As to the objective and subjective meanings of 'vis maior,' see L. Q. R. xii. p. 120. 2 II Geo. IV. and i Will. IV. c. 68. ' See 17 & 18 Vict. c. 31; 36 & 37 Vict. c. 48; and 51 & S* Vict. c. 25. sional service. 298 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. XII. nage \ nor is he responsible for loss by fire, nor for very valuable articles unless declared and paid for specially^. The payment to be made by the sender of the goods to the owner of the ship is called 'freight.' Carriers of passengers do not insure their safety, but are usually liable for injuries caused to them by neglect or unskilfulness I The liability of a gratuitous carrier would be similar to that of a gratuitous depositary *. Profes- 4. Each of the heads of service hitherto considered implies a 'bailment,' or handing over of an object with reference to which some work is to be done. In profes- sional and domestic services no bailment is presupposed, the undertaking being merely for the performance by one party of certain acts for the benefit of the other. Such an undertaking for reward is described in the language of Roman law as ' locatio conductio operarum.' The exercise of certain professions was thought by the Romans to be of too liberal a nature to be capable of leading to a compensation in money recoverable by judicial process. Advocates, teachers of law or grammar, philosophers, sur- veyors, and others were accordingly incapable of suing for their fees \ A similar disability attaches to barristers under English law to this day", and, so long as the Royal College chooses to maintain a by-law to that effect, to physicians also ''. Those who thus give their aid gratui- tously are, as a rule, free from liability for the negligent performance of their self-imposed task ; but a professional • See now the Merchant Shipping Act, 1894, S7 & S8 Vict. c. 60. s. 503, ^ lb. s. 502. ' See E. I. Ry. Co. v. K. Mttckerjee, [1900] A. C. 396. * For the view which would treat the liability of carriers, &c., as existing apart from contract, v. supra, p. 254. ' 'Non crediderunt veteres inter tajem personam locationem et oon- ductionem esse, sed magis operam beneficii loco praeberi: et id quod datur ei ad remunerandum dari, et inde honorarium appellari.' Dig. xi. 6. 1 pr. 8 Wells V. WeUs, [1914] P. (C. A.), 137. ' See 21 & 22 Vict. c. 90. s. 31, now superseded by 49 & 50 Vict. c. 48. s. 6; Gibbons v. Bitdd, 2 H. & G. 92. DOMESTIC SERVICE. 299 person, employed for reward, is held to guarantee that chap. xii. he is reasonably skilful and competent, and can recover nothing for unskilful work \ The position of a domestic servant still exhibits traces Domestic of the status of slavery out of which it undoubtedly has everywhere been developed^. A servant is usually entitled to his wages although prevented by sickness from doing his work. The rule of English law that a master is not in general -liable for injuries which his servant may sustain in the course of his employment or which arise from the negligence of a fellow-servant has led, especially when applied to the working of large undertakings, such as railways, to a good deal of hardship, and has recently been modified '. 5. We have already had occasion to consider how far the Agency, rights and liabilities of contracting parties may be affected by their contract being made through the intervention of an agent*. The rights and liabilities in question were those of the principal contractors, as agaiust one another, or of the agent in those exceptional cases in which, by the force of circumstances, he himself acquires the rights or incurs the liabilities of a principal. The questions which thus arise out of contracting by agency are of a wholly different character from those which arise out of ' the con- tract of agency,' which is the topic now to be discussed. This is a species of contract for services, which is entered into, not between two principals, but between a principal and his agent. The undertaking of the agent, 'mandata- rius,' is to represent his principal, 'mandans,' in dealings with third parties *. I Of. Grill V. Genl. Iron Screw Colliery Co., L. R. 1 C. P. 612. « A contract to serve during one's whole life a particular master is aUowed by English law. WaUis v. Day, 2 M. & W. 273, i Sm. L. C. ^ »'supra, p. 156. ' -^"P^"' P- ='72- » Agency, if undertaken for the benefit of the principal, is, in the language of the civilians, 'mandatum simplex'; if for the benefit of 300 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. XII. The possibility of such a representation seems to be agency adraitted only in developed systems of law. In the older Roman law a man could be represented in dealings with others only by persons ' in his power,' such as a slave or unemancipated son, and only by such of their acts as were for his advantage. The contractual agency of a stranger was only gradually introduced, and was long recognised only as a gratuitous act of friendship. 'Originem ex officio atque amicitia trahit: contrarium ergo est officio merces,' says Paulus'. The 'mandatarius,' though thus gratuitous, was obliged to exhibit in the execution of his voluntary promise the highest degree of care, and in default was not only liable for damages, but was also punished with infamy. His principal, on the other hand, was bound only to indemnify him for any liability in- curred in, or expenses incident to, the execution of the contract. A payment might indeed be specially promised to the mandatary for his service, but was disguised under the name of a 'honorarium,' and could be recovered only under an exceptional procedure. The importance of agency, defined by the French Code as' an act by which one person gives to another the power to do something for the principal and in his nameV has greatly increased with the development of business trans- actions. The presumption, according to the Code, is in favour of its being gratuitous, but English law, in the absence of evidence of a contrary intention, would imply a promise of reasonable remuneration. Under any system, the principal wiU doubtless be held to guarantee the agent against expenses and personal liability, and the agent will be obliged to conduct the business of his principal with care, and, as a rule, not to delegate its management a' third party, ' mandatum qualificatum.' It is then a species of 'inter- cessio.' Cf. Glilck, Pand. xv. p. 290. ' Dig. xvii. I. I. 4. ' Art. 1984; cf. Code de Commerce, art. 91. THE CONTRACT OF AGENCY. 30I to another. The contract must for some purposes be chap. xii. entered into in a special form, as by a 'power of attorney,' or before a notary. The rights and liabilities which result from it are terminated, subject to certain qualifications, by the death or bankruptcy of either principal or agent; by efflux of time, when a period is fixed for the perform- ance of the act to be done by the agent ; by performance of the act ; by revocation of authority on the part of the principal; by renunciation of the commission on the part of the agent. Agents are of various classes. Among the more im- classes of portant classes recognised by English law are ' factors,' ^^™ ^" who are employed to sell goods for their principal. They have actual possession of the goods, and usually sell them in their own name \ ' Brokers ' are mere mediums of communication between buyer and seller. 'Del credere' agents for the sale of goods, in consideration of a higher payment than usual, become responsible for the solvency of the person to whom they sell them. Auctioneers, although before the goods are knocked down they are agents only for the seller, become afterwards agents for the buyer also. 6. When several persons imite for the purpose ofpartner- carrying on business in common, which is usually done P' upon the terms that each of them shaU be an agent for all the rest, the contract is called partnership, 'societas,' and takes various shapes, according to the business con- templated. It is defined in the French Code as 'a contract by which two or more persons agree to place something in common, with a view of sharing the profit which may result'.' By 'the Partnership Act, 1890,' the contract is defined as 'the relation which subsists between persons carrying on business in common with a view to profit'.' ' A factor could not pledge the goods entrusted to him, till he was empowered to do so by the 'Factors Acts,' consolidated in 1889. ' Art. 1832. ' : I. Companies are afterwards excepted. 302 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. XII. In the widest sense of the term, a partnership might be 'universorum bonorum,' relating to all the property of the partners, howsoever acquired; or 'universorum quae ex quaestu veniunt,' relating only to profits made in business dealings generally; or 'negotiationis alicuius,' relating only to the profits of a particular undertaking \ The contract must be in writing, according to French law, if relating to a value greater than 150 fr., according to the English law as to contracts generally, if it is not to be performed within the year. An agreement that one partner is to have all the profits, though the other is to share in the losses, called in Roman law ' leonina societas,' is void". A partnership may of course be for life or for a definite time. It is terminated by mutual consent, or, if formed for no definite period, by the retirement of one partner, even against the wish of the others, by efiBux of the time for which it was formed, by the death or bankruptcy of any of the partners, and by some other causes *. In derogation of the ordinary rules as to survivorship in joint tenancy, English law recognises that in partnership matters 'ins accrescendi inter mercatores locum non habet.' Each partner is liable to account to the others and is responsible for careful management. On the other hand, he has a right of ' contribution,' ' regress,' against the other partners, to be indemnified for liabilities incurred for their common advantage. A classification of trading partnerships which is due to the French Code of Commerce divides them into 'societes en nom coUectif,' i. e. carrying on business under the name of the partners, with unlimited liability: 'societes en com- mandite,' in which, besides the ostensible and fully respon- sible partners, there are others whose liability is limited to Classifica- tion of partner- ships. ' Dig. xvii. 2. 5; cf. Code Civil, arts. 1835-42. * Dig. xvii. 29. 2. • Dig. xvii. i. 63. THE CONTRACT OF PARTNERSHIP. 303 the money which they have placed in the concern ; and chap. xu. ' soci6tes anonymes,' which bear a name indicating merely the nature of the undertaking, can be formed only with the sanction of the Government, and are whoUy carried on by means of a capital divided into equal shares, 'actions,' beyond the amount of which the shareholders incur no risk. They are, ia effect, companies with limited liability *. Different views are taken of the question whether an executory contract of partnership should be enforced by law; whether, that is to say, any one should be obliged to become a partner against his will, or mulcted in damages for refusing to become one. V. Contracts for negative services, in which one party For promises to abstain from certain acts, are somewhat grudg- s^^JZ^ ingly recognised by law, as interfering with freedom. So, although English law will recognise as valid an agreement not to marry a specified person, it will refuse to enforce a general covenant not to marry, as being against public policy. A promise whereby a man is restrained altogether, or within very wide limits, from carrying on his profession or trade has been held to be similarly void; but unless the restriction is unreasonable, or against public policy^, the tendency of recent cases is to uphold it'. * Code de Commerce, art. 19 ; cf. Handelsgesetzbuch, arts. 15, &o. The Gierman law of 1892 permits the establishment of partnerships in which the liability of all the partners is limited, and the partners have the novel power of calling up additional contributions, not for the satis- faction of creditors, but to increase working capital. See L. Q. R. ix. p. 62. As to Companies, v. tn/ro, Chapter xiv. The English law of partnership was codified, as it then stood, by the Partnership Act, 1890, S3 & S4 Vict. c. 39. The partnership en commandite, long previously received on the continent and in America (see Pollock's Essays in Jurisprudence and Ethics (1882), p. 100), was introduced into English law by the Limited Partnerships Act, 1907, 7 Ed. VII. c. 24. • ex. supra, p. 275. » See RousHlon v. RousMon, 14 Ch. D. 35 ; Dames v. Davies, 36 Ch. D. 359; Maxim-Nordenfdt Gun Co. v. NordenfeU, [1893] i Ch. 630, [1894] 304 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP xn. vi. An aleatory, or wagering, contract is defined in the Aleatory. french Code as 'one the effects of which, as to both profit and loss, whether for all the parties, or for one or several of them, depend on an uncertain event V This description includes agreements of very different kinds. Wageis. I. Bets and stakes are, as a rule, not enforced under modern systems of law'. At one time an action could have been maintained in England upon a wager, not contrary to public policy, or immoral, or offensive to the feelings or character of third parties; but such rights of action were restricted by successive statutes, tiU it was provided by a statute of Victoria that 'all contracts or agreements whether by parol or in writing, by way of gaming or wagering, shall be null and void".' This enactment is however expressly declared not to apply to any subscription or contribution for any plates, prizes, or sum of money to be awarded to the winner of any lawful game, sport, pastime, or exercise. The French Code, in refusing any action for a gaming debt or the pasnnent of a bet, makes a similar exception in favour of 'les jeux propres a exercer au fait des armes, les courses a pied ou a cheval, les courses de chariot, le jeu de paume. A. C. S3S- For a table of cases in which this has been done, see PoUook, Contract, ed. viii. p. 379. 1 Art. 1964. This definition is criticised by Sir W. R. Anson as being wide enough to include any agreement in which the profit and loss of one party depended on a contingency. He observes that, to constitute a wager, 'the parties must contemplate the determination of the uncer- taia event as the sole condition of their contract. One may thus distin- guish a genuine wager from a conditional promise or guarantee.' Con- tract, ed. xiii. p. 219. ' Cf. German Civil Code, 762. Bets on games were generally forbidden by Roman law, subject to certain exceptions ('praeterquam si quis certet hasta, vel pilo iaciendo, vel currendo, saliendo, luctando, pugnando, quod virtutis causa fiat.' Dig. xi. $. 2), reduced by Justinian to five in number. Money paid by the loser could be recovered by him, or should he decline *o sue for it, by the public authorities of the district. Cod. iii. 43. ' 8 & 9 Vict. c. 109. s. 18. By ss Vict. c. 9, payments made by an agent in pursuance of such contracts cannot be recovered from his principal. ,^ ALEATORY CONTRACTS. 305 et autres jeux de mfime nature qui tiennent a I'adresse chap. xii. et a I'exercice du corps V Some gaming contracts have been declared not only void but also illegal', and the difference in the character of the contract leads to different rules as to the recovery of money lent to enable it to be made, or paid mistakenly in pursuance of it. 2. Lotteries are illegal in England *. Lotteries. 3. Wageriug contracts on the price of stock were made Stock- void and penal by an Act, now repealed, passed ' to prevent ^° ™^' the infamous practice of stock-jobbing ^' 4. An agreement to pay an annuity so long as a given Annuities, individual shall Uve, 'rente viagere,' whether the indivi- dual in question is a party to the contract or not, will generally be supported. It will be void, under the French Code, if the person on whose life it depends is ill at the time when it is made and dies of the same illness within twenty days *- 5. Loans to a shipowner, to be repaid only in case of the Nautica successful termination of a voyage. Of such a nature are P^*^""'*- the contracts known as * traiectitia,' or 'nautica, pecunia,' 'prgt a la grosse,' 'bottomry,' and 'respondentia.' They have always been allowed to be effected, by way of compensation for the risk run by the lender, at an extra- ordinary rate of interest, ' nauticum f oenus.' 6. Insurance is a contract by which one party, in con- Insuranca sideration of a premium, engages to indemnify another against a contingent loss, by making him a payment in compensation if, or when, the event shall happen by which the loss is to accrue. 'Marine insurance,' according to an English statute, is of Marine. > Code Civil, arts. 1965-7. The German Civil Code, 762, avoids absolutely. » E. g. by 5 & 6 W. IV. c. 41- » By 10 & II W. III. and later Acts. « 7 Geo. II. c. 8, repealed by 23 Vict. c. 28. • Code Civil, art. 1968. 1950 X 3o6 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. xii. immemorial usage, ' by means whereof it cometh to pass, upon the loss or perishing of any ship, there foUoweth not the undoing of any man, but the loss hghteth rather easily upon many than heavily upon few*.' The insurers are known as 'underwriters,' because each of them signs the contract, or ' policy,' engaging to bear a certain pro- portion of the whole indemnity, which may apply to the ship, to the freight which it is to earn, or to anything on board. They are usually liable in case of the loss, either total or partial, of the ship or cargo, by any peril of the sea during a given voyage, to the extent of the owner's loss, and also for any payments he may have been com- pelled to make on account of 'salvage,' or by way of ' general average,' ' avaries grosses \' Fire and Loss occasioned by fire on land is indemnified against by ' fire insurance ' ; and damage of other kinds, e. g. to crops by bad weather or to glass by hailstones, recently also against certain liabilities of employers, by analogous contracts. ' Life insurance ' has similarly been imitated of late years by contracts for compensation in case of illness or accident. It has been thought proper to restrict by legislation the right of insuring without any interest in the risk insured against ', but a Uf e insurance differs from insurances of other kinds in the amount which can be recovered under it. Policies of insurance against fire or marine risk are contracts to recoup the loss which parties may sustain from particular causes. When such a loss is made good aliunde, the companies are not liable for a loss ' 43 Eliz. c. 12. ' See'now the Codifying ' Marine Insurance Act, 1906,' 6 Ed. VII. c. 41. Of recent years attempts have been made towards the unification of the maritime laws of the world, and the ' International Maritime Committee' has prepared draft codes dealing with different branches of the subject, upon which draft conventions have been founded by diplomatic con- ferences held at Brussels in 1905 and 1909. ' E. g. 19 Geo. II. c. 37; 14 Geo. III. c. 48. ACCESSORY CONTRACTS. 307 which no longer exists ; but in a life policy there is no chap. xii. such provision \ II. Many contracts are entered into for the purpose of Accessory creating a right which is to be merely ancillary to another right. Of such contracts, which may properly be described as 'accessory,' the more important species are — i. Surety- ship; 2. Indemnity; 3. Pledge; 4. Warranty; 5. Ratification; 6. Account stated ; 7, For further assurance. I. Suretyship, or guarantee, ' intercessio,' in French Surety- ' caution,' is a collateral engagement to answer for the^ ^' debt, default, or miscarriage of another. Although thus entirely subsidiary in its nature, it is sometimes legally binding when the obUgation to which it is subsidiary is merely 'natural,' in other words is incapable of being judicially enforced". A promise made by a slave to his master, though it gave rise only to a natural obligation, would nevertheless, in Roman law, support a ' fldeiussio ' ; and iu French, though not in English law, a guarantee of a promise made by a minor, by which he is not himself bound, may be enforced by action °. The contract is under some systems a formal one. In Roman law it was made by stipulation, and in England, by the Statute of Frauds, must be in vreiting. It is a maxim that the liability of the surety may be less than, but cannot exceed, that of the principal debtor. Under some systems it passes, under others it does not pass, to his heirs. A contract of surety- ship raises three classes of questions. As between the surety and the creditor, it may be asked, what acts on the part of the creditor, e. g. giving time to the debtor, will discharge the surety from his liabihty; whether the surety may insist on the creditor brining his action in the first instance against the principal debtor, ' beneficium 1 Darrdl v. Tibhitts, s Q. B. D. 560. ' Supra, p. 243; infra, pp. 317 "-, 34<5 »• ' Code Civil, art. 2012. 3o8 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP, XII. ordinis ' ' ; whether each of several sureties is liable for the whole debt, 'in solidum,' or only for a proportionate share of it, 'beneflcium divisionis.' As between a surety and the defaulting debtor, it may be questioned how far the former is entitled to the remedies of the creditor against the latter, ' beneflcium cedendarum actionum,' or to ' regress ' against him on an implied contract of indemnity. As between several sureties, it is necessary to determine how far any one of them who discharges the debt for which all are jointly liable is entitled to ' contribution ' from the others ^. The liability of a surety to the creditor terminates by a discharge either of the principal obligation by the debtor, or of the guarantee by one of his co-sureties. Indem- 2. A promise to indemnify, or save harmless, the promisee ''' ^' from the consequences of acts done by him at the instance of the promisor, may be express or implied. It is implied not only between principal and surety, and, in some systems, between one surety and his co-sureties, but also in the contract of agency. The principal promises by implication to indemnify his agent, except in the performance of illegal acts, as to which it is a maxim that ' there is no contribu- tion between wrong- doers.' Pledge. 3- The contract of Pledge, besides giving rise, as we have seen, to a peculiar species of right 'in rem^' gives rise also to rights 'in personam.' The debtor is entitled not only to have the thing pledged re-delivered to him, on the due payment of his debt, but also to have it preserved with reasonable care in the meantime. Whether it may be used by the creditor will depend on the terms of the contract. The creditor, on the other hand, can claim to be indemnified against any expense to which he may be put in taking care of the pledge. ' Introduced by Justinian, Nov. iv. 1. It is'unknown to English law. Ranelagh v. Hayes, i Vernon, 189; Smith v. Freyler, 47 Am. Rep. 358. ' The English doctrine of contribution between co-sureties was un- known in Roman law. • Supra, p. 230. ACCESSORY CONTRACTS. 309 4. A Warranty has been defined as ' an express or chap. xii. implied statement of something which the party under- ^^''''^"^y* takes shall be part of the contract; and, though part of the contract, collateral to the express object of it \' On the one hand, it is a term added to a contract, and must therefore be distiaguished from mere representations made with reference to the matter of the contract, but forming no part of the agreement of the parties. On the other hand, it is not so intimately connected with the contract as to be a 'condition precedent' to the contract coming into operation. It may be broken and give rise to a right of action for damages, without producing any effect upon the contract to which it is annexed \ A warranty refers most usually to title or to quality, and, though most frequently accessory to a contract of sale, is also added to other contracts, for instance to a letting for hire *. 5. Ratification is the adoption by a person as binding Ratlfica- upon himself of an act previously done by him, but not '°°' so as to be productive of a subsisting legal obligation, or done by a stranger having at the time no authority to act as his agent. The ratification of a contract barred by the statutes of limitation must in England be in writing, signed by the original contractor, or his agent duly authorised*. A modern Act of Parliament has made of no effect any promise ' Lord Abinger, C. B., in Chanter v. Hopkins, 4 M. & W. 404. Cf. Behn v. Bumess (i860), 3 B. & S. 751. Sir W. R. Anson, Law of Con- tract, ed. xiii. p. 368, in commenting on this case, distinguishes no less than six senses in which this term is employed by English lawyers. " For the piu-pose of the Sale of Goods Acts, 1893, a 'warranty' is defined, s. 62, as 'an agreement with reference to goods which are the subject of a contract of sale, but collateral to the main purpose of such contract, the breach of which gives rise to a claim for damages, but not to a right to reject the goods and treat the contract as repudiated,' » Cf. swpra, p. 240, as to an implied warranty of authority as an agent. * 9 Geo. rV. c. 14. s. I ; 19 & 20 Vict. 0. 97. s. 13. 3IO PRIVATE LAW: RIGHTS 'IN PERSONAM.' Account stated. For further assurance. Transfer made by a person of full age to pay any debt contracted by him during infancy, or any ratification made after full age of any promise or contract made during infancy \ The contract of a stranger can be adopted by a course of action, as well as by words or writing, but can be adopted only by one on whose behalf it was made. The agent must have intended to act for the person who by subsequent ratification becomes his principal. ' Ratihabitio,' says Julian, 'constituet tuum negotium quod ab initio tuum non erat, sed tua contemplatione gestum V 6. Akin to ratification are the ' constitutum ' of Roman law, and the promise of repayment which English law implies on an ' account stated ' ; as are also I. O. TJ.'s and promissory notes. Jhe contract in aU these cases is super- added to a pre-existing contract by way of strengthening it ; so that the creditor may rely either upon his original claim, or upon the new claim thus created, but can in no way receive more than the sum originally due. There are cases in which the creditor can recover upon the new contract, although the old one was not legally enforceable '. 7- Conveyances of land, and other instruments, fre- quently contain covenants ' for further assurance,' and the like, which are strictly accessory to the principal contract in which they are inserted. We have seen that a number of rights 'in rem' are untransferable, and this is still more usually the case with rights ' in personam.' The transfer of these, when it takes place at all, takes place either ' by act of law ' or 'by act of party ^' ' 37 & 38 Vict. c. 62. An infant borrower is not estopped from relying upon the statute from the fact that he obtained the loan by a representa- tion that he was of full age. Levene v. Brougham, (C. A.) 25 J. L. R. 265. He will not be ordered to make restitution of property so fraudulently obtained, the cause of action being in substance ex contractu. Leslie v. Shiell, [1914] 3 K. B. 607 (C. A.). * Dig. iii. s- 6. 9. ' See Chitty, Contracts, ed. xii. p. 112. • Supra, p. 159. TRANSFER. 3" i. Certain sets of circumstances are invested by law chap. xii. with the attribute of effecting a transfer of rights ' in per- {'y *"* °* sonam,' and sometimes also of the corresponding liabilities, *to new persons of inherence and of incidence respectively.' So in English law, most of the rights and liabilities of a woman passed on marriage till lately to her husband; those of a deceased person pass to his heir, executor, or administrator, or to a judicial functionary^; those of a bankrupt to his trustee in bankruptcy. On the death of one of several joint contractors his rights and Uabihties pass, not to his personal representative, but to the surviving contractors. It must however be remarked that rights and liabilities arising from family relations or which are closely connected with the personal characteristics of either party, such as those arising out of a promise to marry, or to use surgical skill, or to paint a picture, are not thus transferred 'by act of law V ii The transfer of a 'right in personam' 'by act of by act of party,' is of stUl more restricted application. Its possibility P*''*y* is indeed flatly denied by the older theories of law. 'Obligations,' says Gains, 'however contracted, admit of nothing of the sort ' ' ; and it was an axiom of the English common law that 'choses in action are not assignable.' The practical inconveniences resulting from this rule led to its gradual relaxation. It is no doubt possible by consent of aU concerned to substitute a new debtor or new creditor in place of the person of inherence or of incidence as the case may be. This is however a cumbrous process, and is obviously not an assignment, but an ex- tinction of the original right, followed by a contract creating a new right in substitution for the old one. It is an example of what the Romans called 'novatio V The * 21 & 22 Vict. c. 95- s. 19. As to the effect of 60 & 61 Vict. c. 65, 'An Act to establish a Real Representative, &c.,' supra, pp. 162, 164 n. * Wills V. Murray, 4 Ex. 866. ' Inst. ii. 38. * 'Novatio est prioris debiti in aliam obUgationem, vel civilem vel 312 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. XII. first step towards the assignment of an obligation was taken by allowing a stranger to it to bring an action upon it in the name of the party entitled under it, and to retain the proceeds for himself. This was the process known in Roman law as ' cessio actionum.' The assignor was held to be a trustee for the assignee, or to have constituted the assignee his agent for the purpose of bringing actions. The English Court of Chancery, follow- ing the later Roman law\ went so far as to allow the assignee to sue in his own name, provided that he had given consideration for the assignment, and that the debtor had had notice of it, subject however to all defences which would be good against the assignor '. Under the ' Supreme Court of Judicature Act, 1873,' ' Any absolute assignment, by writing under the hand of the assignor, not purporting to be by way of charge only, of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive such claim or debt or chose in action, shall be, and be deemed to have been, effectual in law, subject to all equities which would have been entitled to priority over the right of the assignee if this act had not passed, to pass and transfer the legal right to such debt or chose in action from the date of such notice V Similar provisions are contained ia several continental codes \ and contractual rights of certain special kinds have been made assignable by statute, such as, for instance, rights arising on policies of marine and life insurance, bail bonds, and bills of lading ^ The assignee, be it observed, in all the cases naturalem, transfusio atque translatio, hoc est cum ex praeoedenti causa ita nova constituatur, ut prior perimatur.' Dig. xlvi. 2. 1) of. Inst. iii. 29. 3. Cf. German Civil Code, 414-419. 1 Cod. iv. 39. 7. ' See Lord Carteret v. Paschal, 3 P. Wms. 199. Cf . Anson, Law of Con- tract, ed. xiii. p. 275. ' 36 & 37 Vict. c. 66, s. 25, 6. * E. g. in the Prussian Landrecht, i. 11. ss. 376-444; Austrian Code, ss. 1394-1396; German Civil Code, 398-413. » Savigny, Oblig. ii. p. 112, truly observes that ordinary shares in TRANSFER. 313 hitherto mentioned takes subject to all defences which chap. xn. were available against the original creditor, and sometimes subject to other drawbacks. Only one class of obligations Negotiable can be said to be fully assignable. It is first heard of in mgnts. the fourteenth century, and is the product of the wide extension of modern commercial transactions. What are called 'negotiable instruments,' or 'paper to bearer,' such as bUls of exchange, or promissory notes, do really pass from hand to hand, either by delivery or indorsement, giving to each successive recipient a right against the debtor, to which no notice to the debtor is essential, and which, if the paper is held bona fide and for value, is unaffected by flaws in the title of intermediate assignors ^ It has been acutely remarked that the assignability of a negotiable instrument is due to its being in point of fact a material object, and so capable of actual delivery. The written document is thus, as it were, the embodiment of what would otherwise be an intangible, and therefore untransferable, claim". Liabilities do not, as a rule, pass by voluntary assign- ment. Under a contract, it is, for instance, said to be only reasonable that the creditor should continue to have a right to the benefit he contemplated from the character, credit, or substance of the person with whom he contracted. It was however a rule of English common law that certain covenants between landlord and tenant, which are said to touch the land, should 'run with the land,' so that an 'assignee of the term,' i. e. a person to whom a tenant transfers his lease, can not only sue, but also be sued, upon them, as if he were the original lessee. Like rights and liabilities, in respect of these covenants, have been by companies are not obligations but parts of ownership, producing there- fore not interest but dividends. So it has been held by the Court of Appeal, diss. Fry, L. J., that shares before registration were choses in Hon, but afterwards property. Colonial Bank v. Whinney, L. R. 30 Ch. D. 261, reversed in H, L., 11 App. Ca. 426. 1 On the difference between 'negotiability' and 'assignability,' see Anson, Law of Contract, ed. xiii. p. 286. ^ Savigny, Oblig. ii. p. 99. Cf. Colonial Bank v. Whinney, u. s. 314 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. XII. statute made to attach to the person who succeeds to the rights of the original landlord, or, as he is called, 'the assignee of the reversion'.' Extino- We have already had occasion to mention incidentally some of the modes in which the obUgations resulting from particular contracts are dissolved. It wiU however be necessary to consider, from a more general point of view, the circumstances which terminate rights 'in personam^.' They may perhaps be classified under the following heads: i. Performance; ii. Events excusing performance; iii. Substitutes for performance ; iv. Release of performance ; V. Non-performance. by per- i. Performance of the acts to which the person of in- ' cidence is obliged is the natural and proper mode by which he becomes loosed from the obligation of performing them '. Performance by a third person is sometimes permissible; so a debt was in Roman law extinguished on payment of the amount by a stranger, even without the debtor's knowledge *- by events, ii. Events excusing performance. perform? i. As a general rule, at any rate in English law, 'sub- ance. sequent impossibility' is no excuse for non-performance'; but to this there are several exceptions : ' 32 Hen. VIII. c. 34; 44 & 45 Vict. c. 41. ss. 10, 11. ' ' Solutionis verbum pertinet ad omnem liberationem, quoquo modo factam.' Dig. xlvi. 3. 54. ' By performance, and by some other facts, 'etiam aecessiones (i. e. sureties) liberantur.' Dig. 1. 43. * Dig. xlvi. 3. 23; Inst. iii. 29 pr. The rule in English law is said to be otherwise. Jones v. Broadhurst, 9 C B. 173. ' Paradine v. Jane, Aleyn, 26, where it was held that 'when'a party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident or inevitable necessity, because he might have provided against it by his contract.' For the rule in Roman law, see Inst. iii. 29. 2. For the American cases, see.F. C. Woodward in ColumbiaL. R. i. p. 529. Cf . Germ. Civ. Code, 323. EXTINCTION. 3^5 (a) When the act due is intimately dependent on the chap, xil individuality of either party, the right, or Uability, to its performance must necessarily be extinguished by his death. It would be obviously absurd to make the executors of the Admirable Crichton responsible for his non-performance of a contract to marry, or those of Raphael for his inability to return to life and finish the ' Transfiguration,' Serious illness may have a similar effect *. (5) When the performance has reference to a specific thing, its destruction, without fault of the parties, puts an end to the right. So when the proprietors of a place of public entertainment had agreed to let it on a certain day, before which it was burnt down, they were held to be free from their engagement ^. (c) A failure in the occurrence of the event with reference to which the contract was entered into '. (d) A change in the law, or the outbreak of war between the countries of the contracting parties, may operate to make performance a 'legal impossibihty.' 2. Under the old Roman law aU claims against a 'fiUus familias' were cancelled by even a 'minima capitis diini- nutio,' such as he sustained in passing by adoption from one family to another. 3. ' Conf usio,' or ' merger,' L e. the union in one person of the characters of debtor and creditor, is sometimes held to extinguish, sometimes only to suspend, the operation of the right*. 4. Bankruptcy has already been mentioned more than once as one of the events which give rise to a universal succession". An order of Discharge has the effect of 1 Farrow v. WUson, L. R. 4 C. P. 744; Robinson v. Davidson, L. R. 6 Ex. 269. Cf. infra, p. 333. 2 Taylor v. CaldweU, 3 B. & S. 826. Cf. Dig. xlvi. 3. 107. » KreU V. Henry, [1903] 2 K. B. 740; C. S. Co-op. Soc. v. Genl. Steam Nav. Co., ib. 756. * Code Civil, art. 1300; Dig. xvi. 3. 107. ' Supra, p. 161. 3i6 PRIVATE LAW: RIGHTS 'IN PERSONAM.' Substi- tutes. Tender. CHAP. XII. freeing the bankrupt, either wholly or partially, according to the special provisions of the law under which he lives, from the claims to which he was previously liable. 5. The judicial rescission of a contract, or a decree of 'restitutio in integrum.' 6. The legislative postponement of performance (morato- rium) ^• iii. Among substitutes for performance, the following are the more important. 1. 'Tender,' 'oblatio,' of the precise amount due, followed by ' payment into court,' or in Roman and French law by 'depositio,' or 'consignation,' into the hands of a public officer, even before any action has been brought ", either extinguishes or suspends the debt. 2. 'Compromise,' * transactio,' which may be analysed into a part payment, coupled with a promise not to claim the residue, can only operate as a discharge of the whole debt when the subsidiary promise is made in such a form, or under such circumstances, that it might equally well have been a good discharge without any part payment. So in an old English case it was resolved 'that payment of a lesser sum on the day, ia satisfaction of a greater, cannot be a satisfaction to the plaintiff for a greater sum. When the whole sum is due, by no intendment the acceptance of parcel can be a satisfaction to the plamtifEV 3. It was long debated but finally admitted by the Roman lawyers that a 'datio in solutum,' or giving and acceptance of something other than the thing due, and in Com- promise Datio in solutum. ' E. g. by 4 & s Geo. V. c. j. / ' Cod. iv. 32. 19, viii. 43. 9; Code Civil, art. 1257. '- ' Pinnel's Case, s Rep. 117. Cf. Foakes v. Beer, 9 App. Ca. 60s; Good V, Cheeseman, 2 B. & Ad. 335. The Supreme Court of Mississippi in 1897 deliberately departed from Pinnel's Case, in Clayton v. Clark, 74 Miss. 499. On the theory of 'accord and satisfaction,' the Author may perhaps refer to his Essay on Composition Deeds, Chapters ii. and iii. SET-OFF. 317 place of it, discharges the obligation ^ So in English law ^ chap. xn. it is laid down that if a debtor pays to his creditor ' a horse, or a cup of silver, or any such other thing, in full satisfaction of the money, and the other receiveth it, this is good enough, and as strong as if he had received the sum of money, though the horse or the other thing were not of the twentieth part of the value of the sum of money, because that the other hath accepted it in full satisfaction '.' 4. 'Set-off,' ' compensatio,' defined by Modestinus asSet-oS. ' debiti et crediti inter se contributio ',' has been sometimes regarded as rateably extinguishing a claim 'ipso iure,' sometimes only as foundation for a plea, to which a Court may give regard in awarding judgment if the claim be I sued upon. The French Code lays down broadly that ' la compensation s'opere de plein droit,' even without the knowledge of the debtors, and that the two debts cancel each other rateably, from the moment that they co-exist *; a view which was only very gradually approached by the Roman lawyers •. The applicability of set-off has always been Umited to debts of a readily calculable kind», and between the parties in the same rights. The doctrine was unknown to the English common law, upon which it was grafted for the first time by 2 Geo. II. c. 22. 5. The substitution of a new obligation for the old one Substi- by mutual consent is a species of that mode of discharging an obligation known to the Romans as ' novatio.' iv. The mere agreement of the parties to a discharge Release, of the liability is not always sufficient. The principle of Roman law was that every contract should be dissolved in the same manner in which it had been made. 'Nihil » Gai. iii. 168; Cod. viu. 43. 16. » Co. Litt. 212. a. • Dig. xvi. 2. i. « Art. 1290. ' Inst. iv. 6. 30; Cod. iv. 31. 14, • A merely 'natural' obligation could be set off in Roman law. Dig. zl. 7. 20. 2. Cf. aupra, pp. 243, 307. 3l8 PRIVATE LAW: RIGHTS 'IN PERSONAM.' CHAP. xir. tam naturale est quam eo genere quidque dissolvere quo coUigatum est, ideo verborum obligatio verbis tollitur; nudi consensus obligatio contrario consensu dissolvitur \' So an obligation arising out of 'stipulatio' could only be extinguished by an equally solemn ' acceptilatio,' a method which was at a later period extended by the ingenuity of the praetor Aquihus to the release of obligations of all sorts ^ In the time of Gains there were certain obligations which could be released only by means of a feigned pay- ment accompanied by the ancient ceremony of the ' aes et libra V A merely consensual contract, if whoUy un- executed, could be discharged by the mere agreement of the parties, but after part execution such an agreement could amount only to a 'pactum de non petendo,' which might be a good plea to an action upon the obligation, but left the obligation itself still in force. Under English law a contract made under seal must, if still executory, be discharged in like manner *. The effect of a mere agreement to discharge a consensual contract depends upon the doctrine of 'consideration.' If such a contract be still executory, the mutual release from its liabilities is a good consideration to each party for surrendering his rights under it. If it has been executed on one side, it can be discharged only by an agreement founded on some new consideration, or by a deed, which is sometimes said to ' import a consideration ^' The rule does not however apply to a discharge of promissory notes or bills of exchange, which doubtless owe their immunity from it to deriving their origin from the ' law merchant °.' ' ' Dig. 1. 17. 35. » Inst. iii. 29. 2. ' Gai. iii. 173. * See Steeds v. Steeds, 22 Q. B. D. 537- A contract which under the Statute of Frauds has necessarily been made in writing may, it seems, be rescinded without writing, but an imwritten contract superseding it by implication will be incapable of proof. See Anson, Contract, ed. xiii. p. 328. ' Supra, p. 279 n. • Cf. The Bills of Exchange Act, 1884, § 62. NON-PERFORMANCE. 319 V. Non-performance by one party to a contract often chap. xii. puts an end to the rights which he enjoys under it against ^°^'^n^ the other party. And some acts short of non-performance may have the same effect. Thus if one party by his own act disables himself from performance \ or announces that he has no intention of performing'', the other side is in many cases entitled to treat what has occurred as a 'breach of contract by anticipation,' and the contract as being therefore no longer binding. Since however non- performance, or breach, has also the effect of giving rise to remedial rights, its discussion may conveniently be postponed tiU the next chapter. » PlancM V. Colhum, 8 Bingham, 14. ' Hochster v. Ddatour, 3 E. & B. 678; Frost v. KnigU, L. R. 7 Ex. 111; extended by Synge v. Synge, [1894] i Q. B. 467. Cf. L. Q. R. xii. p. lox. CHAPTER Xm. PRIVATE law: ebmedial bights. Primitive A EIGHT whicli could be violated with impunity, without reme les. giving rise to any new legal relation between the person of inherence and the person of incidence, would not be a legal right at all. In an anarchical state of society an injured person takes such compensation as he can obtain from a wrong-doer, or, if strong enough, gets such satisfaction as may be derived from an act of revenge. A political society, in the first place, puts this rude self- help under stringent regulation, and secondly, provides a substitute for it in the shape of judicial process. Self-help is indeed but an unsatisfactory means of redress. Its possibility depends upon the injured party being stronger than the wrong-doer, a state of things which is by no means a matter of course ; and the injured party is made judge in his own cause, often at a time when he is least likely to form an impartial opinion upon its merits. To suppress private revenge, to erect Courts of Justice, and to compel every one who is wronged to look to them for compensation, is however a task far beyond the strength of a State which is still in process of formation. So the heroic age of Greece was characterized, according to Grote, SELF-HELP. 321 by 'the omnipotence of private force, tempered and guided chap. xm. by family sympathies, and the practical nullity of that collective sovereign afterwards called the City, who in historical Greece becomes the central and paramount source of obligation, but who appears yet only in the background V It is therefore not surprising that, as Sir Henry Maine Regulated has put it, *the Commonwealth at first interfered through *^" its various organs rather to keep order and see fair play in quarrels, than took them, as it now does always and everywhere, iuto its own hands V The stages of social improvement seem to be the following. First, the un- measured, hot-blooded, and violent retaliation of the injured party is superseded by a mode of taking com- pensation, the nature and formalities of which are to some extent prescribed by custom. 'The primitive proceeding,' says the author last quoted, 'was undoubtedly the un- ceremonious, unannounced, attack of the tribe or the man stung by injury on the tribe or the man who had inflicted it. Any expedient by which sudden plunder or slaughter was adjourned or prevented was an advantage even to barbarous society. Thus it was a gain to mankind as a whole when its priests and leaders began to encourage the seizure of property or family, not for the purpose of permanent appropriation, but with a view to what we should now not hesitate to call extortion V This is the stage at which the seizure of pledges is so prominent, and to it belongs also the singular custom of 'sitting dhama^ according to which an Indian creditor fasts at the door of his debtor till his debt is paid. Next comes the stage when self-help, although permitted, is supervised and restrained by the political authority. Distress may * History, ii. p. 126. * Early History of Institutions, Lect. ix. On the earliest fonns of Roman Litigation, cf. Jhering, Geist, i. p. 167, and other authorities conveniently cited by J. B. Scott in The American Journal of Interna- tional Law, vi. p. 316. • lb., Lect. x. 1950 Y 322 PRIVATE LAW: REMEDIAL RIGHTS. CHAP. XIII. Judicial remedies. The opera- tion of law aa conserv- ing rights; by preven- tion, by redress. still be resorted to, but only for certain purposes, and with many safeguards against abuse. Life and property may be protected by force, but the force used must not be in excess of the need. Nuisances may be ' abated,' but so as to interfere with no man's rights. Last of all comes the reign of the law-courts. Legally regulated self-help is not wholly superseded, but, as a rule, redress of wrongs must be sought only from the tribunals of the sovereign '. The object of a developed system of law is the conserva- tion, whether by means of the tribunals or of permitted self-help, of the rights which it recognises as existing'. So long as all goes well, the action of the law is dormant. "When the balance of justice is disturbed by wrong-doing, or even by a threat of it, the law intervenes to restore, as far as possible, the status quo ante. 'The judge,' says Aristotle, ' equalises ^' He elsewhere adopts the saying of Lycophron that the function of law is to guarantee that all shall enjoy their rights*. 'Hoc natura aequum est,' says Pomponius, 'neminem cum alterius detrimento fieri locupletiorem K' Sometimes the law intervenes for prevention, as by the 'injunctions' which have long been issued by the Court of Chancery to forbid a threatened mischief, and by the orders made by the Roman praetors in cases of ' novi operis denuntiatio,' or ' damnum inf ectum '.' The remedial interference of the law is however far more frequent and important. When a right is violated, ' Cf. the edict of Marcus Aurelius: ' Optimum est ut si quas putes te habere petitiones, actionibusexperiaris: Tu vim putas esse solum si homines vulnerentur? Vis est et tunc quotiens quis id quod deberi sibi putat non per iudicem reposcit Quisquis igitur probatus mihi fuerit rem uUam debitoris non ab ipso sibi traditam sine uUo iudice temere possidere, eumque sibi ius in eam rem dixisse, ius crediti non habebit.' Dig. xlviii. 7. 7. 2 Supra, p. 79. » Eth. Nic. v. 7. 4 and 8. * 'E77i;7;t^s dXXi^Xots TUP SiKohtp. Pol. iii. 9. 8. ' Dig. xii. 6. 14. ' Dig. xxxix. i and 2. LEGAL REDRESS. 323 the law endeavours to prevent the person of inherence chap. xin. from losing, or the person of incidence from gaining. A new right is therefore immediately given to the former, by way of compensation for his loss, and a new corresponding duty is laid upon the latter, by way of make- weight against any advantage which he may have derived from his aggression. In the language of the French Code: 'Tout fait quelconque de I'homme, qui cause a autrui un dommage, oblige celui par la faute duquel il est arrive a le reparer ^' In examining early systems of law we seem to come upon traces of a time when the State had to take special pains in order to insure that the new right should be as acceptable to its subjects as the indulgence of private revenge. Such is the interpretation placed upon a pro- vision of the Twelve Tables, that a thief, if caught in the act, was to be scourged and delivered as a slave to the owner of the goods, whereas if not caught under circumstances offering to the owner a similar temptation to violence, he was to be hable only for twice the value of the goods. So the object of the early Teutonic legislation is well described as having been, 'to preserve the society from standing feuds, but at the same time to accord such full satisfaction as would induce the injured person to waive his acknowledged right of personal revenge. The German Codes began by trying to bring about the acceptance of a fixed pecuniary composition as a constant voluntary custom, and proceed ultimately to enforce it as a peremptory necessity: the idea of society is at first altogether subordinate, and its influence passes only by slow degrees from amicable arbitration into imperative control V » Art. 1382. ' Grote, History, ii. p. 128. A cursory inspection of the ' Leges Barbaro- rum' will show how large a space in them is occupied by the topic of ' Compositio.' Y2 324 PRIVATE LAW: REMEDIAL RIGHTS. CHAP. XIII, Self-help. Right of action for resti- tution, The new right may thus be realisable by the regulated self-help of the injured person of inherence himself, as "when he is allowed to push a trespasser out of his field, i)r to pull down a wall which has been built across his path. More commonly it is realisable only with the aid of the law-courts, in which case it is known as a ' right of action,' 'ins persequendi iudicio quod sibi debetur\' The right, however realisable, we call ' remedial,' as opposed to the right from a violation of which it arises, and which we call ' antecedent ^' Its object may be either restitution or compensation ^ In the former case, the aim of the law is to cancel, so far as possible, the wrongful act. It allows the injured party to remove a build,ing which obstructs his window-light, it decrees the ' restitutio in integrum ' of a minor who has entered into a disadvantageous engagement, it calls for and destroys a contract which is tainted with fraud, it orders the return of an object of which the person of inherence has wrongly been deprived, or it enforces, if need be by imprisonment, the 'specific performance' of a contract which the person of incidence is endeavouring to repudiate, a remedy which, though familiar to English Equity * and to German law, ancient and modern, is opposed ' So Theophilus speaks of Obligations as the mothers of Actions: MTjrepes twv ayaayav at ^voxcti. Inst. iii. 13. ^ Supra, pp. 146, 167. 'Is qui actionem habet ad rem persequendam ipsam rem habere videtur,' says Paulus, Dig. 1. 15. Pomponius, more truly, 'minus est actionem habere quam rem.' Dig. 1. 204. ^ ' Les actions sont des droits particuliers qui naissent de la violation des autres droits, et qui tendent, soit k faire cesser cette violation, soit ^ en faire r^parer les effets.' Dalloz, s. v.. No. 69. See Zouche on ' Juris- prudentiae media ' (i.e. Judicium), 'quibus Finis' (i.e. Justitia) , ' in sub- jectum' i. e. communionem humanam) 'inducitur.' El. Jurispr. Pars. i. § 10. On the term 'cause of action,' see Cooke v. Oill, L. R. 8 C. P. 107, and Vaughan v. Weldon, L. R. 10 C. P. 47. It has been held by the Court of Appeal that 'two actions may be brought in respect of the same facts, when those facts give rise to two distinct causes of action,' per Brett, M. R., and Bowen, L. J., diss. Coleridge, L. C. J. Brunsden v. Humphrey, 14Q.B.D. 141. * The defaulter is directed to do the very thing which he contracted to RIGHTS OF ACTION, 325 to the principles of Roman law and of the systems derived chap, xiii, from it'. In the latter, which is also the more usual, ^""^ """P" ' pensation. do, and, if disobedient, is committed to prison for contempt of Court. Sir Edward Fry has shown that the Courts Christian anticipated the Court of Chancery in specifically enforcing the performance of those contracts, at least, in which there was an oath or 'fidei interpositio,' L. Q. R. V. p. 23s, and Specific Performance, ed. iii. p. 8. He thinks, ib. p. 14, that the remedy may have ' leaked through from the canon to the manorial law, where a Bishop was lord of a manor,' citing a case, temp. Ed. II., in a manorial court of the Bishop of Ely, from 'The Court Baron' (Selden Society), p. 115. Mr. W. F. Webster kindly calls my attention to the extent to which specific performance of promises to marry was enforced by Roman-Dutch law, at the Cape tiU 1838, and in the Transvaal till 1871; referring to Voet, Comm. ad Pand. lib. xxiii. tit. i. § 12, to Van Leeuwen's Commentaries, Bk. iv. 25. § 1, and to the note in Kotze's translation (1887), vol. ii. p. 210. ' According to the view prevalent in France, 'Nemo potest praecise cogi ad factum.' See Sir Edward Fry's Treatise on Specific Performance, ed. iii. p. 4, and the opinion of M. Renault, ib. p. 714. The doctrine of Pothier, Oblig. § 157, 'C'est en cette obligation de dommages et int^rdts que se r&olvent toutes les obligations de f aire quelque chose,' was adopted in art. 1 1 42 of the Code Civil, ' Toute obligation de faire ou de ne pas faire se r&out en dommages et int^rfits, en cas d'inex^cution de la part du d^biteur'; supported by M. Bigot-Pr6ameneu (Recueil des discours, t. i. p. 430) on the ground that ' nul ne pent 6tre contraint dans sa personne S. faire ou S, ne pas faire une chose, et que, si cela 6tait possible, ce serait une violence qui ne pent pas Stre un mode d'ex^cution des contrats.' There is nothing inconsistent with this view in arts. 1143, 1 144, und6r which the injured party may be authorised to carry out the work agreed upon at the expense of the defaulter ; nor in art .1610, under which a purchaser may be put into possession of the thing sold if the vendor refuses to deliver it to him. Some of the older French authorities had maintained that even here the sole remedy should be in damages, but Pothier, following Paulus, Sent. vi. i. 13. 4, and Cujas, ad. 1. i de Act. Empt., had argued that the Court should authorise the purchaser himself to seize the thing sold, ' ou d'en expulser le vendeur par le ministSre d'un sergent ,' explaining that the maxim ' nemo potest praecise cogi ad factum ' only applies ' lorsque le fait renfermd dans I'obligation est un pur fait de la personne du dSbiteur, merum factum, . . . il n'en est pas de mtoe du fait de la tradition: ce fait non est merum factum, sed mugis ad daiionem acceAit,' Contrat de Vente, § 68. I was indebted for a learned and interest- ing communication upon this subject to Mr. Justice Proudfoot of Toronto (afterwards embodied in an article in the Canadian Law Times , for October; 1894), who was disposed to go further than I am able to follow him in dis- covering approximations to Specific Performance in Roman law and in the derivative systems. On German law, see a learned article, signed E. S., in L. Q. R. viii. p. 252, citing Demburg, Preussisches Privatrecht, Bd. L p. 276, and the German Code of Civil Procedure, 774, 775. 326 PRIVATE LAW: REMEDIAL RIGHTS. The right is ' in per- sonam.' CHAP. XIII. case, it gives to the sufferer a right to be compensated in damages for a wrong which cannot be undone. We have seen that while some 'antecedent' rights are available ' in rem,' others are available only ' in personam.' ' Remedial ' rights are available, as a rule, 'in personam,' 1. e. against the wrong-doer, who, by the act of wrong- doing, becomes at once the ascertained person of incidence of the remedial right. Such rights as those of hen and distress, and especially certain rights enforceable in Courts of Admiralty, which are doubtless capable of being repre- sented as remedial rights ' in rem \' may also be treated as being merely modes of execution, by which the true remedial right is made effective ^ Origin. Infringe- ments. The causes, or ' investitive facts,' of remedial rights are always infringements of antecedent rights, and have there- fore been incidentally mentioned in the course of the discussion of such rights which has occupied the two preceding chapters. It is indeed impossible to describe what we have called the 'orbit' of a right, without at the same time mentioning the acts which break in upon it, since the extent of a right is the same thing with the power of him who is clothed vnth it to interfere, positively or negatively, with the acts of others'. It will now however be necessary to consider infringements more specifically, and to classify them according to the rights which they infringe, and with which indeed, for the reason just given, they are precisely correlative. Since conduct which is straightforward came to be spoken of eulogistically as being 'rectum,' 'directum' (whence 'droit'), 'recht' and 'right,' conduct of the opposite character naturally came to be expressed by the terms ' delictum,' ' delit,' as deviating from the right path, * See the case of the Parlement Beige, L. R. s P. D. 127. * Supra, p. 168. ' Supra, p. 151. TORTS. 327 and ' wrong ' or ' tort,' as twisted out of the straight chap. xiii. line'. Similar conduct is less descriptively called in German ' Rechtsverletzung.' These terms are aUke employed in their respective Species of. languages to denote, in a very general sense, acts which are violations of rights. They are however usually applied Breaches only to 'wrongs independent of contract^'; i. e. the large °pg^°^" class of wrongful acts which are breaches of contract are specifically so described. Certain other classes of wrongful Torta. acts also have for historical reasons specific designations which take them out of the category of delicts, or torts. Thus Roman law treated acts of certain kinds as giving rise to obligations not 'ex delicto,' but 'quasi ex deUcto,' nor are breaches of trust, or such acts as are charged against a co-respondent in the Divorce Court, since they were alike unknown to the old common law, described as torts by the law of England'. The distinction between those wrongs which are generi- Difference cally called torts ' and those which are called crimes may ^grts and at first sight appear to be a fine one. The same set of""^^®- circumstances will, in fact, from one point of view con- stitute a tort, while from another point of view they amount to a crime. In the case, for instance, of an assault, the right violated is that which every man has that his bodily safety shall be respected, and for the wrong done to this right the sufferer is entitled to get damages. But this is not all. The act of violence is a menace to the safety of society generally, and will therefore be > 'Tarn multa surgunt perfidorum oompita Tortis polita erroribus.' Prudent, in Apotheos. Hymn. i. ' Sicut illi qui in suo ministerio tortum faciunt,' occurs in an edict of Charles the Bald. 'Tort k la leye est contrarye.' Britton, fol. 116. ' A phrase due to the Common Law Procedure Act, 1852; though the opposition between actions ' founded on contract' and 'founded on tort' occurs in the County Courts Act, 1846. ' Although the action for erim. con. was for a tort. On the non- recognition, till comparatively recent times, of a general law applicable to torts, see Holmes J. in Harvard Law Review, xii. p. 451, 328 PRIVATE LAW: REMEDIAL RIGHTS. CHAP. xiii. punished by the State. So a libel is said to violate not only the right of an individual not to be defamed, but also the right of the State that no incentive shall be given to a breach of the peace. It is sometimes alleged by books of authority that the difference between a tort and a crime is a matter of procedure, the former being redressed by the civil, while the latter is punished by the criminal courts. But the distinction lies deeper, and is well expressed by Blackstone, who says that torts are an 'infringement or privation of the private, or civU, rights belonging to individuals, considered as individuals ; crimes are a breach of public rights and duties which affect the whole community, considered as a community \' The right which is violated by a tort is always a different right from that which is violated by a crime. The person of inherence in the former case is an individual, in the latter case is the State. In a French criminal trial there may accord- ingly appear not only the public prosecutor, representing the State and demanding the punishment of the offender, but also the injured individual, as 'partie civUe,' asking for damages for the loss which he has personally sustained ^ The far-reaching consequences of acts become more and more visible with the advance of civiUsation, and the State tends more and more to recognise as offences against the community acts which it formerly only saw to be injurious to individuals '. Possible Wrongful acts may be, and are, classified on five different classifica- . . -i ^ i , tions of prmciples at least. wrongs. ' Cf. Lord Lindley in Quinn v. Leathern, [1901] A. C. at p. 542- ' Code d'lnstruction Criminelle, art. 63. On the old English remedy, known as an 'Appeal,' abolished by 59 Geo. III. c. 46, see 4 Bl. Comm. 312. ' 'Dalits et quasi-daits' are dealt with in the Code Civil, arts. 1 382- 1 386; 'Unerlaubte Handlungen,' in the BUrgerliches Gesetzbuch, 823-853- See in Journ. Comp. Leg., N. S., xii. p. 274, a notice by S. Amos of La nozione del Torto nella dottrina e nella giurisprudenza inglese, by M. Sarfatti. CLASSIFICATION OF WRONGFUL ACTS. 329 i. According to the state of the will of the wrong-doer, chap. xm. which may conceivably be, (i) entirely absent, as in acts of innocent trespass ; (2) such as exhibits negligence * ; (3) such as exhibits intention, sometimes described as ' malice *.' As has already been explained, the law has in modern times substituted, in many cases, for an enquiry into the state of mind of a given defendant an enquiry into the conformity of his acts to an external standard, viz. to the conduct which may be reasonably expected from a person of his class'. ii. According to the state of the will of the injured party, which may conceivably, (i) fairly consent to an invasion of his right, which by being thus waived, becomes no right, and its invasion no wrong, since ' volenti non fit iniuria*'; and an act ab initio wrongful may lose this character by the subsequently given assent of the injured party ; (2) be flatly opposed to the act, wliich is then, of course, tortious, even when an apparent assent to it is * Supra, p. III. * There has been a tendency in recent American cases to hold that an improper motive may make illegal an otherwise legal act; as where a barber started a shop, regardless of any profit for himself, merely to ruin the plaintiff's business. Tuttle v. Buck (Minn. 1909), 1 19 N. W. 946. ' Supra, pp. 113, 114. For an interesting enquiry as to the ground of liability for torts, and especially whether or no they imply moral blame- worthiness, see Holmes, The Common Law, p. 79. Mr. Justice Holmes points out, in another chapter, that 'law started from those intentional wrongs which are simplest and nearest to the feeling of revenge which leads to seK-redress. It thus naturally adopted the vocabulary, and in some degree the tests, of morals. But as the law has grown, its standards have necessarily become external, because they have considered not the actual condition of the particular defendant, but whether his conduct would have been wrong in the fair average member of the community whom he is expected to equal at his peril.' lb. p. 161. Cf. also Sir F. Pollock's work on Torts. * Supra, p. iss- As to the application of this principle, and the distinction between 'sciens' and 'volens,' see Thomas v. Quartermain, 18 Q. B. D. 68s; Smith v. Baker, [1891] App. Ca. 32s; Williams v. Birmingham Battery Co., [1892] 2 Q. B. 338. On the change of view marked by the two last cases, see L. Q. R. xv. p. 336. 330 PRIVATE LAW: REMEDIAL RIGHTS. Principle selected. CHAP. XIII. procured by duress ; (3) be induced to assent by the deceit of the party injuring, the act of so procuring assent by deceit being the wrong known as ' fraud.' iii. According to the means whereby the wrong is effected, whether, for instance, by physical violence, by words uttered, or by omission to carry out a contract. iv. Accordingly as actual loss to the injured party follow- ing upon the act of the wrong-doer is, or is not, essential to its tortious character'. V. According to the nature of the right invaded, whether, for instance, it be a right to personal freedom, or to a monopoly, or to the fulfilment of a contract. Writers who waver between these various points of view, subdividing one portion of the whole class of wrong- ful acts upon one principle, and another portion upon another principle, involve themselves in unnecessary diffi- culties. The last-mentioned principle of division is to be preferred. When it is once known of what right any given wrong is an invasion, its other characteristics follow as a matter of course. A tabular view of wrongful acts, in which each is referred to the right of which it is an infringement, might easily be constructed from the data contained in the two preceding chapters. Among rights ' in rem,' that to personal safety is violated by assault or imprisonment; family rights, by abduction of, or adultery with, a wife, by seduction of a servant, or enticing away a slave ; the right to one's good name, by defamation; rights generally available, by nuisance, and malicious arrest or prosecution; rights of possession, by trespass, conversion, detinue, and 'furtum'; rights of ownership of tangible objects, by the same acts; rights of copyright, patent-right and trade-mark, by 'infringe- ment'; rights 'in re aliena,' by 'disturbance' of an ' See per Bowen, L. J., in Batcliffe v. Evans, [1892] 2 Q. B. 524. List of •wrongs, WRONGS INDEPENDENT OF CONTRACT. 331 easement, or ' conversion ' of a pledge ; rights to immunity chap. xra. from fraud, by ' deceit.' Among rights 'in personam,' family rights, and their analogues, are infringed by ' subtraction,' adultery, refusal of due aliment, ingratitude on the part of a freedman, or neglect by a vassal of his feudal duties; fiduciary rights, by breach of trust; rights of a reversioner, by 'waste'; what we have called meritorious rights, by refusal of the merited reward; rights against officials, by neglect on their part to perform their duties; rights 'ex contractu,' by breaches of contract, consisting, according to the nature of the contract in question, in such acts or omissions as non-payment, non-delivery, defective care-taking, default in marrying, non-render of services, negligent render of services, refusal to enter into partnership, doing acts prom- ised not to be done, breach of warranty, or non-return, of pledge. "With reference to these acts generally, the rule holds Liability good that 'qui facit per alium facit per se.' The employer 3°^.^^^*'^ is responsible for acts which he has ordered to be done, or which have been done by his servant, without orders but within the scope of the servant's employment '. The right resulting from 'wrongs independent of con- for tract ' is of a wider character than that which results from ^f ^^^tract breaches of contract. In the former case only, as a rule, ^^^ torts. may mental and bodily suffering be taken into account in measuring the damages to be awarded. On the other hand, a breach of contract is more readily established than a wrong of another kind, since it depends less on any question as to the state of the will of the wrong-doer, and some damages may be had for every breach of contract, whether or no it be the cause of any actual loss. ' Direct,' Damages. * Cf . supra, p. 156. On the liability of contractors as well as their sub- contractors, see Bower v. Peate, L. R. i Q. B. D. 321. On the liability of a shipowner for the acts of his master being limited by surrender of the ehip, see Hohnes, Common Law, p. 30. 332 PRIVATE LAW: REMEDIAL RIGHTS. Extinc- tion. CHAP. xni. or ' general ' damages are those which are the necessary and immediate consequence of the wrong, while 'indirect,' or 'special,' damages are sometimes granted in respect of its remoter consequences \ Transfer. What has been said as to the difficulties attending the transfer of antecedent rights ' in personam ' applies, with greater strength, to the transfer of remedial rights ^ The non-transferability to the representatives of a deceased person of such remedial rights as arise from the violation of a right intimately connected with his individuality is expressed by the maxim, 'Actio personalis moritur cum persona ^' A mere performance of the duty antecedently owed is no discharge of the remedial right arising from its non- performance, but the right may be extinguished in a variety of other ways, including some of those which are applicable to the extinction of antecedent rights 'in personam V Release. i. The person of inherence may formally release his right of action, for instance by deed or by the Aquilian stipulation; or may give a covenant not to sue, 'pactum de non petendo'; or may enter into, what is called in ' On the 'measure of damages,' cf. 'pretia rerum non ex affectione singulorum sed communiter fungi.' Dig. ix. 2. 33. Cf. Cod. vii. 47. Does an injured person weaken his claim against the person who caused the injury, or against an insurance society, by refusing to submit to an operation suitable to his case? See F. Endemann, Die Rechtswirkung der Ablehnung einer Operation, Berlin, 1893. * Supra, pp. 159, 310. On the various meanings of the term 'special damages,' see Ratcliffe v. Evans, u. supra. ' Supra, pp. 173, 314. An action for breach of promise of marriage, without damage to the estate, does not survive to the representatives of the promisee. Chamberlain v. Williamson, 2 M. & S. 408, nor against the representatives of the promisor, Finlay v. Chimey, 20 Q. B. D. 494. Quirk v. Thomas, [1916] 2 K. B. (A. C.) si6, in which case Swinfen-Eady L. J. expressed ' grave doubts whether the action would lie, even if spe- cial damages be proved.' Similarly, Esher M. R. in the preceding case. Cf. Stanhope v. Stanhope and Adye, n Prob. D. (C. A.) 103, as tq a de- cree nisi of Divorce. ' * Cf. supra, p. 314. EXTINCTION. 333 English law,' an accord and satisfaction' with the person caiAp. xni. of incidence, i. e. into an agreement substituting some other act for the act which has not been performed, and followed by the performance Of that act. The person of inherence may also by his conduct so ' ratify ' a wrong done to him Ratifica- as to waive his resulting right of redress, as when the ^°^' ■ owner of goods wrongfully sold treats the sale as lawful by taking part of the purchase money. The right may likewise be lost by — ii. The bankruptcy of the person of incidence. Bank- iii. Set-off. Set^g' iv. Merger. It has been laid down that the giving of a Merger, covenant in the place of a simple contract does not ' merge or extinguish the debt, but it merges the remedy by way of proceeding upon the simple contract. The intention of the parties has nothing to do with that. The poUcy of the -law is that there shall not be two subsisting remedies, one upon the covenant and another upon the simple contract, by the same person against the same person for the same demand'.' So a judgment in favour of the plaintiff is ' a bar to the original cause of action, because it is thereby reduced to a certainty and the object of the suit attained, so far as it can be at that stage ; and it would be useless and vexatious to subject the defendant to another suit for the purpose of attaining the same result. Hence the maxim Transit in rem iudicatam . . . The cause of action is changed iato a matter of record, which is of a higher nature, and the inferior remedy is merged in the higher ^.' So in Roman law an obligation was transmuted by 'litis contestatio,' and again by judgment, which was expressed by saying, 'ante litem contestatam dare debitorem opor- tere, post litem contestatam condemnari oportere, post condemnationem iudicatum facere oportere'.' An award * Price v. Moulton, lo C B. 561. ' King v. Hoare, 13 M. & W. 494; of. KendaU v. Hamilton, 4 App. Ca. 504. » Gai, iii. 180. 334 PRIVATE LAW: REMEDIAL RIGHTS. Estoppel. Prescrip- tion. CHAP. XIII. under arbitration does not usually extiag^sh a remedial right, unless followed by performance of the award. V. 'Estoppel,' by a judgment for the defendant. 'The facts actually decided by an issue in any suit cannot be again litigated between the same parties, and are evidence between them, and that conclusive, for the purpose of terminating litigation'.' vi. Extinctive prescription, or hmitation of actions, introduced, as it is expressed in the Act of James I, 'for quieting of men's estates and avoiding of suits ^' by depriving the remedial right of its judicial remedy, reduces it to the position of a merely ' natural ' obligation, which however still remains capable of supporting a lien or pledged The lapse of time necessary to produce this result varies very widely in different systems, and with reference to rights of different species *. It begins to run from the moment when the remedial right comes into existence, in other words, when the antecedent right is violated. It may be interrupted, or prevented from running by various causes, such as the minority, imprisonment, or absence from the country of the person whose right would otherwise be affected by it. On the other hand, the person who would otherwise benefit by it may keep alive his indebtedness by such acts as part payment, or payment of interest, or express acknowledgment with a promise to pay*. There are cases in which a remedial right is suspended without being lost. Thus a Court will refuse to try an Suspen- sion. > Boileau v. RiUlin, 2 Ex. 665. 'Res iudicata pro veritate accipitur,' Dig. L 17. 207. On the 'exceptio rei iudicatae,' see Dig. xliv. 2. The principle was applied to awards between nations by the Hague Tribunal in 1902 in deciding the &st case submitted to it. See the judgment in La Justice Internationale, 1903, p. 18. ''21 lac. I. c. 16. • Supra, pp. 230 n., 243. * Cf. Grerman Civil Code, 94-225. » Cf. a 'Note' in 31 L. Q. R. p. 141. EXTINCTION. 335 action while an action to try the same question is pending chap. xin. before a Court of concurrent jurisdiction, in which case there is said to be 'lis ahbi pendens.' So also it was long said to be a principle of English law that when the fact which gives rise to the remedial right amounts also to a felony, the remedy of the injured individual is postponed to the punishment of the crime; but grave doubt has of late been thrown upon this alleged principle'. ' For the history of the rule to this effect, see Wella v. Abrahams, L. R. 7 Q. B. SS4, where Blackburn, J., traces all the dicta in its favour back to the case of Markham v. Cobbe, Sir W. Jones, 147, decided in 1626. In ex parte Ball v. Shepherd (1879), 10 Ch. D. (C. A.) 667, and Midland Rail. Co. V. Smith (1881), 6 Q. B. D. 561, the rule is treated as finally exploded; but see Appleby v. Franklin (1885), 17 Q. B. D. 93, and WiruhrM Local Board of Health v. Vint, 45 Ch. D. (C. A.) 351. Cf. Dig. xlvii. 2. 56. i. CHAPTER XIV. PEIVATE LAW : ABNORMAL. Normal Among the modes in which the field of law may be norimj' mapped out, we have already explained that which divides persons. it into 'normal' and 'abnormal'; the former kind of law dealing with rights as unaffected by any special charac- teristics of the persons with whom they are connected, the latter. kind dealing with rights as so affected'. In all statements with reference to rights the standard type of personality is assumed, unless the contrary is expressed ; and it is only when there is a deviation from that type that the character of the persons who are two of the factors into which, as we have seen, it is possible to analyse every right, needs any investigation. The typical person, who is thus assumed as a factor, is, in the first place, a human being, as opposed to what is called 'an artificial person ^' In the next place, he is unaffected by any such peculiarity as infancy, coverture, alienage, slavery, and so forth. In considering the various classes of substantive rights, -' Supra, pp. 138, 167; infra, p. 343. ' Supra, p. 93; infra, p. 337. ARTIFICIAL PERSONS. 337 we liave hitherto treated of them as normal. We are chap. xiv. now about to treat of the efiEect produced upon them by abnormity of personality. It was usual in old gi-ammars to explain the cases Abnonnal of nouns by a diagram, in which the nominative case^^'^"'^" was represented by an upright line, from the base of which lines, representing the genitive, dative, accusative, vocative, and ablative, sloped off at gradually increasing angles. The accompanying figure may serve to illustrate in a similar manner the variations of juristic personality. 'Soimal person, I Infant, /feme.coTert, /ConTlot, The most marked distinction between abnormal persons Natural is that some are natural, i. e. are individual human beings, ^^ ^ ' while others are artificial, i. e. are aggregates of human beings, or of property, which are treated by law, for certain purposes, as if they were individual human beings \ I. It is by no means at the discretion of any aggregate Artificial of human beings so to coalesce as to sustain a single ^^'^^'"^' personality. Artificial persons are created in England, for instance, by a charter granted by the executive authority, or by a special statute passed by the legislature, but of 1 Supra, pp. 96, 142. Order bod. i, of the Rules of the Supreme Court of 1883, provides that the word 'person' shall, in the construction of these rules, unless there is anjrthing in the subject or context repugnant thereto, include a body corporate or politic. By the Interpretation Act, 1889, s. 19, 'In this act, and in every act passed after the commencement of this act, the expression "person" shall, unless the contrary intention appears, include any body of persons, corporate or unincorporate.' On the more theoretical aspects of the topic, see supra, p. 97. 338 PRIVATE LAW: ABNORMAL. CHAP. xrv. late years also by virtue of general statutes, which pre- scribe the conditions under which voluntary associations may acquire a corporate character \ They may be formed whoUy of natural persons, or whoUy of artificial persons, or of a mixture of artificial and natural persons. They cease to exist by no longer comprising the requisite number of subordinate persons, or by the revocation or surrender of their privileges. Character- The characteristics of an artificial person differ from those of a group of natural persons no less than from those of a single natural person. On the one hand, it is not merely the sum total of its component members, but something superadded to them I It may remain, although they one and all are changed, 'in decurionibus vel aliis universitatibus nihil refert utrum omnes idem maneant, an pars maneat, vel omnes immutati sint*.' The property which it may hold does not belong to the members either individually or collectively: 'quibus per- missum est corpus habere collegii, societatis, sive cuiusque alterius eorum nomine, proprium est, ad exemplum rei pubhcae, habere res communes *.' Its claims and liabilities are its own, 'si quid universitati debetur, singulis non debetur; nee quod debet universitas singuli debent^-' Its agent, though appointed by a majority of the members, does not represent them, 'hie enim pro republica vel universitate intervenit, non pro singuUs'.' In all these 1 Such as those now consolidated in 'The Companies (Consolidation) Act, 1908.' The Crown may delegate its power of creating corporations. 'So,' says Blackstone, 'the Chancellor of the University of Oxford has power by charter to erect corporations; and has actually often exerted it, in the erection of several matriculated companies of tradesmen subser- vient to the students.' Comm. i. p. 474. ' So, says Paulus, the members of an illicit 'collegium' can take a legacy only if it is left to them individually: 'hi enim non quasi collegium, sed quasi certi homines, admittentur ad legatum.' Dig. xxxiv. 5. 20. A 'municipium,' according to TJlpian, xxii. 5, cannot be instituted heir, 'quoniam incertum corpus est.' • Dig. iii. 4. 7. 2. * lb. 4. 1. 1. s lb. 4, 7. I. • Dig. 4. 2. CORPORATIONS. 339 respects true artificial persons are distinguishable from clubs chap. xiv. and unincorporated trading partnerships, however large. On the other hand, an artificial necessarily differs in many respects from a natural person. 'A corporation aggregate of many is invisible, immortal, and rests only in intendment and consideration of law. It has no soul, neither is it subject to the imbecilities of the body'.' Its wUl is that of the majority of its members, and can be expressed only by means of an agent; there are many wrongful acts of which it is obviously incapable ^ ; and its capacity for being the subject of rights, 'Rechtsfahigkeit,' and for performing legal acts, ' Handlungsf ahigkeit,' is strictly limited by the purposes by which its existence is recognised'. The invention of corporations has been justly described Utility of. by a high authority upon the subject as one which, 'perhaps more than any other human device, has con- tributed to the civilisation of Europe and the freedom of its states.' 'By this means,' says the same writer, ' municipalities were furnished with a form of government which never wore out. Charitable trusts were secured to the objects of them so long as such objects should continue to be found, the protection, improvement and encouragement of trades and arts were permanently provided for, and learning and rehgion kept alive and cherished in times through which probably no other means can be mentioned that would appear equally well qualified to preserve themV The purposes which artificial persons are intended toClassifica- promote are very various, and such persons may perhaps '°" ° " ' The case of Sutton's Hospital, lo Rep. 32 b. ' Dig. iv. 2. 9, 3. 15. Cf. MetTopolitan Saloon Company v. Hawkins, 4 H. & N. 87. » Cf. The Amalg. Socy. of Ry. Servants v. Osborne, [1910] A. C. 87. * Grant, on Corporations, p. 4. 340 PRIVATE LAW: ABNORMAL. CHAP. XIV. be classified, according as they subserve one or other of them, under the following heads ' : — (i) Subordinately political, such as municipal corpora- tions, generally. (2) Administrative, such as the Trinity House or the College of Heralds. (3) Professional, such as the College of Physicians or the Incorporated Law Society. (4) Religious, such as the Chapter of St. Paul's or the Church Missionary Society. (5) Scientific and Artistic, such as the Royal Society, the Royal Academy, or the British Academy. (6) For the Promotion of Education, such as the University of Oxford or the Girls' Public Day School Trust Limited ^ (7) Eleemosynary, such as St. Thomas's Hospital, or the Corporation of the Sons of the Clergy. (8) Trading, such as the Great Western Railway, the Lambeth Water- works Company, the Civil Service Supply Association Limited, or the Law Guarantee and Trust Society '. 'Quasi- The holders for the time being of certain official posi- ttons.°'^^ tions, though not incorporated, are recognised in English law as ' Quasi-Corporations.' So the Churchwardens of a parish and their successors may hold goods but not land, as if they were an artificial person; and larger rights have been conferred by statute upon Guardians of the Poor, and Boards of Management of district Schools or ' For a classification of juristic persons from the point of view of Roman Law, see Baron, Pandekten, p. 54- Cf . German Civil Code, 2 1-89. ' Legal personality was granted, hy way of exception, in 191 1, to the Universities of Louvain and Brussels. ' Such a society may now be appointed as trustee, but not as executor, jointly with a natural person. See 55 & 56 Vict. c. 39; 62 & 63 Vict. c. 20; Be Martin, [1903] 20 T. L. Rep. 229; Thompson v. Alexander, [1905] I Ch. 229. QUASI-CORPORATIONS. 341 Asylums. The term is also applied to the position occu- chap. xiv. pied under certain statutes by Banking partnerships and Commissioners of Sewers.^ A trade union, registered under the Acts of 187 1 and 1876, may now be sued, though not a corporation, in its registered name, as also in a ' representative action,' and its general funds are liable for the acts of its officers, done in the course of their employment ^ The legal position of a corporation of the older t3T)e is Older cor- comparatively simple. It exists generally for some purpose ^°^^ '°°^* of pubho utnity, and its members have no defined personal interest in the property which belongs to it. The most complicated, as well as the most modern, branch of the law of artificial persons relates to those which are formed for purposes of trade. They are a natural accompaniment of the extension of commerce. An ordinary partnership lacks the coherence which is required for great undertakings. Its partners may withdraw from it, taking their capital with them, and the 'firm' having as such no legal recognition, a contract made with it could be sued upon, according to the common law of England, only in an action in which the whole list of partners were made plaintifiEs or defendants.' In order to remedy the first of these inconveniences. Trading partnerships were formed upon the principle of a joint- ^0^!"^^ 1 There are symptoms of a tendency in England to break down the distinction between corporations and societies of other kinds. Cf. the permission given, by the Rules of the Supreme Court, Order xlviii a, for bringing actions in the name of and against an tmincorporated firm; the definition of a 'Body unincorporated' in the Customs and Inland Revenue Act, 1885; and the attempt made in the same year to restrain the powers of 'quasi-corporations' in dealing with their property. On 'Halbcorporationen,' see Dernburg, Pand. i. p. 147. » See The Taff Vale Ry. Co. v. Amal. Socy. of Ry. Servants, [1901] A. C. 426; but the decision in this case was overruled by the Trade Disputes Act, igo6, so far as it made the Union, or its members, liable for the acts charged against the Union. ' But see now Order Iviii a, above mentioned. 342 PRIVATE LAW: ABNORMAL. CHAP. XIV. stock, the capital invested in which must remain at a fixed amount, although the shares into which it is divided may pass from hand to hand. This device did not however obviate the difficulty in suing, nor did it relieve the partners, past and present, from liability for debts in excess of their, past or present, shares in the concern. In the interest not only of the share-partners, but also of the public with which they had dealings, it was desirable to discourage the formation of such associations ; and the formation of joint-stock partnerships, except such as were incorporated by royal charter, was accordingly, for a time, prohibited in England by the ' Bubble Act,' 6 Geo. I. c. i8. An incorporated trading company, in accordance with the ordinary principles regulating artificial persons, consists of a definite amount of capital to which alone creditors of the company can look for the satisfaction of their demands, divided into shares held by a number of individuals who, though they participate in the profits of the concern, in proportion to the number of shares held by each, incur no personal HabiUty in respect of its losses. An artificial per- son of this sort is now recognised under most systems of law. It can be formed, as a rule, only with the consent of the sovereign power \ and is described as a ' societe ' — or 'compagnie' — 'anonyme,' an ' Actiengesellschaft,' or 'joint- stock company limited^.' A less pure form of such a corporation is a company the shareholders in which incur an unlimited personal liability. There is also a form resembling a partnership ' en commandite,' in which • This requirement has been much discussed in Germany, and has been modified in the later issues of the Handelsgesetzbuch; see arts. 215, 249. ' The first Act for limiting the liability of members of Joint- stock Companies was 18 & 19 Vict. c. 133, passed in 1855. Speaking of the disappearance of the old Trade-guilds, M. de Laveleye says: 'Plusde corporations industrielles: les soci6t£s anonjrmes qui en tiennent lieu ne sont qu'un moyen d'associer les capitaux et non des hommes.' Formes primitives de la propri6t6, p. 269. LIABILITIES OF CORPORATIONS. 343 the liability of some of the shareholders is limited by chap. xiv. their shares, while that of others is unlimited'. Subject to some exceptions, any seven partners in a trading concern may", and partners whose number exceeds twenty must, according to English law, become incorporated by registration under the Companies Acts, with either limited or unUmited liability as they may determine at the time of incorporation. The debts of an incorporated company of any kind are Bank- payable in the first instance only out of the corporate '"jporations. funds. Should those funds prove insufficient, the company becomes bankrupt, or, as it is variously expressed, 'is wound up,' or 'goes into liquidation.' The appropriate Court investigates its affairs, and calls upon the share- holders, in the case of a limited company, for any balance which may be unpaid upon their shares, and, in the case of an unlimited company, for any further sum which may be required from their private fortunes. Out of the fund thus available, the claims of creditors which have been satisfactorily estabUshed are paid either in full or rateably, as the case may be, and the company ceases to exist '. The existence of a foreign corporation will generally be Foreign recognised, if according to the law of the country where it tioM. was created it has attributes similar to those which are assigned to corporations by the law of the country in whose court it is plaintiff or defendant*. ' Cf. supra, p. 302. » 'One-man' companies, in which only one member is bona fide responsible, treated as fraudulent in Broderip v. Salomon, [1895] 2 Ch. (C. A.) 323, were declared unobjectionable by the House of Lords, in the same case on appeal under the name of Salomon v. Salomon & Co., [1897] A. C. 22. On 'no-liability' companies, see Journal Comp. Legisl. ii. p. 160. » On the liability of members of a dissolved corporation in contract and tort, see Yale L. J., p. 112, citing Curran v. Arkansas, 15 How. 304; Shaym v. Ev. Post Co., 61 N. E. 115. * See P. Arminjon on ' La nationality des personnes morales,' Revue de 344 PRIVATE LAW: ABNORMAL. CHAP. XIV. The question whether a company duly registered in England retains its rights of action, although all, or the majority, of its shareholders and directors become alien enemies hy the outbreak of war, has been much discussed. In a recent leading case, the Court of Appeals, diss. Buckley L. J., now Lord Wrenbury, following the Court of first instance, held that the company's rights were unaffected by the war. The House of Lords reversed this decision, without, however, laying down that its ruling would be applicable under all circumstances ^ Proprie- tary pecu- liarities. The chief peculiarity of the proprietary rights of arti- ficial persons relates to their tenure of land'. The accumulation of estates in the hands of religious houses was directly opposed to the interests of feudal lords, who accordingly made every effort in England to get rid of such tenure, which they described as being 'in mortua manu,' by a long series of enactments. These ' Statutes of Mortmain' were extended in time to the prohibition of the aUenation of land to lay as well as to spiritual corporations ; and this continues to be the rule of English law to the present day, when no hcence in mortmain is granted by the Crown, subject to a number of statutory exceptions in the interests of reUgion, charity, or other definite public object \ The Wills Act of Henry VIII, now repealed, in giving a general power of devise, contained an exception against devises to 'bodies politic and cor- porate.' A corporation is also usually restrained from parting with its landed property, and even from leasing Droit International, 2* s6rie, t. iv. p. 381. A foreign corporation has been admitted in England to be a plaintiff since 1734, to be a defendant since 1858. 1 Daimler Co. v. Continental Tyre and Rubber Co., [igi6] 2 A. C. 307. Cf. s & 6 G. V. c. s. §§ I and 10. ' On corporations as joint-tenants, see The Bodies Corporate (Joint Tenancy) Act of 1899. ' The enactments on this subject have been consolidated in the Mort- main and Charitable Uses Act, 1888, 51 & $3 Vict. c. 42. POWERS OF CORPORATIONS 345 it for more than a certain number of years, without the chap. xiv. sanction of a public authority. The form in which, as a rule\ an artificial person Contrac- enters into a contract or otherwise performs a juristic abjjjtj^ act is, according to English law, by the imposition of its seal, which has been described as ' the hand and mouth of a corporation " ' ; unless, in the case of a trading cor- poration, the act is incidental to carrying on the business for which it is incorporated, and, in the case of a non- trading corporation, when the act is of trivial importance, or of urgent necessity'. There are some acts of which an artificial person is obviously incapable, and there are others which the law win not recognise its capacity to perform *. It has long been settled in England that an assumption on the part of a corporation to do what is wholly beyond its competence may be ground for a forfeiture of the charter on which its existence depends \ and there has been of late years much discussion as to the classes of corporate acts which the law will support as valid with reference to individual cor- porators and to third parties respectively. When railway companies were first created, with ParUamentary powers of a kind never before entrusted to similar bodies, it soon became necessary to determine whether, when once called into existence, they were to be held capable of exercising, as nearly as possible, all the powers of a natural person, unless expressly prohibited from doing so, or whether their 'I.e. apart from statutory provisions, such as 1 1 & 1 2 Vict. c. 63. s. 85. ' Gibson v. E. I. Co., s Bing. N. C. 269. ' But by 38 & 39 Vict. c. 55. s. 174, a contract the value of which exceeds £50 made by an urban authority must be under seal. * ' Municipes per se nihil possidere possunt, quia universi consentire non possunt.' Dig. xli. 2. i. 22; cf. xx3cviii. 3. i. On the liability of a corporation for wrongs, e. g. for trespass, Ubel, or fraud, see Pollock, Torts, ed. xiii. pp. 62, 320. It is liable to an action for malicious prosecution. Cornford v. Carlton Bank, [1899] i Q B. 392. ' B. v. Mayor of London, 1 Shower 274; cf. B. v. Eastern Archipelago Co., 2 E. & B. 856. 346 PRIVATE LAW: ABNORMAL. CHAP. XIV. acts must be strictly limited to the furtherance of the purpose for which they had been incorporated. The question was first raised in 1846, with reference to the right of a railway company to subsidise a harbour company, and Lord Langdale, in deciding against such a right, laid down the law in the following terms: — 'Companies of this kind, possessing most extensive powers, have so recently been introduced into this country that neither the legislature nor the courts of law have yet been able to understand all the different hghts in which their transactions ought properly to be viewed- ... To look upon a railway company in the hght of a common partnership, and as subject to no greater vigilance than common partnerships are, would, I think, be greatly to mistake the functions which they perform and the powers which they exercise of interference not only with the public but with the private rights of all individuals in this realm. ... I am clearly of opinion that the powers which are given by an Act of Parliament, like that now in question, extend no further than is expressly stated in the Act, or is necessarily and properly required for carry- ing into effect the undertaking and works which the Act has expressly sanctioned V This view, though it has sometimes been criticised, seems now to be settled law. In a later case, in the House of Lords, the permission which the Legislature gives to the promoters of a company was paraphrased as f oUows : — 'Ton may meet together and form yourselves into a company, but in doing that you must tell all who may be disposed to deal with you the objects for which you have been associated. Those who are dealing with you wUl trust to that memorandum of association, and they will see that you have the power of carrying on business * Caiman v. Eastern Counties RaUway Co., 10 Beav. 13. On the difference between the powers of chartered and statutory companies respectively, see Ashbury Carriage Co. v. Bicke, L. E. 7 H. L. 673. CORPORATIONS SOLE. 347 in such a manner as it specifies. You must state the chap. xiv. objects for which you are associated, so that the persons dealing with you will know that they are dealing with persons who can only devote their means to a given class of objects V An act of a corporation in excess of its powers, with VltTa vires. reference to third persons, is technically said to be ultra vires^, and is void even if unanimously agreed to by all the corporators. The same term is also, but less properly, applied to a resolution of a majority of the members of a corporation which being beyond the powers of the corporation will not bind a dissentient minority of its members '. Such artificial persons as have hitherto been described Corpora- result from the combination of a number of natural persons for the performance of a common function, and are accord- ingly described as ' universitates personarum,' or, in English law, as ' corporations aggregate.' An artificial person may, however, also exist without being supported by any natural person. It may consist merely of a mass of property, of rights and of duties, to which the law chooses to give a fictitious unity by treating it as a 'universitas bonorum.' The most familiar example is a 'hereditas' before it has been accepted by the heir, which in Roman law is treated as capable of increase and diminution, and even of contract- ing by means of a slave comprised in it, as if it were a person *. It would have been quite possible to explain in the same way the devolution of the lands of the Crovra, or of a bishopric, or of a rectory, from the sovereign, bishop, * Per Lord Hatherley, in Biche v. The Ashbury Carriage Co., L. R. 7 E. & I., App. 684. ' Perhaps first in South Yorkshire Rail. Co. v. Gt. N. Rail. Co., 9 Ex. 84 (1853). * The Earl of Shrewsbury v. N. Staff. Rail. Co., L. R. t Eq. 393. * Supra, p. 97. 348 PRIVATE LAW: ABNORMAL. CHAP. XIV. or rector, to Ms successor ; but English law has preferred to introduce for this purpose the fiction, peculiar to itself, of a 'corporation sole\' The origin of such a corporation is rarely traceable ; but the Master of Pembroke CoUege and the Provost of Oriel College, Oxford, were respectively- made corporations sole by letters patent of Queen Anne ^ Natural II. The chief varieties of status among natural persons ons. ^^^ ^^ referred to the following causes: i. sex; 2. minor- ity; 3- 'patria potestas' and 'manus'; 4- coverture; 5. ceUbacy; 6. mental defect; 7. bodily defect; 8. rank, caste, and official position ; 9. race and colour; 10. slavery; 11. profession; 12. civil death; 13. illegitimacy ; 14- heresy; 15. foreign nationality; 16. hostile nationality. All of the facts included in this list, which might be extended, have been held, at one time or another, to differentiate the legal position of persons affected by them from that of persons of the normal type°. It may be worth while to give a few illustrations of each of the special types of status thus arising. Sex. I. The disabilities or privileges of women, as such, must be looked for in modern times rather in the depart- ment of public than in that of private law. It must however be remembered that even in the time of Gaius the life-long tutelage of women, ' propter animi levitatem,' had not wholly become obsolete \ and that, by a senatus- ' A corporation sole, though it may hold lands, cannot hold goods and chattels; because, says Blackstone, 'such moveable property is liable to be lost or embezzled, and would raise a multitude of disputes between the successor and the executor, which the law is careful to avoid.' Comm. i. p. 478. On the limited attributes of a corporafon sole, see Powers V. Banks, [1901] 2 Ch. 487. Prof. Maitland, in the L. Q. R. xvi. p. 331, attributes the term to Lord Coke (Co. Litt. 250 a), perhaps suggested to him by Broke's Grand Abridgment. ' See 12 Anne, St. 2. c. 6. » In the Tagore Lectures, 1883, Lect. xii, Dr. Jolly gives a curious account of the classes of persons incapable of inheriting, according to Hindoo law, and according to the Sachsenspiegel. : Inst. i. 144, NATURAL PERSONS. 349 consultum passed in the reign of Claudius, they were chap. xiv. allowed to repudiate any liability which they might have undertaken as sureties, ' quum eas virilibus offlciis fungi et eius generis obligationibus obstringi non sit aequum *,' 2. Minors are, as a rule, capable of holding and receiving Minority, property, and liable for their wrongful acts, but incapable of making a will, or of entering into a valid contract without the approval of a guardian or of some public authority ^ The exception to this rule, in favour of up- holding an infant's contracts for necessaries, is obviously made in the interest of the infant himself; 'ne magno incommodo aflB.ciantur, nemine cum his contrahente, et quodammodo commercio eis interdicatur '.' Infants are, hffw^ever, unless under the age of consent, which differs under different systems, not incapacitated from entering into the contract of marriage ^ The age of full majority is dififerently fixed under different systems, and it may be remarked that English law, in dividing human life for most of the purposes of private law into two periods only, that which precedes and that which fol- lows the age of twenty-one, has departed from the * Dig. xvi. I. 2. * Cf. the Infant Settlements Act, iSsSi and the Infants Relief Act, 1874. The disability of an infant, said Lord Mansfield, is to be tised 'as a shield and not as a sword,' Zouch v. Parsons, 3 Burr. 1802. He is not liable in tort for inducing a contract by falsely representing himself to be of full age, Johnson v. Pie, i Sid. 258; nor does he lose the protection of the Act if sued for a return of property thus fraudulently obtained. Leslie v. Shiell, [1914] 3 K. B. 607. The cause of action was held to be in substance ex contractu. ' Dig. iv. 4. 24. I. Cf. Barnes v. Toye, 13 Q. B. D. 410; Johnstone v. Marks, 19 Q. B. D. 509- In America this liability is treated as 'quasi- contractual.' Also in England, at any rate under the Sale of Goods Act, 1893, s. 2, per Fletcher Moulton, L. J., in Nash v. Inman, [1908] 2 K. B, (C. A.) I. It is held that things with which an infant is already sufiS- ciently supplied, although purchased from a tradesman ignorant of the fact, are not necessaries. * Subject to certain safeguards: see e. g. 4 Geo. IV. c. 76; Code Civil, arts. 144-160; German Civil Code, 1303-1308. As to the nature of the contract, see supra, p. 246. 350 PRIVATE LAW: ABNORMAL. Patria potestas. CHAP. XIV. theory of the Roman lawyers and their followers. This theory, which postpones the date of full majority till the completion of the twenty-fifth year, distinguishes in the preceding period, infancy, proximity to infancy, and a qualified majority attained by girls at the age of twelve and by boys at the age of fourteen years. 3- A 'Alius famUias' could hold no property, except, in later times, what he acquired by way of 'peculium.' He could enter into most contracts, but was specially disabled, by the senatus-consultum Macedonianum, from borrowing money. 4- The effect of marriage, according to most systems of law, was to produce a unity between the husband and wife, rendering each of them incapable of suing the other \ and constituting a sort of partnership between them, in which the husband has very extensive powers over the partnership property, while the wife has not only no power of alienating it, but is also incapable of making a will, or of entering into any contract on her own account. The common law of England exhibits these disabilities of the Coverture. ' Such is, for instance, the rule of the English Common Law, Co. Litt. 1 1 2 a. But under 4S & 46 Vict. c. 75, a married woman, subject to certain exceptions, 'has in her own name the same civil remedies, and also the same remedies and redress by way of criminal proceedings, for the pro- tection and security of her own separate property, as if such property belonged to her as a feme sole,' and the husband may similarly take proceedings, civil or criminal, against his wife. The older theory of marriage seems still to predominate in the United States. It has indeed been held in one of the appellate divisions of the Court of New York that a husband may bring an action against his wife to recover property belonging to him which has been forcibly seized and carried away by her. Berdell v. Parkhurst, 19 Hun 338. In SchuUz v. Schvltz, men- tioned in a former edition of this work, from information kindly supplied by Mr. Roger Foster, the Supreme Court of New York held in 1882 that, in the absence of any exception as to the husband, an Act of i860, giving to any married woman a right of action in her own name against any person for injury to her person or character, included an action against her husband, and had thus 'routed and dispelled' the rules of the Common Law, which 'could not stand the scrutiny and analysis of modem civilisation.' But this case has since been reversed by the Court of Appeals. 27 Hun 26. NATURAL PERSONS. 3SI wife in their strongest form. Of the several systems chap. xiv. between which French law allows an option to persons about to marry, the 'regime de la communaute,' derived from the ' coutumiers,' is least favourable to the wife, giving, as it does, to the husband the absolute control of the common stock"; while the 'regime dotal,' an imitation of the dotal system of Roman law, resembles that modem creation of the English Courts of equity, a marriage settle- ment, in which the wife's 'separate estate' is protected not only from manipulation by the husband, but also against the possibly improvident disposal of it by the wife herself*. The legal position of women in England has been much modified by recent legislation, especially by the 'Married Women's Property Acts,' 1882* and 1893. 5. Unmarried and childless persons were punished under Celibacy, the lex lulia et Papia Poppaea by forfeiture, either total or partial, of the ' ius capiendi ex testamento.' 6. A lunatic, though capable of holding property, was Mental in Roman law incapable of any legal act. 'Furiosus nullum negotium gerere potest, quia non intelligit quid agit*.' In EngUsh law a contract made by him is not ipso facto void, nor is it even voidable by him, if entered into by the other party without notice of the lunacy*; which was perhaps not possible in case of a 'furiosus.' A somewhat similar disability, unknown to the law of England, sometimes attaches to persons whom a compe- 1 Code Civil, art. 1399. ' lb., art. 1540. ' Repealing the Acts of 1S70 and 1874 on the same subject. * Inst. iii. 19. 8. Cf. Dig. div. 7. 1. 12; 1. 17. 5, 40, 124. ' Movlton V. Camroux, 4 Ex. 17; Imperial Loan Co. v. Stone, [1892] 1 Q. B. (C. A.) 599. By the Indian Contract Act of 1872, §§ 11, 12, contracts entered into during lunacy or drunkenness are void. Cf . supra, p. 250; Code Civil, arts. 489-512; Cerman Civil Code, 104, 114. On the tort of a lunatic, see Dig. ix. 2, 5. 2. By the Sale of Goods Act, 1893, s. 2, be must pay a reasonable price for necessaries supplied. 352 PRIVATE LAW: ABNORMAL. Bodily defect. Office. CHAP. xiv. tent Court has declared to be ' prodigals ' '- Drunkenness cannot be said to create a status, and its effects in avoid- ing contracts may best be compared with the similar effects of duress. 7. Deaf or dumb persons were unable to contract by ' stipulatio.' 8. The king, according to the maxim of English law, can do no wrong. No action can be brought against him, nor indeed against a foreign sovereign, as such, or his ambassador. Certain high officials are exempted from responsibility for the acts of their subordinates, and various public functionaries are reheved from liability by the Statutes of Limitation at an earlier date than other people. 9. Most of the disabilities formerly attaching in the States of the American Union on account of race or colour have now been removed'; but no coloured men, except negroes of African descent, can become naturalized in the United States I 10. It may well be questioned whether a human being who is incapable of marriage, of holding property, and of contracting, can be regarded as a legal person at all. This was the position of a slave in Roman law, which declares that 'servile caput nullum ius habet,' and 'in personam servilem nuUa cadit obligatio^' Nor was his private-law position affected, as Austin seems to think ^ by the constitutions which made it penal for his master Colour and race. Slavery. » Paulus, Sent. Rec. iii. 4. A. 7; Dig. xxvii. 10. i pr.; Code Civil, art. S13; German Civil Code, 6. For a study in comparative law upon this subject, see C. T. H. Wright in L. Q. R. xvi. p. 57. ' See Stimson, American Statute-law, art. 605. Though in Oregon and Nevada no Chinaman or Mongolian can be employed in public works, or in city buildings or grounds. ' Cf. re Tahuji Yamashita (1902), Wash., 70 Pac. Rep., and other cases cited in Michigan L. R. i. 334. * Dig. 1. 17. 22; although they were capable of incurring an 'obligatio naturalis,' Dig. xliv. 7. 14. Cf. Inst. iii. 20. i. » Vol. ii. p. 8. NATURAL PERSONS, 353 to kill or grievously iU-treat Mm •without cause. These chap. xrv. were in truth analogous to the provisions in modern systems of public law for the prevention of cruelty to animals. Since however a slave has, even for legal purposes, some of the characteristics of a human being \ it is necessary to point out that his status is in private law abnormal to the extent of being all but non-existent. 11. A soldier on active service enjoys, under mostProfes- systems, certain exceptional testamentary privileges. By English law a barrister is incapable of validly contracting to be paid for his professional assistance; and the same disability attaches also to a physician ^ 12. The effects of 'entering into religion,' according to Civil English law, have been already noticed '. Similar effects still follow according to the law of the Hindus. A somewhat similar loss of legal rights resulted also from attainder for treason or felony *. 13. An illegitimate child is incapable of inheriting 'abUlegiti- intestato' from an ascendant or collateral, because the™^°^' law regards him as 'nullius filius.' Under the French* and German' Codes, such a child may however acquire rights of. succession if solemnly recognised by his parents, or one of them, or on their subsequent marriage. 14. Eeligious nonconformity has been an important Noncon- cause of civil disability from the date of the imperial """^ ^' constitutions which are collected in the first book of the Code of Justinian, down to the laws by which a Roman Catholic was disqualified from owning a horse worth more ' 'Ipsi servo facta iniuria inulta a praetore relinqui non debuit, maxime si verberibua vel quaestione fieret, banc enim et servum sentire palam est.' Dig. xlvii. 10. 15- 355 cf. 1. 17- 32- * Supra, p. 301. ' Supra, p. 9s; Jolly, Tagore Lectures, pp. 17s, 278. On the inca- pacity to marry produced under some systems by holy orders or vows of chastity, see E. Cimbali, H matrimonio dello straniero, i. pp. 174-191. * See now 33 & 34 Vict. c. 23. ' Arts. 331-342, 756-766. • Arts. 1719-1740. 1950 Aa 354 PRIVATE LAW: ABNORMAL. CHAP. XIV. than ;^s in Ireland, or wMch rendered Jews incapable of holding land in Roumania. Alienage. 15. The gradual extension of the rights of 'connubium' and 'commercium ' with Roman citizens to the neighbouring Italian tribes is a well-known chapter of the history of Roman law. The Act of 1870, by which aliens were allowed to own freehold land in the United Kingdom, marks the latest step in the assimilation of their position, as far as private law is concerned, with that of British subjects. Hostility. 16. The contracts of an alien enemy with a British subject made during the war are void, and his right to sue upon other causes of action is suspended during the war'- He has thus no persona standi in iudicio as plaintiff in any British Court, but has recently been admitted in certain cases to appear as a claimant in the Prize Court ^- The incapacity by English law of the witness to a wiU. to take a legacy under it, and until recently of a man to marry the sister of his deceased wife ' ; so also of a husband or wife, as a rule, to take by donation one from the other in Roman law, are instances of restrictions placed upon persons occupying for the time being certain relations to other persons, which from the limited extent of their operation can hardly be said to constitute a status. ' On the notorious art. 23 (Ji) of No. iv. of the Hague Convention of 1907, inadvertently accepted by the British Delegates and ratified by the British Government, one interpretation of which would have abrogated this rule, see the author's Laws of War on Land, 1908, p. 44; his art. in 28 L. Q. R. 94; and his Letters to 'The Times' on War and Neutrality, ed. 2, p. 41. The interpretation in question was definitely repudiated by the Court of Appeal in Porter v. Freundenb&rg, [1915] i K. B. 857. ' The Mowe, Treherne's Prize Cases, i. p. 60. » This incapacity was removed by the 'Deceased Wife's Sister's Mar- riage Act, 1907,' 7 Ed. VII. c. 47. CHAPTER XV. PRIVATE LAW : ADJECTIVE. A REMEDIAL right is in itself a mere potentiality, deriving all its value from the support which it can obtain from the power of the State. The mode in which that support may be secured, in order to the reaUsation of a remedial right, is prescribed by that department of law which has been called 'adjective,' because it exists only for the sake of 'substantive law',' but is probably better known as 'Procedure^.' In the exceptional cases in which an injured party is allowed to redress his own wrong, Adjective law points out the limits within which such self-help is permissible. In all other cases it 1 Supra, pp. 89, 166. See Bentham, WorJs^s, ii. p. 6. * The term 'Procedure' was, till the passing of the Common Law Procedure Acts, unfamiliar in English law. It is said by Lush, L. J., to denote, like 'Practice,' in its larger sense, 'the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right, and which by means of the proceeding the Court ia to administer; the machinery as distinguished from the product.' Poyser V. Minors, L. R. 7 Q. B. D. 329, at p. 333. Procedure is by many German writers very inappropriately called 'formal law.' Aaa 3S6 PRIVATE LAW: ADJECTIVE. CHAP. XV. announces what steps must be taken in order duly to set in motion the machinery of the law-courts for the benefit either of a plaintiff or of a defendant. Rules of procedure occupy so prominent a place in early society, and furnish so much curious illustration of the history of civiUsation, that they have attracted a share of attention perhaps in excess of their real importance. One might almost suppose from the language of some writers that an elaborately organised Procedure may precede a clear recognition of the rights which it is in- tended to protect. It has been said that law is concerned more with remedies than with rights. It would be as reasonable to say that a field consists in its hedge and ditch rather than in the space of land which these enclose. In point of fact, a right must be recognised at least as soon as, if not before, the moment when it is fenced round by remedies. The true interest of the topic of Procedure is derived, first, from the close connection which may be traced between its earliest forms and the anarchy which preceded them \ and secondly, from the manner in which the tribunals have contrived, from time to time, to effect changes in the substance of the law itself, under cover of merely modifying the methods by which it is enforced. Contents. Adjective law, though it concerns primarily the rights and acts of private litigants, touches closely on topics, such as the organisation of Courts and the duties of judges and sheriffs, which belong to public law. It com- prises the rules for (i) selecting the jurisdiction which has ' See, for instance, Sir H. Maine's Early History of Institutions, lect. ix. and X., and liis interesting remarlcs, in Early Law and Custom, p. 364, on the prominent position occupied by Procedure in the XII Tables, as contrasted with its relegation to the last place in the Institutional writers of the Empire. 'Trial by battle' was a late survival in England of regu- lated self-help. After the last reported case of the kind, Ashford v. Thornton, 1 B. & Aid. 405, it was abolished by 59 Geo. III. c. 46. , CLASSIFICATION OF TOPICS. 357 cognisance of the matter in question; (ii) ascertaining chap. xv.. the Court which is appropriate for the decision of the matter ; (iii) setting in motion the macliinery of the Court so as to procure the decision ; and (iv) setting in motion the physical force by which the judgment of the Court is, in the last resort, to be rendered effectual ^ These rules, like those of substantive law, are primarily apph- cable to persons of the normal type, and only with certain modifications to abnormal persons. i. It is by no means the case that a remedial right Jurisdio- is capable of being enforced everywhere. An English Court will for instance entertain an action for breach of contract quite irrespectively of the place where it was made, or broken, or in which the parties reside, but will hardly hear an application for a divorce unless the parties are domiciled in the country, nor will it try an action for trespass to land unless the land is within the realm. iL It is also necessary that proceedings be taken in Court, the appropriate Court. Thus in England, even after the changes introduced by the Judicature Acts, it is stiU necessary that an administration action should be com- menced in the Chancery division, and a salvage action in the Admiralty division, of the High Court of Justice. There are also matters which can only be tried in one or other of the divisions of that Court, and not in any inferior tribunal. iii. The choice of the appropriate Court is a simple The action, matter compared with rightly setting its machinery in motion. In this operation, which has been described by such phrases as 'legis actio,' ' I'instance,' 'la demande * 'Quia iurisdictio sine modica coercitione nulla est.' Dig. i. 21. 5. 358 PRIVATE LAW: ADJECTIVE. CHAP. XV. judiciaire,' 'action,' 'suit,' 'Verfahren,' the following stages are usually distinguishable. Citation. i. The summons, or citation, by which the plaintiff brings the defendant into Court. Pleadings. 2. The pleadings, ' I'instruction de la cause,' by which the plaintifE informs the Court and the defendant of the nature of his claim, and the defendant states the nature of his defence. The defence may be to the effect that, even granting the truth of the plaintiff's allegations of fact, they are in law no ground for his claim against the defendant, or it may consist ia denying altogether the facts alleged by the plaintiff, or in admitting them, but alleging other facts, such as a release, or the Statutes of Limitation, which neutralise the effect which they would otherwise have had. A defence of the last-mentioned kiad was called in Roman law an 'exceptio,' and ia England a plea in 'confession and avoidance^.' A plea may be either 'dilatory,' showiag that the right of action is not yet available, or 'peremptory,' showing that it is non- existent. The exchange of pleadings continues tiU it is clear how much is admitted and how much is denied on either side, and therefore what is precisely the dispute between the parties. The process may be carried on orally in the presence of the Court, as under the code of Civil Procedure for the German Empire ", or in writing or print, as in England. "When well managed it gives much scope for dexterous intellectual fencing, but its ^ ' Comparatae sunt autem exceptiones defendendorum eorum gratia cum quibus agitur: saepe enim accidit ut, licet ipsa actio qua actor experitur iusta sit, tamen iniqua sit adversus eum cum quo agitur.' Inst. iv. 13. * Civilprozessordmmg fiir das Deutsche Reich, § 119. Butin'Anwalts- prozesse,' i. e. when professional representatives must be employed, dis- advantages as to costs, and otherwise, follow, unless 'die miindliche Verhandlung' is 'durch Schriftsatze vorbereitet,' § 120: and copies of these writings are to be filed in Court, § 124. Cf. the recommendations of the Lord Chancellor's Committee on Procedure, 1881. TRIAL. 359 tendency to over-subtlety has been a fertile theme for legal chap. xv. critics from the time of Gains to that of Bentham*. 3. The trial, hearing, or 'audience,' at which each of Trial, the parties endeavours to establish to the satisfaction of the Court the truth of the view mamtained by him of the question at issue,, whether it be one of law or one of fact ; if of law, by citing authorities, if of fact, by adducing proofs. Proofs may be either documentary or oral, and certain rules exist in most systems with refer- ence to their admissibility, amounting in some systems to a body of law of no little complexity. Such a 'law of Evidence, evidence' is more necessary when questions are tried by a jury than when they are decided by a professionally trained judge ^. Its objects are, on the one hand, to limit the field of enquiry, by the doctrine that certain classes of facts are already within the 'judicial notice' of the Courts, and by ' presumptions ' by which certain propositions are to be assumed to be sufficiently proved when certain other propositions have been established'; and on the other hand, to exclude certain kinds of evidence as having too remote a bearing on the issue, or as incapable of being satisfactorily tested, or as coming from a suspicious ' The 'legisactiones.'says Gains, gradually fell into disrepute, 'nam- que ex nimia subtilitate veterum, qui tunc iura condiderunt, eo res perducta est, ut vel qui minimum errasset litem perderet,' iv. 30: and he gives the following instance, ' cum qui de vitibus succisis ita egisset ut in actione vites nominaret, responsum est eum rem perdidisse, quia debuisset arbores nominare, eo quod lex xii tabularum, ex qua de vitibus succisis actio competeret, generaliter de arboribus succisis loqueretur,' ib. II. Cf. Cod. ii. 58. 1. A constitution of Justin limits the duration of an action to three years, 'ne lites fiant paene immortales, et vitae hominum modum excedant.' Cod. iii. 1. 13. See also Bentham, Works, ii. p. 14. ' For an admirable sketch of the development of this branch of law, see Prof. Thayer, A preliminary treatise on Evidence at the Common Law, 1898. ' E. g. the ' Presumption of life limitation (Scotland) Act,' 1891. When the death of several persons is occasioned by the same cause, English law admits no presumption as to survivorship grounded upon age or sex. Wing V. Angrave, 8 H. L. Ca. 183; so also the German Civil Code, 20. Cf. t Phill. Eccl. Cases, at p. 273. 3^0 PRIVATE LAW: ADJECTIVE. CMAP. XV. quarter*. For the last-mentioned reason certrin classes of persons, or persons occupying certain relative positions, are rendered incapable of being witnesses. There are also rules regulating the right of the parties to appear in person, or to be represented by advocates, and the order in which the parties or their advocates may tender their eridence and address the Court. Judgment. 4. The judgment, by which the Court decides the question in litigation. It may relate to a right to property, or an ascertainment ^ or a dissolution ^ of status, or an affirmation of the due execution of a legal act, or an award of damages for a wrong, or an order for the specific performance ^ or non-performance of a certain act'. Costs. The judgment usually charges upon the losing side the 'costs' to which the other party has been put in consequence of the suit". Appeal. 5. The procedure on Appeal, when an Appeal is possible and is resorted to by either party ''. * The German Civilprozessordnung is opposed to Presumptions and other so-called 'artificial' proofs, § 259. The Einfiihrungsgesetz, § 14, repeals laws restricting modes of proof. But see the new Civil Code, 14. The theory of legal proof is no doubt largely due to the canonists, but it can hardly be said to have been wholly unknown to Roman law. See the opinion of Favorinus, apud Gell. Noctes A. xiv. 2. ^ E. g. on a declaration of nullity, or under the Legitimacy Declaration Act, 21 & 22 Vict. c. 93. • On a decree of divorce. * Of. supra, p. 324. « As to 'tierce opposition' when the judgment affects the rights of one who is not a party to the action, see Code de Procedure Civile, art. 474. ' Cf. supra, p. 189. Justinian's legislation upon the subject is con- tained in God. iii. 1 . 23 . Costa were in England eo nomine unknown to the common law, but were given to the plaintiff by 6 Ed. I. c. i, to the defendant by 23 H. VIII. c. 15. At one time also the judgment con- tained a direction 'that the plaintiff (or the defendant) be amerced, or in mercy, "in misericordia domini regis," for his false claim (or, for his wilful delay of justice).' ' The Sachsenspiegel gave a right of appeal to a dissentient member of the Court, as having an interest on public grounds that the law should be correctly stated. EXECUTION. 361 iv. Execution, whereby a successful party calls upon chap. xv. the officers of the Court, or other appropriate State Execution, functionaries, to use such force, either against person or property, as may be necessary in order to carry the judgment into effect. It may be remarked that a successful defendant, except for the recovery of his costs, has obviously no need of execution, and that execution of a judgment in a civil cause is not ex officio, Le. does not take place except on the demand of a litigant party. Certain articles, the property of the losing party, are frequently protected against execution'. The con- stitutions of nineteen States of the United States provide that the privilege of a debtor to enjoy the necessary comforts of Ufe shall be recognised by wholesome laws exempting a reasonable amount of his property from execution. Sixteen States have now 'Homestead laws,' exempting a homestead for the shelter and protection of the family from execution or judicial sale for debt, unless both husband and wife have expressly joined in mortgaging, or otherwise subjecting it to the claims of creditors *. Besides the original parties to an action, whose interests Extra- U60US are directly uivolved in it, other persons may be brought parties, into it by the authority of the Court. In some actions, which involve wider interests than those of the parties, notice must be given to a State functionary, who may then intervene in the proceedings on public grounds '. ' So in certain actions a 'beneficium competentiae' was enjoyed by defendants, so that 'non totum quod habent extorquendum est, sed et ipsarum ratio habenda est, ne egeant.' Dig. 1. 17. 173. So English law- exempts from seizure wearing apparel, bedding, and implements of a man's trade to the value of £5. See e. g. 8 & 9 Vict. c. 127. s. 8, and the County Courts Act, 1888, s. 147. ' See Stimson, American Statute-law, 55 81, 83. The first ' Homestead law' was passed in 1836, by the Republic of Texas. On analogous recent legislation in British Colonies, see E. Manson in the Journal of Comp. Legislation, N. S., No. iii. p. 441. ' See Code de Procedure Civile, P. I. liv. ii. tit. 4, De la Communication 362 PRIVATE LAW: ADJECTIVE. CHAP. XV. A maximmn interval may be fixed between each step Default. JQ g^Q action, on pain of a decision being given 'in default' against the party who neglects to proceed in due course. Abnormal Adjective, no less than Substantive, law may be normal Law.'' '^^ 0^ abnormal : that is to say, artificial persons, and such varieties of natural persons as those considered in the pre- ceding chapter, are in a different position with reference to suing and being sued from that occupied by ordinary individuals. The modifications of the rules of procedure which take place with a view to abnormal personality are of a somewhat technical character ; and it may be sufficient here to refer, by way of illustration, to the rules of English law, that an alien enemy has no 'persona standi in iudicio,' that a peer is privileged from arrest, as is a clergyman on his way to or from the performance of divine service, that if one of the parties in an action for a divorce be lunatic, the suit may proceed notwithstanding his, or her, inabiUty to plead; and to the recently abrogated rule that a husband must be joined in an action against his wife. au MinistSre Public; Gerichtsverfassungsgesetz far das Deutsche Reich, § 142; Civilprozessordnung, § 568. As to the intervention of the King's Proctor, or of ' any person,' in Divorce proceedings, see 23 & 24 Vict, c. 144. ss. s, 7. CHAPTER XVI. PUBLIC LAW. 'I CONSIDER,' says Lord Bacon, 'that it is a true and The char- received divosion of law into ius pvblicwm and iv^ pri- ^^ public vatum, the one being the sinews of property, and the'^"""- other of government ^' The nature of the distinction has been already explained ^ In private law the State is indeed present, but it is present only as arbiter of the rights and duties which exist between one of its subjects and another. In public law the State is not only arbiter, but is also one of the parties interested. The rights and duties with which it deals concern itself of the one part and its subjects of the other part, and this union in one personality of the attributes of judge and party has given rise to the view, from which we have already expressed our dissent, that the State, or, as it is expressed, the Sovereign, not only has no duties, but also has no rights properly so called '. The conception of public, as opposed to private, law is * Preparation towards the Union of Laws, Works, vii. 731. * Supra, p. 125. ' Supra, p. 131. 364 PUBLIC LAW. CHAP. XVI. due to the Romans, who say of it ' ad statum rei Koinanae spectat,' 'in sacris, in sacerdotibus, in magistratibus con- sistit V and, as a matter of fact, include in it also the law of crime. With this extended meaning the phrase has been accepted, and is in daily use, in the legal speculation and practice of the continent of Europe, but unfortunately finds no equivalent in our insular legal terminology I An English lawyer, when he had been made to under- stand the idea, which to his foreign colleagues is at once rudimentary and indispensable, would probably come to the conclusion that it covers the topics which are recog- nised in this country as ' Constitutional law,' ' Ecclesiastical law,' 'Revenue law,' and 'Pleas of the Crown.' It is therefore somewhat remarkable 'that perhaps the most masterly summary of the nature of public law is to be found in the writings of an English Lord Chancellor. ' lus Privatum,' says Lord Bacon, ' sub tutela luris PubUci latet. Lex enim cavet civibus, magistratus legibus, magistratuum autem authoritas pendet ex maiestate imperii et fabrica politiae et legibus fundamentalibus. Quare si ex ilia parte sanitas fuerit et recta constitutio, leges erunt in bono usu, sin minus, parum in iis praesidii erit. Neque tamen lus Publicum ad hoc tantum spectat ut addatur tanquam custos luri Privato, ne illud violetur atque ut cessent iniuriae, sed extenditur etiam ad religionem et arma, et disciplinam et ornamenta et opes, denique ad omnia circa Bene Esse civitatis '.' Its parts. The distinctions in accordance with which the field of private law has been divided and subdivided apply to ' Dig. i. I. I. 2. 'Publicum ius est quod ad statum rei Romanae spectat, privatum quod ad singulorum utilitatem. Sunt enim quaedam publice utilia, quaedam privatim.' Of. supra, p. 129. ' The two departments were similarly confused in Old German law. Cf. Bluntschli, Deutsche Staatslehre, p. 7. ' Exemplum tractatus de lustitia universali. Works, i. p. 804; cf. Lb. vii. p. 732. DIVISIONS OF. 365 public law also. In the latter as well as in the former chap, xvi, we may detect a 'substantive' body of principles adopted. for the general welfare, and 'adjective' rules by which those principles are safe-guarded and reduced to practice. The distinction between rights 'in rem' and rights 'in personam ' is as clearly traceable in one department of law as in the other, as is also that between rights ' antecedent ' and 'remedial,' and that between rights 'normal' and ' abnormal.' The last-mentioned distinction is indeed so strongly marked in public law as to have led to a serious miscon- ception as to the nature of the whole subject. The reason is not far to seek. Of the two persons who are constituent elements of every right, one must always in public law be the State, acting of course through its various function- aries. Now a State is an artificial person, the often highly complex construction of which introduces numerous complexities into the rights of which it is one of the factors. Mr. Austin was so struck with this characteristic of public law as to be led to identify the whole subject with those rules which define the different kinds of political status, and so to deny its separate existence, and to regard it merely as one branch of what he calls the law of persons, but we prefer to describe as the law of abnormal rights. He is thus a revolter, in the unwonted company of Blackstone, against what, according to the Roman and modern continental systems, is the primary division of the field of law. Instead of attempting a detailed disproof of a heresy which perhaps sufficiently refutes itself, by leading its apologist to conclusions which he evidently feels to be inconvenient, it may perhaps be sufficient to confront it with what we conceive to be the true doctrine, namely that among the distinctions which are traceable in public as well as in private law, that between normal and abnormal rights is among the most conspicuous. 366 PUBLIC LAW. CHAP. XVI. Classifica- tion of its topics. Relations to the classifica- tion of private law. It by no means follows from the same principles of division being applicable both in public and ia private law, that they are most conveniently applied in the same order in the two departments, or that their application produces in each case similar results. The correlation of the parts of pubUc law one to another is indeed far from being settled. It never attracted the attention of the Roman lavryers, and has been very variously, and somewhat loosely, treated by the jurists of modern Europe. The subject is, indeed, one which lends itself but reluctantly to systematic exposition, and it is with some hesitation that we propose to consider it under the heads of — I. Constitutional law; II. Administrative law; III. Criminal law; IV. Criminal procedure; V. the law of the State considered in its quasi-private personality; VI. the procedure relating to the State as so considered K The first four of these heads contain the topics which are most properly comprised ia Public law. It would be possible, though not convenient, to arrange these topics in accordance with the classification adopted in Private law. If the attempt were made, antecedent rights would have to be sought for in Constitutional, in Administrative and also in Criminal law; remedial rights in Criminal and also in Administrative law; adjective law mainly in Criminal procedure ; and abnormal law mainly in Constitutional and Criminal law. The importance of the last-mentioned topic is due, as already stated, to the fact that, whereas in Private law both of the persons concerned with any given right are, as a rule, perfectly similar, and of that normal type which requires no special investigation, the persons concerned in a Public-law right are necessarily dissimilar, one of them being always that highly abnormal person which is called a State. It may also be remarked that ' It may be worth while to remark that what the Germans call ' Staats- recht' deals with the topics into which we have analysed 'Public law,' omitting Nos. Ill and IV. CONSTITUTIONAL LAW. 1^7 the majority of the rights dealt with in Public law are chap. xvi. permanently enjoyed by the State as the person of in- herence against its subjects as the persons of incidence. In Private law, on the contrary, he who is to-day the person of inherence with reference to a right of any given descrip- tion may very probably become to-morrow the person of incidence with reference to a precisely similar right, and vice versa. The rules contained under the fifth and sixth heads of our arrangement are rules of Public law, because they relate to the rights of the State; but they approximate closely to rules of Private law, because they relate to the State merely as the greatest of artificial persons, and not as governing, administering, or preserving order. It is beyond the scope of the present treatise to attempt more than a very brief indication of the topics included under each of the six heads under which we have dis- tributed the matter of Public law. I. The primary function of Constitutional law is toConstitu- ascertain the political centre of gravity of any given State. Law. It announces in what portion of the whole is to be found the 'internal sovereignty,' 'suprema potestas,' 'Staatsge- walt,' or, as Aristotle called it, rb Kvpiov t^s iro\e Page 368, n. 4; for House of Lords read Privy Council 370 PUBLIC LAW. CHAP. XVI. institutions et des lois fondamentales, destinees a regler Taction de I'administration et de tons les citoyens'.' It is often, as in England, an unwritten body of custom, though, since the assertion of the 'rights of man' which preceded the Independence of the United States and the French Revolution, the written enactment of such funda- mental principles has been not uncommon, as well on the European continent as in America. A written constitution usually contains provisions which make innovation less easy than in the case of customary constitutions, such as that of England, any part of which may be modified by an ordinary Act of Parliament *. The contents of the constitutional branch of law may be illustrated by reference to a piece of proposed legislation, which enters far more into detail than is usual in such undertakings. The draft Political Code of the State of New York purports to be divided into four parts, whereof ' The first declares what persons compose the people of the State, and the political rights and duties of all persons subject to its jurisdiction: the second defines the territory of the State and its civil divisions: the third relates to the general government of the State, the functions of its public officers, its public ways, its general police and civil policy: the fourth relates to the local government of counties, cities, towns, and villages.' The Code begins with an announcement that ' the sovereignty of the State resides in the people thereof,' and the people is said to consist — ' r. of citizens who are electors ; 2. of citizens not electors.' The constitutions of federal governments, such as those of the United States or Switzerland, contain provisions • Ahrens, Cours, iii. p. 380. • lb., p. 381. Lord Bryce has suggested the use of the terms 'rigid' and 'flexible' to express this distinction. See now his American Com- monwealth, i. pp. 475-478. See also Professor Dicey's instructive and ingenious applications of the distinction. Law of the Constitution, ed. viii. pp. 124, 142, 469. ADMINISTRATIVE LAW. 371 upon many topics of private law, such as respect for chap. xvi. property and contracts. The reason being, as has well been stated, that ' certain principles of policy or of justice must be enforced upon the whole confederated body as well as upon the separate parts thereof, and the very inflexibility of the constitution tempts legislators to place among constitutional articles maxims which (though not in their nature constitutional) have special claims upon respect and observance V II. The various organs of the sovereign power areAdmini- described by constitutional law as at rest; but it is alsoLa,w. necessary that they should be considered as in motion, and that the manner of their activity should be prescribed in detail. The branch of the law which does this is called Administrative law, ' Verwaltungsrecht,' in the widest sense of the term. In this sense Administration has been defined as ' the exercise of political powers within the limits of the constitution V as 'the total concrete and manifoldly changing activity of the State in particular cases ^' and as ' the functions, or the activity, of the sovereign power*.' Different views are taken as to the topics which are Its widest included under this very vdde conception. It may fairly be said to include the making and promulgation of laws ; the action of the government in guiding the State in its foreign relations ; the administration of justice ; the management of the property and business transactions of the State; and the working in detail, by means of sub- ordinates entrusted vrith a certain amount of discretion. 1 Dicey, u. s. Cf. Bryce, u. s., ii. p. 41. It is thus that questions such as those raised in the Dartmouth College case, supra, p. 257 n., are brought before the Supreme Ckturt. ' Ahrens, Cours, ii. p. 380. ' Bluntschli, u. s. iii. p. 465. * Putter, apud HolzendorfF, System, p. 695. Bba 372 PUBLIC LAW. Its more Bpeeific sense. CHAP. XVI. of the complex machinery by which the State provides at once for its own existence and for the general welfare. Administrative law, as thus conceived of, is not a coherent body of doctrine, and it is convenient so to specialise the use of the term as to apply it to some only of the above-mentioned topics. Of the rest, legislation and executive government are more fitly treated of under those chapters of Constitutional law which deal with the legislature and the sovereign ; the rules for the administra- tion of justice must be sought, so far as they provide for the organisation of the courts, under Constitutional law, so far as they govern civil procedure, under Adjective Private law, and so far as they govern crimes and criminal procedure, under those heads of Public law, namely the third and fourth, which we devote specifically to those topics; while the law relating to the State property and its business transactions would be found in the fifth and sixth of our heads of pubhc law. Administrative law, in the more specific sense of the term, deals with such topics as the following : — Its functions. Revenue. i. The collection of the Revenue. Armed forces. ii. The recruitment, equipment, and control of the Army and Navy ; Ship-building and Fortifications. Depend- encies. feat civil. iU. The government of Colonies and Dependencies. iv. The collection of statistics ; the registration of births, deaths, and marriages (' etat civil ' ) ' and of conveyances and mortgages of land ; the custody of wills ; the naturali- sation of aliens ; the granting of charters to corporations. Material welfare. V. The promotion of the material welfare of all the individuals of whom the State is composed, either by ■ In France this is dealt with as a matter of private law, in the Code CiviL ADMINISTRATIVE LAW. 373 the prevention of evil or the production of good. Among chap xvi the operations carried on by State functionaries for this purpose are the following: — 1. Measures of sanitary precaution, such as the organisa- tion of drainage, the inspection and even destruction of Unhealthy dwellings, the regulation of dangerous under- takings, such as mining, and of unwholesome trades ; the inspection of ships ; the prevention of the employment of women or children in certain occupations, or for more than a certain number of hours ' ; quarantine ; vaccination ; the supply of pure water; the prevention of the adulteration of articles of food and drink ^ 2. The regular working of a poor-law, or the exceptional working of rehef works and doles in time of famine. 3. The visitation of lunatic asylums and nunneries. 4- The protection of the coinage and the inspection of weights and measures. 5. The supervision of professions and trades. 6. The collection of information as to foreign commerce ; the supervision of banks. Insurance societies, and companies generally. 7. The supervision of roads, railways, canals, telegraphs, and posts. 8. The maintenance of lighthouses, harbours, sea-walls, and dykes. 9- The preservation of order, the detection of crime, and the management of prisons. * There is a difference of judicial opinion in America whether enact- ments to this effect are unconstitutional, as an interference with freedom of contract, e. g. Till v. People, 27 Chi. L. News, 270, or are a legitimate exertion of the police power of a State, e. g. Commonwealth v. Hamillon Manufacturing Co., 120 Mass. 385; People v. Phyfe, 136 N. Y. 554. * Mr. Traill weU remarked that whenever the modem State haa thought fit to depart from the system of laissez-faire, it has not been content with merely commanding the citizens to do certain things, but has itself seen to his doing them. Central Government, p. 158. For a thoroughgoing protest against government inspection, see Mr. Herbert Spencer's The Man versus the State. Cf. Count Tolstoy, in the Fort- nightly Review, 1906, pp. i, 203. 374 PUBLIC LAW. CHAP. XVI. Moral ■welfare. vi. The promotion of the intellectual and moral welfare of the public generally, by such measures as: — 1. The organisation of schools, and the sustentation of museums and Ubraries. 2. The prevention of Sunday trading, the supervision of places of amusement, and the licensing of plays ^ Self- govern- ment, Admini- strative jurisdic- tion. It must be remembered that much of this work, except in very highly centraUsed States, is entrusted to local authorities, often to the same authorities who also exercise an inferior criminal jurisdiction. Disputed questions of administrative law, or cases of refusal to comply with its rules, are in England usually in minor matters brought before a justice of the peace. More serious questions are tried in the superior courts. Although military and ecclesiastical discipline is enforced by Courts Martial and Courts Christian, no person is by virtue of his official position exempted from the jurisdiction of the Common law^ But it is maintained by some writers that questions affecting official persons, as such, should be exclusively decided by special tribunals, which accordingly exist in many countries, with a hierarchical organisation. An appellate ' Verwaltungsgerichtshof ' was, for instance, established in 1863 for the Grand Duchy • In Germany the term 'Polizei' has been gradually so narrowed as to become synonymous with ' innere Verwaltung,' and is subdivided into 'Sicherheitspolizei' and ' Wohlfahrtspflege.' See Birkmeyer's Encyclo- padie der Rechtswissenschaft, p. 881. Cf. Holzendorff, System, pp. 695, 713, EncycL, Bd. iii. pp. 415, 11 14. ' ' Martial ' as opposed to ' military law ' is not recognised by the law of England. ' In proclaiming martial law, the executive authority in fact declares itself obliged, for the protection of the community, to neglect law, trusting to the Legislature to relieve all who, in obedience to the constituted authority, may have acted in defence of the public safety, from the consequences of having acted unlawfully.' Duke of Newcastle's despatch, 1862, cited in Clode, Military Forces, ii. p. $ij. Cf. ex parte Marais, [1902] A. C. 109, the present author's Handbook of the Laws and Customs of War on Land, issued by the War OflSce in 1904, arts. 8-18, and his larger work, The Laws of War on Land (written and im- written), 1908, pp. 14-17. CRIMINAL LAW. 375 of Baden. A mixed court of a similar character was chap. xvi. created in 1847 in Prussia; and the 'Conseil d'Etat' performs the functions of such a court in France, where questions of jurisdiction between the ordinary and the administrative Courts are decided by a 'Tribunal des Conflits '.' III. Perhaps the most important of the functions of the Criminal State is that which it discharges as the guardian of order ; preventing and punishing all injuries to itself, and all disobedience to the rules which it has laid down for the common welfare. In defining the orbit of its rights in this respect, the State usually proceeds by an enumeration of the acts which infringe upon them, coupled with an intimation of the penalty to which any one committing such acts will be liable. The branch of law which con- tains the rules upon this subject is accordingly described as ' Criminal law,' ' Droit penal,' ' Strafrecht.' It is comparatively modern. The early tendency wasjta to punish offences against the sovereign power by an ex-™°^™ ceptional executive or legislative act, and to treat offences against individuals, even when, like theft and homicide, they were a serious menace to the general welfare, as merely civil injuries to be compensated for by damages. The law of Rome continued to the last to treat as civil delicts acts which would now be regarded exclusively as crimes, although, by a long course of unsystematic ' See Professor Dicey's Law of the Constitution, ed. viii. pp. 325, 336, 555. Previously to the appearance of this work next to nothing had been written in English upon the extended meaning given upon the continent to ' administrative law.' ' Droit administratif ,' which plays so important a part in the law of France, is described by M. Aucoc as regulating ' 1° la constitution et les rapports des organes de la soci6t6 charges du soin des intSrets coUectifs qui font I'objet de I'administration publique, c'est-ll-dire des diS^rentes personnifications de la soci6t6, dont I'dtat est la plus importante ; 2° les rapports des autoritfe administrativea avec les ci toy ens.' On the inadequacy of this description, see, however. Dicey, u. s., p. 329. 376 PUBLIC LAW. CHAP. XVI. legislation, it had also attached penal consequences to some of them. The merely practical and disorderly character of the criminal law which is preserved, for instance, in the ninth books of the Codes of Theodosius and Justinian is readily explicable. The prerogative of punishment, exercised in early times by the king and the 'comitia centuriata ' and in later times shared by the senate, was usually delegated in each case to a magistrate or body of commissioners. The series of statutes by which standing delegacies, ' quaestiones perpetuae,' were instituted for the trial of offences of particular kinds, whenever they might be committed, commences with the lex Calpurnia, b. c. 149, and was continued tUl a number of courses of conduct had been from time to time branded as criminal K The legislation of the emperors, though it superseded the 'quaestiones' by the simpler procedure of the 'iudicia extraordinaria,' followed the lines of the old criminal statutes, and produced a body of rules large indeed but formless, and owing hardly anything to the great men whose wisdom had. interpenetrated every doctrine of pri- vate law. The Teutonic view of even violent wrongs resembled the early Roman, in regarding them as con- cerning almost exclusively the person injured, to whom therefore atonement was to be made by way of damages, ' compositio.' When the idea began to be clearly grasped by the Germans that wrong-doing might injure not merely the individual, but also the State itself, they found little assistance towards formulating it in the legal system to which they were most accustomed to turn for guidance. The criminal law of Rome, deeply tinged as it was with national idiosyncrasies, had never been prepared by juristic exposition for more general usefulness. Original legisla- tion was therefore necessary, and the first essay was made in the 'Constitutio Criminalis Carolina,' of the Emperor Charles V. This attempt to provide a criminal law for ' Cf. Maine, Ancient Law, ch. v. CRIMINAL LAW. ' m the whole Empire lost much of its importance from the chap. xvi. compilation of national codes for Bavaria, Austria, and many other German States during the latter half of the eighteenth century, but was the forerunner of the penal code for all Germany, ' Strafgesetzbuch fiir das Deutsche Reich,' which came into operation in 1872. Of the other great criminal codes now in force, the ' Code P6nal ' became law for France in 1810, and has been imitated by the Latin races of the continent; while the penal code for British India which was drafted in 1834 by Lord Macaulay was promulgated in i860. In the meantime the whole theory of punishment and of the classification of offences has been thoroughly discussed by such men as Beccaria, Bentham, Peuerbach, Mittermaier, and Sir J. F. Stephen ' ; and the criminal branch of public law may now be said to be divided upon recognised principles, and to possess a terminology, though a somewhat loose one, of its own. It is divided into a body of substantive criminal law and a body of criminal procedure. The former, vnth which alone we are concerned at present, consists of two parts, a general and a particular. i. The more general part deals with such topics as the Its general following: the nature of a criminal act ^ ; the responsibility^^ ' of the wrong-doer on the grounds of intention or negli- gence'; the extent to which an artificial person may be ' The last-named in his General View of the Criminal Law, 1863 ; his Digests of Criminal Law, 1877, and of Criminal Procedure, 1883; his History of the Criminal Law, 18S3; and his Draft Penal Code, which for some years after the introduction of the bill in 1878 was intermittently under the consideration of Parliament. ' ' Verbrechen ist die von Seiten der Gesetzgebung constatirte Gefahr- dung der Lebensbedingmigen der GeseUschaft.' Jhering, Zweck, i. p. 481. Cf. Mem rem, by D. A. Stroud, and a review of the treatise in L. Q. R. JDcd. p. 451. ' Cf. stipro, pp. 108, III, iji, 1 71; Professor Clark's Analysis of Crim- inal Liability, 1880; Hohnes, Common Law, pp. 47, 50, 75. In English Law, an honest and reasonable, though mistaken, belief may be a good defence. Heame v. Gorton, 2 E. & £. 66. But see Commonwealth v. Hayden, 163 Mass. 453. 378 PUBLIC -LAW. CHAP. XVI. criminally responsible ' ; facts which negative responsibility, such as tender age, compulsion, idiocy, lunacy, or drunken- ness ^ ; facts which may justify an act otherwise criminal, such as the consent of the party injured, self-defence', lawful authority, or the public welfare; how far omission is equivalent to commission ^ ; the persons by whom criminal proceedings may be instituted'; the list of punishments, such as death, banishment, imprisonment, hard labour, whipping, loss of civil rights, liability to police supervision, or pecuniary fine ; the period of time, if any, which will be a bar to criminal prosecution * ; the effect of a plea of autre- fois acquit; the aiding and abetting of crime; criminal attempts; cumulative punishments. Here also we expect to find those distinctions between different grades of crime which occur in almost all systems. The distinction drawn by English law between ' felonies ' and * misdemeanors ' is as familiar as it has become unmeaning. The French Code opens with a threefold classification of wrongful acts into 'contraventions,' 'delits,' and 'crimes,' according to their being respectively punishable by 'peines de police,' 'peines * Pearks, &c., Ltd. v. Ward, [1902] 2 K. B. i. ' The new anthropological school of Italian penalists finds in the habitual criminal characteristics which, on the one hand, render him irresponsible for his acts, and on the other hand forbid any hope of his reclamation. See Lombroso, Uomo delinquente. ^ 'Vim enim vi defendere omnes leges omniaque iura permittunt.' Paulus, Dig. ix. 45. 4. But self-preservation from starvation was held no defence to an indictment for murder in the Mignonette case. R. v. Dudky, 14 Q. B. D. 273. * E. g. under sect. 43 of the Indian Penal Code. * E. g. according to English law, not by a wife against her husband, nor V. v., except for injury to person or property; not therefore for libel, even under the Married Women's Property Act of 1882, sect. 16. R. v. Lord Mayor of London, 16 Q. B. D. 776. Cf. supra, p. 350 n. ' E. g. Code d'lnstruction Crim., art. 637; Strafgesetzbuch, art. 65. For various periods of Prescription against the French Government, in claims for duty, see the Loi du 22 frimaire, An vii, tit. viii. art. 61, as sub- sequently modified. In England the rule 'nullum tempus occurrit regi ' still holds good, except in so far as it has been derogated from by statute. See such statutes in Stephen, Hist. Crim. Law, ii. p. 2. CRIMINAL LAW. 379 correctionnelles,' or 'peines afflictives cu infamantes'; and chap. xvi. the German Code draws a similar distinction between ' Uebertretung,' ' Vergehen,' and ' Verbrechen,' The Dutch Code of 1886 distinguishes only between ' overtredingen ' and " misdrijven ' ; the Italian Code of 1889, only between 'delitti'and ' contravvenzioni ' ; the Spanish Code of 1870, only between 'delitos' and 'faltas.' The criminal Code Bill, which has now for many Sessions awaited the leisure of Parliament, recognises only the distinction between indictable offences and others, expressly abolishing that between felonies and misdemeanors. To the introductory portion of a Criminal Code belong also provisions as to the relation of the prosecution of an offence to the recovery in a civU action of damages for the injury caused by it to an individual. Such is the rule long alleged to exist in English law that the civil remedy for a wrong which also amounts to a felony is suspended till the felon has been convicted \ and such is the article of the Code P6nal which declares that 'la condamnation aux peines etablies par la loi est toujours prononcee sans prejudice des restitutions et dommages-interSts qui peuvent €tre dUs aux parties I' ii. The special part contains a classification of criminal Its special acts, and specific provisions with regard to the penal ^^'^ ' consequences of each. Such acts may be, in the first place, distinguished into The list of offences committed directly against the State, or commxmity generally, and offences the mischief of which is primarily directed against particular individuals. The State, or community generally, is injured by: — Against !• Acts tending to interrupt its friendly relations with ^'^^ ^*^*®' foreign powers; whence the enactments against 'foreign • Wellock V. ConsfavMne, 2 H. & C. 146. For the law as now under- stood, see supra, p. 335. ' Alt. 10; cf. Dig. xlvii. 10. 7. 38o PUBLIC LAW. CHAP. XVI. enlistment,' and against libelling or compassing the death of foreign sovereigns \ 2. Acts tending to the subversion of the government, such as assassination of princes, rebellion, and similar acts of High Treason. 3. Acts tending to the subversion of the hberties of the subject I . 4. Riots and other offences against pubhc order and tranquillity. 5. Abuse of official position. 6. Resistance or disobedience to lawful authority. 7. Obstruction to the course of justice by perjury, or falsification of documents, or rescue or harbouring of ofEenders. 8. Maintenance of suits '. 9. Omission to give information, or giving false informa- tion, as to births, deaths, and similar matters, included by the French under the phrase ' etat civil.' 10. Offences relating to the coinage, or to weights and measures. 1 1. Cruelty to animals ; though it may be doubted whether this is forbidden as brutahsing to the public generally, or as offensive to the humane sentiments of individuals, or rather as implying such a recognition of quasi-rights in animals, as led to the Roman prohibition of cruelty to slaves*. 1 Cf. R. V. Peltier, 28 State Trials, 529. ■■= Cf. Code P6nal, tit. i. ch. ii. ' Cf. Metropolitan Bank v. Pooley, 10 App. Ca. 210. On the lawful- ness of maintenance by one who has ' an interest in the thing in variance,' see now Alabaster v. Harness, [1895] i Q. B. (C. A.) 339. * So Cicero: 'Ecquid ergo primum mutis tribuemus beltiis? non enim mediocres viri, sed maximi et docti, Pythagoras et Empedocles, unam omnium animantium condicionem iuris esse denuntiant, clamantque inexpiabUes poenas impendere iis a quibus violatum sit animal. Scelus est igitur nocere bestiae.' De Rep. iii. 11. Cf. Ed. Engelhardt, De I'animalit^ et de son droit, 1900. Legislation upon the subject begins in England with 3 G. IV. c. 71, the earlier Acts laying much stress upon the demoralising effect of the keeping of houses for the baiting of dogs, CRIMINAL LAW. 38 1 12. Acts injurious to public morality, such as bigamy. chap, xvl 13. Suicide \ 14. Acts injurious to the public health, such as neglect of vaccination, and various forms of nuisance. Many wrongful acts, affecting primarily individuals, and against in- therefore giving rise to remedial rights in private law, are also so harmful to society as to be punished by it as crimes ^ They may perhaps be classified under the follow- ing heads : — 1. Violence to the person, in its various kinds and degrees of homicide, wounding, rape, assault, or imprison- ment. 2. Defamation of character (by English law only when in the form of a libel) \ sometimes justifiable when shoAvn to be true and for the public benefit *. bulls, and bears. The subject is now regulated by 12 & 13 Vict. c. 92, 47 & 48 Vict. C.43, 63 & 64 Vict. c. 33, and 4 Ed. VII,o. 4. Cf . sujmi, p. 352. For a flat denial to animals of even moral rights, see Moral Philosophy, by Joseph Rickaby, S. J., Pt. ii. c. 5. § 2: 'Brute beasts, not having understanding, and therefore not being persons, cannot have any rights. . . . We have no duties of charity, nor duties of any kind to the lower animals, as neither to stocks and stones. . . . Still we have duties about ston'es, not to fling them through our neighbours' windows, and we have duties about brute beasts.' Pope Pius V, in 1567, prohibited 'spectacula ubi Tauri et Ferae in circo vel fore agitantur,' speaking of them aa 'apietate et caritate Christiana aliena, cruenta turpiaque daemonum et non hominum spectacula,' but apparently mainly on account of the 'hominum mortes, membrorum mutilationes, animarumque pericula' which frequently result from them. Bullarium Rom. (op. C. Cocquelines), t. iv. pars ii. p. 402. The Cour de Cassation recently held that bull-fights are prohibited by the law of 1850, which was intended not merely to protect animals against cruelty, but also to prevent the demoralising effect of such cruelty upon spectators. Gazette des Tribunaux, Jan. 11, 1900. ' See E. Manson on ' Suicide as a Crime,' in Journal Comp. Legisl. N. S., No. iii. p. 310. An attempt to commit is a misdemeanour, R. v. Burgess, 9 Cox, C. C. 247. ^ Supra, p. 327. ' Cf. supra, p. 184. A libel is criminal on account of its supposed tendency to arouse angry passions, B. v. Holbrook, 4 Q. B. D. 46. The obsolete offence of 'Scandalum magnatum' might, however, be commit- ted by spoken words. See supra, p. 184, n. 3. * It would seem that no proceedings can be taken for libel on a deceased 382 PUBLIC LAW. CHAP. XVI. 3. Acts offensive to religious feeling K 4. Offences against family rights, such as abduction of children, or, in some systems, adultery I 5. Offences against possession and ov/nership, such as theft and arson, or other wilful destruction of property. 6. Certain breaches of contract, of a kind likely to cause social mconvenience, or for which a civil remedy would be valueless '. 7. Fraudulent misrepresentations and swindling *- It may be remarked that offences against the property of the State are often assimilated to offences against that of individuals ; and, in many instances, particular kinds of State property are, for the purposes of the criminal law, vested by statute in certain State functionaries ^- person. See the charge of Stephen, J., at the Cardiff Assizes, in 7?. v. Ensor, lo Feb., 1887, relying on R. v. Topham, 4 East 126, as against a dictum in 5 Rep. 125. AliCer under the Indian Penal Code, art. 499, e.xpl. I. Cf. Dalloz, s. v. 'Presse-outrage,' art. 1128. ' On the question whether this, or mere repugnancy to the Christian religion, be the test of a blasphemous libel, see the summing up of Lord Coleridge, C. J., in R. v. Ramsay & Foole, 15 Cox, C. C. 231, and Sir J. F. Stephen's History of the Criminal Law, ii. p. 475. ' E.g. 'La femme convaincue d'adultfire subira la peine de I'empri- Eonnement pendant trois mois au moins et deux ans au plus.' Code P6nal, art. 337. But proceedings can only be taken by the husband, and he can terminate the imprisonment by taking her home. Cf . Straf- gesetzbuch, art. 171; Indian Penal Code, art. 497. On the action of the Canon law in England, see Redfem-v. Redfem, [1891] P. (C. A.) 139. The Penal Code of Indore punishes as adultery intercourse with a widow. L. Q. R. vi. p. 89. ' E. g. 38 & 39 Vict. c. 86. 8. Si as to malicious breach of contract, with reason to believe that the consequence may be to cause danger to life or serious bodily injury, or to expose valuable property to destruction or serious injury. Cf. the provisions in Irish Statutes against ploughing grass lands. Cf . also in Holzendorft's Encyclopadie the art. ' Vertrags- verletzung.' * E. g. the conviction, though only under the Debtors Act, 1869, § 13, of one who had dined at a restaurant, having no means of paying for what he had ordered. R. v. Jones, [1898] i Q. B. 119. ' Thus by 7 W. IV. and i Vict. c. 36. s. 40, articles sent by post are, for the purposes of the Act, made the property of the Postmaster-General. CRIMINAL PROCEDURE. 383 IV. Adjective criminal law, ' Penal Procedure,' ' Instruc- chap. xvi. tion criminelle,' ' Straf prozess,' is the body of rules whereby Criminal procedure, the machinery of the Courts is set in motion for the punishment of offenders. It consists usually of two species ; a simpler, ' peines de police,' 'summary convictions,' applicable, unless with the consent of the accused, only to trifling transgressions ; and a more solemn, for the trial of serious crimes. Each of these consists of several stages, having a strong resemblance to the stages of procedure in private law*. In the more solemn procedure we may distinguish: — i. The choice of the proper jurisdiction. Jurisdic- tion. ii. The choice of the proper Court. Court. iii. The procedure proper, consisting of — Procedui«. 1. The summons, by which the accused is called upon, or the warrant, under which he is compelled, to appear to answer the charge. 2. The preliminary investigation, terminating in the discharge of the accused, or in his being committed for trial. 3. The measures ensuring that the accused shall be forthcoming for trial, viz. either imprisonment or security given by himself or his friends. 4. The pleadings, by which, on the one hand, the pro- secution informs the Court and the accused of the nature of the charge against him, and, on the other hand, the accused states the nature of his defence. It would have been suflRcient, and in accordance with fact, to declare that such articles are in his possession. This rule is peculiar to the law of England. For a comparative view of the laws of other countries upon the subject, see an art. by M. de Kirchenheim in the Revue de Droit Internationale, xiv. p. 616. ' Supra, p. 356. The resemblance is stronger in England than on the continent, wliicli is still under the influence of the ' inquisitorial ' method introduced into Germany by the Constitutio Criminalis Carolina. 384 PUBLIC LAW. CHAP. XVI. s. The trial, conducted on a prescribed plan and in accordance with rules of evidence which differ in certain respects from those which prevail in civil suits'. 6. The verdict and judgment. 7. The procedure on appeal, so far as an appeal is per- missible. Execution. Public pro- secutor. iv. Execution, which is carried out by the functionary to whom the force of the State is entrusted for the purpose. The bringing of criminals to justice may be confided, as it generally is on the continent, to a 'ministere public,' ' Staatsanwaltschaft,' or left, as it generally has been in England, and was at Rome, to the industry of the injured individual ^ Law of the State aa a juristic person. V. Besides its rights and duties as the guardian of order, in which respect little analogy can be remarked to any- thing in private law, the State, as a great juristic person, enjoys many quasi-rights against individuals, as well strangers as subjects, and is liable to many quasi-duties in their favour. These rights and duties closely resemble those which private law recognises as subsisting between one individual and another ^ The State, irrespectively of the so-called ' eminent domain ' which it enjoys over all ' Supra, p. 359- On the tendency towards an assimilation of the rules of evidence in civil and criminal cases, see the remarks of M. A. Prins, fitude sur la procedure p^nale k Londres, 1879, p. 4. " A Roman form of indictment is preserved in the following fragment of Paulus: ' Consul et dies, apud ilium praetorem vel proconsulem, Lucius Titius professus est se Maeviam lege lulia de adulteiiis ream deferre, quod dicat eam cum Gaio Seio, in civitate ilia, dome illius, mense illo, consulibus illis, adulterium commisisse.' Dig. xlviii. 2. 3. The office of ' Director of Public Prosecutions ' was established in England by 42 & 43 Vict. c. 22. ' See the remarks of Grotius upon the transactions of those ' qui sum- mam habent potestatem ... in his quae privatim agunt.' De I. B. et P. ii. .!. s. 3- On the entry of the 'fiscus' into the domain of private law, see Sohm, Institutionen, § 20, Transl. p. 103. Cf. an art. in J. Comp. Leg., N. S. xii. p. 297, citing the Land Transfer Act, 1897, s. 23 (3). QUASI-PRIVATE. 385 the property of its subjects \ is usually a great landed pro- chap, xtl prietor ; and in respect of its land is entitled to servitudes over the estates of individuals, and subject to servitudes for the benefit of such estates *. It owns buildings of all sorts, from the palace to the poUce-station, and a large amount of personal property, from pictures by Titian and Tintoretto to cloth for making the prison dress of convicts. It carries on gigantic manufacturing undertakings, lends and borrows money, issues promissory notes, and generally enters into all kinds of contracts. It necessarily acts by means of agents, who may exceed their powers or act fraudulently. Its servants may wilfully or negligently cause damage to individuals. It may become a mortgagee, and in many cases allows itself a tacit hypothec by way of security for what is owed to it. It is capable of taking under a will, and succeeds ad intestato to all those who die without leaving heirs. Its rights and Uabilities under many of these heads are different from those of individuals, or even of private artificial persons, especially with refer- ence to hability for injuries done by its servants, and as to the barring of its rights by prescription, though here the modern tendency is to modify the strictness of the old rule that 'nullum tempus occurrit regiV VI. The substantive law affecting the State as a quasi- Law of private juristic personality is supplemented by a body of ^u°^' adjective rules, prescribing the mode in which the State, ' The term seems to have originated with Grotius, I. B. et P. i. 3. 6; ii. 14. 7. See Bynkershoek, Quaestiones I. P. ii. 15. It is employed by Vattel, whence perhaps imported, by the Translation of 1760, into the English language. « But see E. Nys in the Revue de Dr. Int., N. S. xiii. p. 314. ' » Cf. the 'nuUum tempus' Act, 9 G. III. c. 16, and 24 & 25 Vict. c. 62, barring the Crown as to lands and rents after sixty years. By the Code Civil, art. 2 2 2 7, ' L'Etat, les 6tablissements publics, et les communes, sont soumis aux mfimes prescriptions que les particuliers, et peuvent dgale- ment les opposer.' 1950 Cc 386 PUBLIC LAW. CHAP. XVI, as s«ch a personality, may sue or be sued '. The procedure thus provided is not, it naay be remarked, as in private law, similar for both parties, but varies according as the party, plaintiff or defendant, is the State or a private individual. In other words, the procedure, as compared with the ordinary procedure between individuals, is always abnormal ; and its abnormity takes different forms when the sovereign takes proceedings against one of his subjects, or a subject takes proceedings against his sovereign. The reason, of course, being that the litigation is between the sovereign, who is the source of all right, and the subject whose rights are wholly dependent on the will of the sovereign. The character of this procedure varies considerably in different countries. Against In England the old common law methods of getting redress from the Crown were by ' petition de droit ' and 'monstrans de droit,' in the Court of Chancery or the Court of Exchequer, and in some cases by proceedings in Chancery agauist the Attorney-General. It has been provided by a modern statute^ that a Petition of Right may be entitled in any one of the superior Courts in which the subject-matter of the petition would have been cognis- able, if the same had been a matter in dispute between subject and subject, and tliat it shall be left with the Secretary of State for the Home Department, for His Majesty's consideration, who, if he shall think fit, may grant his flat that right be done, whereupon an answer, plea, or demurrer shall be made on behalf of the Crown, and the subsequent proceedings be assimilated as far as practicable to the course of an ordinary action. It is also provided that costs shall be payable both to and by the ' Cf. supra, p. 131. = 23 & 24 Vict. c. 24. See ToUn v. The Queen, 16 C. B., N. S., 310; R. v. Windsor, 1 1 A. C. 607. West Rand Central Gold Co. v. The King, [1905] 2 K. B. 391. PROCEDURE. 387 Crown, subject to the same rules, so far as practicable, as chap. xvi. obtain in proceedings between subject and subject \ The Crown may obtain redress against its subjects by By the such common law actions as are consistent with the royal ^ ®' dignity ; but much easier and more effectual remedies are usually obtained by such prerogative modes of process as are peculiarly confined to it^ such as an 'inquest of ofB.ce,' a 'writ of extent,' a 'writ of scire facias,^ or an 'information' exhibited by the Attorney-General in the King's Bench Division of the High Court. The old exemption of the Crown from the payment of costs in proceedings with subjects has been nearly abolished by a succession of statutes. 1 The Workmen's Compensation Act, supra, p. 157, applies when the Crown is employer, except in the military and naval services. On the law of the United States upon this subject, cf. supra, p. 132, n. 1. It is noticeable that in Egypt actions may be brought in the International Courts directly against the Government. R^glement pour les proc6s- mixtes, tit. i. art. ro. : Blackstoue, 3 Comm. 258. CC2 CHAPTER XVn. INTERNATIONAL LAW- The nature of inter- national law. The body of rules regulating those rights in which both of the personal factors are States, is loosely called ' the Law of Nations,' but more appropriately ' lus inter Gentes,' or 'International Law\' It differs from ordinary law in being unsupported by the authority of a State. It differs from ordinary morality in being a rule for States and not for individuals. ' Cf. supra, p. 132. The term 'lus inter CJentes' is due to the Oxford Professor, Richard Zouche, in his 'lus Feoiale,' 1650, though the compo- nent words of the appellation occur in descriptions of the science by Victoria, Vasquez, Saurez and Grotius. The Chancellor D'Aguesseau, in the 'Instructions sur les etudes,' addressed in 17 16 to his eldest son, introduces him to ' ce qu'on appelle le Droit des Gens, ou, pour parler plus correctement,'parce que le nom de Droit des Gens a un autre sens, que vous apprendrez dans I'^tude du Droit Remain, de Droit entre les Nations, lus inter Gentes.' CEuvres, i. p. 268. Cf. ib., pp. 444, 521, 548. The Abb6 de Saint-Pierre, according to M. Nys, Rev. de Droit Int., t. xxiii. p. 428, also speaks of 'le Droit entre Nations,' in his Ouvrages de politique et de morale, 1738-41. It was Jeremy Bentham who at last coined the term International Law, in his Principles of Morals and Legislation, first published in 1789, as appropriate to the 'mutual trans- actions of sovereigns as such'; adding in a note; 'the word international, it must be acknowledged, is a new one; though, it is hoped, sufficiently analogous and intelligible. It is calculated to express, in a more sig- nificant way, the branch of law which goes commonly under the name of the law of nations.' It would seem that the term 'Law of Nations' is first found in an English Act of Parliament in 7 Anne, c. 1 2, and ' Inter- national Law' in 41 & 43 Vict., c. 73. Cf. the writer's Studies, p. 193. ANALOGY TO PRIVATE LAW. 389 It is the vanishing point of Jurisprudence ; since it lacks chap. xvii. any arbiter of disputed questions, save public opinion, beyond and above the disputant parties themselves, and since, in proportion as it tends to become assimilated to true law by the aggregation of States into a larger society, it ceases to be itself, and is transmuted into the public law of a federal government. The realisation of the 'civitas maxima' of which theorists have dreamed would thus be not the triumph, but the extinction, of Inter- national law, which can subsist only between States which, on the one hand, sujfficiently resemble one another, and are closely enough knit together by common interests, to be susceptible of a uniform pressure of public opinion, while, on the other hand, they are not so politically combined as to be controlled by the force of a central authority. These conditions of political independence and social sympathy have been twice realised in the history of the world. Very imperfectly, between the various cities of Hellas, which accordingly acknowledged, as in some degree obligatory on all, ra koivo. tuv 'EWi^vuv vofufia '. More fuUy between the States of modern Christendom ^ no one of which, it was hoped, would venture at the present day expressly to repudiate the duty of conforming to the precepts of International law in its dealings with the rest. Just as what is not very conveniently termed 'Municipal' law is recognised as supreme over all questions of private or public right arising within the jurisdiction of any given State*, so it is conceded that 'International law,' so far as its doctrines have been generally received, is decisive of ' Thuo. iii. 59. ' On the accession of non-Christian States to this group, see infra, P- 393- » Cf. supra, p. 133. Bentham, Principles of Morals and Legislation, ch. xvii, is mistaken in supposing Blackstone to have been the first to use 'municipal' as equivalent to 'national' or 'internal' law; a sense of the term which was well established at least as early as the sixteenth century. Blackstone expressly says, 'I call it municipal law in accord- ance with common speech.' i Comm, 44. 390 INTERNATIONAL LAW. CHAP. xvu. all questions which arise between one State and another ^ Its true nature and functions have never been better described than in the following passage, in which they were for the first time adequately set forth, in the early years of the seventeenth century. 'Ratio autem huius partis iuris est,' says Suarez, 'quia humanum genus, quantumvis in varios populos et regna divisum, semper habet aliquam unitatem non solum specificam, sed etiam quasi politicam et moralem, quam indicat naturale prae- ceptum mutui amoris et misericordiae quod ad omnes extenditur, etiam extraneos et cuiuscunque nationis. Qua- propter licet unaquaeque civitas, perfecta respubhca, aut regnum, sit in se communitas perfecta et suis membris constans, nihilominus quaelibet illarum est etiam membrum aliquo modo huius universi, prout ad genus humanum spectat, . . . hac ergo ratione indigent aliquo iure quo dirigantur et recte ordmentur, in hoc genere communica- tionis et societatis. Et quamvis magna ex parte hoc fiat per rationem naturalem, non tamen suflicienter et immediate quoad omnia, ideoque aUqua specialia iura potuerunt usu earum gentium introduci V Although, as being concerned with the relations of States, 'international' is in a sense a department of 'public' law, its analogies are rather to the private than to the public branch of law municipal. The reason being that, while in public (municipal) law the personal factors In a right are always dissimilar, in international, as in private, ' On the relation of International to Municipal Law, see the author's Studies in International Law, p. 95, The American Journal of Interna- tional Law, ii. p. 357, and The Zamora, [1916] 2 A. C. 77. 2 De lege et Deo legislatore, ii. c. xix. § 9. Cf. Bynkershoek: 'illo perpetuo usu inter diversos sui iuris populos observata consuetudo, quam solida et mascula ratio iis persuasit, et ius gentium appeUamus.' De Foro Legatorum, Dedic. For an admirable modern statement of the true nature of International law, see per Lord Alverstone in West Rand Central Gold Mining Co. v. The King, [1905] 2 K. B. at p. 402. For an early ex- pression of German contempt for its precepts, hear Frederick II: 'que ce Droit public, manquant de puissance corrective n'est qu'un vainfant6me, que les souverains ^talent, dans les factums et manifestes, lors m^me qu'ils le violent.' Instructions pour la direction de 1' AcadSmie des Nobles. ANALOGY TO PRIVATE LAW. 391 law they are always similar. Just as the parties in chap. xvii. private law are two individuals, so in International law are they two States. Much confusion is occasioned by authors who, failing to grasp this essential characteristic of International law, speak of sovereigns and ambassadors as 'international persons,' or treat of States as capable of having international relations with individuals ; regard- ing, for instance, the seizure of a blockade-runner as an exercise of authority by a belligerent State over a neutral subject. Hence it is that the topics of this science may be most conveniently grouped in general accordance with the principles of division which were originally discovered by the analysis of private law. There is a ' substantive ' and an 'adjective' law of nations: the persons governed by this law may be ' normal ' or ' abnormal ' ; and their rights may be 'antecedent' or 'remedial,' 'in rem' or 'in personam.' A distribution of the subject upon these lines, rather Classifica- than in accordance with the method which, originated by W(^. Kliiber, has since become traditional, especially on the other side of the Atlantic, has been elsewhere advocated by the present writer *, in the following terms : — ' The law of nations is but private law "writ large." It is an appli- cation to pohtical communities of those legal ideas which were originally applied to the relations of individuals. Its leading distinctions are therefore naturally those with which private law has long ago rendered us fanailiar. In international, as in private law, we are concerned with the Persons for whose sake rights are recognised; with the Rights thus recognised; and with the Protection by which those rights are made effective. We have a * In an Oxford lecture, a translation of which appeared under the title 'Les D6bats diplomatiques r^cents dans leurs rapports avec le systSme du droit international,' in the Revue de Droit International for 1878, p. 167. See now the author's Studies in International Law (1898), p. 151. 392 INTERNATIONAL LAW. CHAP. xvii. law of Persons ; a Substantive law which sets forth and explains the rights of those persons; and an Adjective law, which describes the procedure by which redress is to be obtained when those rights are violated. The inter- national law of persons consists of an investigation into the nature of a sovereign State and of the deviations from it. The substantive law of nations iaquires into the character, origin, and termination of the rights which States may enjoy; while the adjective law of nations describes the procedure by which redress is obtained for international wrong-doing. This last-mentioned de- partment is subdivided into the law which regulates the relations of the belligerents to one another, and the law which regulates the relations of each belligerent with States which take no part in the war. The whole science is thus divisible into four great chapters, which may be shortly described as treating respectively of international Status; of Peace; of Belligerency; and of Neutrality.' Inter- national persona. Normal and abnonnal. I. The Persons known to International law are States. The normal international person is a State which not only enjoys full external sovereignty, but also is a recognised member of the family of nations. States which vary from this type either by being defective in sovereignty, or by having no place in the family of nations, are abnormal international persons. The characteristics of a State, as distinguished from non- political societies, have been necessarily touched upon in an earlier chapter; where also will be found an explanation of the differences between a State which possesses full ' external sovereignty ' and one which is ' mi- souverain,' as being 'protected' or otherwise dependent on another '. ' The family of nations ' is an aggregate of ' Supra, p. so. The term 'halbsouverfin' seems to have been invented by Moser (1777)1 Versuch, Bd. I. Th. i. § 11. INTERNATIONAL PERSONS. 393 States which, as the result of their historical antecedents, chap. xvii. have inherited a common civilisation, and are at a similar level of moral and political opinion. The term may be said to include the Cliristian nations of Europe and their offshoots in America, with the addition of the Ottoman Empire, which was declared by the treaty of Paris of 1856 to be admitted to the 'Concert Europeen.' Within this charmed circle, to which Japan also, some time since, fuUy established her claim to be admitted, all States, according to the theory of International law, are equal. Outside of it, no State, be it as powerful and as civilised as CMna or Persia, can be regarded as a wholly normal international person. The topics of semi-sovereignty and protection present considerable analogies to those of infancy, coverture, and tutelage in Private law. It may also be remarked that as individual human beings are born, attain the age of majority, and die, so States come into existence, obtain full international recognition, and cease to be. A new State arises either : Originally, where no State Origin of existed previously, a case now necessarily of infrequent occurrence ; or derivatively, by separation from a previously existing State, and this either by agreement with the older State, or against its wishes. It is in the last-mentioned case that other nations often feel a difficulty in deciding upon the reception which should be given to the new claimant for national honours. The question at what moment a State ceases to exist Termina- is the same with the inquiry as to what constitutes its identity. The identity of a State is admittedly not affected by any change of constitution or dynasty, or diminution or extension of territory, but only by the merger of one State in another, as when Poland was divided between the neighbouring Powers, or by such a dissolution of the political bond as has happened in the case of the Jews. 394 INTERNATIONAL LAW. CHAP. xvn. Antece- dent inter- national rights. 'In rem.' II. The rights of a State, like those of an individual, are ' antecedent ' as subsisting independently of any wrong- doing, or 'remedial,' as given by way of compensation for an injury sustained \ Rights of the former class may be available either 'in rem,' against all other States, or 'in personam,' against a given State only; while rights of the latter class are usually available only 'in personam.' i. Antecedent international rights ' in rem,' i. e. those which do not result from wrong-doing, and are enjoyed by a State as against all others, present many analogies to the corresponding topics of Private law^. They may be classified as having reference to (i) Safety; (2) Reputation; (3) Ownership ; (4) Jurisdiction ; and (s) the protection of subjects in foreign countries. Other classes of rights are mentioned in some books upon International law ^ which, if they ought to be treated as separate heads of right at all, would also be species of rights 'in rem.' Such are the so-called rights of EquaUty, of Legation, and of Negotiation and Treaty-making; which according to our system should be rather discussed under the law of international status, being, as they are, mere corollaries from the conception of a Sovereign State as an artificial person. (i) The right of a State to exist in safety calls for no remark. Its violation or threatened violation gives rise to the remedial right of self-preservation. (2) Of the right to a good name, it has been well said that 'the glory of a nation is intimately connected with its power, of which it is a considerable part. It is this distinction which attracts to it the consideration of other peoples, which makes it respectable in the eyes of its neighbours. A nation the reputation of which is well established, and especially one the glory of which is » Cf. supra, p. 146. « Supra, p. 169. ' Kltiber, Droit des gens modeme, §§ 89, 144, 166; Wheaton, Ele- ments, Pt. ii. c. 2, Pt. iii. cc. i, 2. DOMINIUM. 395 established, and especially one the glory of which is strik- chap. xvn. ing, finds itself sought by all sovereigns. They desire its friendship and fear to offend it. Its friends, and those who wish to become such, favour its enterprises, and its detractors do not venture to show their ill-will \' (3) International ownership, 'Dominium,' though it applies to property of all kinds, is most important with reference to the 'territory,' which is, according to modern conceptions, essential to the existence of a State. In a territory, 'universitas agrorum intra fines cuiusque civitatis ^' are comprised the rivers which flow through it, the ports and harbours, creeks and bays, by which its coasts are indented, its so-called territorial waters, and the superincumbent air-space. It is only recently that the progress of scientific discovery has given practical importance to enquiries as to the rights which may be claimed by each State over the space of air conterminous with its territory. Some attention was, indeed, directed to the subject with reference to telegraphic communica- tions ', but the urgency of the questions involved dates from the invention, in the early years of the present century, of dirigible air craft*- It was in 1900 that, on the motion of M. Fauchille, the Institut de Droit Inter- national appointed a committee, with MM. Fauchille and Nys as Reporters, to deal with the topic, and their Reports have been exhaustively debated at several meetings of the Institut, in which a divergence of view was always observable between those of its members who started from the Roman law dictum, which includes 'aer' among the things which ' natural! iure omnium communia sunt V and » Vattel, i. 186. * Dig. I. 16. 239. » See the Convention de Sain t-P6tersbourg de 1874, and the 'Conven- tions radiot^I^graphiques' signed at Berlin in 1906, at London in 1913. * For some remarks upon the relation of these discoveries to land ownership in Private Law, see supra, p. 191. ' Dig. i. 8. 2. But it would rather seem that in this passage 'aer' should be taken to mean the element, not the space which it occupies. 396 INTERNATIONAL LAW. CHAP. xvn. others who relied rather upon the maxim of English law, ' cuius est solum eius est usque ad coelum.' The resolutions adopted by the Institut in 191 1 bear traces of a compro- mise between the two views, as does much of the extensive literature of the subject \ and the difference between them rendered abortive the Paris Conference of 19 10. The march of events has, however, favoured the 'usque ad coelum' theory. During the present war, neutral States have not hesitated to fire upon belligerent airships attempt- ing to pass over their territory. There can henceforth be no doubt that the proprietary right of a State to the superincumbent air-space is absolute, without limit of altitude. The ownership of territory may be acquired originally or derivatively. In the former case, by 'occupatio rei nullius ',' by ' accession *,' and possibly by ' acquisitive prescription^'; and here difficult questions may arise as to the extent of the acquisition, for the solution of which distinctions are drawn between 'agri limitati,' 'agri ad- signati per universitatem,' and ' agri arcifinii.' In the latter case \ by cession, succession, or conquest. Besides the 'dominium' which a State enjoys over its own territory, it may also have rights over the territories of its neighbours. Such 'iura in re aUena°' may be in the nature of feudal superiority, mortgage, or servitude. (4) The right of Jurisdiction, 'Imperium,' is intimately ' Cf. HolzendorfF, Handbuch dea Volkerrechts (1887), ii. § 46; Rivier, Droit des Gens (i8g6), i. 140; Meyer, Die Erschliessung des Luftraumes an ikren rechtlichen Folgen (1909); Judge Baldwin, The Law of the Air- ship (1910); RoUand, Rev. G6n. Dr. Int. Public, xiii. p. 58; Nys, Droit International (1912), i. 568, iii. 201. Many more references might be given to works in many languages. It may suffice to refer particularly to the Annuaire de I'Institut de Droit International for 1900, p. 262; 1902, pp. 19-114, 335-337; 1906, pp. 293-303; 1910, pp. 293-329; 1911, pp. i-iSSi 3°3-346; and to Sir H. E. Richards' admirable Lecture on 'Sovereignty over the Air,' 1912. ' Cf. supra, p. 214. ' Cf. supra, pp. 215, 216. * Cf. supra, p. 215. ' Cf. supra, p. 216. ' Supra, p. 221. TREATIES. 397 connected with that of dominion ; being, like it, exercisable chap. xvn. only within the bounds of a given space. The rights of a nation over its territory are indeed, as Vattel says, twofold: — 'i°, le domaine, en vertu duquel la nation pent user seul de ce pays pour ses besoins, en disposer, et en tirer I'usage auquel il est propre. 2°, I'empire, ou le droit du souverain commandement, par lequel elle ordonne et dispose a sa volonte de tout ce qui se passe dans le pays ^ .' The personal jurisdiction which a State claims to enjoy over its own subjects, wheresoever they may be, is a matter rather of public than of international law, but the jurisdiction which it exercises over all persons, be they subjects or aliens, in respect of acts committed by them within its territory, is legitimated only by the rule of international law which obliges the State to which such aliens may belong to acquiesce in their punishment. Although the Dominion and the Jurisdiction of a State are both circumscribed by its territory, the two rights are not co-extensive, since, by the custom of nations, ' territory ' is, with a view to the exercise of the latter right, artificially extended in some directions, and re- stricted in others. On the one hand, the Jurisdiction of a State is allowed to extend, beyond the bounds of its ' dominions, to all the ships that carry its flag upon the high seas, and, for certain purposes, to all ships, not being ships of war, whatever flag they may carry, which pass within three miles of its coasts. On the other hand. Juris- diction is artificially restricted by what is known as the doctrine of ' extraterritoriality,' in accordance with which certain persons and things, notably foreign sovereigns, ambassadors and ships of war, though actually within the territory, are treated as if they were outside of it. Very extensive pri\'ileges of extraterritoriality are usually 1 Liv. i. § 204; cf. Grot. De I. B. et P. ii. 3. 4. 398 INTERNATIONAL LAW. CHAP. XVII. granted by Oriental nations to Christian residents by express treaty*; and a nation sometimes assumes, even without treaty, to exercise a Jurisdiction over its own subjects who are resident in barbarous coimtries^ A concurrent jurisdiction is allowed to all nations upon the high seas for the suppression of piracy. Since there is, as Grotius says, 'naturalis et tacita confederatio inter omnes homines contra communes societatis humanae hostes.' (s) A State is not only entitled to the immunity from injury of its territory and of all persons therein, but may also insist that its subjects individually, wherever they may be, shall receive no harm from foreign govern- ments or their subjects. 'Prima maximeque necessaria cura pro subditis,' says Grotius; adding, 'sunt quasi pars rectoris '.' 'In per- ii. The antecedent rights of nations 'in personam,' i. e. such as one nation may enjoy against another given nation, are almost exclusively contractual, i. e. they arise from Treaty. It will be remembered that a contract in private law was shown to imply — i. several parties; ii. an expression of agreement; iii. a matter agreed upon which is both possible and legally permitted; iv. is of a nature to produce a legally binding result; v. and such a result as affects the relations of the parties one to another; also very generally, vi. a solemn form, or some fact which affords a motive for the agreement*. AH the ' The grants and conventions of the Ottoman Empire to this eflfect are usually known as 'capitulations.' The exercise of the jurisdiction in question by Great Britain is now regulated by the Foreign Jurisdiction Act, 1890. The abolition of its exercise in Japan was provided for by the Treaty of July 16, 1894, which came into operation on July 17, 1899. * E. g. 26 & 27 Vict. c. 35, as to South Africa; and the Foreign Juris- diction Act, 1890, s. 2, asserts this right in the most general terms. » I. B. et P. ii. 25. I. * Supra, p. 266. TREATIES. 399 elements of this analysis, with the exception of the last, chap. xvn. are equally present in a treaty; though some of the subordinate rules under each head are incapable of trans- plantation from private to international law. Thus a treaty is not, like an ordinary contract, voidable on the ground of 'duress,' nor are the acts of plenipotentiaries as bindiag on their sovereigns as they would be under the ordinary law of agency. Treaties, like contracts, may be divided into those which are 'principal,' which may again be subdivided, in accordance with their purpose, into treaties of peace, of alliance, of cession and the like; and those which are ' accessory,' e. g. by way of mortgage or guarantee \ Since a nation is obviously incapable of entering into contracts, or otherwise giving expression to its wUl, unless through a representative, the topic of agency occupies a large space in international law, and is sometimes added to the list of international rights, under the style of 'the right of Legation.' This is submitted to be an error. A nation cannot be said to have a right of nego- tiating or of sending an embassy, since it cannot insist that any other nation shall either entertain its proposals or receive its ambassador. The law of international agency deals with the functions, privileges, and ranks of ambassadors and other public ministers; also with consuls and other agents who do not enjoy a diplomatic character. The whole question of the inviolability and extraterritoriality of diplomatic per- sonages is naturally analogous to nothing in private law, but resembles rather that branch of public municipal law which describes the safeguards provided for the protection of government ofQcials in the execution of their duties. Remedial international rights vary according to the nature of the right violated; thus entitling the injured 1 Cf. supra, pp. 287, 307. 400 INTERNATIONAL LAW. CHAP, XVII. state to an apology, by salute to its flag or otherwise, for an insult to its dignity; to restitution of territory, or other property, of which it has been deprived; or to a money indemnity. Belliger- HI. The Adjective law of nations prescribes the pro- cedure by which the Substantive law may lawfully be enforced, and corresponds roughly to what is popularly called 'the law of nations in time of war.' So far as it affects the disputant parties only, it is the law of 'Belligerency.' So far as it regulates the relations of the disputants to parties not engaged in the struggle, it is the law of ' Neutrality.' Steps Redress for a violated right may be obtained in of war. a friendly manner, 'via amicabili,' by (i) negotiation, (2) the mediation of other States, or (3) arbitration': or it may be obtained by force, 'via facti,' which is always necessarily in the nature of self-help, and liable to all the disadvantages of a procedure in which the injured party is a judge in his own caused ' The Hague Convention No. i of 1899, now replaced by No. i of 1907, 'Pour le rfeglement pacifique des conflits internationaux,' recom- mended, in addition to these methods, 'Commissions Internationales d'Enqu6te,' art. 9, a suggestion acted upon in the case of the Dogger Bank outrage. It also ejcpressly recognised Arbitration 'comme le moyen le plus efiicace et en mtoe temps le plus Equitable de r^gler les litiges, &c., dans les questions d'ordre juridique, et en premier lieu dans les questions d'interpr6tation ou d'apphcation des Conventions Inter- nationales,' art. 16. Identical treaties, for five years certain and renew- able for a like period, have accordingly been made by most European Powers, by which they agree to submit to the Tribunal constituted under arts. 20-29 of the Convention such matters (only) as those above specified, 'h, la condition toutefois, qu'ils ne mettent en cause ni les int^rte vitaux, ni I'ind^pendance ou I'honneur des deux Etats contrac- tants, et qu'ils ne touchent pas aux int^rSts des tierces Puissances.' See now on 'Commissions,' arts. 9-36, on 'Arbitration,' art. 38, and on the Tribunal of Arbitration, arts. 41-50 of the corresponding Conven- tion of 1907. The Treaty between Great Britain and the U.S. of 1914 prohibits hostilities between the two countries tiU the grievances have been reported on, after possibly a year's interval, by a special commis- sion created by the Treaty. ' Cf. supra, p. 320. BELLIGERENCY. 401 In the latter case, if the right violated be one to acts chap. xvii. of mere 'comity,' the remedy is what is called 'Retorsion de droit,' i. e. a refusal to perform similar good offices. If the right be one of those which are allowed to be 'strioti iuris,' various courses of action are still open to the injured State, short of actual war. Such are 'Reprisals,' which, in their earliest form, were 'special,' i. e. exercised by injured mdividuals against the fellow- citizens of those by whom they had been injured; but are tolerated at the present day only in the form of 'general reprisals,' allowed by the government of a State to its subjects generally, or to its public forces. Their characteristic, in either case, being that they take place in time of peace, 'non nisi in pace represaliis locus est.' 'Embargo' and 'Pacific blockade' are among the more important species of general reprisals. Actual war has been well described as 'the litigation War. of nations '. Ought it, like an action in private law, to commence with a notice served by one party upon the other, i. e. with a formal 'Declaration'? Upon this point Declara- there has been much difference of opinion and alteration "'°' of practice. According to Gentili, 'si non est bellum clandestina magis contentio quam contentio legitima fori est iudiciorum, haec primum petitio et denimtiatio fieri debet, ut in lite inerma flt^' When war has once commenced, the rules by which Effect of it is regulated refer, in the first place, to the effect of°'^*^'^^- its outbreak upon the subsisting treaties between the belligerents, some of which are ipso facto abrogated, while others remain in force; and upon the rights of each belligerent over such subjects of the other belligerent and their property as may be found within its territory ' De I. B. ii. c. i. The contrary view has in modem times prevailed; but see now the Hague Convention No. 3 of 1907. By art. i the Powers 'reconnaissent que les hostflitSs entre elles ne doivent pas commencer sans im avertissement pr§alable et non Equivoque, &c.' 1950 D d 402 INTERNATIONAL LAW. CHAP. XVII. at the time. They refer, in the second place, to the actual conduct of warfare, on land or at sea, and to its effect upon the ownership of property. Conduct of Questions relating to the conduct of warfare may he considered under four heads: viz. (i) military operations, under which head wUl come rules as to stratagems, as to the use of certain weapons, as to sieges and bombardments, as to spies and marauders, as to quarter, ransom and prisoners of war, and as to hospitals, surgeons, and the wounded ; (2) treatment of the enemy's country while occupied, and therein of property, pubUc and private, and of 'requisitions' and 'contributions'; (3) 'commercia belli,' i. e. such exceptions to the rule against intercourse between enemies as truces, capitulations, safe-conducts, and cartels ; (4) ' reprisals,' in the sense of the special punishments to be awarded to enemies guilty of breaches of the law of war*. The rules as to the effect of war upon ownership deal with questions of the title to conquered territory, of 'booty,' of 'prize,' of such immunity as is accorded to private property and to certain species of national property, of the acquisition of debts due to the enemy, and of re- capture. Neutrality. IV. It is not unusual to find in systems of municipal law prohibitions against taking up the law-suits of others by way of 'champerty' or 'maintenance,' and against interference with the course of criminal justice °. In international law somewhat analogous topics have come to occupy a very important place. The conduct of warfare was long discussed with reference only to belli- ' Cf. supra, p. 374 n., as to the author's Handbook of the Laws and Customs of War on Land, &c., 1904, and his larger work, The Laws of War on Land (written and unwritten), 1908. ' E. g. Dig. xlviii. 7. 6. Cf. Cuiacius, Obs. viii. 31, 'De Ergolabis'; and supra, pp. 188, 189. NEUTRALITY. 403 gerents, but it became clear in the course of the last chap. xvii. century that a far more complex class of questions had arisen with reference to the rights of the belligerents towards nations which stand aloof from the war. It had become necessary to arrive at some agreement as to the mode of reconciling the right of each belhgerent to carry on his warfare, with the no less undeniable right of a neutral quietly to pursue his ordinary business \ Attention was very early drawn to the conflict of the rights of a belligerent State with the trade of the subjects of neutral States, but the relations of a belligerent State to a neutral State were imperfectly worked out tiU quite modern times. The subject is most conveniently considered with reference, first, to the Rights; and, secondly, to the Duties of Neutrals. The Rights of a Neutral are the fundamental rights Rights of of a State, modified in certain respects by war; and may perhaps be enumerated as follows : — L To sovereignty within its territory ; and so to prevent, or cancel, all belligerent acts, either in the territory itself or in the adjacent waters, to exercise there the right of asylum, and to prohibit the exercise there of any belli- gerent jurisdiction. ii. To the inviolability of its public ships. iii. To the security of the persons and property of its subjects within the territory of a belligerent, subject to certain exceptions, such as the 'ins angariae.' ' The difBculty, says Grotius, had been perceived long before hia time, 'cxun alii belli rigorem, alii commercioram utilitatem defenderent,' I. B. et P. iii. I s. His treatment of the subject is very meagre, and he has no general name for it, although Neumayr von Ramsla had published, as early as 1620, a special treatise 'Von der Neutralitfit,' &c. Baron Des- camps would substitute the awkward and uninforming term 'le Paci- g6rat' for the adequate and convenient word 'Neutrality.' Annuaire de rinstit. de Droit International, t, xx. pp. 61, 211. Dda 404 INTERNATIONAL LAW. CHAP. XVII. iv. To the continuance of diplomatic intercourse with the belligerents. V. To recognise, under certain circumstances, a revolting population as a cfe facto belligerent, or even as a new sovereign State. Duties of The Duties of a Neutral may, it is conceived, be classed Pv PI 1 trill 8 under three heads, of which the First consists of restraints on the free action of the State, as such; the Second, in an obligation to restrain in certain respects the acts of individuals; and the Third, in an obligation to acquiesce in the punishment of its subjects by a belligerent for acts which apart from the war would be innocents i. The restraints imposed upon the action of a neutral State, as such, forbid it to furnish troops, or arms, or money, or to allow passage, to either belligerent, or to open its ports so as to further belligerent objects. ii. The State is bound to a positive interference with the acts both of its own subjects and of aliens, so as to prevent hostilities, or enlistments, or perhaps the eqrup- ment of war-ships, taking place -within its territory, and generally to prevent its territory from being used as a base of operations by either belligerent. It is, however, not bound to prevent the export of contraband for belli- gerent use. iii. There are certain acts of neutral subjects with which, though detrimental to the interests of one or other of the belligerents, the Neutral State is not bound to in- terfere. She is, however, under an obligation in these cases to forego her ordinary right of protecting her subjects, and to allow them to be interfered with, and ' On the division of neutral duties here suggested, under the heads of 'Abstention,' 'Prevention' and 'Acquiescence,' see further the author's paper in the Proceedings of the British Academy for 1905, or, as trans- lated, in the Revue de Droit International, 2"°' s&ie, t. vii. p. 359- NEUTRALITY. 405 their property to be confiscated, by the belligerent who chap. xvn. has ground to complain of their conduct. Many commercial transactions, which in time of peace are perfectly unobjectionable, will thus in time of war expose those concerned in them to losses for which they will obtain no compensation. Such are 'breach of blockade ' and ' carriage of contraband ' ; and such were, at any rate till recently, breach of 'the rule of the war of 1756,' carriage of enemies' goods under a neutral flag, and, according to the views of some nations, sending neutral goods under the flag of an enemy. Most writers have been in the habit of seeing in these cases a direct relation between a belligerent State and indiAddual subjects of a neutral State. It is submitted that such a relation should never be recognized by In- ternational law, which ought to be regarded as occupied exclusively with rights and duties subsisting between State and State. CHAPTER XVin. THE APPLICATION OF LAW^ So long as law is regarded as a body of abstract principles, its interest is merely speculative. Its practical importance begins when these principles are brought to bear upon actual combinations of circumstances. Three Many questions may be raised as to the extent and mode questions. . m which this takes place, and, for their solution, rules have been laid down which, like other legal rules, are susceptible of analysis and classification. They make up that depart- ment of Jurisprudence which we propose to caU ' the Appli- cation of law.' When a set of facts has to be regulated in accordance with law, two questions of capital import- ance present themselves. First, what State has jurisdic- tion to apply the law to the facts ? and secondly, what law will it apply? The former of these questions is said to relate to the appropriate ' Forum,' the latter to the appro- priate ' Lex.' A third question, which, for the purpose of our present enquiry, is of less importance than these two, and may be dismissed in a few words, relates to ' Interpretation.' ' A translation by M. Nys of this chapter, as it stood in the first edition, appeared under the title 'De I'Application de la Loi' in the Revue de Droit International (1880), t. xii. p. 565- PRIVATE LAW. 407 It will be necessary .to show very briefly how these chap. xvin. questions arise, and in what modes they are answered, in private law; and how far the same or analogous questions have to be considered also with reference to public and to international law. § 1. Priuate Law. In private law all three questions have to be answered. The applica- and first as to the ' Forum.' vatelaw"' I. Given a set of circumstances the legal consequences Questions of which are disputed, it obviously becomes necessary to° o™™- ascertain in the Courts of what country the dispute can be decided ; in other words, what Court has jurisdiction to try the case ratione territorii^. For this purpose it . is indispensable to classify, on the Possible one hand, possible sets of circumstances, and, on the other "^^^ hand, possible Courts. The circumstances which may give rise to legal con- troversies have been already classified in the preceding chapters. The Courts in which proceedings may possibly be taken Possible are: that of the country in which the plaintiff, or the '^^' defendant, is domiciled, or to which he owes allegiance", or in which the defendant happens to be; that of the country in which the object in dispute is situated; that of the country in which the juristic act in question, which may have been for instance a marriage, or a sale, or the making of a will, took place; that of the country in which the wrongful act in question took place; that of the country in which a contract was to produce its 1 This phrase seems better adapted than its older equivalent 'juris- diction ratione personae' to distinguish the question stated in the text from questions as to 'jmisdiction ratione materiae,' 'sachliche Zustandig- keit,' i. e. as to the proper court, within a given territory, for the trial of a particular class of actions. 2 This exceptional forum is recognised e. g. in the Code Civil, art. 14. 4o8 THE APPLICATION OF LAW. CHAP. XVIII. results ; or that in which the plaintiff chooses to commence proceedings. It might be convenient to describe these ' Fora ' respec- tively as the — forum ligeantiae, or domicilii, actoris, forum ligeantiae, domicilii, or praesentiae, rei, forum rei sitae, forum actus, including contractus \ forum delicti commissi \ and the forum litis motae, or fortuitum. Of these technical terms one only, the forum (domicilii, &c.) rei, i. e. of the defendant, has obtained general currency, doubtless by means of the long prevalence of the maxim, 'actor sequitur forum reL' As examples of the questions v^hich arise as to the forum, it may be sufficient to mention that an English Court will almost always decline jurisdiction in divorce unless the husband be domiciled in the country; and that an English Court vdll take cognisance of a contract, wherever made and between whatever parties, while a French Court is, as a rule, incompetent to do so unless one of the contracting parties be a French subject or domiciled in Prance. The Courts of a given country have not only from time to time thus to decide on their own competence, but also occasionally to investigate the competence of the Courts of other States; the decrees of which, when duly made, they will often recognise under the technical description of 'Foreign judgments,' just as they do other foreign facts creating rights; which rights may thus continue to subsist outside of the jurisdiction which originally gave them validity. ^ Which latter term is also usually employed to cover what might be specially described as the forum solutionis. ' A forum obligaiionis, i. e. of the country where the cause of action has arisen, would include the /ora actus and delicti commissi. THE APPROPRIATE LEX. 409 II. The question as to the applicable ' Lex ' is far more chap. xvni. complicated than that as to the competent 'Forum.' The Questions circumstances which affect its solution may be enumerated as Concentricity, Time, Race, and Place. i. It often occurs that special are included in moreConcen- general circles of law. A city may be governed not only "" ^' by its own statutes, but also by the law of the kingdom to which it belongs, and of the empire in which that kingdom is included, and it may be doubted whether the affairs of the citizens are to be regulated by the civic, royal, or imperial laws, where these differ from one another. The general rule is that the nearer and narrower law is to be applied rather than the more remote and wider, 'Stadtrecht bricht Landrecht, Landrecht bricht gemeines Recht'; thus 'gavelkind' prevails in Kent rather than the general law of England as to succession to realty \ ii. It might be supposed that the universally admitted Time, principle that laws have, in the absence of express pro- vision to that effect, no retrospective operation, 'leges et constitutiones futuris dare formam negotiis, non ad facta praeterita revocari^' would prevent all doubt whether a given state of facts is to be governed by a new or by an old law. This is, however, by no means the case, since some legal relations, such for instance as acquisition by prescription or under a will, are the result of a series of facts occurring through a prolonged period. There is accordingly a literature devoted to the discussion of the 'temporal limits ' of the application of law'. ' On the conflict between Federal and State decisions in the United States, see an article in the American Law Review, xvii. p. 743. Cf. the Einfiihrmigsgesetz zum burgerlichen Gesetzbuche, Erster Abschn., art. 3. 2 Cod. i. 4. 7. " E. g. Struve, tJber das positive Rechtsgesetz rticksichtlich seiner Ausdehnimg in der Zeit, 1831; Savigny's discussion of the 'zeitlichen 410 THE APPLICATION OF LAW. CHAP. xvia. iii. There is a stage of civilisation at which law is addressed, not to the inhabitants of a country, but to the members of a tribe, or the followers of a religious system, irrespectively of the locality in which they may happen to be. This is the ' personal ' stage in the development of law. The governments which the barbarians estabhshed on the ruins of the Roman Empire did not administer one system of justice applicable throughout a given territory, but decided each case that arose in pursuance of the personal law of the defendant^ ; so that, according to an often-quoted passage in one of the tracts of Bishop Agobard, it might well happen that ' five men, each under a different law, would be found walking or sitting to- gether V In one and the same town the Frank, the Burgundian, and the Roman lived each under his own system of law. A similar phenomenon may be seen at the present day in British India. 'The notion of a territorial law,' it has been said, 'is European and modern. The law which Hindoos and Mahometans obey do not recognise territorial limits. The Shasters and the Koran revealed religion and law to distinct peoples, each of whom recognised a common faith as the only bond of union, but were ignorant of the novel doctrine that law and sovereignty could be conterminous with territorial limits V The British Courts, in dealing with members of the Hindoo Granzen,' System, Bd. viii. pp. 368-540; Chabot de I'AlIier, Questions transitoires sur le Code Napoleon, 1809; and Professor Aftolter, Ge- schichte des intertemporalen Privatreehts, 1902. '■ Marriage was contracted according to the law of the husband, and wives married according to their own law could be dismissed at pleasure, but for such religious prohibitions as that of the council of Tibur, Mansi, t. xviii. col. isi, cited by Westlake, Private International Law, ed. 2. p. II n. ' 'Nam plerumque contingit ut simul eant aut sedeant quinque homines, et nullus eorum communem legem cum altero habeat, exterius in rebus transitoriis, cum interius in rebus perennibus una Christi lege teneantur.' Adv. legem Gundobadi, c. 4, Op. i. p. iii. ' Cowell, Tagore Lectures, 1870, p. 40. THE APPROPRIATE LEX. 411 or Mahometan communities, hold that wherever such chap, xviii. persons go within the limits of British territory, they carry with them, as a personal law applicable to their family and possessions, Hindoo or Mahometan law respectively \ iv. According to modern ideas, a system of law applies Place, not to a given race, but to a given territory. It follows from the independence of each State within its own borders that it might, without contravening any principle of international law, regulate every set of circumstances which calls for decision exclusively by its own law. This law, technically described as the lex fori, may be said to be the natural law for the Courts of each State to apply ; and it is that which wUl imdoubtedly be appUed by them, in the absence of special reason to the contrary ^ With the development of civilisation and commerce it has, how- ever, become as inconvenient as it is inequitable to apply this law rigidly to all transactions, whether completed wholly within the territory, or partly outside of it, and to acts of all persons, whether permanently settled in the country, or merely passing through it. The Law Courts are of course bound to apply to each case the law which 1 Cf. Gowell, Tagore Lectures, 1870, p. 5, and the First Report of the Commission for a body of Substantive Law for India, p. 80. 2 It must be noticed that an ambiguity lurks in the phrase 'law of the country,' which has quite recently given occasion to a considerable litera- ture. Does, e.g., ' the law of England ' (or ' of France ') include, or exclude, the rules followed by the English (or the French) Courts in determin- ing the system of law applicable to a given case? If the phrase includes such rules, then the meaning of saying that a given case is to be decided according to the law of Spain, may be that it is to be decided according to the system which that law thinks to be applicable to such cases, which may be the law of France. The view that cases determinable by the law of one country may thus, for that very reason, be determined in ac- cordance with the law of some other country, is known as the doctrine of Renvoi, Rinvio, Ruck- und Weiteroerweiswng. See especially Buzzati, II Rinvio nel Diritto Internazionale Privato, 1898, also I'Annuaire de rinst. de Droit International, t. xviii. p. 14S, and Notes on the Doctrine of Renvoi, by J. P. Bate, 1904. Cf. Dicey, Conflict, ed. ii. pp. 79, 715. 412 THE APPLICATION OF LAW. Possible cases. Possible laws. CHAP. XVIII. the sovereign has provided for its regulation, but, as has been well observed, there is no reason to suppose that the sovereign enacted the ordinary Ux fori with a view to the exceptional cases in question. It accordingly became necessary to classify these ' mixed cases,' and to determine what are the categories of law by which, in accordance with equity and with the general convenience, each ought to be governed. The possible cases must come within the classification with which the previous chapters have familiarised us, i. e. they must be cases of status, of property, of contract, and so forth. The possible law may be that of the country to which one of the persons concerned owes allegiance, or in which he is domiciled, or in which the thing in question is situated, or in which the wrong in question was committed, or in which an act, such as the making of a will or of a contract, was performed, or in which a contract was to be carried out- These distinctions may be technically ex- pressed by the following terms respectively: — lex ligeanfiae) lex domicilii. lex loci rei sitae, lex loci delicti commissi, lex loci actus, of which contractus is a species, lex loci solutionis. The lex fori has been previously mentioned. All of these terms are in current use, except only the lex ligeantiae,-which is suggested as conveniently descriptive of the law of the country to which a person owes national allegiance ; a law which, in the opinion of the school of jurists now predominant on the Continent, ought to decide many of the questions which have usually been determined by the lex domicilii \ ' Cf. Codice Civile, arts. 6-9. This doctrine, it will be observed, though presenting some analogies to that of the 'personality of laws,' explained at p. 410, supra, is by no means identical with it. THE APPROPRIATE LEX. 413 The selection from this list of the lex which is properly chap. xvm. applicable to the decision of questions of a particular class, those relating for instance to marriage, to minority, or to bankruptcy, is guided in each country by the laws of that country*. There is, however, a considerable general resemblance between the rules of different systems of positive law upon these points ; and positive law is more inclined with regard to such questions than to others to pay deference both to the positive law of foreign countries, and to the theories of such experts as have written upon the subject from the point of view of propriety and convenience. The assimilation thus produced of positive systems to one another and to the theories of experts has led to an erroneous impression that there exists some- thing like a common law of civilised nations upon the subject ^ instead of, as is reaUy the case, a gradual approxi- mation of national practice, guided to some extent by a growing body of theory ^ Some vnriters have indeed been led so far astray as to assert the invalidity of any national laws which do not conform to their views upon the subject *. '■ Cf. In re Hawthorne, L. R."'23 Ch. D. 748 : sometimes by express enactment, as in the Codice Civile, in the EinfUhningsgesetz of the German Civil Code, and in the Bills of Exchange Act, 1882. ' Conferences, held at The Hague in 1893 and succeeding years, under the presidency of Professor Asser, at which most of the European powers, as also Japan, though not Great Britain, were diplomatically repre- sented, have resulted in the signature of eight treaties codifying, so far as the signatories are concerned, large portions of Private International law. Treaties with similar objects have also been entered into by sev- eral South American States as a result of the Congress held at Monte- video in 1888. See Revue de Droit Intemat., xxv. p. 521, xxviii. p. 5731 lb., 2™« s6rie, t. iv. p. 485, vi. p. si7i vii. p. 646; Bulletin Argent, de Droit International Privd, 1905, p. 377- Cf. pamphlets by Professors Buzzati, 1899, Meili, 1905, and S. Baldwin, 1903, 1906. ' This error is well exposed by Lindley, L. J.: 'It is all very well to say that International law is one and indivisible,' &o.. Ex parte the UnionBank of Australia, [1892] i Ch. (C.A.) at 226. Cf. Lord Selbome, in Orr v. Orr Ewing, 10 A. C. 4S3' * E. g. Struve, § 9. 37. Cf. Ex parte Blain, 12 Ch. D. 522. 414 THE APPLICATION OF LAW. CHAP, xvni, Classifica- tion of nomen- clature. The body of principles adopted in positive systems, or recommended by theorists, for the selection of the terri- torial 'lex' which is appropriate to the decision of any given question of private law, has been called by many names, the variety of which attests the obscurity which has involved the true nature of the subject. They may be reduced to seven classes. Statutes. I. The controversy having first been raised with refer- ence to the competing claims of the 'statuta' of different Italian cities, the whole topic was treated from this point of view. The example set by Bartolus in his comment on the code in the fourteenth century' was followed by a series of writers such as Halbritter, who wrote 'De Statutis' in IS4S^ and John Voet, who wrote in 1698'. In 1823 J. Henry published a 'Treatise on the Difference between Personal and Real Statutes ' ; a ' Traite des statuts, lois personnelles et reelles, et du droit international prive,' by M. de Chassat, appeared in 1845; and 'La theorie des Statuts, ou Principes du statut r6el et du statut personnel d'apres le droit Civil Frangais,' by M. Barde, in 1880. Conflict. 2. A more descriptive name for such discussions was suggested in 1653 by Rodenburg, who prefixed to his work on the law of married people a tract entitled 'de iure quod oritur ex statutorum vel consuetudinuni discrepantium conflictu*.' Paul Voet followed, in 1661, with a treatise *de statutis eorumque concursu'; Huber, in 1686, with his famous chapter 'de conflictu legum diversarum in diversis imperils"; and Hertius, in 1688, with his tract ' Ad 1. 'cunctos populos,' i. i. ' Ad 1. 'cunctos populos,' i. 1. Tubingae. ' In his Comment, ad Pandectas, lib. i. tit. 4. pars 2. * The tract is thus referred to on the general title-page. Its own sub- title is 'De iure quod oritur ex diversitate statutorum.' ' In his Praelectiones iuris Romani, pars ii. ad Pand. lib. i. tit. 3. 1686, NOMENCLATURE. 415 'de coUisione legum\' J. G. de Meiern wrote in 1715 'de chap. xvm. statutorum conflictu eorumque apud exteros valore ' ; Ham, in 1792, ' de statutorum coUisione et praeferentia' ; Wachter, in 1 841 and 1842, 'iiber die Collision der Privatrechts- gesetze verschiedener Staaten^'; Livermore, in 1828, 'on the contrariety of laws'; and Brinkmann, in 1831, 'von dem Widerspruche auslandischer und einheimischer Gesetze.' Story's 'Conflict of Laws' was published in 1834; Burge's 'Commentaries on colonial and foreign laws, generally, and in their conflict with each other and with the law of England,' in 1838, 2nd edit. 1907; J. Hosack's 'Conflict of the Laws of England and Scotland,' in 1847; Wharton's 'Conflict of Laws,' in 1872; Professor Dicey's 'Digest of the Law of England with reference to the Conflict of Laws,' in 1896 and 1908 ; R. C. Minor's 'The Conflict of Laws,' in 1901 ; J. H. Beale's 'A selection of cases in the Conflict of Laws,' 3 vols., in 1907. 3. The fact that effect is given to laws outside of the Extra- territory of the State on whose authority they depend is effect, emphasised in the titles of such works as that of Cocceius, 'de fundata in territorio et plurium locorum concurrente potestate,' 1684°; of Scheinemann, 'de auctoritate legum civilium extra territorium legislatoris,' 1696; of Seger, 'de vi legum et decretorum in territorio alieno,' i777; also in Savigny's expressions as to 'die ortlichen GranzenV and Schmid's 'die Herrschaft der Gesetze, nach ihren raum- lichen Grenzen'.' ' Comm. et Opuse. i. p. 129. ' See Archiv ftir civ. Praxis, Bd. xxiv. p. 230, xxv. p. i. ' Exercit. Curios, i. p. 680. * System, vol. viii. pp. S, 8-367. 5 The full title of his work is 'Die Herrschaft der Gesetzenach ihren raumlichen und zeitlichen Grenzen im Gebiete des biirgerlichen und peinlichen Rechts,' Jena, 1863. Cf. 'Die raumliche Herrschaft der Eechtsnormen (ortliche Statutenkollision) auf dem Gebiete des Privat- rechtes,' F. Bohm, 1890. 4i6 THE APPLICATION OF LAW. CHAP. XVIII. Applica- tion. 4. The question as to the choice of the law to be applied becomes prominent in the treatise of Oerstadt, 'liber die Anwendung fremder Gesetze,' 1822 ' ; in that of Struve, 'liber das positive Rechtsgesetz in seiner Beziehung auf raumliche Verhaltnisse und liber die Anwendung der Gesetze verschiedener Oerter,' 1834; and in incidental expressions occurring in Savigny's System''. Comity. S- It is of course a merely voluntary act on the part of any State when it gives effect to foreign law. In the language of Huber, ' Rectores imperiorum id comiter agunt ut iura cuiusque populi intra terminos eius exercita teneant ubique suam vim°.' Sir Robert PhiUimore accordingly entitled the volume of his Commentaries which deals with this subject (1861) 'On Private International Law, or Comity.' Inter- national Private law. 6. SchafEner gave to his book, published in 1841, a title apparently intended to indicate that it dealt with the mode in which rules of private law are borrowed by one State from another. He called it ' die Entwickelung des inter- nationalen Privatrechts ' ; and it was followed by Pf eiff er's 'das Princip des internationalen Privatrechts,' 1851; by von Bar's ' das Internationale Privat- und Strafrecht,' 1862 and (omitting Strafrecht) 1889 ; by von Plittlingen's 'Hand- buch des in Oesterreich-Ungarn geltenden internationalen Privatrechts,' in 1878; by Hamaker's tract 'het interna- tionaal Privaatregt,' in the same year ; by Asser's ' Schets van het internationaal Privaatregt,' 1880 : by Zitelmann's Internationales Privatrecht, 1897-1912; and by F. Meili'a 'Die moderne Fortbildung des internationalen Privat- 1 Eunomia, i. pp. i-ioj. ^ viii. pp. IS, 32, 109. Cf. Sir H. Maine's definition of the topic as ' the conditions on which one community will recognise and apply a portion of the jurisdiction of another.' ' Prael, iuris Romani, pars ii. ad Pandect, lib. i. tit. 3. NOMENCLATURE. 417 reclits,'in 1909. In 1874 there appeared the 'Trattatodi chap. xvni. diritto civile internazionale ' of Lomonaco; in 1880-81 the 'Droit civil international ^ ' of Laurent, as also the 'Droit penal international' of Fiore, translated by C. Antoine. The ' Zeitschrift fiir Internationales Privat- und Strafrecht ' was founded by Ferd. Bohm in 1890. 7. In 1840 Fcelix began a series of articles 'du conflit Private des lois de differentes nations, ou du droit international ^' national and re-published them in 1843 as the 'Traite du droit ^^^' international prive, ou du conflit des lois en matiere de droit prive I' The term was adopted in 1844 by Chancellor Kent, who derives it from Victor Faucher \ and was known in 1847 to Mr. Hosack^ Mr. Westlake followed, in 1858, with his 'Private International Law, or the Conflict of Laws'; M. Fiore, in 1869, with his ' Diritto internazionale private, o principii per risolvere i conflitti tra legislazioni diverse in materia di diritto civile e commerciale ' ; M. Haus with ' Le Droit prive qui regit les Strangers en Belgique, ou du droit des gens prive, considere dans ses principes fondamentaux et dans ses rapports avec les lois civiles des Beiges,' 1874; M. Brocher with his 'Nouveau traite du droit international priv4' 1876; Mr. Foote with his ' Private International Jurisprudence,' 1878 ; M. Andre Weiss vidth his ' Droit international priv6,' 1892 and 1907 ; Sir W. Rattigan vnth his ' Private International Law,' in 1895 J M. Streit with his Swrij/ia ISiwriKov SieOvovi SiKaCov, 1 The term 'Droit civil international' was perhaps &st used by Portalis, in a Report to the Acad^mie des Sciences Morales et PoUtiquea, Comptes rendus, 1843, *• i- P- 449- ' In the Revue StrangSre et Franjaise de Legislation, t. vii. p. 81, Foelix begins, 'On appelle droit international I'ensemble des regies re- connues comme raison de decider des conflits entre le droit priv6 des diverses nations.' He goes on to blame Wheaton for using the term ' droit international ' as equivalent to ' droit des gens,' i.e. to public inter- national law! He enumerates, pp. 17, 18, some earUer writers on the subject. On Dumoulin (ob. 1604), as introducing the topic into France, see Clunet, 191 2, p. 79, ' See §§ I, 14. * 1 Comm. 2. ' Op. cit. 195a £ e 4i8 THE APPLICATION OF LAW. CHAP. XVIII. in 1906 ; M. Jitta with his ' Substance des obligations dans le droit international prive,' 1906, 1907. Professor J. Kohler writes in his Zeitschrift on ' Zwischenstaatliches Recht,' 1908. In 1874 M. Clunet established at Paris the 'Journal du droit international prive.' His example has been fol- lowed, in France, by M. Horn and by M. Darras in 1905 ; in the Argentine, by M. Zeballos in 1906. Objec- tions to Sta- tutes, to Con- flict, to Extra- territori- ality, Objections, well and ill founded, have been urged against each and all of these phrases '. The nomenclature of the 'Statutes,' an attempt to resolve a legal into a merely grammatical question, is indeed obsolete. Of the other phrases, one is distinctly misleading, whUe the rest are rather inadequate than erroneous.. Those who deny that a 'Conflict of laws' ever really takes place are right if they mean only that the authority of a domestic can never be displaced by that of a foreign law. It cannot, however, be denied that, although each State is free to adopt for the decision of any given question its own or foreign law, and between various foreign laws to choose that which it prefers, yet the rival claims of these bodies of law do present themselves to the legislature or the court as competing or conflicting. There is no strife for the mastery, but there is a com- petition of opposite conveniences. The phrase, although inadequate, because it does not cover questions as to juris- diction, or as to the execution of foreign judgments, is better than any other. Such expressions as seem to attribute an extraterritorial supremacy, ' Herrschaft,' to any system of law, are more obviously open to censure, as being inconsistent with the absolute sovereignty of each State within its own territory. ' Little can be said for describing the topic as 'Derecho Privado Humano', with E. S. Zeballos, in his Justicia Internacional Positiva, 1910, pp. 43, 44; or with Dr. T. Baty, in his book of 1914, as 'Polarized Law.' OBJECTIONS TO NOMENCLATURE. 419 When, on the other hand, the theory of * Comity ' is chap. xvin. attacked, on the ground that a Court, in applying a*°^°™'*y' particular 'lex,' is guided, not by courtesy, but by legal principle, it must not be forgotten that, although the Courts of each State are guided by the law of the State, the State in making that law is guided, not by the law of Nations, but by general considerations of equity, ac- companied by some expectation of reciprocity. 'Comity' thus expresses the truth that the adoption of this or that rule by a State is a matter of indifference to international law. The new Italian school would indeed deny this proposition, asserting that a State, in applying foreign law to certain sets of circumstances, is but complying with an international duty of 'perfect obligation ^' The phrase ' Application of law,' ' Anwendung der to Applica- Gesetze,' is liable to no objection except that it is perhaps ' too wide; embracing, as it may, aU the topics of the present chapter. ' International Private law,' ' Internationales Privatrecht,' to Inter- though a dangerously ambiguous term, is not incapable of p^vate being understood to denote the mood in which rules of 1^^» private law are borrowed by the Courts of one State from those of another. The transposed version of this term as 'Private Inter- to Private national law ' is wholly indefensible. Such a phrase should ^o^gi law. mean, in accordance with that use of the word 'inter- national ' which, besides being well estabhshed in ordinary language, is both scientifically convenient and etymo- logically correct, 'a private species of the body of rules which prevails between one nation and another.' Nothing 1 See a Report by Signer Mancini, sometime Minister of Justice, to the Institut de Droit International, Revue de Droit International, t. vii. PP- 333) 337) 362. Cf. von Bar, in von Holzendorff's Encyolopadie, System, p. 681. Eea 420 THE APPLICATION OF LAW. CHAP. xvin. of the sort is, however, intended ; and the unfortunate employment of the phrase, as indicating the principles which govern the choice of the system of private law applicable to a given class of facts, has led to endless misconception of the true nature of this department of legal science '. It has also made it necessary to lengthen the description of International law, properly so called, by prefixing to it the otherwise superfluous epithet ' public' It is most important, for the clear understanding of the real character of the topic which for the last forty years has been misdescribed as ' Private International law,' that this barbarous compound should no longer be employed. Nor is its abandonment less desirable with a view to the rehabilitation of the term ' international ' for the scientific purpose for which it was originally coined ^ The con- The topic in question consists of the body of rules which tents of ., . . , . , . 1 • V the topic. prevail m a given country, or given countries, or which theorists think ought to prevail generally, as to the selec- tion of the . law to be applied in cases where it may be doubted whether the domestic or a foreign law, and, in the ^ Cf. e. g. Ex parte Union Bank of Australia, u. supra. • Supra, p. 391. So Professor Meili, 'Das intemationale Privatrecht hebt sich scharf ab vom Volkerrecht, das sich auf die Rechtsverhaltnisse der einzelnen Staaten zueinander bezieht.' Zeitschr. fiir Volkerrecht, &c., 1910, p. 168. Mr. Frederic Harrison, in two singularly able articles in the Fortnightly Review for 1879, suggested as a substitute for 'Pri- vate International law' the term ' Intermunicipal law.' This is surely no improvement, since 'municipal,' in accordance with established use, is either equivalent to 'national' or relates to civic organisation. 'Ameri- can Interstate law' is the not inappropriate title of a work by David Rorer, which appeared at Chicago in 1879 and 1893. In a syllabus of lectures for 1886, Mr. Harrison proposed to speak of the 'interterritorial application of law.' For a defence of the, one would have supposed, obviously inadequate term 'Diritto private universale dello straniero,' invented by Professor Cimbali, of Macerata, and a curious polemic waged by him upon the subject with other Italian professors, see his 'Di una nuova denominazione del cosiddetto Diritto Internazionale privato,' 1893. SUGGESTED NOMENCLATURE. 421 latter case, which foreign law, is appropriate to the facts. It chap. xvm. is a body of rules for finding rules. With this topic it is usual to combuie that of the choice of the competent forum, and also that of the effect to be given to a foreign judgment. The group of topics is undoubtedly hard to name. Of The choice the old names, * the Conflict of laws' is probably the best, °^ ^ "'*°'®' ' Private International law ' is indubitably the worst. ' The Application of Foreign law,' or ' the Extraterritorial Recog- nition of rights,' may be suggested as at any rate not misleading, while the latter phrase might be useful as calling attention to the fact that what really happens when a law seems to obtain an extraterritorial effect, is rather that rights created and defined by foreign law obtain recognition by the domestic tribunal \ Thus it is that the status of marriage will be recognised as resulting from an observance of the formalities prescribed by the lex loci celebrationis, and an obligation resulting from the judgment of a competent Court in one State will be enforced by the Courts of another ^ No name has yet been suggested which satisfactorily covers the two topics of 'Forum' and 'LexV 1 In addition to the terms in the text, as it originally appeared in 1880, the terms 'Droit priv6 (ou, selon le cas, p^nal) extraterritorial' were suggested by the present writer in the Revue de Droit Intfernational for the same year, t. xii. p. 581. In 1883 a work appeared at Madrid, en- titled 'Principios de derecho intemacional privado, o de derecho extra- territorial de Europa y America en sus relaciones con el derecho civil de Espafia,' by D. Manuel Torres Campos. On this phraseology, see now Professor Dicey, Conflict of Laws, 1908, p. 15. * The theory of the text, it wiU be observed, assumes the foundation of this whole topic, whether it be described as 'the application of foreign law,' or the 'extraterritorial recognition of rights,' to be that of 'vested rights'; a doctrine which appears to the author to remain unshaken by the numerous attacks which have been directed against it. It is well stated by Huber, 'Subiectio hominum infra leges cuiusque territorii, quamdiu iUic agunt, quae facit ut actus ab initio validus, aut nuUus, alibi quoque valere, aut non valere, non nequeat.' Prael. ad Pand. i. 3. § 15. Cf. Wachter, u. s. • For an early reference to the topic, see Gaius, Inst. iii. s. 120. 422 THE APPLICATION OF LAW. CHAP. XVIII. Interpre- tation. Legal. DoctrinaL III. In order that the competent Court may rightly apply the appropriate law, it is necessary that the words of the law shall be properly construed. 'Interpretation' is thus a third, though a very subordinate, topic of the application of law. It is said to be either 'legal,' which rests on the same authoritj'' as the law itself, or 'doctrinal,' which rests upon its intrinsic reasonableness. ' Legal interpretation ' may be either ' authentic,' when it is expressly provided by the legislator, or 'usual,' when it is derived from unwritten practice. 'Doctrinal interpretation' may turn on the meaning of words and sentences, when it is called 'grammatical,' or on the intention of the legislator, when it is described as * logical.' When logical interpretation stretches the words of a statute to cover its obvious meaning it is called 'extensive'; when, on the other hand, it avoids giving full meaning to the words, in order not to go beyond the intention of the legislator, it is called 'restrictive.' § 2. Public Law. The appli- It is chiefly in the criminal branch of Public law that cation of ^. ,. ,i ■, . , ■, ... criminal questions of the kmd now under consideration present law. themselves for solution. The Forum. I. The 'forum' which, ratioiie territorii, is properly seized of the punishment of an offence has been at different times asserted to be — that of the nation of which the offender is a subject, that of the domicU of the offender, that of the nation injured, that of the place of the arrest or detention of the offender, and that of the place where ' As in what are called the 'interpretation clauses' of a modem Act of Parliament, many of which are now superseded by the comprehensive Interpretation Act, 1889. By since repealed sections of the Prussian Landrecht (Einl. §§ 47, 78), judges were directed to consult the 'Gesetz- commission' as to the interpretation of that Code, and to follow its rulings. Cf. Cod. i. 14. 9 and 12. Cf. also Dalloz, s. v. 'Lois,' art. 438; and snipra, p. 67 n. THE CRIMINAL 'FORUM.' 423 the offence was committed. These may be respectively chap, xviii. described as the forum ligeantiae^ forum domicilii, forum civitatis laesae, forum deprehensionis, or fortuitum, forum delicti commissi. The last-mentioned 'forum,' which was indeed the first to assert its claims, has in recent times nearly superseded the others, as being the most compatible with modern ideas of the nature of sovereignty. Four theories as to the competent 'forum' are heard of at the present day. L What is known as the 'territorial theory of jurisdic- The teiri- tion,' founded upon the competency of the forum delicti ^^^^.^^ commissi, asserts that each State may, and ought to, deal with all persons, be they subjects or aliens, who commit offences within its territory, or on board of its ships, against its criminal law. This proposition, though iadisputably true, is as indisputably inadequate to secure the due punishment of crime. Its insuflciency to provide for the punishment of criminals who have escaped from the terri- tory in which their offence was committed is partially redressed by treaties of Extradition, under which such offenders are returned to the forum delicti; but it still needs supplementing by other principles. il. According to 'the personal theory of jurisdiction,' The per- each State has a right to the obedience of its own subjects, theory, wheresoever they may be. It follows that a subject may be tried on his return to his own country, or even in his absence, for an offence against its laws committed while within the territory of another State. This second theory, which asserts the claim of the forum ligeantiae, is very variously applied in practice. England and the 424 THE APPLICATION OF LAW. CHAP. XVIII. United States use it but sparingly, as introducing a very limited list of exceptions to the standard principle of territorial jurisdiction \ It is thus provided by Act of Parliament that a British subject may be indicted for murder, manslaughter, or bigamy, whether committed within the King's dominions or without, and may be tried 'in any place in England or Ireland in which he shall be apprehended or be in custody^.' The continental States agree in punishing offences committed abroad by a subject against the Government or coinage of the country to which he belongs, but differ widely in their treatment of offences of other kinds. The French Code of 1808 punished offences committed abroad by Frenchmen against Frenchmen ^ The Code for the German Empire punishes acts of its subjects which are criminal in the country where they were committed as well as in Germany*. The Italian Code of 18895 and the Austrian draft Code of 1867 ^ contain similar pro- visions, with reference to offences of a certain gravity. The Bavarian Code of 1861 stated the liability of subjects without any such reservation''; and the French Code, as amended in 1866, provides that 'tout Frangais qui hors du territoire de la France s'est rendu coupable d'un crime puni par la loi frangaise pent Stre poirrsuivi et juge en France '.' This enactment is in accordance with an opinion given to the Government by the Cour de Cassation in 1845 and approved by twenty-four Courts of Appeal and six Faculties of law, against the exclusively territorial char- • Cf. the Zollverein, i Swab. 96. 2 24 & 25 Vict. c. 100, ss. 9, 57. Cf. as to Treason, 33 H. VIII. c. 2; S & 6 Ed. VI. c. 11; 7 Anne, c. 21. See further. Sir H. Jenkyns, British Rule and Jurisdiction, &c., 1902, pp. 136-140. ' Code d'instruction criminelle, art. 7. < Art. 4. 3. ' Art. $■ ' Art. 4. ' Inlander unterliegen den Bestimmungen der Bayerischen Strafge- setze wegen aller von ihnen im In- oder Auslande veriibten strafbaren Handlungen, art. 10. » Arts. 5-7. THE CRIMINAL 'FORUM.' 425 acter of penal jurisdiction. ' Ce qui est vrai,' said the chap. xvnt. Court, 'c'est que le droit de punir, au nom de la loi franQaise, ne peut s'exercer qu'en France ; ce qui est errone, c'est que I'acte punissable, commis sur le sol etranger, ne puisse, dans aucun cas, 6tre regi par cette loi^' The forum ligeantiae is not concurrent with, but excludes, the forum delicti in the case of Europeans whose governments have capitulations to that effect with the governments of Oriental States. iii. What may be described as ' the theory of self- The theory of S6lf"T3rG" preservation' is in some Continental systems considered gervation. in certain cases to confer a jurisdiction which, since it is neither 'territorial' nor 'personal,' has been called 'quasi-territorial.' It allows that the Courts of a State may punish offences although committed not only outside of its territory but also by persons who are not its subjects. Such a jurisdiction, which might perhaps be described as claimed for the foruvi civitatis laesae, is usually asserted with reference to offences against the Government of the State, or against its public credit. The French Code, as revised in 1866, provides for the trial and punishment of any alien who, having committed abroad an offence ' attentatoire a la sfirete de I'Etat, ou de contrefa^on du sceau de I'Etat,' or against the French coinage or paper currency, shall afterwards, voluntarily or by means Of extradition, come within the French territory ^ The German Code of 1872', and the Italian Code of 1889*, contain similar articles. The Bavarian Code of 1 86 1 went further; providing also for the punishment of offences committed abroad by aliens against Bavarian subjects, 'in the absence of anything to the 1 Cited by M. Brocher, Eev. de Droit Int. vii. p. 46. ^ Art. 7. ' Arts. 4. I. By the Strafprozessordming of 1877, art. 9, the accused may be condemned though absent from German territory. * Art. 4- 426 THE APPLICATION OF LAW. CHAP. XVIII. contrary in the treaties of the State or the principles of International law ^•' At its Brussels Session, in 1879, the 'Institut de Droit international,' after much discussion, adopted the following resolution upon this subject: — 'Tout etat a le droit de punir les faits commis m6me en dehors de son territoire et par des etrangers en violation de ses lois penales, alors que ces faits sont une atteinte a I'existence sociale de I'etat en cause, et compromettent sa s6curit6, et qu'ils ne sont point prevus par la loi penale du pays sur le territoire duquel ils ont eu lieu.' The Institut rejected a resolution extending the right to other cases ^. The theory of cosmo- politan justice. iv. The theory, which may be described as one 'of general supervision,' or 'of cosmopohtan justice,' looks merely to the forum deprehensionis, which we have also called fortuitum, ascribing to each State the right of punishing any criminal who may come into its power. This theory has long found favour with reference to pirates, on the ground that they have thrown off their subjection to any political authority, but some writers have claimed for it a far wider application. Vattel, for instance, makes an exception to the rule of exclusively territorial jurisdiction in the case of 'ces scelerats qui, par la qualite et la frequence . habituelle de leurs crimes, violent toute surete publique et se declarent les ennemis du genre humain.' He continues: 'Les empoisonneurs, les assassins, les incendiaires de profession, peuvent 6tre extermines partout oil on les saisit; car ils attaquent et outragent toutes les nations, en foulant aux pieds les ' Art. 12. A similar provision in the Penal Code of Mexico, art. 186, making a 'Delito' committed in a foreign country by a foreigner against a Mexican punishable in Mexico and according to its laws, gave rise in 1886 to the Cutting case, on which see the official report of Mr. J. B. Moore to the U. S. Secretary of State, and Revue de Droit International, t. XX. p. SS9- 2 Annuaire, iii. p. 281. THE CRIMINAL 'FORUM.' 427 fondements de leur stirete commune. C'est ainsi que les chap, xviii. pirates sont envoyes a la potence par les premiers entre les mains de qui Us tombent. Si le souverain du pays ou des crimes de cette nature ont ete commis en reclame les auteurs pour en faire la punition, on doit les lui rendre, comme a celui qui est principalement interesse a les punir exemplairement ^' The Austrian draft Code ac- cordingly provides for the punishment of serious offences committed abroad by aliens, subject to the stipulations of any treaty to the contrary^; and the Italian Code of 1889 contains a similar provision, in case the State to which the alien belongs shall have refused to take him in extradition, with a view to punishment '. It is obvious that the adoption by a State of one orcombiua- another of the four current theories of jurisdiction, orJj^g°j°gj of a combination of several of them, will determine notof J""s- diction. only the exercise of its own criminal jurisdiction with reference to a given set of facts, but also its recognition of the rightfulness of the exercise by other States of their jurisdiction with reference to the same state of facts. In cases where it recognises the concurrent competence of several States, it may or may not regard the decision of the Courts of any one of them as final, so as to give an offender the benefit of the maxim, 'ne bis in idem.' Provisions to this effect are not uncommon in Continental Codes *. In English law there is authority for saying that a plea of 'autrefois acquit' or 'convict' in a competent foreign court is a good defence °. 1 Droit des Gens, i. § 233. Cf. von HolzendorfF, Die Auslieferung der Verbrecher, 1881, p. 7. 2 1868, art. 6. » Art. 6. * Code d'ins. crim., art. 7; Loi de 1886, art. 5; German Code, arts. $. 7. But cf. Austrian Code, art. 30; Italian Code, art. 8; and Fiore, Droit p€nal international, i. p. i6r. 5 See R. V. Hutchinson, 29 C. II, cited in Beake v. Tyrrell, i W. & M., I Siiower, 6, and in R. v. Roche, 1775, 1 Leach, 135; also R. v. Miles, 24 Q. B. D. 423. Cf. Bull, N. P. 24s; Archbold, Grim. Pract. p. 121. 428 THE APPLICATION OF LAW. CHAP. xvm. The readiness, or disinclination, of a State to surrender its own subjects in extradition is another result of the view which it adopts with reference to criminal competence. The Continental nations, among which the doctrine of 'personal jurisdiction' is fully entertained, refuse extra- dition of their own subjects; while England readily sur- renders its subjects because it is not, as a rule, prepared to punish them for offences committed outside of the country. The Lex. II. Questions as to the appropriate ' Lex ' are not of frequent occurrence in criminal law. Of the four classes of such questions which may conceivably be raised, those as to (i) Concentricity, and (ii) Time \ no doubt occasionally occur, but questions of (iii) Race, and (iv) Place, are hardly separable from the question of 'Forum.' The 'comity' which often determines a controversy in private law in accordance with rules borrowed from a foreign system has no place in the trial of crimes. No State will undertake to administer the criminal law of another, though it may sometimes go so far as to enquire into the amount of punishment to which a crime would be liable according to the law of the place where it was committed. The topics of criminal ' forum ' and ' lex ' have sometimes been treated in conjunction with the analogous topics of private law, as, for instance, by von Bar in his ' Inter- nationales Privat- und Strafrecht ^.' They have indeed much in common, and the title of von Bar's work would be objectionable only on the ground of ambiguity, if it did not seem to lend itself to the support of statements by other writers which involve the whole subject in hopeless confusion. It may perhaps be assumed that the reader who has followed the argument of the last few pages wUl at once ' E. g. German Code, art. 2. ^ The edition of 1889 is restricted to Privatrecht. OF INTERNATIONAL LAW. 429 detect the astonishing inconsistency of view which is chap, xviii. betrayed by the following extract from a work of de- servedly high authority:—- 'On appelle,' says M. Foelix, * droit international prive I'ensemble des regies d'apres lesquelles se jugent les cmflits entre le droit prive des diverses nations ; en d'autres termes, le droit international prive se compose des lois civiles ou crimimlles d'un etat dans le territoire d'un etat Stranger ^' It would not be too much to say that ' Private Inter- national law,' if thus conceived of, is neither ' private ' nor ' international ' in the sense in which either of those terms are usually and properly employed in Jurisprudence. III. What was said of the 'interpretation' of Private interpre- wiU apply also to that of PubUc law. *^*^°"- § 3. Intemationcd Law. I. No question of 'Forum' can arise in International The appli- law, of which it is an essential principle that each nation j^^erna- is the judge of its own quarrels, and the executioner oi^^oTislh.-vi. its own decrees \ II. The question of 'Lex' does indeed arise, but in a The Lex. way that nresents but a slight analogy to anything in ' Droit International Priv6, §1. M. von Bar, who defends his com- bination of the two topics by the authority of R. von Mohl, Staatsrecht, Volkerrecht u. Politik, p. 682, endeavours to avoid the difficulties which his title raises by distinguishing between 'Internationales Recht' and 'Volkerrecht.' The former term he employs to signify a genus, of which the two species are respectively 'Volkerrecht,' by which he means Public International law, and ' Internationales Privatrecht.' Mr. Westlake, who follows Fcelix, frankly admitted, in his second edition, p. s, that he was using the term 'private' in a sense which has no relation to the division of national law into 'public' and 'private.' ' 2 Unless indeed under Conventions rendering obligatory the reference of certain classes of questions to arbitration, as under the Convention of 1903 (renewed in 1909) between Great Britain and France, which has served as the model for so many Conventions between pairs of States; or under such more far-reaching Conventions as that made in 19 14 between Great Britain and the United States. As to the abortive proposal for an International Prize Court, see supra, p. 39. 430 THE APPLICATION OF LAW. CHAP. xvra. either department of Municipal law. It is merely whether a given set of circumstances comes, or does not come, withia the operation of International law at all. In other words, whether the States between which a controYersy has arisen are, or are not, members of 'the family of nations.' If not, the principles to be applied to the facts are derivable not from International law, but from views of national interest tempered by general morality. Much confused reasoning has resulted from forgetfulness of the limited area within which it is possible or desirable to apply the rules of International law, as such. Interpre- III. What has been said upon the subject of 'Inter- pretation ' with reference to Municipal law, applies mutatis mutandis to International law also. The axioms of the science and the doctrines of received text- writers will be susceptible in general only of 'logical interpretation.' The same remark must apply to Treaties, of which ' authentic interpretation ' could be given only by express agreement between the signatory Powers, who cannot be bound by such interpretative comment as may have proved acceptable to the plenipotentiaries by whom the Treaty was signed ^ ' See, with reference to the controversy raised by M. Renault's 'Rapport' upon the Declaration of London of 1909, the author's Letters to The Times upon War and Neutrality, ed. 2, 1914, pp. 187-191. rhi-ee cheers for Jewispruacnce . Afrietl^ St)0 d t~ r^-^Gd/n/^^fhfr' ^}< INDEX. Abandonment, 206, 220. Abatement, 322. Abduction, 330, 382. Abettors, 378. Abnormal law, 146, 336, 362, 365. — persons, 139, 143, 336, 337, 345, 357, 362, 365, 391, 392. — rights, 138, 142, 166, 337, 365. Abrogation of laws, by desuetude, 58, 63. Absolute duties, 130. Abuse of process, 188. Acceptance, 267, 268, 269, 271. — in alienation, 216, 255 n. Accession, 215, 395. Accessory, 106, 206, 215, 286, 307, 378. — contract, 286, 307. Accident, 106, 111, 255, 297. Accidentalia Negotii, 123. Accord and Satisfaction, 317 n, 332. Account stated, 307, 310. Accursius, 268 n. Acquisition, derivative, 158, 216, 396. — original, 214, 395. Acquisition, peruniversitatem, 160. Acquisitive prescription, 215, 395. Act, 90, 91, 92, 105, 107, 151, 157, 219, 254, 255. — criminal, 337, 379. — elements of an, 107. — Juristic, 116, 118, 120, 121, 122. — lawful and unlawful, 116. — of God, 297. — of law and of party, 160, 310, 311. — one-sided, two-sided, 123, 255, 256, 266. — symbolic, 121. — same, may infringe public and private right, 128. Actiengesellschaft, 342. Actio personalis, 173 n, 307, 332. Action, 324 n, 357. — cause of, 324 n. — right of, 324. Actions, limitation of, 216, 397. — classification of, 357. Adiunctio, 216. Adjective law, 89, 147, 166, 355, 362, 365, 383, 386, 391. — criminal law, 375, 376, 377, 382. — international law, 390, 391, 399. 432 INDEX. Adjective private law, 166, 355, 356. — public law, 365. Adjudication, as a source of law, 65. Administrative law, 144, 366, 371, 375 w. — classification of, 373. — jurisdiction, 374. Administrator, 161, 162, 244. Admiralty practice, 154, 167, 326. Adoption, 179. Adultery, 178, 247, 327, 330, 331, 382, 384 n. Advantages, open to community generally, 169, 186. Advocates, 298, 353, 360. Aemulatio vicini, 208 n. Aeusseningstheorie, 268. AfEolter, Prof., 410 n. Age, 349, 378. Agency, 116, 117, 118, 264, 273, 298, 299, 338, 385, 399. — in contract, 280. — general, 274. — implied, 273. — international, 399. — by necessity, 272 n. — pretended, 237, 238, 275. — special, 274. — the contract of, 272, 299, 307. Agent, of necessity, 273. Agents, classes of, 274, 301. Agobard, Bp., 410. Agreement, 256, 259-276, 292. Aguesseau, D', 44, 133 n, 388 n. Ahrens, 79, 207 n, 210 n, 257, 370 n, 371 n. Air, rights over the, 191 n, 210, 395, 396 n. Alciatus, 205. Aleatory contract, 287, 304. AUenation, 160, 209, 216, 255 n, 287. — contract for, 287. — voluntary, 288. AUens, 354, 397. Aliment, 331. Allegiance, 407, 412. AUuvio, 216. Alverstone, Lord, 390 n, Alveus derelictus, 216. Ambiguity, 262. Amercement, 360 n. Angaria, 403. Anger, 118 n. Animals, 214. — cruelty to, 131, 353, 380. — responsibility for, 156 n, 173. Animus, 193, 195. — domini, 198. — possessoris, 198, 198 n. Annuities, 305. Anonyme, Societe, 303, 342. Anson, Sir W., 141 n, 238 n, 234 n, 272 n, 279 n, 304 n, 309 n, 318 n. Antecedent rights, 146, 166, 324, 326, 393, 398. Antichresis, 231. Anticipation, breach by, 319. Appeal, 360, 384. Application, the, of law, 406, 415, 419-422, 430. — of foreign law, 420. Appointment, power of, 210 n. Aquilius, 318. Aquinas, St. Thomas, 20, 34, 71 n, 79 n. Arbitration, 334, 400. — conventions, 430. Aristocracy, 51. Aristotie, 25 n, 27 n, 31 n, 32, 36, 47, 71 n, 129, 286, 322, 367, 368. Armed forces, 372. Arrhae, 294. Artificial persons, 94, 96, 107, 138, 160, 336, 337, 385. — characteristics of, 338, 345, 362. — classification of, 340. — disabilities of, 345, 362. — proofs, 360 n. Ashley, Prof., 265 n. Assault, 171, 323, 330, 350 n, 381. Asser, T. M. C, 413 n, 416. Assignment, 218, 258, 310-314. Attainder, 353. Attempt, criminal, 378. Aucoc, L., 375 n. Auction, 267. Auctioneers, 301. INDEX. 433 Audience, 359. Auslobung, 266 n. Ausonius, 369 n. Austin, J., 10, 23 n, 50, 53, 60, 102, 110, 112 n, 129, 130, 141, 143, 159 n, 207, 365. Autiefois acquit, 427. Avaries, 306. Avulsio, 216. Award, 333. Ayliffe, 175 n. Azo, 281 n. B. Backofenzwang, 213. Bacon, Lord, 67 n, 79, 152,' 363, 364. Bailment, 203, 204, 239, 277, 288, 295, 298. Baldwin, Judge, 76 n, 171 n, 396 n, 413 n. Banishment, 95^ 378. Banker, 291. Bankruptcy, 161, 219, 249, 302, 315, 333, 343. Bannrechte, 213, 249. Bar, L. von, 52 re, 416, 419 n, 428. Barde, M., 414. Bargain and Sale, 255 re. Baring-Gould, 293 re. Baron, J., 102 n, 104 n. Barristers, 298, 353. Barter, 288. Bartolus, 414. Bate, J. P., 411 re. Battery, 170, 330. Baty, T., 261 re, 418. Beale, J. H., 415. Beccaria, C. B., 377. Belligerency, 371, 400, 401, 402, 403, 404, 405. Beneficium ordinis, 307, 308. Bentham, J., 5, 14, 23, 38, 81, 130 re, 137, 157, 159, 174, 192, 220 re, 251, 253, 285, 291, 377, 388 re, 389 re. Berne, Union of, 219 n. Betrothal, 292. Bets, 304. Betting agent, 304 n. Bigamy, 381, 424. Bilateral contract, 286. Bill of exchange, 279, 312, 318. — of lading, 312. — of sale, 235. Birth, 95. Blackburn, Lord, 263. Blackstone, Sir W., 23 re, 37, 69, 83, 95, 110, 137, 141, 202, 328, 348 n, 365, 387 re, 389 re. Blasphemy, 382 re. Blindness, 163 re. Blockade, 391, 405. Blondeau, M., 137. Bluntschli, J. C, 369 re. Bocking, Ed., 117 re. Bona, 213. — activa, passiva, 161, 213. Bonitarian ownership, 221. Bonorum universitates, 97, 213. Booty, 214, 402. Bottomry, 234, 305. Bracton, 59, 201, 201 re. Breach of contract, 319, 327, 331, 382. — by anticipation, 319. Breach of promise to marry, 294. — trust, 327, 331. Brinkmann, R., 415. Brissonius, B., 120. Britton 327 re. Brocher, C, 417, 425 n. Brokers, 274, 301. Browning, R., 175. Bryce, Lord, 51 re, 370 n. Bulgaria, 50. BuU-flght, 381 re. Bundesstaat, 50. Burge, 415. Buzzati, 411 re, 413 n. By-laws, 76. Bynkershoek, 390 re. C. Calumniae indicium, 189. Campbell's Act, 173 re, 281 re. Canon, 221. Canon law, 64, 123, 146, 178, 281, 291 re. Capitis diminutio, 315. 434 INDE> Capitulations, 398 n, 402, 425. Caput, 93. — lupinum, 95. Caretaking, 295. Carolina, the C. C, 376, 383 n. Carriage, 295, 296. Carrier, 253, 296. Causa, 276, 281. Cause, 151. Cause of action, 324 n. Cause and efiect ui Contract, 258, 285. Cause, in French law, 282. Cautio, 278. Cautio iudicatum solvi, 189 n. Caution, 307. Caveat emptor, 290. CeUbacy, 348, 351. Celsus, 20. Cessio actionum, 312. Cession, 396. Champerty, 402. Chance, 111. Chancellor, the Lord, 72, 73, 74, 75, 76, 248. Chancery, Court of, 180, 249, 322. Change in the law, 409. Charles V, Emperor, 376. Charondas, 258. Charter party, 297. Chassat, M. de, 414. Cheque, 291. Chirographa, 279. Chose in action, 136 n, 311. Christendom, 389. Christianity, offences against, 382 n. Chrysippus, 20, 33. Church, law of the, 369 n. Church and State, 369. Cicero, 2, 6 n, 16 n, 20, 33, 58, 71 n. Cimbali, Ed., 420 n. Citation, 358, 383, 401. Citizens, 370. Civil death, 95, 220, 348, 353. Civil obligation, 243. Civitas maxima, 389. Claims, Court of, 132 n. Clam, 197. Clark, Professor, 67 n, 377 n. Classification of abnormal natural persons, 347. Classification of acts, 107. Classification of adjective private law, 356. Classification of administrative law, 372. Classification of artificial persons, 339, 340. Classification of Constitutional law, 367. Classification of Contracts, 286, 287. Classification of Corporations, 340. Classification of Criminal law, 379, 380, 381. Classification of Fora, 407, 408. Classification of International law, 391, 394, 403. Classification of Law, 128, 147, 366. Classification of offences, 379, 380, 381. Classification of Private law, 166, 167, 412. Classification of Public law, 366, 367. Classification of rights, 125. Classification of territorial laws, 412. Classification of things, 100, 103, 209, 210. Classification of treaties, 398. Classification of wrongs, 328, 329. Claves horrei, 194. Cloak-room, 296. Clubs, 339. Clunet, E., 418. Cocceius, 415. Cockbum, L.C.J., 232. Code, the Civil. Austrian, 39. French, see under French. German, see under German. Japanese, 85 n, 191. draft for New York, 174 n. the Swiss, 39, 191 n, 200 n. Codification of Criminal law, 375, 377 n. Cogordan, G., 369 n. INDEX. 435 Coinage ofiences, 380. Coleridge, L.C.J., 64 n, 382 n. Colonies, 372. Combines, 186 n. Comity, 401, 416, 419, 428. Command, law as a, 87. Commandite, Societe en, 302, 342. Commercia belli, 402. Committees, 180. Commixtio, 216. Commodatum, 290. Common, rights of, 224. Common law, the, 59. — employment, 156, 297. Company, 157 n, 297, 338, 338 n, 340: see also Artificial persons. Partnership, Socilti. — English, 344. Comparative law, 8. Comparative philology, 8. Compensatio, 317. Compensation, 317, 320, 321, 323, 325. Competence, see Jurisdiction. Competition, unfair, 186 n. Complex masses of rights and duties, 219. Compositio, 323 n, 376. Compromise, 316. Compulsion, 107, 378. Concentricity of laws, 409, 428. Condition, 124, 309. Conditional Contracts, 286, 290. Condominium, 220. Confession and avoidance, 358. Conflict of laws, 414, 417, 420, 429. Confusio, 216, 315. Congo Ordonnance, 39 n. Conjugal rights, 246, 247. Conquest, 395. Consciousness, 108. Consensual contract, 259, 286, 318. Consideration, 279 n, 283, 284, 294, 318. — good, 294. — imported, 279 n, 318. — spiritual, 294. — valuable, 288. Consignation^ 316. Consolidation, 228. Constitution, defined, 368. Constitutional law, 144, 367, 368, 372. — classification of, 368. Constitutions, rigid and flexible, 370 n. Constitutimi, 310. Contraband, 405. Contract, 122, 123, 216, 246, 254, 255, 256. — agency in, 273, 399. — agreement in, 260. — as a risk, 259. — assignment of, 258. — by correspondence, 268. — consensual, 269, 260, 318. — criminal breach of, 382. — definitions of, 256, 257. — effect of, 257, 284. — elements of, 259, 260, 266, 398. — enforcement of, 258, 263. — expression of, 256, 260, 272. — flaws in, 270. — form and cause of, 276, 281. — formal and informal, 277. — implied, 272, 284. — in the widest sense, 123, 216, 255. — international, 399. — modes of strengthening, 285. — objective theory of, 264. — obligatory, 256, 259, 292. — original, the, 49. — parol, 279, 283. — parties in, 266, 276, 286. — possibility and legality of, 275. — of record, 258 n. — rescission of, 290, 316. — simple, 279. — specialty and parol, 278, 279, 283, 318. — tort founded on, 254. — two senses of the term, 256. — void and voidable, 270, 271, 280. — written, 280, 283, 302. Contracts, accessory, 286, 287, 307. 436 INDEX. Contracts, of agency, 273, 299, 308. — aleatory, 286, 287, 304. — alienatory, 287. — bilateral, 286. — classification of, 286. — conditional, 286, 290. — consensual, 259, 286, 318. — formal, 277, 286, 289, 292. — formless, 277, 286. — gratuitous, 286. — joint, 266, 286. — for marriage, 287, 292. — of marriage, 246, 255 n. — of minors, 348. — onerous, 286. — principal, 288, 287. — real, 286. — of sale, 239, 255 n, 288, 296, 309 n. — for service, 286, 287, 295, 298. — for negative service, 287, 303. — several, 286. — synallagmatic, 286. — unilateral, 286. Contractual right, 181, 254, 285, 319. Contribution, 308. Cf. Regress. CoHtributory negligence, 164. Convalescence, 123. Convention radiotelegraphique de 1913, 395 n. Conventions, International, 429 n. Conversion, 205, 331. Conveyance, 216. Conveyancers, practice of, 65. Conviction, 220. Copyright, 211, 212, 219, 330. — international, 219 n. Co-respondent, 178, 327. Corporations, 97, 142, 219 n, 228, 338, 339, 340, 344, 374. — aggregate, 337, 347. — classification of, 340. — disabilities of, 345. — foreign, 343. — possession by, 343 n, — sole, 347. — torts of, 343 n. — trading, 341. Corporeal thing, 101, 136, 214. Corpus, 193. Correal obligation, 266 n. Correi, 266. Correspondence, contract by, 268. Cosmopolitan justice, theory of, 426. Costs, 189, 360, 386. Cottenham, Lord, 73, 75. Coulanges, F. de, 16 n. Council of Trent, 293. Court, choice of, 357. Court of Claims, 132 n. Courts martial, 374. Covenant nmning with the land, 313. Coverture, 348, 350. Cowell, 410 n, 411 n. Creditor, 266. Crime, 220, 327, 375. Criminal act, 377. Criminal acts, classification of, 377. Crim. con., action of, 327. Criminal jurisdiction, 422. Criminal law, 144, 327, 367, 375, 422. — adjective, 383. — conflict of, 427. — general, 377. — special, 379. — procedure, 366, 383. Crompton, Mr. Justice, 182. Cruelty, see Animals. ' Cuius est solum,' &c., 191. Culpa, 112. — compensation, 155 n. — degrees of, 114, 115 n. — in abstracto, 113. — in concrete, 113. — in contrahendo, 270. Cumberland, K., 34. Curator, 180. — ventris, 95 n. Curtesy, 226. Custom, as a source of law, 56. — how transformed into law, 57, 59. — theories as to, 63. — or merchants, 39, 61 n, 318. — of the realm, 59, 254. INDEX. 437 Customs, 223. Cutting case, the, 426 n. D. Damage, 170, 185, 327. Damages, 320, 326, 327, 328, 360. — general, 332. — special, 332. — measure of, 332. Damnum infectimi, 322. Dangerous things, 171, 239. Dante, 20, 71. Darling, J., 187. Darras, M., 418. Datio in solutum, 316. Dead, rights of the, 95, 161, 173, 315, 381-82 n. — liabilities of the, 315, Deafness, 352. Death, 95, 170, 268. — effect of, on obligations, 268, 312, 315, 332. — Effect of, on ownership, 220. — presumption of, 359 n. Death, civil, 95, 220, 348, 353. Debitor, 266. Deceased wife's sister, 354, 354 n. Deceit, 234, 235, 236, 237, 238, 240, 270, 330. Declaration of war, 401. Declaration, the, of London, S9 n, nsn. Decretals, 120 n. Decretum, 34 n, 78 n, 175 n. Deed, 278, 318. Defamation, 184, 330, 381. Default, 362. Deity, the, 63, 285. Del credere agent, 301. Delict, 326, 327, 375. Delivery, 194, 217, 286. Democracy, 51. Democritus, 32. Demosthenes, 19, 48. Denier a Dieu, 278. Deodand, 156 n. Deposit, 295. Depositation, 249 A. Derivative acquisition, 159, 216, 395. Derivative acquisition, origin of States, 393. — rights, 168. Derivative possession, 200. Demburg, H., 45, 66 n. Descamps, Baron, 403. Destruction of a thing, 314. Determinate authority, 28, 40. — incidence, rights of, 146. Detinue, 210, 330. Dicey, Prof., 51 n, 77 n, 143 n, 179 n, 370, 371 n, 375 n, 411 n, 415,