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 THE DATA OF JURISPRUDENCE 
 

 OJnrnf II Haui i>rl|nnl library 
 
THE DATA 
 
 OF 
 
 JURISPRUDENCE 
 
 BY 
 
 WILLIAM GALBRAITH MILLER 
 
 ADVOCATE 
 
 EDINBURGH & LONDON 
 
 o WILLIAM GREEN & SONS 
 
 a 
 
 Law Publishers 
 
 1903 
 
 EY. 
 
v/ 
 
 V 
 
 CVA\ 
 
 ' ' Est itaque quod gratias agamus Maociavello et hujusmodi scriptoribus, 
 qui aperte et indissimulauter profenint quid homines facere soleant, non quid 
 debeant." Bacon. 
 
 "Mais qu'est-ce done enfin qu'une loi? Tant qu'on se contentera de 
 n'attacher a oe mot que des idees metaphysiques on eontinuera de raisonner 
 sans s' entendre." Rousseau. 
 
 "I suggest that we should abandon for the present the enterprise of 
 deciding what the State ought to be, and to aim at and consider by way of 
 pure observation what it has actually been." Sir John Seeley. 
 
 "While we are apparently aiming at definitions of terms, our attention 
 should be really fixed on distinctions and relations of fact." 
 
 H. Sidgwick. 
 
 " The first call of a theory of Law is that it should fit the facts." 
 
 Mr. Justice Holines. 
 
PREFACE. 
 
 This volume is the first instalment of a treatise on Juris- 
 prudence, but is so far complete in itself. I have given it 
 the title of " The Data of Jurisprudence," because I am 
 more anxious to state the problem, " What is Eight ? " 
 " What is Law ? " than at present to offer any solution. 
 I have generally adopted the standpoint of the common 
 sense man, but the difficulty in the earlier chapters is to 
 stop at the point where law becomes technical. I have 
 not, however, hesitated to use technical illustrations where 
 the law is simple and elementary, because every law, like 
 the language in which it is expressed, is an adaptation of 
 popular ideas to technical purposes. I have made my 
 illustrations as numerous and as wide as possible, in order 
 that the bases of induction may be as wide as possible. 
 In like manner, in the mode of arrangement and in the 
 discussion of the aim of law in the last chapter, it has 
 been necessary to anticipate much which belongs to more 
 abstract philosophy, but I hope to have an opportunity of 
 discussing the subject there dealt with more fully and more 
 deliberately hereafter. The main questions on which a 
 provisional position is assumed are the following : — 
 
 1. In the matter of method, I wish to protest against the 
 pretensions of the professional " philosopher," who declares 
 
vi PREFACE. 
 
 that " Law is just applied Philosophy," as if " philosophy " 
 were some independent entity. The view taken here is that 
 law gives abundant matter for scientific treatment by induc- 
 tion, and has a metaphysic of its own as much as religion 
 (Theology) or the phenomenal universe (Physical Science). 
 
 For the purposes of Comparative Jurisprudence it is 
 generally assumed uncritically that the law of each country 
 is a unity. What the unity is, is a question of metaphysics. 
 But within each legal system we may have comparative 
 jurisprudence by collating the civil, criminal, ecclesiastical, 
 military, mercantile, constitutional, and administrative 
 systems. Or again, within one such system we may make 
 a comparative jurisprudence, for example, by comparing 
 contracts, sale, loan, pledge, trusts, marriage, and so on ; or 
 by comparing the laws dealing with murder, theft, robbery, 
 fraud, and other crimes. So strongly did this view appeal 
 to Sir J. F. Stephen, that this eminent jurist, in his History 
 of the Criminal Law, denied that the criminal law of 
 England was a unity. But, as I have just pointed out, the 
 nature of the unity is a metaphysical question. 
 
 2. It is assumed that the phenomenon known as Law 
 (Right) presents itself in three aspects— Eight, Duty and Law 
 —in a narrower sense. Each of these implies the others, and 
 an exposition of any one involves a full exposition of the 
 other two. From what source these ideas flow is a question 
 of history. Whether these elements are really different 
 aspects of one reality, and whether we ought to find one 
 or more additional elements of the same kind, are questions 
 of metaphysics. 
 
PREFACE. vii 
 
 Under each of these heads I have discussed the various 
 forms assumed, according to the matter or interest involved, 
 and have given these in tabular form. 
 
 3. In each section, dealing generally with a single idea, 
 I have provisionally traced a (scientific) law of (jural) law,^ 
 that physical ideas tend to become ideal, and ideal tend to 
 become physical, many words assuming all these forms in 
 the course of their history. This of course is connected with 
 the general theory of the relation of thought and language. 
 
 4. Another (scientific) law which may be traced is the 
 tendency of law to develop from extrajudicial to technical 
 judicial forms, and again to become extrajudicial, — first, rude 
 rough remedies — then technical judicial procedure — then 
 extrajudicial substantive law, shading off into morality and 
 religion. This presents several interesting topics of discus- 
 sion : — First comes the relation of law to logic — form and 
 matter. The view which I have maintained at considerable 
 length is that it is as great a mistake to define Jurisprudence 
 as a formal science, as it would be to confine the idea of 
 literature to spelhng, grammar, or even rhetoric, except in 
 the Aristotelian sense. Formal logic I assume to be a 
 development of grammar. Then we may notice the relation 
 of law to economics. The ideas of interest, value, credit 
 belong to both sciences, because they deal with different 
 aspects of persons, things, and property. Again we may notice 
 the relation of law to ethics — individual cases to courses of 
 conduct. The history of ethics points to this science being 
 a development of politics and technical positive law. And 
 
 1 Bacon, "Laws of Laws," De Aiigmentis, viii. (Spedding, v. 89) 
 
viii PREFACE. 
 
 lastly, we may mention the relation of law to politics. If 
 this is taken as the science of the state, one of the ends of the 
 state is the establishment of courts of law, and of substantive 
 law for the maintenance of order : but law ultimately becomes 
 supreme, reacts on politics, and gives states and state systems 
 a legal character. Order in the state becomes idealised in 
 Justice, and this tends to become in the law abiding, orderly, 
 and just individual Righteousness, in a sense which ultimately 
 tends to become religious or theological. 
 
 5. The question whether the ultimate reality of law is 
 material and physical, as in the theory which makes a physical 
 sanction an essential element of a law : or whether it is an 
 idea of Justice : or a combination of both, is the ultimate 
 question of legal metaphysics. To this subject also belong 
 questions as uo the reality of person, thing, corporations, the 
 state, contract, obligation, &c. Por the present we assume 
 that they all belong to the world of reality, for if the starving 
 beggar disputes the right of property, or the ruined merchant 
 questions the sacredness of contract, we have no difi&culty in 
 making the law very real to him. 
 
 Closely connected with these topics is the question, what 
 is the unit of law ? Is it a statute, as maintained by the 
 " command " theory ? or a case, as suggested in the following 
 pages ? or a vague feeling embodied in a general maxim ? And 
 since we analyse cases for purposes of practical solution, 
 what do we mean by a " point " of law ? Is a point of law 
 the reality of law — a legal monad ? 
 
 The illustrations have been drawn mainly from the 
 Koman law and from Scots law, as the doctrines here ex- 
 
PREFACE. ix 
 
 pounded formed the basis of a course of lectures delivered by 
 me in the University of Glasgow. For the same reason I 
 have generally retained the Scottish and Continental mode of 
 referring to the Corpus Juris Civilis. The innovation of omit- 
 ting the name of the title quoted appears as strange as the 
 American one of omitting the names of cases, and referring 
 only to the volume and page of the Eeports. Both practices 
 may be defended on the same grounds. 
 
 Among the friends who have assisted me in passing this 
 volume through the press, I must particularly mention Mr. 
 Clatjd p. Boswell, Advocate, with whom for many years I 
 have discussed the main points of the theories here set forth. 
 Although his philosophical position differs from my own, he 
 has kindly read all the proofs and favoured me with much 
 minute and trenchant criticism, which has at all events 
 enabled me to make my argument more convincing to myself. 
 
 I am also indebted to my old friend and fellow student 
 under Professor Lorimer, Mr. E. B. Shearer, LL.B. (Edin.), 
 of Greenock, who has read all the proofs, and corrected many 
 errors which had escaped my observation. 
 
 13 Albany Stbebt, EDmBUEGH, 
 30th July 1903. 
 
CONTENTS. 
 
 Introduction, 
 
 Paqb 
 1 
 
 CHAPTEE I. 
 
 THE PHYSICAL BASIS OF BIGHT. 
 Section 
 
 I. Man and Society ; The Law of Nature, 
 II. The Individual and Concrete Rights, 
 
 5 
 18 
 
 CFAPTEE II. 
 
 
 EIGHT. 
 
 
 I. Nature and Origin of Right, 
 
 31 
 
 II. Jus, .... 
 
 33 
 
 III. Early idea of Right, 
 
 35 
 
 IV. Greek terms for " Right," . 
 
 44 
 
 V. Rectum : Anglo-Saxon MM : English Right, 
 
 45 
 
 VI. Di/rectum — Bridwm — Droit, . 
 
 48 
 
 VII. Modem usage, .... 
 
 50 
 
 VIII. Eight : Action, .... 
 
 51 
 
 IX. Suit, 
 
 54 
 
 X. Competency, .... 
 
 55 
 
 XL Case, ..... 
 
 56 
 
 XII. Cause, .... 
 
 57 
 
 XIII. Claim, ..... 
 
 58 
 
 XIV. Power, 
 
 63 
 
 XV. Faculty, ..... 
 
 68 
 
 XVI. Capacity ; Ability, .... 
 
 71 
 
 XVIL Status, ..... 
 
 72 
 
 ?:VIII. Title, ..... 
 
 72 
 
 XIX. Interest, ..... 
 
 81 
 
 XX. The Classification of Rights, 
 
 86 
 
 XXI. Groups of Rights, 
 
 92 
 
CONTENTS. 
 
 Section 
 
 Page 
 
 XXII. Public and General Eights, 
 
 95 
 
 XXIII. Liberty, .... 
 
 96 
 
 XXIV. Political Rights, 
 
 100 
 
 XXV. Licence, .... 
 
 102 
 
 XXVI. Privilege, .... 
 
 103 
 
 XXVII. Beneficiiim, Benefit, &c. 
 
 108 
 
 XXVIII. Official Rights, Powers, Authority, 
 
 110 
 
 XXIX. Jurisdiction, 
 
 112 
 
 XXX. Authority, .... 
 
 115 
 
 XXXI. Criminal Rights, 
 
 116 
 
 XXXII. Prerogative, 
 
 117 
 
 XXXIII. So-called "Rights of God," 
 
 119 
 
 XXXIV. Transmission of Rights, 
 
 120 
 
 XXXV. Rights Original, Secondary, &c. 
 
 121 
 
 XXXVI. Collision and Marshalling of Concrete Rights, . 123 
 
 XXXVII. Recognition by Society or the State, 
 
 124 
 
 XXXVIII. Right as Law, 
 
 129 
 
 XXXIX. Final definition of Right, . 
 
 131 
 
 CHAPTER III. 
 
 
 BOND OBLIGATION DUTY. 
 
 
 I. Relation of Duty to Eight, . 
 
 133 
 
 II. The Binding Force, . 
 
 139 
 
 III. Public and Supernatural Force, 
 
 151 
 
 IV. Synonyms of Obligation, 
 
 157 
 
 V. Action and Obligation, 
 
 158 
 
 VI. Responsibility, 
 
 161 
 
 VII. Guilt— Sin, 
 
 162 
 
 VIII. Appeal to Public, . 
 
 164 
 
 IX. Liability, . . . . 
 
 165 
 
 X. Ground of Obligation, 
 
 168 
 
 XL Power and Duty, .... 
 
 171 
 
 XII. Duty and Interest, .... 
 
 172 
 
 XIII. Service, ..... 
 
 174 
 
 XIV. Officium — Office — Munus, . 
 
 176 
 
 XV. Debt— Duty— To Owe— Ought, 
 
 178 
 
 XVI. Burden, ..... 
 
 181 
 
 XVII. Charge— Lien, .... 
 
 184 
 
 XVIII. Canon— Kain, 
 
 189 
 
 XIX. Classification of Obligations, 
 
 190 
 
 XX. Subjection, ..... 
 
 199 
 
 XXI. Law and Duty, .... 
 
 203 
 
CONTENTS. 
 
 xiii 
 
 CHAPTEE IV. 
 
 
 LAW. 
 
 
 Section 
 
 Paqe 
 
 I. Colliaion of Biglits and Duties, 
 
 205 
 
 II. Law as a Process of Definition, 
 
 212 
 
 III. Witnesses as Judges, . . . . 
 
 215 
 
 IV. The Ruler an "Rmbodiment of Law, 
 
 218 
 
 V. Unwritten Law, . . . . . 
 
 220 
 
 VI. Codes, 
 
 224 
 
 VII. Rules of Procedure and Evidence, . 
 
 229 
 
 VIII. Medical " Jurisprudence," &c. . 
 
 233 
 
 IX. Legal Fictions, . . . . . 
 
 235 
 
 X. Substantive Legislation, . . . . 
 
 236 
 
 XI. Legislation as to Extrajudicial Acts, 
 
 239 
 
 XII. Professional Lawyers, 
 
 241 
 
 XIII. Invention in Law, . 
 
 243 
 
 XIV. Extension of Legal Forms by Analogy, 
 
 248 
 
 XV. Police Laws, .... 
 
 252 
 
 XVI. Prophylactic Law, . 
 
 254 
 
 XVII. Disturbing Effect of Legislation, 
 
 255 
 
 XVIII. Sanction, ..... 
 
 258 
 
 XIX. Law and the State, .... 
 
 264 
 
 XX. Validity, 
 
 266 
 
 XXI. The Criminal Law, .... 
 
 267 
 
 XXII. Public and Constitutional Law, 
 
 270 
 
 XXIII. TJU StJcietas, Ihi Jus, 
 
 274 
 
 XXIV. International Law, .... 
 
 277 
 
 XXV. Conflicts of Laws, .... 
 
 278 
 
 XXVI. The Professional Bias, 
 
 280 
 
 XXVII. Elegcmtia, ..... 
 
 281 
 
 XXVIII. The Spirit of Law, .... 
 
 282 
 
 XXIX. Analysis and Classification of Laws, 
 
 284 
 
 XXX. Themis— ee(r/t6s, 
 
 286 
 
 XXXI. N6;to! — No/iSs, .... 
 
 288 
 
 XXXII. Jus— Droit— Becht— Right, . 
 
 288 
 
 XXXIII. Lex, . 
 
 289 
 
 XXXIV. Early English Words for Law, 
 
 292 
 
 XXXV. Decree, Edict, Arrgt, 
 
 293 
 
 XXXVI. Plea, 
 
 295 
 
 XXXVII. Constitution, .... 
 
 297 
 
 XXXVIII. Statute, ... 
 
 298 
 
 XXXIX. Act, 
 
 300 
 
 XL. Definitions, ..... 
 
 303 
 
 XLI. Rule, 
 
 305 
 
 XLII. Regulation, ..... 
 
 310 
 
 XLIII. Order, 
 
 312 
 
 XLIV. Etiquette, . . . . 
 
 314 
 
 XLV. Summary, ..... 
 
 315 
 
CONTENTS. 
 
 CHAPTER V. 
 
 CUSTOM. 
 
 Section ^^"^^ 
 
 I. A Source of Law, . . . ■ • 323 
 
 II. Newton's First Law of Motion, 323 
 
 III. Habit, 324 
 
 IV. The Tyranny of Fashion, .... 326 
 V. ParaUel in Art, . • 327 
 
 VI. Conunercial Customs, • 328 
 
 VII. Family Custom in India, . 332 
 
 VIII. Custom in Economics, • • • 332 
 
 IX. Course of Dealing in Trade, 333 
 
 X. Precedents — Practice, ■ • 334 
 
 XI. Mora — Prescription, &c. . . ■ 340 
 
 XII. The Divine Right of Kings, • 341 
 
 XIII. The Rule of Law, . . . . 342 
 
 XIV. Early Legislation— A Collection of Customs, . 344 
 XV. Custom as a Standard of Conduct, . 346 
 
 XVI. The Common Law, ... 347 
 
 XVII. Relation of Law and Custom, . . 349 
 
 CHAPTER VI. 
 
 THE AIM OF LAW. 
 
 I. The Problem, . . .352 
 
 II. Justice, . . . 356 
 
 III. Roman Justitia, . . ■ 365 
 
 IV. Greek terms for " Justice," . . 366 
 V. Mediaeval Usage, . . .377 
 
 VI. Modern Development, 379 
 
 VII. Equity, . . 381 
 
 VIII. Reason — Reasonableness, . . 386 
 
 IX. Natural Law, . . 391 
 
 X. Afos— Morals— Morality, . 407 
 
 XL Religion— ii'«i, ... .416 
 
 XII. Pacts and Ideals— Utility, . . 431 
 
 XIII. Conflicts of Ideals, . . . . 442 
 
NOTE. 
 
 The following are the editions of the under-mentioned 
 works referred to throughout this volume : — 
 
 Ancient Laws and InMitutes of England. Edited by B. Thorpe ; 
 Folio ; London, 1840. 
 
 Blackstone's Cormmwtaries on the Laws of England. Fifteentt 
 Edition ; by Edward Christian ; London, 1809. 
 
 Bruns, C. G. : Pontes Juris Bomani Antiqui. Ed. Quinta ; Th. 
 Mommeen, 1887. 
 
 Huschke, E. : Jurisprudentix Ant^ustiniance gum supersunt. Ed. 
 Quinta; 1886. 
 
 Stephen's New CoTnmenta/ries on the Laws of England. Twelfth 
 Edition; 1895. 
 
 Thorpe : see Ancient Laws, &c. 
 
INTRODUCTION. 
 
 Theee are three aspects in which Law is regarded, which 
 may be distinguished as (i.) the Political ; (ii.) the Juridical ; 
 and (iii.) the Philosophical. 
 
 (i.) The statesman or politician, as well as the ordinary 
 common sense man, regards law, rights and duties as a 
 whole, without particular attention to details of machinery. 
 To him it is, at least in the first instance, a matter of in- 
 difference what the specific rules may be ; what he demands 
 is law and order, though as a means to that end systems 
 of technical law become necessary in the developed com- 
 monwealth. British statesmen, with the one end of law 
 and order in view, recognise and administer English, Scots, 
 Manx, Norman, Eoman-Dutch, French-Canadian, Hindu, 
 Mohammedan, and other laws, and insert in charters of com- 
 panies a stipulation that they shall not interfere with the 
 laws and customs of African or Polynesian tribes. Provided 
 the people keep the peace, the law which they observe is of 
 as little or as much importance to the government as their 
 language or their religion. A wise government wQl some- 
 times try to change them, a prudent one will generally take 
 them as it finds them, unless they are inconsistent with the 
 primary ends of the State. In like manner the ordinary man 
 of business cares little for a " beautiful " case. He wishes it 
 settled somehow on the most favourable terms he can obtain. 
 But even here the pocket is not all. Men have ideals. 
 
 (ii.) The lawyer, legal practitioner, or judge takes a diffe- 
 rent view. He also regards rules as just or unjust, but his 
 
 A 
 
2 THE DATA OF JURISPRUDENCE. 
 
 justice and injustice do not necessarily coincide with those 
 of the statesman and the common sense man. To enable him 
 to administer law, he is forced to name and catalogue jural 
 relations. His enforced attention to cases makes him see 
 them in classes and groups, and reveals details of analysis 
 which neither the public as a whole, nor even the individuals 
 immediately concerned, regard as of the slightest importance. 
 The politician and the lawyer may each regard his own view 
 as concrete, and the other's view as abstract. The two views 
 are real, and are necessary for the State, but the one may 
 grow so as to overshadow and destroy the other ; when they 
 are in conflict, legislation may solve the difficulty. 
 
 (iii.) The third view regards law and laws as sociological 
 phenomena. It accepts the views of the politician and the 
 lawyer as historical or actual facts. It discusses their rela- 
 tion, and asks such questions as, whether the two views may 
 be identified, and what is the reality behind both ? It 
 discusses the multiplicity of legal institutions and categories, 
 endeavours to resolve them into their simplest elements, and 
 to show the ultimate foundation on which they rest. This 
 aspect comprehends the History of Law, and the Metaphysic 
 of Law. 
 
 The title of Jurisprudence may be taken as generic, 
 covering the whole subject. The present volume deals 
 chiefly with the first of the above aspects, and its aim 
 is to treat the phenomena of Eights and Laws induc- 
 tively as in ordinary physical science. The objects of 
 study are found in judicial decisions, legislative enact- 
 ments, and theoretical treatises, and also in ordinary 
 literature and traditional customs. The attempt is made 
 to group the ideas together, and to show the connection 
 — historical, logical, psychological, or other — between them. 
 The distinction sometimes drawn between the natural and the 
 moral sciences, that the latter have as their special and 
 primary object to determine what ought to be, and not to 
 ascertain what merely is, must be rejected as untenable and 
 
INTRODUCTION. 3 
 
 useless. The distinction arises chiefly from the standpoint 
 which the investigator happens to adopt, and the purpose 
 he has in view. Our primary object in Jurisprudence, 
 as in Geology, may be to enumerate, classify, and account 
 for the various shapes which the matter under investiga- 
 tion has assumed. Others may adopt as their primary 
 object the improvement of the law in substance or form, 
 as Bentham and Austin avowedly did, just as some men 
 explore the earth for coal or gold-bearing quartz. But 
 the two objects cannot be separated. We cannot help com- 
 paring similar institutions, and pronoimcing one better than 
 another as related to some end. We may even become 
 practical, and suggest improvements in substance, nomen- 
 clature, or classification, as a scientist playing with electricity 
 may make a discovery with important economic applications. 
 It is no more incumbent on the scientific jurist to be a law 
 reformer or a codifier, or even a practical lawyer, than it is 
 on the scientist to turn his discoveries into inventions and 
 rush to the Patent Office. But pointing out what has been 
 done by legislators, judges, or practitioners necessarily sug- 
 gests comparison with other or earlier efi'orts in legislation 
 or judicial decision, and may lead to reconsideration in the 
 future, and ultimate reform of the law either in form or sub- 
 stance. The relation of the jurist to law, and of the moralist 
 to morals, is like that of the grammarian to a language. He 
 gives an account of the language as it is, but, assuming the 
 history and the genius of the language, he points out in some 
 details what the development might or should have been. 
 He may try to improve the language as well as to teach 
 it. At all events it is no longer a distinction between 
 the physical and the moral sciences that the former seek to 
 know what " is," and the latter what " ought to be." The 
 modern " moralist " finds it quite a worthy quest to ascertain 
 positive ideas of morality and their relations, and the modern 
 " scientist " is as much devoted to invention as to research and 
 discovery. The former may be sceptical as to the value of 
 
4 THE DATA OF JURISPRUDENCE. 
 
 preaching : the latter may despise the acquirement of know- 
 ledge " for its own sake," or, contrariwise, he may set himself 
 to learn not only what is known, but also what oiigM to he 
 known. The distinction was drawn in the days when 
 " moral " philosophy was at the hortatory stage, and " science " 
 meant a body of definitely ascertained facts. Moral philo- 
 sophy was then an art and not a science. The great dis- 
 coveries of the nineteenth century have raised a spirit of 
 research, as the discoveries of gold in Australia and America 
 created a fever of gold-mining. This scientific spirit- — archas- 
 ological find sociological — has now attacked the sphere of 
 ethics and psychology. 
 
CHAPTEE I. 
 THE PHYSICAL BASIS OF RIGHT. 
 
 SECT. I. — MAN AND SOCIETY : THE LAW OF NATUKE. 
 
 Man lives in a world of men : he is a social animal. He 
 lives in a world of things and of lower animals. 
 
 These two physical facts are the physical foundation on 
 which have been erected the ideas of right and of law as 
 regulating rights. In one sense in which those magic words 
 have been used, they are the laws of Nature from which all 
 positive rights and positive laws are ultimately derived.^ 
 
 Man is a social animal. The individual not only lives in 
 a world of men, but he is only an atom of humanity, essen- 
 tially related as effect and cause to other men. This is true 
 of the physical fact (law of Nature) of sex, which Ulpian, as 
 Aristotle had done long before, put in the forefront of his 
 system when he said — " Jus Naturale est quod natura omnia 
 
 animalia docuit Hinc descendit maris atque 
 
 femintB conjunctio, quam nos matrimonium appellamus." 
 
 ae( 
 
 ' The word " physical " (uuleas the context requires otherwise) is in the 
 -jquel friquoutly used as opposed to "juial" or legal." It refers to the 
 abstract facts apart from tlie jural interpretation put on them by litigants, 
 judges, or legislators. It is an extension of the idea which is found in Scottish 
 legal practice in the association of — 
 
 1. Grounds of action, as opposed to Conclusions of a Summons ; 
 
 2. Condescendence (State- 
 
 ment) of Facts, ,, ,, Pleas in Law ; 
 
 3. Evidence (facts), ,, ,, Law ; 
 
 4. Jury, ,, ,, Judge ; 
 
 5. Findings in Fact in a 
 
 Judgment, ,, ,, Findings in Law. 
 
 In this view, morality, religion, superstition, and all mental states, if 
 they display themselves in overt acts, are physical facts. They certainly give 
 rise to ideas and claims of right and to laws which either approve, regulate, 
 or condemn the rights so claimed. 
 
6 THE PHYSICAL BASIS OF RIGHT. 
 
 Whatever Ulpian meant by Jus Naturale, it is a physical fact 
 that without this association the race would become extinct 
 in a very few years. It is not relevant to our present pur- 
 pose to trace the history of human marriage ; it is enough to 
 note that the relations of the sexes are not momentary or 
 transitory, like those of some insects ; nor for a season, like 
 those of some beasts and birds ; nor merely physical, as with 
 fishes; it may commence in child friendship, like that of 
 Enoch Arden, Philip and Annie; it may last after one of 
 the parties is long dead ; during its subsistence the merely 
 sexual element is entii'ely subordinate to ethical ends. To 
 the modern legislator these are facts, or postulates, and they 
 are not less so though it should be shown that historically 
 law in the jural sense has to some extent given rise to those 
 ideas, or even entirely created them, and so to some extent 
 modified man's nature. 
 
 The relation of parent and child, as Ulpian further ob- 
 served, is another illustration of this social relation. All 
 mammals suckle their young, and many tend them till they 
 are able to tend and protect themselves ; but in the case of 
 no animal does this relation extend over so long a period and 
 involve so much devotion as in that of the human animal. 
 
 And finally, men unite their forces for various purposes, 
 — to lift or roll a stone too big for one, to defend themselves 
 from aggression or to make aggression successful, — until we 
 come to the most modern development of the division of 
 labour. These associations are economic, or perhaps political, 
 but there are also associations for amusement, for instruction, 
 or for religious ceremonies. In short, the solitary man is 
 almost as helpless as the child. The life of the savage may be 
 simple, for it is nearer the life of the mere animal than the 
 life of a civilised man. A hermit, separating himself from 
 civilised society, owes to civilisation the very rope round his 
 waist, and his safety may be due to the extermination of 
 wild beasts by his ancestors. Even he owes the possibility 
 of existence to society. 
 
MAN AND SOCIETY: THE LAW OF NATURE. 7 
 
 Gregarious animals show sympathy in some eases with 
 each other. But in man this feeling has its highest manifes- 
 tation. The seeing of pain causes pain. We mark sympathy 
 in social movements like strikes of workmen, in family 
 feuds like the vendetta, in fights of school-boys, in esprit de 
 corps of bodies of men, even in panics and fashions. In its 
 lowest form this may be only nervous sympathy, like the 
 pain which some injury to the living body causes to other 
 parts. 
 
 But man is conscious in a sense which does not apply to 
 the lower animals. Memory and imagination carry him 
 further back and further forward than do the faculties of the 
 lower animals. It is this consciousness, combined with the 
 physical formation of his hands, that makes him what we may 
 call an inventive animal. 
 
 Whether the mind of the lower animals differs from that 
 of man in degree or in kind is not relevant to our present 
 purpose. What we are concerned with is that, in many 
 important particulars, man has intellectual endowments 
 beyond horses, dogs, or monkeys. He is an articulate- 
 speakiag animal. Dogs bark to express anger, joy, or their 
 simple wishes, — for example, to get a door opened ; but if 
 they were intellectually on a level with man, they would 
 invent a vocabulary of barks, and would make some attempt 
 to teach this to men. So far is man now in advance of the 
 animal, that his very interjections have become articulate — 
 pious ejaculations, cheers of applause, oaths and curses. 
 Again, men are fire-using animals. All animals enjoy a fire ; 
 man only can make one and keep it alive. Language and 
 fire are the two great fundamental discoveries or inventions 
 of man — so great that they have been regarded as special 
 revelations from heaven ; but language is a social invention, 
 and is evidence of his social character. 
 
 But further, man is conscious of himself and of ends 
 which he may attain, in some sense in which the lower 
 animals are not. He can bring his whole body into subjec- 
 
8 THE PHYSICAL BASIS OF RIGHT. 
 
 tion for lower or higher ends, and make it an instrument to 
 serve his purposes. His very vices, culminating in the act 
 of self-destruction (so common in civilised communities), are 
 impossible to other animals. Man's inventive powers have 
 made him a cooking animal, a brewing and distilling animal. 
 The wasp enjoys getting drunk on natural alcohol ; man only 
 can look forward to the pleasure, or the still more remote 
 pain. 
 
 Man projects himself into inanimate nature and seeks 
 for sympathy in it and in the lower animals ; and still 
 more does he look for sympathy in his fellow-men and 
 finds it. If in them he find a ready response to every 
 change in his own mood, the individual and the social aspects 
 of man coincide. The brave man may make his whole tribe 
 do deeds of daring ; one coward may create a panic. The 
 orator, the singer, the poet, all appeal to other men, and use 
 them for the immediate purposes of their art. When one 
 man finds that he can play upon another man Hke an instru- 
 ment his inventive powers again come into play. Men utilise 
 each other as leaders and generals, or as slaves or assistants. 
 A great painter like Eubens may communicate his ideas to 
 pupils, and his pictures may only receive a finishing touch 
 from himself. An editor may so impress his assistants or 
 contributors that he may multiply his own capacity a hun- 
 dredfold. Thus we have founders of schools of painting, of 
 architecture, of poetry, of philosophy. When workmen are 
 dissatisfied with the share of the product taken by their em- 
 ployers in name of profit, they begin a crusade by paying out 
 of their wages another body of men to organise and lead the 
 struggle with the employers. In trying to make the old em- 
 ployers their servants, they may make the new servants their 
 masters. It is on such physical facts that the whole art of 
 education, moral, intellectual, and technical, is founded. For 
 education is the inventive faculty brought to bear on human 
 nature, active and passive. And when we become conscious of 
 our educative powers, education itself becomes a science. The 
 
MAN AND SOCIETY: THE LA W OF NATURE. 9 
 
 lower animals teach their young, or each other, but their 
 tuition hardly rises to the dignity of an art. 
 
 Being an animal, and at the same time a self-conscious 
 one, man both determines and is determined by his surround- 
 ings. In the tropics he goes naked and eats fruit ; in Green- 
 land he wears sealskins and eats blubber. The reason for both 
 sets of actions is ultimately the same. But the most important 
 surroundings of men may be other men in tribes or powerful 
 states. These wiU determine whether men live nomadic lives 
 of traders, hunters, or shepherds, or gather themselves together 
 upon fortified lull-tops or in embattled camps. Even within 
 each group one man must conciliate another, and com- 
 promise is the most elementary foundation of society. We 
 may illustrate this from the commonwealth of the bees. It 
 used to be a favourite subject with some persons to enlarge 
 on the wonderful instinct shown by the bee in making its 
 comb in the form of a hexagon, since this figure is one that 
 economises space in the most perfect degree.^ But instinct 
 has no more to do with the matter than reason. It is the 
 mathematical observer who puts reason into the process, or 
 the philospher who denies reason to the bee, but attributes 
 its action to the implanted reason called instinct. The 
 true reason is physical and mathematical. It is possible to 
 describe round a circle six circles each equal to the first, and 
 touching it and also the two adjacent circles. The reader 
 may satisfy himself experimentally as to the fact, with the 
 aid of seven coins, discs, or balls. Now, as all the bees are 
 approximately equal, and each tries to make a cylinder with 
 its body and wings, it is hemmed in by six (and no more) 
 neighbours of equal size, all attempting the same thing, and 
 the resulting compromise is a hexagon, with the mutual 
 tangents of the circles extended for the sides of the figure. 
 In like manner, if the cells of bees working in opposite 
 directions meet so that the partitions of one set form the ends 
 
 ' Reid's Works (Hamilton's ed. ) ii. 646. Of. Maeteriinok, The Life of 
 the Bee, p. 158. Lloyd-Morgan, Animal Behaviour, p. 207. 
 
lo THE PHYSICAL BASIS OF RIGHT. 
 
 of the other, then each bee meets three working in an opposite 
 direction, and the end of each cell is a solid angle bounded 
 by three planes. The end of each cylinder is a section of a 
 sphere. It rests on three equal spheres, and no more. If 
 the bees are absolutely equal in size and power, the figures 
 are symmetrical, and solve a nice problem in maxima and 
 minima, as Maclaurin proved to the Eoyal Society. Why 
 the cells meet thus is not so easily explained, but Eeid's 
 instinct cannot satisfy the scientist who has followed thus 
 far. Probably the whole mystery is that the angle is the 
 point of least resistance. Is it not the case that columns of 
 basalt crystallise in the form of hexagons ? The honeycomb 
 is to us rational ; to the bee it is physical ; and instinct in 
 the sense of an inferior reason has no more to do with the 
 matter than it has to do with the providing of a supply of 
 honey food for men, bears, or wasps. 
 
 Now the same fundamental physical principles apply to 
 human relations. Why is Europe parcelled out among men 
 of different speech and different race ? The barrier is the 
 physical resistance of neighbouring nations. Why did one 
 State not annex Africa ? Because it would have had to fight 
 other States that required or desired a share and were pre- 
 pared to fight for it. And within each community the same 
 applies. A trader making a fortune brings into competi- 
 tion other traders, who share his profits. Eeligious toleration 
 arose when men came to see the possibility and the folly of 
 revenge. Freedom of person and enjoyment of property may 
 aU be put on this physical basis; and it may be indeed a 
 question if men would ever have learned the golden rule, 
 " Whatsoever ye would that men should do unto you, do ye 
 even so unto them," if it had not been branded on their 
 quick-flesh by physical suffering. Men's prejudices are 
 generally determined by their interests. The lust of power 
 has made individuals generals, statesmen, kings, who have 
 welded other men into States. These " animal " passions and 
 " animal " impulses are common to man with all other 
 
MAN AND SOCIETY: THE LAW OF NATURE, ii 
 
 animals. As the most gorgeous palace must have its founda- 
 tion laid deep in the earth, so man's animal body and its 
 passions and impulses are the necessary condition of his legal 
 and moral life. But his mental equipment beyond that of 
 other animals, his fears, his ambitions, his very whims, must 
 be considered and provided for by the ruler and legislator. 
 
 Man is an imaginative animal. So also are other animals, 
 but the sphere within which his imagination works is so much 
 larger, the faculty appears almost to assume the importance 
 of an independent one. Sheep, birds, and other animals are 
 liable to panic ; so also are men. But man appHes his 
 inventive faculty to the art of tending sheep by taking 
 advantage of their tendency to panic. On the other hand, he 
 has created the art of preventing panic among men by drill 
 and discipline. The bravery of a general, the coolness of a 
 sea-captain, the presence of mind of a theatrical manager, 
 operate by sympathy, and those whom they address, by 
 imagining the absence of danger, avoid its presence. 
 
 The statesman and legislator, by appealing to imagination 
 through punishment, either painful or disgraceful, succeed to 
 some extent in retaining an immoral margin within the pale 
 of society. As in a battle all troops generally flee when a 
 certain proportion of their comrades fall, so a determinate per- 
 centage of convictions may bring home to the criminal the 
 danger of conviction. If punishment \s, fairly certain, imagi- 
 nation may make it absolutely certain. This is the case with 
 supernatural sanctions, which it is assumed men cannot escape. 
 But now that the fashionable theology has abolished or 
 modified future punishment, the State must provide still 
 more efficient means of detecting and punishing crime than 
 have hitherto existed, or of preventing it altogether. 
 
 Man is a laughing animal. He is an artistic animal. He 
 finds congruity or incongruity in external things, or in the 
 relations of men, that excite peculiar feeHngs of pleasure or 
 pain. The lower animals may be beautiful or ugly; they 
 may make beautiful or ugly things ; but man's faculties of 
 
12 THE PHYSICAL BASIS OF RIGHT. 
 
 imagination and invention carry him much further on the 
 same road. He sees an interesting event, and he tells the 
 story. In telling the story he embellishes it, and makes the 
 very language ornamental : we have here a beginning of 
 literature and art, poetry and oratory. He can even go 
 further and invent imaginative stories. He finds wonderful 
 things and worships them ; he makes wonderful things for 
 worship or use, and, as his skiU grows, he proceeds to orna- 
 ment them, and his art becomes artistic. Houses to hold his 
 deities or to protect himself from the weather suggest orna- 
 ment, sculpture, and architecture. So every rude practical 
 art gives rise to a corresponding ornamental art. Beauty is 
 admired for its own sake. We have no evidence that the 
 lower animals have similar feelings for beauty. Bees and 
 butterflies are attracted by gaudy flowers ; birds assume their 
 finest plumage in the breeding season ; but we may assume 
 that the feelings excited are more properly described as 
 physical than as mental. Even in man we can see the 
 physical stage, where savages are attracted by shining beads 
 and polished metals ; and our ideas of beauty are so inti- 
 mately associated with utility, that we are justified in assum- 
 ing that there is an ultimate physical basis even for the idea 
 of beauty. 
 
 But this development does not stop with practical arts 
 and physical beauty. Men have moral and social ends. The 
 citizen may find it to be even sweet and becoming (in an 
 aesthetic sense) to die for his country. He may exhort his 
 brethren to present to their God their own bodies as a living 
 sacrifice, and declare it to be a reasonable service. But these 
 ideas have analogies in so-called lower animal nature, and a 
 physical cause in the nature of man himself. An Indian 
 naturalist has described how the red ant will face certain 
 destruction and so confer a benefit on his fellows.^ The 
 benefit is indirect, and it does not appear that other ants 
 draw any lesson from observing such devotion. The heredi- 
 
 ' A Naturalist on the Prowl, by EHA. (2nd ed.), p. 188 ; see Lloyd- 
 Morgan, Animal Behaviour, chapter v. 
 
MAN AND SOCIETY: THE LA W OF NATURE. 13 
 
 tary fear of man and of beasts of prey exhibited by some 
 animals is an intermediate phenomenon. Man exemplifies 
 them all : the rash fool who dies by accident may warn 
 others who are wiser ; and the hero who leads a forlorn hope 
 may truly die for his fellows. 
 
 If we go to the ant, we may read, as did the ancient sage, 
 many lessons of morality, — co-operation in building their 
 habitations, prudence in the management of their domesticated 
 insects ; but the lessons which we read are human ; they are 
 for man only, and not for the insects. In many cases each 
 individual beast acts as if the whole universe existed for 
 itself alone. If, as in the case just given, we see conduct 
 beneficial to a group, we resolve it into an individual im- 
 pulse. Man also is selfish, but with a difference. He may 
 act for himself alone, but he knows his relations to other men, 
 and tries to reconcile the contradiction. We assume that the 
 universe exists for man only : all beasts and birds are put 
 under him. And if we ever put the claims of the individual 
 forward, it is under the guise of society or humanity itself. 
 The most selfish exclaims, " L'humaniU c'est moi." 
 
 Morality becomes an art of conduct, and men come to 
 ornament their conduct by means of rules of good manners, 
 politeness, and etiquette. Conduct may be good, honest, and 
 upright, but it may also be beautiful. With Plato these 
 ideas were not absolutely distinguished. 
 
 And further, in the sphere of the State and the law, the 
 divinity that doth hedge a king, nay, the very institution of 
 royalty, are conscious or unconscious attempts at ornament 
 in statecraft. In royalty, with its palaces, robes, regalia, 
 insignia of ofSce, ministers and ceremonial, the ornamenta- 
 tion may be somewhat unconscious as arising from association 
 with similar persons, the traditions of the office, and the 
 ordinary appetite for luxury, arising from the possession of 
 extraordinary wealth. In republicanism, and the closely 
 related idea of imperialism, the art is conscious. Display is 
 adopted not only to maintain the prestige of the ruler as 
 
14 THE PHYSICAL BASIS OF RIGHT. 
 
 against his subjects, but to maintain the dignity of the State 
 in comparison with other States. This is shown on a small 
 scale in the money spent on architectural display in muni- 
 cipal buildings in our own country. Cities vie with each 
 other in this respect. And in law, when once it becomes a 
 separate profession with a determinate sphere of its own, 
 imagination and invention begin to create a higher art. Not 
 only must our laws be equal and just, they must also be short, 
 logical, easily ascertained, symmetrical, elegant. And so a 
 beautiful case — one perfectly lovely as a judicial abstraction 
 — may in its moral aspects be one of hideous deformity. {Cf. 
 Eoman elegantia — epigrammatic neatness ; Eoby, Digest, clxii.) 
 
 The physical characteristics of man are assumed by the 
 legislator and the practical lawyer. Prominent among these 
 assumed powers is that of controlling his own actions, 
 which we call will, and which implies individual responsi- 
 bility. So absolutely necessary is this power to the State 
 and the law, that it would have to be invented if it did not 
 actually exist. If in any quarter of the globe there existed 
 beings who could not control their actions, they would become 
 extinct. Inferior races of men disappear before superior 
 races possessing powers of combination and self-control, just 
 as wild animals and the jungle disappear before the en- 
 croachments of civilisation. If any man is not capable of 
 self-control, and cannot be taught to feel responsibility, he 
 either loses his life in collision with the forces of civilisation, 
 or finds a suitable place in a lunatic asylum or a prison. 
 
 But while this is a fundamental assumption with regard 
 to the individual man, it is also true that as a body men are 
 subject to invariable laws like physical matter. Suicide is 
 an act of will on the part of each individual, and yet 
 statistics show that a definite annual percentage of the 
 population commit the act ; it is induced by external circum- 
 stances, disease, famine, calamity, and even the weather.^ 
 
 1 Judicial Statistics for England, 1899, Part i, p. 38, where a number 
 of works on this subject are referred to. 
 
MAN AND SOCIETY: THE LAW OF NATURE. 15 
 
 Each transaction in the market is an act of will, and yet 
 prices rise and fall like the tides. Although the practical 
 statesman and legislator have always assumed the individual 
 will to be free, we seem to see man in history — the same 
 yesterday, to-day, and for ever — hunting and fighting, sow- 
 ing and reaping, making and trading, marrying and giving 
 in marriage, weeping and praying, laughing and playing, 
 living and dying. 
 
 Man has come gradually, by accident and experiment, to 
 learn his own powers as an individual, and the characters 
 and powers of his individual neighbours. By education, 
 social intercourse, and legislation experiments are carried 
 further. By means of these, by imitation, through fear or 
 admiration, differences and eccentricities are worn off, until 
 each man comes to be a specimen or type of the species. If 
 we choose to personify the qualities of men and their traits of 
 character, we may speak of natural selection and the survival 
 of the fittest. In point of fact, it is only men who possessed 
 those traits who have survived at the present day. But if 
 circumstances change, and if men survive at all, the sur- 
 vivors may be other races endowed with virtues and charac- 
 teristics adapted to their environment. 
 
 The foregoing sketch suggests some further observations 
 as to the relation of jurisprudence to other sciences dealing 
 with the human mind. In all these we deal with human 
 action or history from the standpoint of some particular 
 idea or activity. In form it is not uncommon to make an 
 abstraction of the idea or activity, and deal with it histori- 
 cally or systematically, as if it were an independent entity 
 subject to growth and decay. Jurisprudence, when separated 
 from the art of statecraft and government, is itself an in- 
 dependent art. It then becomes a science, and, lastly, has a 
 philosophy. In the first stage law, as a science, may be 
 regarded as positive law ; in the last stage it may be 
 regarded as natural law in the modern German sense. In 
 the first it may be merely the science implied in a very 
 
1 6 THE PHYSICAL BASIS OF RIGHT. 
 
 rude art : in the last it may be identified with meta- 
 physics. The idea of right has a history, so have laws 
 themselves, and so has the philosophy that consciously 
 discusses those laws. Thus, although the laws and the 
 philosophy may appear to be discoveries or deliberate 
 inventions of man, when history becomes possible they are 
 in turn regarded as natural phenomena, subject to natural 
 physical laws. 
 
 Since jurisprudence is a science of human activities, and 
 touches humanity both on its social and its individual side, 
 it has relations to all human sciences. It appears as a part 
 of human history, and of sociology and economics, and of the 
 science of politics and the State. There it is dealt with as a 
 subordinate phenomenon — subordinate, that is, from the 
 temporary standpoint of the historian or scientist, whose 
 limited faculties do not permit him to comprehend things in 
 their entirety and universality. 
 
 On the other hand, the legislator and jurist regard these 
 sciences as subordinate to jurisprudence. They assume as 
 facts, or postulates, the facts of human phj'siology and 
 psychology — in a popular if not in the purest scientific form 
 — when they deal with crime and punishment, evidence and 
 law procedure. They accept also the tradition of history, as 
 well as the ends established by the popular ethics and reli- 
 gion, when they deal with education. They profess to regard 
 economical principles in legislation as to trade and taxes. 
 Law is so intimately involved with medical science that a 
 new science of Medical Jurisprudence (or Forensic Medicine) 
 has been created. The jural laws of public health are founded 
 on scientific laws discovered by medical men, and the inven- 
 tions, such as vaccinatioh, founded thereon. The laws of 
 navigation, regulations for street traffic, regulations for 
 building houses, are actually founded on physical facts dis- 
 covered by man, and npw dealt with by special sciences. 
 They are enacted as jural laws, because in the ultimate analysis 
 the legislator believes human society to be a good and to be 
 
MAN AND SOCIETY: THE LAW OF NATURE. 17 
 
 the only means of promoting the interest of the individual 
 men who form the particular society to which the legislator 
 is devoted. 
 
 All other sciences contribute to the matter of law, while 
 law necessarily reacts on them, not only in adapting them to 
 its own purposes, but in furnishing another element for their 
 consideration and investigation. Right (in the jural sense) and 
 law are forms assumed by human relations. Jurisprudence is 
 the science which deals with these forms, or with humanity 
 itself from this standpoint, but it is not an empty abstrac- 
 tion like the now generally discarded formal logic of the 
 schools. Attempts to identify them have broken down, for 
 it is impossible to take an intelligible step without referring 
 to the matter of the relations. Just as a grammarian must 
 understand the meanings of words before he can understand 
 nouns and verbs, so the jurist must use human relations to 
 explain even the difference between sale and pledge. 
 
 By a metaphysical necessity, by a continuous process of 
 abstraction, we reach a law of nature — an eternal and 
 immutable idea of right, founded upon natural physical 
 laws — natural laws in an earlier sense, but which modern 
 science has also shown to be, so far as our present experience 
 extends, also eternal and immutable — that is, we cannot think 
 them otherwise without contradiction of our very existence. 
 These, then, are the grand fundamental assumptions of men, 
 both legislators and those for whom they legislate, that the 
 world and the scheme of the universe, if not eternal and un- 
 changeable, will at least continue for an indefinite period 
 of time; that the nature of man, however it may be 
 affected in details, is fundamentally and always the same ; 
 and finally, that there are in some sense fundamental and 
 natural rights of man, and an eternal and immutable justice. 
 
 The further discussion of these propositions must be 
 reserved for the metaphysic of law. Meanwhile we must 
 note that legal phenomena appear only in individual cases. 
 Men who observed these cases grouped, classified, and named 
 
1 8 THE PHYSICAL BASIS OF RIGHT. 
 
 the particular relations. We may therefore find an un- 
 conscious analysis of legal rights and of laws by tracing 
 the meanings of the words in which those early classifi- 
 cations were made, and the ideas which suggested such 
 names. 
 
 SECT. II. — THE INDIVIDUAL AND CONCRETE EIGHTS.^ 
 
 Having taken a general survey of mankind and society as 
 a whole, we may now turn to the life of a single individual 
 for a single day, and observe how questions of right arise in his 
 relations to his fellows. We may take a civilised man of the 
 present day, such as a merchant carrying on business in a 
 large city and residing in the country, since his relations to 
 his fellowmen are fairly numerous and easily defined. Let 
 us begin from the moment when he rises in the morning. 
 This moment is assumed arbitrarily, for much has been in 
 progress during the night in preparation for the next day. 
 The poKceman has been on the outlook for fire or burglars ; 
 gas stokers and engineers have been makiug gas or electricity ; 
 lamplighters have been tending the public lamps ; scavengers 
 have been sweeping the streets ; railways have been carrying 
 post-office sorters who were arranging his letters ; newspaper 
 reporters were telegraphing news, which editors were arrang- 
 ing and printers putting into type ; bakers rose early to pre- 
 pare hot rolls ; dairymen to milk cows and despatch cream ; 
 servants to prepare fires and cook his breakfast. These are 
 merely a few threads of the network which has been in 
 course of weaving all over the universe and from all eternity. 
 We pass over all this and ask no questions as to his title to 
 the light which he uses to dress, the soap and water in his 
 bath, his clothes and personal ornaments. Let us imagine 
 him seated at breakfast. 
 
 He is hungry, and wishes a substantial meal. Is the 
 breakfast belated, or badly cooked, or the bill of fare un- 
 
 1 Von Ihering has worked out a similar study in still greater detail in his 
 little book Die Jurisprudens dcs taglichen Lcbeiis. — (11th ed. by Prof. Lenel). 
 
THE INDIVIDUAL AND CONCRETE RIGHTS. 19 
 
 satisfactory ? What is his remedy ? For he now desires 
 something else than his breakfast. Is it legal, — the dis- 
 missal of one or more servants ? or ethical, — a scolding or 
 an internal grumble ? This may depend on his position in 
 the house. He may be a young man in his father's or 
 mother's house. He may be a boarder in a stranger's house. 
 He may be proprietor or tenant, with a housekeeper. There 
 may be one or more servants interposed between him and 
 his housekeeper and his breakfast. The rule that the law 
 does not concern itself about trifles does not help us much, 
 for most murders have been committed for mere trifles, and 
 it is easy to magnify a trifle and bring it within the scope 
 of law. 
 
 But suppose all his domestic arrangements be perfect, 
 there may be poison in some part of the food, unknown to 
 any one. The tea may have absorbed lead from packing, the 
 oysters in the sauce may have fed on sewage, the sugar may 
 have been in contact with sheep dip in course of transit on 
 
 the railway, the milk If he stopped to consider the 
 
 possibilities of danger in each mouthful of food, he would sit 
 and starve like Sancho Panza at his banquet. But the 
 dangers are real, and if he suffer, his remedies are legal, civil 
 and criminal, under Public Health Acts, Adulteration Acts, 
 or at common law.^ 
 
 Having breakfasted, he reads a newspaper for a little. If 
 he find no libellous attack on himself, he may find reports 
 and advertisements that concern him — offers of servants or 
 clerks, things for sale, things lost that he has found, shares 
 in new joint stock companies, reports of the failure of com- 
 panies in which he is interested, and so on, each one being 
 the possible commencement of a long train of negotiation. 
 
 The postman calls meanwhile and offers a letter with 
 
 postage underpaid or unpaid. Is he bound to take it or to 
 
 pay the postage ? If he do so, and the overcharge is correct, 
 
 can be recover from his correspondent, and how ? If the 
 
 1 Cramb v. The Oaledonian Railway Co., 1892, 19 R. 1054. 
 
20 THE PHYSICAL BASIS OF RIGHT. 
 
 overcharge be an error, can he recover from the post-office ? 
 If a letter be delayed or lost, has he any claim against the 
 Government ? 
 
 Our subject then proceeds to the street on his way to 
 business. If his door-step, or the roadway in front of his 
 house, or the slates or a chimney-can, be out of repair, and he 
 be injured as soon as he steps out of his door, his feeling of 
 claim and his remedy will depend on whether he is pro- 
 prietor or tenant, whether he has complained to the pro- 
 prietor, whether he has ordered a tradesman to execute the 
 necessary repairs, whether this person has delayed without 
 excuse, and whether the accident is the natural result of 
 the delay. On his way along the street the same possible 
 questions continually present themselves. Openings in the 
 pavement, imperfect flags and paving stones, loose slates and 
 chimney-cans, gutters, telegraph wires and poles, are all 
 possible sources of danger, and the remedy may be against 
 the municipality or a company, or private individuals or 
 creditors in possession of the particular property. — (Digest of 
 Cases in the Court of Session, Scotland, 1885 to 1895, columns 
 951 and following). 
 
 But other dangers beset the pedestrian. Even if the 
 persons he meets be not malicious or mad, or drunk or care- 
 less, they may be thoughtless or frolicsome, or jostle him on 
 the street. Can he insist on keeping his right hand to the 
 wall in meeting pedestrians or in passing them? If they 
 wilfully obstruct him, can he force observance of the rule ? 
 At crossings must he wait for vehicles, or must vehicles wait 
 for him ? If the corporation place a policeman to regulate 
 traffic is he bound to obey the policeman's orders ? If the 
 policeman make a mistake, and an accident result, what 
 then ? If the corporation appoint no policeman for this 
 duty, and an accident happen at the crossing, is the corpora- 
 tion liable to the person injured ? 
 
 Let him now leave the street and take a conveyance — say 
 a tramway car. Is he entitled to stop it short of a station ? 
 
THE INDIVIDUAL AND CONCRETE RIGHTS. 21 
 
 If so, and the guard refuse, what is the amount of damage, and 
 who is liable ? Can he stop other traffic to enable him to 
 enter the car ? Is he bound to pay the fare for the whole 
 distance from the previous station ? If the car be full inside, 
 and it be raining, is he bound to go on the top, or must he 
 alight ? If the guard take his fare, is the company bound to 
 provide a seat inside ? If he have got a seat, can he prevent 
 the guard putting other passengers inside to stand ? If he 
 rise politely to give his seat to an old lady, is the guard 
 entitled to insist on his going out, or must he turn out the 
 old lady ? If it be a wet day, can he prevent passengers with 
 dripping clothes or umbrellas sitting beside him? On the 
 top, can he insist on a passenger taking down an umbrella 
 if it be dripping on him ? If he lose his ticket, must he 
 pay again ? Must the guard stop the car absolutely to enable 
 him to alight ? It is a common experience to see such 
 questions raised in legal form in consequence of a passenger 
 having assaulted the guard or a fellow-passenger, or having 
 been assaulted by one of them. If the question involve a 
 great general principle, it may be discussed seriously in the 
 Supreme Court and the House of Lords. Edinburgh, Street 
 Tramways Co. v. Torbain, 1877, 3 App. Ca. 58, was an action 
 for a fare of one penny. 
 
 When he reaches his place of business his relations to his 
 servants are primarily legal. He may be tenant or proprietor 
 of the premises, and the possible questions arising in these 
 relations are similar to those already noticed in regard to his 
 house. He receives letters as he did at home. He meets 
 customers, travellers, or agents from other houses. The 
 relation which begins as one of mere business may end in a 
 closer tie of friendship ; or it may result in a dislike which 
 terminates even the business relations. A firm which is 
 always cutting prices and making claims for shortages and 
 breakages will very likely find its account closed and meet 
 with an absolute refusal to deal. So with clerks ; one may 
 be slow, careless, or impertinent, but no court of law will 
 
22 THE PHYSICAL BASIS OF RIGHT. 
 
 support his dismissal on the spot ; it would be too expensive 
 to pay him off with wages in advance, so his engagement is 
 terminated by notice. Again, the employer may grudge his 
 wages ; he may either reduce them or give him notice, and 
 hire another clerk or a girl at lower wages ; or he may wish 
 to give the position to the son of a friend. The clerk or 
 servant dismissed may think himself ill-used, but he cannot 
 raise an action at law because his master refuses to re-engage 
 him. Again, a clerk has found his situation comfortable and 
 his salary sufficient. He has been ten, fifteen, twenty years 
 in his place ; he has regarded himself and has been regarded 
 as a fixture ; he has married, and has a family ; he could not 
 easily find a new situation, and would have difficulty in ful- 
 filling the duties of one even much inferior ; does his master 
 do wrong in reducing his salary or in dispensing with his 
 services ? Does the clerk do right in remaining indefinitely 
 drawing a large salary, when a young unmarried man or 
 a girl might do the work as well for half the salary ? Our 
 merchant has probably no time for such questions. If he be 
 busy, he just goes on without thinking of them ; if he find 
 himself losing money, he is compelled to reduce his staff. 
 His bankruptcy may overwhelm his employees as well as 
 himself and his family. 
 
 Having now attended to business, he goes to his club or 
 to a restaurant for luncheon. Let us assume that our subject 
 is in full possession of his privileges at his club, and that his 
 subscription for the year is paid. How many friends may he 
 take in at once to partake of his hospitality without notice ? 
 Into what rooms may he take them ? If the seats be all 
 occupied, who determines the order in which vacancies are to 
 be filled up ? Suppose he leaves and goes to a neighbouring 
 restaurant. If he get a seat without difficulty, and order a 
 chop, but twenty minutes pass without its appearance, can 
 he leave without paying ? Can he insist on something else 
 being instantly served up ? If, when it comes, it be not 
 cooked to his taste, can he leave it and refuse payment ? If 
 
THE INDIVIDUAL AND CONCRETE RIGHTS. 23 
 
 a clumsy neighbour, opening a bottle of soda-water, pour it 
 over his plate containing his chop still untouched, can 
 he demand another supply from the keeper of the 
 restaurant, or must he pay for it and look to the clumsy 
 neighbour for damages ? Then all the questions as to 
 poison in the food already referred to arise here again. 
 When he comes to pay how is the amount determined ? A 
 contract or a price list might settle it ; but if there be neither, 
 who decides ? Must he pay whatever is demanded and sue 
 for restitution, or may he give his name and address to the 
 keeper of the restaurant ? Suppose, his biU satisfactorily 
 settled, he looks for his hat and umbrella, but finds them 
 gone, must the restaurant keeper make good his loss ? 
 
 We might here discuss the subject of gratuities to 
 servants. These are the converse of discount, and are 
 given to secure zealous attention from menials. They may 
 weigh upon the conscience of an individual. He may feel 
 himself bound by custom, or in respect of special voluntary 
 service, or in respect of special demands of service, to give 
 some special payment to the waiter. Their legal character cor- 
 responds closely to their economical, for they may be so certain 
 a source of income that the waiter in a hotel may dispense 
 with wages, or pay a sum for the privilege of serving — the 
 right to serve, as distinguished from the obligation so to do. 
 
 Let us assume that our merchant has again safely reached 
 his office, has duly and smoothly transacted all the business 
 he has on hand, has left to catch a train to take him 
 home, and has arrived safely at the station. On entering 
 the premises of the company new dangers beset him. Stairs, 
 railings, bridges may be defective, or the atmosphere may be 
 dimmed with smoke and steam. If he be a season ticket- 
 holder, the officials may know him to be such, and may let him 
 pass without asking to see his ticket ; or if they do not know 
 him, they may accept his assurance of "season" from his 
 respectable appearance, and because there is a great risk of 
 his incurring a serious penalty if he try to travel without a 
 
24 THE PHYSICAL BASIS OF RIGHT. 
 
 ticket. If he wish (in popular phrase) to buy a ticket, 
 can ths company refuse one ? If the train be late, or if it 
 be full, or if he get a place in the luggage van, or stand in 
 another compartment, and if in so doing he be injured, has 
 he any remedy? Could he have insisted on the company 
 putting on an additional carriage, or should he have waited 
 for the next train ? If he have a seat in a first-class com- 
 partment seated for six, is he entitled to protest against a 
 seventh person coming in and pushing up the dividing arm 
 between two seats ? Can he protest against ten persons being 
 accommodated ? If an eleventh adult push his way in, can 
 he be excluded or removed ? If there be fourteen in already, 
 can a fifteenth enter? If the train start in this crowded 
 condition, has the passenger a claim of damages ? Suppose 
 he lose his ticket must he pay again ? Is the ticket collector 
 bound to accept his name and address with his assurance, or 
 that of his fellow-passengers, that he had a ticket at starting ? 
 Can the railway officials remove him from the carriage for 
 his refusal to pay ? If he fail to exhibit his season ticket 
 and if he pay his fare again, can he recover the amount from 
 the company ? Although Board of Trade returns prove that 
 railway travelling is safer than walking in the streets of 
 London, yet there is danger in every rail, every fish-plate, 
 every bolt, every point, every wheel, every axle. There may 
 be carelessness in drivers, stokers, guards, signalmen, plate- 
 layers, managers, and directors. There is danger from rain, 
 snow, frost, and wind, from trespassing persons or cattle, from 
 malicious third parties. A very small twist to a rail may 
 cause an accident. An invisible crack in a piston rod may 
 break the rod, smash the cylinder, and send the locomotive 
 headlong to destruction. "Who then is liable — the company, or 
 the delinquent employee, or the manufacturer who furnished 
 the defective article, or all of them ? Or must the injured 
 person go without reparation ? If he be killed, who can sue ? 
 His wife, children, father, mother, brother, sister ? 
 
 Let us imagine that he has emerged in safety from the 
 
THE INDIVIDUAL AND CONCRETE RIGHTS. 25 
 
 railway station, has escaped all danger from cabs, butchers' 
 vans, scorching cycles, and all the perils of the street before 
 described, has arrived home and taken an early dinner. He 
 may resolve to spend the evening at a theatre. We might 
 follow him thither in a cab, but we shall not dwell on the 
 special problems, contractual and other, which might be 
 raised. At the door of the theatre is a large crowd. May 
 he crush in ? May he be crushed out ? If he have a rib 
 broken, what then ? If he have a ticket for the stalls and be 
 not in evening dress can the attendants keep him out ? Are 
 they bound to return his money, or a portion of it ? Having 
 gained admittance, he finds that he has come to a different 
 play from what he expected. Can he demand back his money 
 on the ground of essential error ? He finds that the manage- 
 ment has substituted one play for another, as the actor 
 whom he specially came to see is unwell. Can he demand 
 his money back ? Was he bound to have noticed an adver- 
 tisement in an evening paper and bills on the walls of the 
 theatre ? If he resolve to sit still we may assume he has no 
 remedy. If a lady with an Elizabethan coiffure take up a 
 position in front of him, or if the play be curtailed unusually, 
 can he claim damages ? If the " waits " be so long that the 
 performance is protracted, has he any claim ? If his neigh- 
 bours talk during the performance can he have them removed, 
 and if so, when ? If they applaud or hiss extravagantly has 
 he any ground of complaint ? Is he entitled to hiss while 
 others applaud ? Between the acts can he go out for refresh- 
 ments and re-demand his seat ? Can he object to others doing 
 so ? Can he object to persons coming back after the curtain 
 is again raised? If he put his hat below the seat, and it 
 be kicked by the person behind, is the latter liable ? If he 
 leave his hat and coat outside who is liable if they are lost ? 
 If the theatre be draughty and he catch cold is his remedy 
 only medical ? 
 
 But suppose the crush on his way out presents no diffi- 
 culty ; that there is no question of precedence among cabs or 
 
26 THE PHYSICAL BASIS OF RIGHT. 
 
 the claimants for them ; that he again finds himself in safety 
 at his own door, what is his title to get in ? We have figured 
 the case of an owner who can employ a carpenter to break it 
 open ; but he may be a filiusfamilias or a guest with only a 
 title by donation, or a lodger with a Puritanical landlady, 
 who thinks theatres sinful and wishes to give him a lesson, 
 can he force his way in or must he go to a hotel and claim 
 damages ? 
 
 But after all these questions may not arise. He may get 
 admittance and find all the comforts he desires awaiting him, 
 with all necessary and willing service. After supper he may 
 retire to bed in due course. During the night no earthquake 
 may shake the house, no gale throw down a chimney 
 and break his leg, no burglar enter and plunder his goods, 
 no fire rouse him from his slumbers. And so we bring him 
 round to the point where twenty-four hours before he left 
 his bed. 
 
 It is obvious that the foregoing sketch might have 
 been crowded still further with detail without exhaust- 
 ing the legal possibilities of a single day in the life of a 
 single individual. There is more detail to be found in a 
 single small room than the most gigantic human intellect can 
 grasp. More legal questions might be raised within a 
 single hour than all the human lawyers who ever lived could 
 solve though they worked to all eternity. We have been 
 trying to enumerate infinity. If we multiply the 24 
 hours by 3600 seconds, and the product by the number of 
 events that can happen in a second of time, we shall find the 
 number of cases that may occur to each civilised man in a 
 day. Then multiply by the 365 days in a year, and by, say, 
 500,000,000 ci^olised men, and yet you fall short. You must 
 take the combinations of all these persons, two, three, four, 
 up to possibly all taken at a time. Such numbers defy 
 numeration. 
 
 But when we turn to our legal statistics we find that for 
 the twenty-two years from 1878 to 1899 the civil cases of all 
 
THE INDIVIDUAL AND CONCRETE RIGHTS. 27 
 
 kinds brought before all the Scottish Courts averaged 79,957 ; 
 while the average number of persons apprehended or cited 
 for the five years ending 1898 was 161,965.^ That is to say, 
 in a population of over four millions, only about a quarter of 
 a million of cases of all kinds reached the Law Courts or the 
 Police Authorities. 
 
 Turning to the English statistics for 1899 (Civil, p. 17) 
 •we find that there were 1,273,566 proceedings in all the Civil 
 Courts, or 4009-37 per 100,000 — slightly over 4 per cent — 
 of the population. The criminal statistics for the same year 
 (p. 11) give 239'34 crimes known to the police and 127'46 
 convictions for indictable offences per 100,000 of population. 
 Thus, instead of each individual being involved in millions of 
 cases, the cases are not more than 5 to 10 per cent, of the 
 population. The discrepancy between different volumes of 
 statistics and the different ways in which drunkenness is 
 treated and classified show how artificial legal classification 
 must necessarily be. 
 
 One other point in the Civil statistics must be noted.^ 
 Great numbers of cases do not proceed to final judgment. 
 The proportion in the Supreme Court falls not far short of 
 one-half. For the year the final judgments are 26,476 fewer 
 than the actions brought. In England it is the same. The 
 proceedings begun are greatly over one million, the actions 
 heard and determined are greatly under half a million. The 
 power of contract — compromise — is here encroaching even on 
 the sphere of litigation. The Courts encourage this tendency 
 because it saves public time and money ; it saves the judges 
 trouble, and, more important still, it may satisfy the parties 
 as well as a judgment would have done. 
 
 If we turn to the reports as to the working of the recent 
 
 Workmen's Compensation Act,* we find that Parliament has, 
 
 as it were, given by legislation a general decision on a general 
 
 claim by workmen against their employers. The litigation is 
 
 ^ Judicial Statistics of Scotland for ^ Scotland, p. 127, England, Part 
 
 1899, pp. 127 and 29. Bnt cf. Prison ii. p. 17. 
 Commissioners' Eep. 1902 [ed. 1278]. ' Times, Oct. 22, 1901. 
 
28 THE PHYSICAL BASIS OF RIGHT. 
 
 exceedingly small in proportion to the number of cases which 
 occur. The details are worked out by arrangement and 
 arbitration. The statute is a decision working automatically. 
 The explanation of the fact that while the possibilities of 
 litigation are infinite, the cases which actually come before 
 the Courts are few, is that the views of life here presented 
 are abstract, and, if taken in any other sense, must be pro- 
 nounced absolutely unreal. We do not go through the world 
 complaining of friction and collision with our fellowmen. As 
 exercise is demanded for the healthy life of the body, so 
 without the friction and collision of society moral life would 
 be impossible. But, on the other hand, just as the life of 
 the body would cease if each pulse of the heart had to be 
 regulated by voluntary action, so the life of the body politic 
 would cease if it were not subconscious and involuntary. 
 Litigation, legislation, and other legal transactions are ex- 
 ceptional phenomena, like the thunderstorms that reveal the 
 existence of electricity in the earth, clouds, and air. The 
 civiHsed man regulates his life by the golden rule of doing to 
 his neighbour as he expects his neighbour to do to him. 
 The life of the individual is a moral process, and what we 
 call law— the legal aspect — is an abstraction for purely 
 practical purposes. A " case " is a section of a living process, 
 stopped, and abstracted for separate examination. It is, no 
 doubt, related to all that goes before and all that comes after, 
 and it gets any meaning it has from these relations ; but right 
 and law, when we regard them as separate phenomena, 
 present themselves to us in the formal abstraction of the 
 ease. To the busy merchant, the politician, or the private 
 citizen, law is merely a means to a moral end ; and we often 
 see these brush aside technicalities with impatience. But law 
 is a result of social life and has no meaning apart therefrom. 
 It is the mere professional bias, which sees law only in pre- 
 cedents of conveyancing and forms of process, that has gone 
 so far as to define Jurisprudence to be a merely formal 
 science in some special sense. 
 
THE INDIVIDUAL AND CONCRETE RIGHTS. 29 
 
 Just as a photographer can give an appearance of life and 
 movement by making two thousand pictures revolve in one 
 minute before our eyes, so we might imitate living morality 
 by deciding some thousands of legal points and putting them 
 together in close order. If it were possible for a man so 
 to regulate his life, he would not be a living being, but an 
 automaton. 
 
 In ordinary circumstances the shipmaster requires to 
 verify his course once a day, and he lays down on a chart a 
 skeleton outline of his course. If he has to take soundings 
 every quarter of an hour his progress is slow. So the 
 ordinary individual gets along in the voyage of life by 
 experience, and instinctive common sense working on that 
 experience, with the continual help and criticism of his 
 fellowmen. Ignorance is no excuse, for the law is an 
 embodiment of common sense. If we had to go to law 
 courts, or lawyers, or even books for guidance, a law-abiding 
 life would be an intolerable burden. 
 
 And so we may regard a decided case as a type for 
 guidance as much as the settling of a dispute between parties. 
 This explains why we have thousands of cases in Justice of 
 Peace and Sheriff Small Debt Courts, but only hundreds in the 
 Supreme Courts, and tens in the House of Lords and Privy 
 Council. And here we may find a plea for legal education 
 more thoroughgoing than some persons seem to think neces- 
 sary. The highest skill and judgment are required for the 
 cases which are regarded as typical, and where the function ap- 
 proaches legislation ; but high skill and knowledge of the law, 
 as well as experience of life and affairs, are demanded of men 
 who must sit in Small Debt Courts and dispose of a hundred 
 cases in six or eight hours. Eapidity of judgment is obviously 
 necessary — clear insight and large experience. Nor is this 
 less necessary to the practising lawyer who must be ready to 
 advise a course of conduct on the spur of the moment, with 
 far-reaching results which he may imagine but cannot foresee. 
 What a consulting lawyer decides in five minutes may after- 
 
30 THE PHYSICAL BASIS OF RIGHT. 
 
 wards be discussed leisurely and in detail, after elaborate 
 written pleadings and oral evidence, protracted hearings by 
 the House of Lords, and anxious consultations of judges and 
 of the Lords themselves. But the inspiration and intuition 
 of the moment may eoiacide with the final result. And 
 when a decision has been finally arrived at, perhaps years 
 after the cause of dispute arose, we are apt to sneer at the law's 
 delays. The law does not delay. The parties had to act and 
 did act on some practical line at the time. The final decision 
 is as much for the benefit of the public as of the parties 
 immediately concerned, for as to these, from the moment 
 when a judicial process is started, and so long as it is con- 
 tinued, their interests and the consequent rights are con- 
 tinually changing. 
 
CHAPTEE II. 
 EIGHT. 
 
 SECT. I. — NATURE AND OEIGIN OF EIGHT. 
 
 A EIGHT may be provisionally defined as a power of acting 
 or forbearing to act, claimed by a person, involving a corre- 
 sponding act or forbearance on the part of one or more other 
 persons, — recognised, and, if necessary, enforced by society. 
 
 All rights ultimately spring from the nervous activity of 
 the human body — acts of appropriation, aggression, motion. 
 The idea becomes legal or jural when similar claims of 
 separate individuals come into conflict, and when society, if 
 necessary, interferes to adjust the difference. There are, then, 
 three — and only three — ways of expressing the relation pre- 
 sented corresponding to the standpoint of each of these 
 parties. Have I a right to do something ? Is X. bound to 
 do something ? Is it lawful (right in the ethical sense) to do 
 something ? Eight, Duty, Law are the three sides of an 
 equilateral triangle. You cannot define one side without at 
 the same time defining the two remaining sides and the cor- 
 responding angles. But in point of verbal presentment it 
 is possible to treat the subject from one of these standpoints, 
 although as a general rule it is merely a question of clear- 
 ness in each particular case whether a law should be ex- 
 pressed in the form of a right, a duty, or a statute. 
 
 Eights are historically in the first instance concrete. In 
 the notions of dominion and possession of things or creatures, 
 including slaves, right is implicit. If another steal the thing, 
 or the slave try to escape, the claim of right becomes explicit, 
 and the next historical concrete form of right is the right of 
 
32 RIGHT. 
 
 action — the first of truly legal rights — " Mhil aliud est actio 
 quam jus quod sibi debeatur judicio persequendi." — (Celsus, 
 L. 51, D. de 0. et A. {4A, 7).) 
 
 Eights are ultimately powers to act. Liberty, freedom, 
 or immunity is power to avoid or escape from what is dis- 
 agreeable or hurtful. A right at rest is merely an abstraction 
 for purposes of examination. We speak of a right to or 
 in a thing. What we mean is a power of acting with 
 regard to the thing. Thus the all-embracing right of 
 Dominium = the jus utendi, the jus abutendi, and so on 
 ad infinitum — subject to certain limitations imposed by 
 society and the law. But in ordinary usage right is 
 polarised in the two ideas of thing (interest) — the object of 
 right — or title, the evidence of right ; and right, the subjec- 
 tive feeling of claim, idealised in law. 
 
 When we come to analyse these legal ideas, we find that 
 they consist of a physical embodiment, plus at least three 
 forms of consciousness, or perhaps rather mentality. We 
 have the definite person clothed with the right ; the definite 
 person on whom the duty is imposed ; and, at least when law 
 reaches its full development, the definite organisation of the 
 State with all its force; together with consciousness in its 
 very widest sense on the part of aU three, for often the con- 
 sciousness is not actual but potential. 
 
 In language we may find evidence of how men regarded 
 law and right at various times. We must not assume that 
 right, obligation, and law are definite things, capable of 
 definition. They are infinite and indefinable, but the multi- 
 form views taken by men for special purposes are capable of 
 definition. The meaning of words varies with the ideas of 
 the user. One uses a legal term to denote a corporeal thing 
 in which he is interested. Another uses the same word to 
 express an infinite idea which the universe of things could 
 not satisfy. This process of naming is an unconscious ab- 
 straction of legal ideas, or at least indicates a knowledge 
 becoming dimly conscious, but not yet consciously analytic and 
 
f^S. 33 
 
 scientific. In each of the words which we shall examine in 
 our subsequent discussion as typical of leading legal ideas 
 we shall find a physical foundation, a gradual idealising, and 
 in many cases finally a new physical application. Some men 
 idealise corporeal things; others corporealise the most ab- 
 stract ideas. And still further, man is an individual, who yet 
 represents the whole life of humanity, and so his standpoint 
 continually shifts from one side of the relation to the other, 
 or to a new idea, as being the real unity in the combination 
 of diverse elements — from the corporeal to the ideal, or the 
 ideal to the corporeal, from the particular to the universal, 
 or the universal to the particular. But it frequently happens 
 that the whole body of ideas and historical associations which 
 have grown up around a word may be transferred to another 
 word in a foreign language, as the Eomans in evolving their 
 mythology often transferred aU the attributes and history of 
 a Greek deity to a native one. 
 
 The word " right " may be taken as a type of the most 
 general view of a legal relation from the point of view of the 
 person claiming or demanding the performance of some duty 
 or obligation. It translates for the most part the earlier 
 Latin /ms, more closely, however, in German than in modern 
 English, and as jus is the root-idea of the modern right, it is 
 proper to make it our starting-point. 
 
 SECT. II. — JUS. 
 
 (1.) As will be seen from the authorities quoted below, 
 the root from which jus comes is the same as that which 
 underlies jungo, I join ; jugum, a yoke ; conjux, a spouse ; 
 duo, two ; jus, broth ; and the Greek ^evyw/j-i, I join, and 
 related words. Suarez (De Leg. i. 2, 1) mentions, but rejects, 
 the derivation of jus from juxta, near, which is obviously not 
 absolutely false. The root-idea is tying or imiting. 
 
 (2.) The word jus occurs in the Twelve Tables, and is 
 sometimes translated there as "court." But this term has 
 
 C 
 
34 RIGHT. 
 
 misleading associations of officials and perhaps of a building. 
 Jms in the Twelve Tables means a judicial transaction or 
 relation. It is the mock combat which superseded the real 
 combat to determine proprietorship. Aulus Grellius and 
 others have preserved for us the archaic formulae which 
 survived like the flint knives of the Fetiales and the sacred 
 fire of the Yestals — Si qui in jure manum coTiseruni : " If 
 two persons join issue at law." — (Bruns, Fontes, 24.) There 
 is here an express uniting in connection with the piece of 
 property which lies between the adversaries. The claimant 
 lays hold of the thing, and so does his adversary. As Gellius 
 explains, instead of coming to close quarters in an actual 
 combat before the prsetor, each joined issue in a nominal 
 combat. — (Cic. Pro Murena, 26.) 
 
 (3.) It means the law laid down in a case, as in the 
 phrases jus dicere ; juris dictio ; judex ; ionum jiis dids. — 
 " That is good law,"— Plaut. Stick, v. 4, 44. 
 
 (4.) It then means the power or right, which is the 
 foundation of the right which may be judicially asserted, if 
 necessary ; as, in the ordinary usage, jus velut utendi, aut 
 iitendifri'cndi, eioidi, agendi, aqitamvc ducendi, vel attius 
 tollendi, prospiciendiir. — (Gaius, iv. 3.) This is the ordinary 
 classical usage, biit in its first application it was an emphatic 
 statement that the extrajudicial right was real, as compared 
 with the jpheTwmeTial right in action. 
 
 (5.) It then comes to mean a higher power or authority 
 in general : Suijui-is esse ; jus nccis atquc vitce. 
 
 (6.) It means also the bond or obligation corresponding to 
 the right, the other side of the relation : ad necessitatem juris 
 ea [Jideicommissa] dcfraayit. — (Inst. ii. 23, 12). Qui nullo jure 
 ci dbligatiis est. — (lb. iv. 6, 1.) The rubric of Inst. i. 12, is 
 ambiguous : Quihus modis jus potestatis solvitur. 
 
 (7.) It is used metaphorically as a bond in general : Jits 
 amidtim ; jura necessitudinis ; jus hospitii (Livy, i. 1). 
 
 (8.) From the particular it becomes universalised into 
 law or a system of law : Jus civile ; jus gentium. 
 
EARLY IDEA OF RIGHT. 35 
 
 (9.) Plautus uses it to mean what is right and fair — a sort 
 of equity : Jus petis {Pseud, v. 2, 29) ; Jus naturale. 
 
 (10.) It is used for the place where jus, particular and 
 universal, is administered and enforced — a law court (Paul, 
 L. 11 D. de just, et jure (1, 1)): Si in rem agebatur, mohilia 
 quidem et moventia, quae modo in jus adferri adducive possent 
 (Gaius, iv. 16, cf. 29) ; Amhula in jiis (Plant. Bud. iii. 6, 22) ; 
 Bapit in jus (Hor. Sat. i. 9, 77). 
 
 (11.) Finally, it is also materialised in the object of a right, 
 of which we shall find examples in Scots law when we come 
 to deal with " Interest." The following are Eoman examples 
 of this usage : — Nihil est aliud hmreditas quam successio in 
 universum jus quod defunctus hdbuit (L. 24, D. de V. S. (50, 
 16) ). Bei ajppellatione et causae et jura continentur (Ulpian, 
 L. 23, eod.). 
 
 (12.) The plural jura means either rights or rules of law 
 (Nettleship, Latin LeodcograpTvy, s.v. ; Muirhead's Gaius, 522 ; 
 Smith's Dictionary of Antiquities, s.v. ; Gllick, PandeMen, i. 1. 
 
 SECT. m. — EAELT IDEA 0¥ EIGHT. 
 
 But while our modern legal " right " is a translation of 
 jus, and springs from forensic sources, the association of right 
 with justice is still more ancient. 
 
 The universality of the association between morality, 
 justice, and straightness is very striking. Professor Clark ^ 
 has pointed out that the antithesis of right and wrong is as 
 old as the Vedic hymns. All these words, Latin rectus, 
 Gothic raihts, Saxon riht, German recht, Icelandic rettr,^ 
 English right, all come from some common root with the 
 primary meaning of physical straightness, and the secondary 
 meaning of moral rectitude.* 
 
 We find the same in Ancient Egyptian. Dr. WalHs 
 
 * Jur. 79. ^ Of. Brugmann's Comparative 
 
 2 Vigfusson and Cleasby, Diet. s.v. Grammar, ii. 235, where he refers to 
 
 'Bntcf.Bisho-pStahha, Select Charters, the Greek dpeKrds, outstretched, and 
 
 Glossary, s.v. Bettare. the Persian Sasta, "upright." 
 
36 RIGHT. 
 
 Budge,^ in describing Maat, the wife of Thoth, a very ancient 
 Egyptian goddess, says — " There is no one word which will 
 exactly describe the Egyptian conception of Maat both from 
 a physical and from a moral point of view ; but the funda- 
 mental idea of the word is ' straight,' and from the Egyptian 
 texts it is clear that maM meant right, true, truth, real, 
 genuine, upright, righteous, just, steadfast, unalterable, &c." 
 After giving examples, he adds — " In the judgment scene 
 two Maat goddesses appear ; one probably is the personifica- 
 tion of physical law, and the other of moral rectitude." 
 These ideas suggest the Greek ones of Kosmos and Justice, 
 to which we shall afterwards refer. 
 
 Was it a prehistoric metaphysic that associated justice 
 with a straight line, as the Pythagoreans afterwards identified 
 virtues with numbers, squares, and cubes, which last are 
 themselves geometrical forms ? Plato associates the geometer 
 and the philosopher, as the Egyptian priests combined the 
 practice and the teaching of geometry and arithmetic with 
 their sacred duties. The later Greek philosophers show 
 traces of mathematical ideas in their treatment of justice. 
 The earlier ideas might well be geometrical, while the Aristo- 
 telian ones tended to become arithmetical. A/k>; might be the 
 pointing out or showing (fi-om the root of SeiKvujuLi, indico, &c.), 
 the solution of the difficult problems of geometry and men- 
 suration, to which reference will now be made. The land- 
 surveyor, the geometer, was a judge whose judgments were 
 concrete decisions, the justice of which could be tested by 
 a ready objective standard. 
 
 At least two explanations, which fit in with later develop- 
 ments of law, may be suggested. In a country such as 
 Babylonia, subject to periodical floods so great that it has 
 given the world the story of a universal deluge, the office of 
 land-surveyor and the art of delineating and defining boun- 
 daries, were of the highest importance. So also was it in 
 Egypt, as we learn from Herodotus and Diodorus, and the 
 ' Book of the Dead, p. oxix. 
 
EARLY IDEA OF RIGHT. 37 
 
 mathematical treatises that have reached us. Geometry was 
 almost a sacred mystery. The measuring rod was the tall reed 
 that grew by the river side. — Qaneh in old Babylonian and in 
 Hebrew, Kovva in Greek, and hence kovwv, canon, a rule). 
 The simplest way of cheating was to bend the rod ; to give 
 perfect justice was to keep it straight — inflexible. We find 
 in Babylonian documents carefully measured descriptions of 
 lands and references to the measurer.^ The measuring reed 
 and the idea of straightness were adopted by the Jews. The 
 English Bible adopts the word " reed " both as a measure of 
 length and as an instrument in Ezekiel xl. 3, 5-8; xli. 8; 
 xlii. 16-19. The word used in Genesis xxv. 10 and xlvii. 
 22, &c., for "purchase" of land is said by Gesenius to be 
 from the same root {Bid. s.v.; cf. the Latin "pertica," a pole, 
 in its various meanings). 
 
 It is noteworthy that the symbolism connected with the 
 Egyptian deities Maat and Thoth points to measurement in 
 the work of creation and the ordering of the heavenly bodies. 
 Dr. Budge says that the husband of Maat, " Tehuti or Thoth, 
 represented the divine intelligence, which at creation uttered 
 the words that were carried into effect by Ptah and Khnemu." 
 Thoth is " the measurer," the reckoner of time, and the God 
 of the Moon. Perhaps he did in heaven what the priests did 
 on earth. In the great combat between Horus, the son of 
 Isis, and Set, Thoth was present as judge.^ AU these gods 
 are represented as carrying a sceptre, while others have a 
 flail, as emblems of power and sovereignty. 
 
 The hieroglyphic character which represents M in Maat 
 is a hoe or ploughshare, which may have some connection 
 with the straightness of the furrow, to which reference will 
 be made hereafter. 
 
 We may imagine that at a still earlier date men 
 measured the ground either by placing their feet along 
 the boundary one after the other, or by pacing it. It is 
 
 1 Oppert and M^nant, 100, 107, ' Book of the Dead, p. oxviii. 
 
 &o. ; Records of the Past, Ist series, 
 ix. 98, 100. &c. 
 
38 RIGHT. 
 
 obvious that considerable care would be required to keep a 
 straight line, and that fraud might easily be practised by- 
 making the line crooked. The ceremony of taking off the 
 shoe, described in the Book of Euth'^ as connected with 
 the transfer of an inheritance or plot of ground, is explained 
 by Keil and Delitzsch as referring to taking possession or 
 sasine by treading the ground.^ But the ceremony was even 
 then archaic, and its meaning possibly forgotten. Might it 
 not refer to measuring by pacing, the first proceeding to secure 
 fairness being to remove the shoes and give them to the 
 other party to hold ? 
 
 The second explanation that may be given of the associa- 
 tion of justice with straightness is the setting upright of the 
 boundary stone for private right, or the temple or city wall 
 for public right. This was the work of the king — half 
 warrior, half priest. The British Museum and others contain 
 specimens of these boundary stones, covered with sacred 
 emblems, and curses on those who disturb them. Wrong 
 was throwing down the boundary stone — the landmark. 
 Professor Eidgeway^ suggests another way of cheating by 
 moving the boundary stones little by little, and quotes the 
 Ilwid, xii. 421, where the poet describes two men with 
 measures in their hands standing in the common field and 
 disputing about their boundaries. 
 
 If, as some scholars suppose, A/kj? be connected with 
 ^a/cTuXo?,* digitus, the finger — it may refer not merely to 
 pointing as above suggested, but to the incantation pro- 
 nounced by the prehistoric conveyancer, judge, or soothsayer, 
 who touched or pointed to the stone.^ 
 
 The earliest Greeks had allotments set apart for each 
 family — inalienable lots of land — while the king had a 
 sacred inclosure specially set apart for himself. The whole 
 city might be regarded as such an inclosure, with its shrine 
 
 ^ V. 6-8. • Curtius connects this word with 
 
 '' Ruth, Commeidary, 490. S^oiuu, as Finger with fangen — 
 
 ' Journal of Hellenic Studies, vi. Liddell and Scott (s.«.). 
 823. = Of. Crawley, The Mystic Hose, 84. 
 
EARLY IDEA OF RIGHT. 
 
 39 
 
 of the tutelary deity in the centre. The king with his 
 straight and strong walls was the international guardian of 
 his people against aggression from foreign robbers ; and by 
 setting up boundary stones he became guardian of their 
 private rights in the event of disputes among his own sub- 
 jects. We may find this in the lines of the Odyssey (vi. 9-10.) 
 
 djU02 3^ reix"' l\<urffe Tr6Xei xal iSel/MTo oIkovs, 
 Kal yrjoit wolifae Beuv, Kal iSiiraar' ipoipas. 
 
 The device by which Dido secured sufficient land in 
 Africa has imitators on that continent even at this day. The 
 Greek colonists, with their land-measurers and lots, were 
 denounced by Cicero as land-grabbers.^ 
 
 The commonly accepted etymology of ^aaikevv is from 
 j8a (/3a/i/<o) and Xaog — which makes the root-idea the same 
 as Duke (Dux) and Herzog. But some scholars derive the 
 second part of the word from \aas — Doric Xevs, a stone, 
 though the explanation given is unsatisfactory, that the king, 
 on his election, stood on a stone to show himself to his army 
 (Jebb, Homer, 47). May we not regard the Basileus as the 
 builder of the Cyclopean walls of the little Homeric king- 
 doms at Mycenae and elsewhere — a tower and a fortress of 
 refuge for his people? The prehistoric Basileus only did 
 what historical emperors and kings have done, but the 
 difficulties which he had to overcome in the transportation of 
 large stones suggested the early title. (Cf. Schrader and 
 Jevons, Prehistoric Antiquities, 403.) 
 
 Perhaps Sanscrit scholars may say whether the Homeric 
 Fdva^ is connected with the Sanscrit root " vant " — to divide 
 or apportion. "Ava^ would thus mean the earthly appor- 
 tioner, corresponding to the unseen Alaa or M.otpa who ruled 
 men in general. 
 
 It has been suggested that the king's sceptre, " the ensign 
 
 of kingly power and justice," was the rod of the taskmaster ; 
 
 but it may also have been the measuring rod, by which he 
 
 settled disputes. Perhaps it served a variety of purposes, 
 
 ' Smith's Diet. Ant. s.v. Colonia. 
 
40 RIGHT. 
 
 In the Homeric poems the sceptre is golden, like the golden 
 or silvern trowel with which we now solemnly lay the 
 " foundation '' stone. "We read in the Iliad, 'vs.. 97 : — 
 
 TToXXwV 
 
 XaSc iaal &,vai, Koi TOi Zeis i-^yviCKii^ev 
 <7KTprTp6v r Tjdk 64fuaras, tva trtpLcn ^ovKeTjrj<T6a. 
 
 Certainly the collocation of ideas of the ava$, the sceptre 
 and the legal dooms (Oe/jna-Tef) is noteworthy. The sceptre 
 is again associated with a legal dispute in the Iliad, xxiii. 542 
 and 568 ; and xviii. 505 ; cf. Od. ii. 37, where it gave the 
 right of speaking in the assembly. 
 
 In the laws of Apastamba,^ one of the oldest Indian 
 codes, the first duty of a king is to cause a town to be built 
 and a palace in the centre thereof. The religious performance 
 of daily oblations is similar to the Greek and the Eoman 
 institutions. The subsequent chapter speaks of granting 
 lands to Brahmanas. 
 
 Sir Monier Monier-Williams, in his Sanscrit Dictionary, 
 connects the words Rij'A (upright, straight) with the Latin 
 rectus and the English right, but points out that the meta- 
 phorical meaning is more common in Vedic, and the literal 
 meaning in classical literature. He connects Raja (shining, 
 radiant, a king) with the same root and the Latin Reoo; and 
 says that Rdji (a streak, a line, and according to native lexico- 
 graphers a field) is probably from the same root. But for 
 such purposes as ours even the Vedas are too modern. The 
 early kingship was not an ornamental but a utilitarian insti- 
 tution. If he is associated with shining or radiant bodies, it 
 is because men used the stars for guidance and for measure- 
 ment. What struck the earliest observers was the straight- 
 ness and regularity of their course as they rose and set. The 
 sun that ruled the day, the moon that ruled the night, and the 
 stars, that later were thought to rule the seasons — spring, 
 summer, autumn, and winter — tempest and calm, rose up 
 straight in the sky. Their courses were straight lines before 
 
 ^ Sacred Books of the East, ii. 161. 
 
EARLY IDEA OF RIGHT. 41 
 
 they were thought to be circles. They were a pattern to the 
 human king as well as to the private individual, for each kept 
 to its own allotted space. 
 
 When the sun looked down on " the broad fields, behold- 
 ing the rights and wrongs among mortals," ^ we may take it 
 for granted that boundary disputes formed a large portion of 
 these. Sir Alfred Lyall, speaking of a territory nominally 
 part of the Jodhpoor State, says " the bloody feuds, family 
 and faction fights, and general anarchy caused by ... . 
 chronic quarrels over the land are incessant." ^ 
 
 In the Twelve Tables there was a provision as to the 
 actio finium regundorum, and in connection therewith Gains 
 has preserved a passage from the Laws of Solon (L. 13, D. 
 Fin. reg. (10, 1) ). Land measuring and surveying run all 
 through the Eoman law. The story of Eomulus and Eemus 
 refers to the solemn ceremony of tracing out the city boun- 
 daries with the plough. We may conceive that the JRex was 
 the person who founded the city by guiding (regendo) the 
 plough. He made the straight line for the city walls and 
 trenches.* 
 
 Vergil refers to the ceremony imitating the lines quoted 
 from the Odyssey above : — 
 
 " Interea ^neas urbem designat aratro 
 Sortiturque domos ; lioc Ilium et hsec loca Trojam 
 Esse jubet. Gaudet regno Trojamis Acestes, 
 Indicitque forum et patribus dat jura vooatis." — (^m. v. 755.) 
 
 It was the usual ceremony in founding a colony.* The 
 city was defined like a camp against outsiders. The sur- 
 veyors laid out the lots for the citizens, and their distribution 
 was decided by lot. The function of the agri-mensores is 
 thus described in a later age by Frontinus : — 
 
 " In judicando autem mensorem bonum virum et justum agere decet, 
 neque ulla ambitione aut sordibus moveri, servare opinionem et arti et 
 moribus : quidam enim per imperitiam, quidam per impudentiam 
 
 ^ Quoted by Clark, Jur. 79. Eamsay and Lanoiani'a Aniiq. p. 5 ; 
 
 ' Asiatic Shtdies, 1st series, 262. Bnins, 25 : cf. Lucretius, v. 1108. 
 
 'Smith's Diet. Antiq., i. 480; ^MaxquaxAi, Organisation del' emp. 
 
 rom. i. 168. 
 
42 RIGHT. 
 
 peccant : totum autem hoc judicandi officium et hominem et artificem 
 exigit egregium." — (Bruns, Fontes, 418.) 
 
 In his previous book (ibid. p. 414, &o.) Frontinus had 
 set forth fifteen different kinds of controversy as to boundaries 
 and lands. In an agricultural community, and when cities 
 were becoming important, we may feel assured that there was 
 a place both for diorthotic and dianemetic — corrective and 
 distributive — ^justice. The king or leader had the duty of de- 
 ciding boundary disputes or putting down trespass, and of dis- 
 tributing new lands or desirable town lots among his followers. 
 So far as we can peer into the darkness of prehistoric times 
 the primitive king had two functions : he set up the walls 
 of his castle or of the city in order to protect the land from 
 foreign enemies, or to keep the sacred temenos from ignorant 
 or presumptuous trespassers ; and within the city he measured 
 the lands and set up erect boundary stones to mark the 
 property of private citizens. — (Cf. Smith, Diet. Ant. s.v. Eex : 
 Ihering's Evolution of the Aryan, 393.) The lituus of the 
 Eoman augurs may also have been a measuring rod for the 
 heavens — a sort of spiritual sceptre, as it has become in the 
 bishop's crozier. — (Smith, Bid. Ant. s.v.). 
 
 When we reach the age of writing the original meaning 
 of " straight " and " right " has been forgotten, and the words 
 have either a legal or a moral significance. We may imagine 
 that as the historic city has given us the ideas of civility, 
 politeness, and urbanity, so the prehistoric one with its high 
 perpendicular walls was an emblem of Eight and Justice 
 both to the indweUers and the casual refugees. It was at the 
 gate of the city that justice was dispensed in the East,^ 
 and the upright city wall appears as Law — as an attempt to 
 restrain revenge — in the Jewish cities of refuge and in the 
 similar Greek ideas as to suppliants in the temples.^ The 
 Suppliants of -iEschylus, with its frequent references to 
 
 1 Of. "The Sublime Porte" of '•' Gardner and Jevons, Greek 
 
 Tnrkey with the etymology suggested Ant. 1S5. 
 for • • Mikado " — the august gate : 
 Chamberlain, Tilings Japanese, p. 229. 
 
EARLY IDEA OF RIGHT. 43 
 
 justice, the altar, the palace, and the strong city walls, is 
 instructive in this connection. Danaus says (line 190) that 
 the altar is better than a tower — a shield invulnerable : — 
 
 Kpel<ri7wv dk irijyyov pu/iis, Appr/Krov (T&kos. 
 
 It may be objected that the connection between the 
 boundary stone and the city wall is fanciful. History shows 
 that this is not so. It is simply the difference of a legal and 
 physical sanction as compared with a religious or spiritual 
 one. The Babylonian stones, with their curses and sacred 
 emblems, stand midway between the physical protection of a 
 wall and the spiritual one of law and religion. They were 
 perhaps a more effectual protection to a field than the modern 
 wall with broken glass or barbed wire on the top. Incanta- 
 tions were beheved to have a real efficacy by those against 
 whom they were directed, and a fortiori by the users, and 
 therefore also by the law.^ They are dealt with in the Twelve 
 Tables, along with the subjects of boundary and trespass. 
 Vergil, imitating Theocritus, has devoted his Eighth Eclogue 
 to the subject : — 
 
 " His \sc. carmiiiibus] ego ssepe . . . 
 . . . satas alio vidi traducere messes." 
 
 Justinian found it necessary to repeat in his Code (9, 18) 
 a rescript of Diocletian and Maximian, in which they said — 
 " Artem geometries discere atque exerceri publico intersit. 
 Ars autem mathematica damnabilis interdicta est.'' And 
 at this hour the British Government, with its civilised 
 police, is unable to suppress this superstition under the form 
 of Obeah among the negro population of Jamaica. It is said 
 that planters there sometimes find incantations to be more 
 efi'ective than walls,^ confirming the opinion put into the 
 mouth of Danaus by ^schylus. There were no doubt walls 
 of mud before stone ones were invented ; and even before that 
 epoch men might take refuge on hills and high rocks. 
 
 It may also be objected that private property in land is 
 
 ' De Coulanges, CiUami. 11. 6. ' H. J. Bell, Obeah, London, 1893, i. 
 
44 RIGHT. 
 
 late of appearing in legal history. Professor Eidgeway holds 
 that it is not known to the Homer of the Iliad, though there 
 are traces of its beginning in the Odyssey ; ^ but the periodi- 
 cal division of the common land of the tribe is sufficient for 
 our purpose. It may also be said that the idea of right in 
 moveable property must have existed in an earlier age.^ No 
 doubt, but it was in a concrete form ; men did not distinguish 
 rights from their embodiment in things and persons. We 
 find leaders dividing spoil among their followers. It was a 
 dispute on this subject that caused the wrath of Achilles. It 
 was this age which has given us such ideas as pecunia — 
 pecus : fee — Vieh ; chattels — catalla. 
 
 It may also be pointed out that punishment (justifica- 
 tion in the old sense) is associated with throwing culprits 
 from high rocks; impaling them on high stakes; hanging 
 them on high gallows-trees ; or tying them to upright stakes. 
 
 It may be that the moral idea is a generalisation of many 
 concrete ones. The word d/30o'?, for example, meant standing 
 upright, and came to mean just. The brave man stood and 
 faced his foes, while the coward crawled like the serpent — 
 the embodiment of evil. Homicide was a wrong because it 
 laid a man low. Slavery deprived a man of his status — a 
 right of standing — and made him kneel or kiss the dust. 
 Man is the measure of the Universe, and naturally extends 
 his own feelings to all things, and expresses moral ideas by 
 personal metaphors. Perhaps one society borrowed the 
 metaphor from another and applied it differently. 
 
 SECT. IV. — GREEK TEKMS FOR "RIGHT." 
 
 It will be more convenient to examine these under the 
 idea of " Justice," but a few observations at this stage as to 
 the history of the Greek words used for the substantive 
 "right'' may assist us to follow the parallel development 
 both in English and in the modern Eomance languages. In 
 
 ^ Joivr. of Hellenic Studies, vi. 339. '^ Lafargue, JSmlution of Property. 
 
RECTUM: RIHT: RIGHT. 45 
 
 Classic Greek, " I have right," is represented by e^eo-Tt ft.oi, 
 to which corresponds the substantive e^ova-ia, which is trans- 
 lated in the Authorised Version of the New Testament power, 
 and in the Kevised Version right, and once jurisdiction. 
 The phrase SUaio? el/xt means " I have a right," as well as " I 
 am bound," and may also apply to a judge giving a decision. 
 This word will be examined at length hereafter; it is re- 
 ferred to here for the purpose of pointing out that to SIkuiov 
 came to mean what satisfies justice, and in Thucydides and 
 Demosthenes approaches the idea of "a right" (Reiskius, 
 Indices Grcecitatis, i. 240, &c.). Theophilus constantly uses 
 such phrases as to SUaiov tov eX/ceji/ vSoop (Inst. ii. 3 pr.) to 
 translate jus aqucehaustus, &c. And in modern G-reek jus 
 and SiKaiov are identified, for they now speak of to. SiKaia tov 
 avOpwirov — the rights of man. This Greek word, therefore, 
 like the English " right," has started from the idea of "just," 
 and has reached that of a technical objective " right." 
 
 When SiKT] became technical, both Homer and Hesiod use 
 the adjective lOeia, to denote "straight," "just justice," as 
 in the lines : — 
 
 dW aOdi StaKpivdjfieda veiKOS 
 ISeliiffi SiKMS, oXt iK Ai6s dinv dpitrrai. 
 
 — ( Works and Days, 35.) 
 
 In the description of the shield (Iliad, xviii. 508), the 
 phrase occurs SIk>]v IQvvrara elirelv, which is translated by 
 Liddell and Scott, " to give judgment the most fairly.'' Per- 
 haps the words mean " to give the most skilful judgment " 
 — the one that hits the point best, like those of Solomon, 
 Daniel, and Portia. Both Sophocles and Herodotus use opQo^ 
 in a similar connection, with the meaning of " just." 
 
 SECT. V. — RECTUM : ANGLO-SAXON RIHT : ENGLISH RIGHT. 
 
 The history of the English word Bight is the reverse of 
 the Latin Jus. Instead of beginning with the physical idea 
 of judicial combat and becoming ideal, moral, and equitable, it 
 begins at the point already indicated with the general idea of 
 
46 RIGHT. 
 
 straightness as a moral conception, and ultimately becomes 
 legal and again physical. It may be said generally that the 
 English Right has taken into itself two streams of meaning, 
 one from the Eoman law, and the other from the Jewish 
 Scriptures through the Christian Church. 
 
 (1.) Rectus is occasionally used for directus, as by Gaius 
 in L. 18, § 4 D. Commod. (13, 6), where he uses rectum 
 judicium as opposed to contrarium judicium. But the associa- 
 tions with rectus are both moral and legal ; we find it in a 
 short edict of the censors of date 91 B.C. (Bruns, 215). 
 
 The word recte does not occur in the fragments of the 
 Twelve Tables ; but it occurs twice at least in texts of 
 the Praetorian Edict (Bruns, 205). In Classical Latin it 
 is very common, and signifies " duly," " in accordance with 
 right," or " in accordance with rule." From Plautus to Cicero 
 no phrase is commoner than " recte facere,'' and in deeds of 
 sale and other transactions recte was a word of style.^ Such 
 a word suggests that into the express terms of an agreement 
 there must be read something, either customary stipula- 
 tions, reasonable or equitable interpretation, or rules of 
 express law. So Ulpian in L. 73, D. de V. S. (50, 16) : " Heec 
 verba in stipulatione posita earn rem recte restitui, fructus 
 continent : recte enim verbum pro viri boni arbitrio est." So 
 recte is interchangeable with jure, the two words having 
 started from opposite poles, and become by occasional usage 
 identified, while Ovid contrasts "rectum" — ^justice, equity 
 — with statute law in his description of the Golden Age — 
 
 " Qua3 vindice nuUo 
 Sponte sua, sine lege, fidem rectumque oolebat." — {Met. i. 89.) 
 
 (2.) The Jewish Scriptures have influenced the world 
 through translations. In the Latin Vulgate it strikes the 
 casual reader how seldom the word jus occurs, and how 
 frequently the word rectus, and more so the word Justus. In 
 Hebrew the idea of substantive right is generally concrete, 
 
 ' Eoby, Int. to Digest, 68 ; Bruns, 259, &e. 
 
RECTUM: RIHT: RIGHT. 47 
 
 and jus or right is added occasionally by the translators. 
 The Hebrew words for just and right are all connected with 
 the idea of straightness, and generally refer to conduct — 
 the walking in a straight path, turning aside neither to the 
 right hand nor to the left, a figure which we might imagine 
 to be drawn from walking on the balk between the lots 
 of a cultivated field. These words are translated in the 
 Septuagint by &)Qr\<s (another form of the classical evQvi), as 
 well as by StKaioi, and this again is represented in the Latin 
 Vulgate by rectus. Thus, the phrase reads like a refrain, " Fecit 
 . . . rectum coram domino " (4 Eeg. 12, 2), and the Greek is 
 eiroiriaev ... to evQh k.t.\. The same words occur in the 
 Psalms repeatedly — evOr;? being translated by rectus. When 
 we turn to the Anglo-Saxon Psalters we find a corresponding 
 translation. Rectus suggests riht, both in pronunciation and 
 meaning. Justus is rihtwis (English righteous). They both 
 apply to straight paths, as well as just men. The daily use 
 of the Psalter in the Mediaeval Church, and the fact that 
 churchmen were the lawyers of those days, help to explain 
 how such words and ideas became familiar. 
 
 If a Saxon were translating into Latin " gedon riht," he 
 would naturally say "facere rectum," and hence we read 
 in a charter of William the Conqueror, " rectum Deo et epis- 
 copo suo faciat '' (Thorpe, 213 ; Melville and Bigelow, 354). 
 And Fleta (circa 1290) says : " Quod in jure scripto jus 
 appellatur id in lege Anglise Eectum esse dicitur " (vi. 1, 1). 
 Rectum is rather the translation of riht than the old Eoman 
 word, but it would be hard to avoid identifying them. 
 
 (3.) The meeting-point of the ideas seems to be the phrase 
 " Do right," in the forms of " facere recte," " facere directum," 
 " facere rectum," " gedon riht," " faire droit," &c. This might 
 mean merely to do justice technically. " Shall not the Judge 
 of all the earth do right ? " ^ Eight may be regarded as the 
 remedy that put straight things that were wrong. But a 
 judge in administering justice may do injustice ; in " doing 
 ' Vulg. facere judicium. : Sept. iroittv Kptcriv : Gen. xviii. 25, 
 
48 RIGHT. 
 
 right " he may do wrong — through ignorance or malice : 
 " Praetor quoque jus reddere dicitur etiam cum inique de- 
 cernit" (Paul, L. 11, D. dc J%st. et Jure (1, 1) ). Eight may 
 thus be mere right or righteous right, and as men wish only 
 righteous right they deny the name to spurious imitations. 
 The difficulty of fixing a standard is already felt. Eight 
 may be right in the eyes of the claimant, of the respondent, 
 or of a third party (the judge) — pro boni viri arbitrio. Mere 
 abstract right does not satisfy men ; they wish it embodied 
 in things and acts, and hence right comes to be corporeal — 
 external things that satisfy the idea of right. Extreme 
 examples are the use of rectum to signify tribute (Ducange, 
 S.V.), and of rights as meaning title-deeds. 
 
 The antagonism between the technical Eight (Jus) and 
 the moral idea of Justice is similar to the double current 
 which runs through the law of trespass and negligence.^ 
 The cases sometimes contemplate voluntary damage as 
 sufficient to ground an action, and sometimes they demand 
 moral delinquency. 
 
 SECT. VI. — DIRECTUM— DRICTUM— DROIT. 
 
 (1.) The wordy^s is not directly represented, even in the 
 modern Eomance languages. In French its place is taken by 
 droit ; in Italian by diritto ; and in Spanish by dereclw. 
 These are all corruptions of the low Latin directum. 
 
 (2.) In the Fornmlm of Marculfus, who lived in the middle 
 of the seventh century, we find the phrase " Paciat directum " 
 (i. 21) in the sense of " do justice." 
 
 Ducange (s.v.) quotes an oath of the time of Charles the 
 Great, in which the words occur, " Sicut per drictum debet 
 esse homo domino suo ; " and we find in the oath of Lndwiff 
 to Charles the Bald, dated February 842, " Si cum om per 
 dreit son fradra salvar dift," i.e., si cum homo per directum 
 suum fratrem salvare debet (Ducange, s.v.). Thus in the 
 
 ' Holmes, Common Law, Leot. III. and IV. 
 
DIRECTUM -DRICTUM— DROIT. 49 
 
 course of two centuries and a half a new word has come 
 into use to take the place oijus in the general sense of law, 
 and has been corrupted into its modern form. 
 
 In an instrument dated in 968 we find directum used in 
 the ordinary sense of a subjective right — " Quia nullum direc- 
 tum habebant de ipsis campis et de ipsis vineis " (Ducange, 
 s.v.) ; the forms dirittus and dricfum also occur. 
 
 We should also notice the meaning given by Ducange, 
 but without any example, of the " cry or action whereby one 
 reclaims property which has been unlawfully taken from him 
 by ' disseisin, discontinuance, or ejection ; ' " and that, at a still 
 later date, " ad directum habere " is used as equivalent to 
 " in jus vocare." The problem is how directum came ulti- 
 mately to supplant JUS in the Eomance languages. 
 
 (3.) There is a distinct anticipation of this usage in his 
 History of the Franks, by Gregory of Tours, who lived in Gaul 
 at the end of the sixth century, about fifty years after the 
 publication of Justinian's Code. M. Bonnet^ remarks that 
 the just is compared by Gregory to a straight line — directus. 
 Directum begins to take the sense which it has in French of 
 " right " — the law. " Ecce verbum directum habemus," he 
 quotes from a speech of Thierry to the Franks (Hist. Fr. iii. 7), 
 and translates, " We have a good right," or, literally, " the just 
 word." So in Hist. iv. 14, the phrase occurs, "Verbum 
 directum non habemus." In Euinart's folio edition of 
 Gregory's works (1699), col. 1392, it is stated that this is a 
 common form of speech with him to signify what may be 
 done lawfully ; he does not refer to any passages except the 
 two above quoted. 
 
 (4.) We may conjecture that jus had become legal, tech- 
 nical, and rigid in meaning. Directum was an adjective, with 
 jus or judicium understood, and indicated just law without 
 evasion, circumlocution, delays, or roundabout procedure. 
 Popular language tends to use adjectives in this way with 
 nouns understood. Now the word directum occurs in con- 
 ^ Le Latin de Origoire de Tours, p. 280. 
 D 
 
50 RIGHT. 
 
 nection with judiciwrn in a speech of Cicero (^Bos. Com. 4) : 
 " Quid est in judicio ? Directum, asperum, simplex : si paret 
 HS. IqOO- dari." In the Imperial legal literature the word 
 was well known. It referred to actions deduced directly 
 from a law, and not evolved by interpretation; to legacies 
 and bequests conveyed directly and not indirectly by a trust ; 
 and to legal as opposed to equitable praetorian actions.^ 
 Craig ^ connects the modern usage of dominium directum and 
 dominium utile with the Eoman distinction of actions. The 
 dominium directum may mean a legal as opposed to an equit- 
 able estate. The word in its earlier modern usage may 
 indicate a revolt against a lax procedure, when people wished 
 honest straightforward law instead of an equity that might 
 vary with the conscience of every weak or inexperienced judge. 
 
 SECT. VII. — MODERN USAGE. 
 
 In modern usage the word " right " is generally in English 
 associated with an explanatory synonym. Every Act of 
 Parliament, charter, or deed affords examples. We may take 
 the words in order. The following table shows the association 
 of ideas. A right may be regarded — 
 
 1. From the point of view of the claimant in litigation — 
 
 Bight; action; suit; case; good case; cause; claim; 
 just claim ; competency. 
 
 2. From the point of view of the claimant desiring to act 
 
 extrajudicially — Bight to act ; power ; faculty ; 
 liberty ; capacity ; status. 
 
 3. As the evidence or foundation of right — BigM ; title ; 
 
 just title; complete title. 
 
 4. As the object of claim or right — Bights; interests; 
 
 claims ; liberties ; royalties ; dominions ; possessions ; 
 estate; rights — real and personal, contingent, civil 
 and political, &c. 
 
 ^ Brissonii Lexicon, a.v. ; Calvini ° Jus Feud. i. 9, 11. 
 
 Lexicon, s.v. 
 
RIGHT: ACTION. 51 
 
 5. From the point of view of the claimant, considering 
 
 possible disturbance — Right; good right; possession ; 
 dominion; personality ; status; estate. 
 
 6. From the point of view of the judge deciding in a com- 
 
 petition — Best right ; privilege ; preference. 
 
 7. As special and official rights — Prerogative ; dominion ; 
 
 possession ; jurisdiction ; privilege ; franchise ; free- 
 dom ; liberty, &c, 
 
 8. As negative rights — Freedom; immunities; liberties. 
 
 9. From the point of view of the state and society — Bight ; 
 
 law ; justice ; validity, &c. 
 
 But it may be noted here that in all legal procedure, 
 judicial or extrajudicial, it is the concrete physical interest 
 that is dealt with, and must be specified and claimed. So the 
 forms of summonses and petitions in Scotland ask for definite 
 concrete prestations — payment, delivery, possession. " Eight " 
 is abstract and implicit. Thus in the Juridical Styles (3rd ed. 
 iii. 134) the style of a declarator of a "right" to property 
 asks declarator of a fact, and a decree for possession, but uses 
 the word " right " as meaning " title " or " title-deeds." 
 
 SECT. VIII. — EIGHT ; ACTION. 
 
 (1.) Action is the earliest form of right — self-help ; self- 
 defence. An action is thus physical — driving away enemies 
 — driving cattle (agere — actus). 
 
 (2.) When it is recognised and approved by society it 
 becomes a legal " action." Actio legis is a proceeding recog- 
 nised by the oldest Eoman laws.^ What we moderns call 
 an action is an inquiry whether the claimant has a right of 
 (actual physical) action. This is shown by the mode of exe- 
 cution in the Eoman law — manus injeefio and other forms ; 
 the Athenian SiKri eioiiXtis and forms of enforcing obligations;^ 
 the Jewish practice, where even in criminal executions the 
 
 ^ Gaius, iv. 11. ^ Beauchet, iv. 448 ; Smith, Diet, 
 
 Antiq. i. 630 h. 
 
52 RIGHT. 
 
 witnesses and accusers commenced the act of stoning j^ and 
 by the institution of distress in English law and related 
 systems. 
 
 (3.) Tribonian recognised the fact that a person might raise 
 an action without having a substantial right, when he said — 
 " Sabino et Cassio placuerit etiamsi usque ad centum aureos 
 cum eo a^tn velis, inutiliUr te cwturum." — {Inst. iii. 26, 8). In 
 the same section and in the corresponding section of Gains 
 (iii. 161), " habere actionem " means really " to have a right." 
 As Paul said — " Is qui actionem habet ad rem reciper- 
 andam ipsam rem habere videtur." ^ At the same time a 
 person might have a formal right of action and yet have no 
 truly substantial right, or his judicial action might miscarry, 
 and so it was pointed out accurately by Pomponius — " Minus 
 est actionem habere quam rem." ^ 
 
 Coming down later, we find a similar usage in Britton,* 
 " qe lour accioun dure un an et un jour," — their right of 
 action should last a year and a day. 
 
 The distinction of right and action and the relations 
 between the ideas were well established by the time of 
 Justinian, when the statement of Celsus was embodied in the 
 Institutes^- — " Actio autem nihil aliud est quam jus perse- 
 quendi judicio quod sibi debetur;" and Ulpian repeatedly 
 calls attention to the use of actio and related words as cover- 
 ing all formal judicial proceedings, as exceptions — " Eeus 
 in exceptione actor est ;" ^ and interdicts — "Interdicta quo- 
 que actionis verbo continentur." ' In Gaius actio amdi judicium 
 are often used indiscriminately — a practice which would have 
 shocked earlier purists.^ Actions had become entirely 
 judicial, and had ceased to be extrajudicial. 
 
 (4.) In modern usage " right of action " and substantive 
 right may be identified. In Clarke v. Tlie Carfin Coal Go. 
 (1891), A.C. 412, it was decided that the parent of an illegiti- 
 
 ' Micheelis, ii. 302 ; iii. 417. » iv. 6. pr. 
 
 2 L. 15, D. de R. J. (50, 17). « L. 1, D. de except., &o. (44, 1). 
 
 » L. 204, D. de R, J. 7 L. 37, pr. D. de 0. et A. (44, 7). 
 
 * AiTpeals of Homicide, i. 24, 1. ^ Muii-liead, Gaius, 440. 
 
RIGHT: ACTION. 53 
 
 mate child has by the law of Scotland no right of action 
 against a person who has caused its death. The opinions 
 illustrate the uses of the words " right," " claim," " case," and 
 others. Thus, on page 414, it is said by counsel, referring to 
 an earlier decision, that the mother of an illegitimate child 
 has "a title to maintain an action;" while, on page 419, 
 Lord Watson, speaking of the same decision, says that Lord 
 Jerviswoode sustained " the competency of an action of this 
 kind." Both of these expressions appear to be open to 
 criticism. The mother had a "title to sue," because her 
 claim — her alleged right — was due to herself, and she had 
 suffered an actual (though not a legal) wrong in her own 
 person ; no other person could have sued for her ; it was the 
 law that refused to give a remedy. And the action was in 
 like manner " competent ; " it was in the proper court and in 
 the proper form, and if there had only been a right recognised 
 by law it would have been successful. The proper plea 
 was that the pursuer's averments were irrelevant, or, less 
 accurately — though the phrase is common and as old as 
 Balfour's Fradicks — it might have been said the action was 
 irrelevant. Although the pursuer established all her aver- 
 ments, she could not succeed.'- Again, on page 417 we find 
 Lord Watson speaking of the law allowing " an action of 
 solatium and damages to the parent of a legitimate child," 
 and further on of " the right of action." It is obvious that 
 the action is only a means to an end, and what the parties 
 are interested in is the solatium or the damages. Law and 
 lawyers look to the outside proceeding — the action : their 
 client may have an excellent action and make very little 
 profit out of it. In a recent case Lord Alverstone observed 
 that " the right to bring an action " meant " a right to 
 succeed."— (18 T.L.E. 455). 
 
 So, again, in the recent case of Poll v. The Lord 
 Advocate^ the plea sustained by Lord Kyllachy was, "The 
 
 1 See Mackay's Practice, i. 436. ^ 1397, \ F. 82,3. 
 
54 RIGHT. 
 
 action does not lie," which was only another way of saying 
 " The complainer has no right." On the other hand, the 
 phrase " an action will lie," as used hy the Lord Chancellor 
 (HerscheU) in Magistrates of Edinburgh v. Blachie} means 
 that the remedy is competent.^ 
 
 In the forms used in Scotland for the assignation of bills, 
 bonds, or debts, we find a general grouping of active rights 
 embodied in such a phrase as " With all action, diligence, and 
 execution competent thereanent." ^ This phrase refers to 
 rights in motion, as the phrase " right, title, and interest " 
 applies to rights in potentiality. 
 
 (5.) The English idea of a chose in action may be taken 
 as an example of the return to a physical usage. It is a 
 right to recover by action, and yet it is regarded as a thing 
 in which the owner has an absolute property (Blackstone, 
 ii. 397). 
 
 SECT. IX. — SUIT. 
 
 The English term " suit," applied in Chancery procedure, 
 but used in Scotland in a more general sense,* comes from 
 the Low Latin secutio, secta, and refers originally to a physical 
 following of runaway slaves, or vassals, debtors, or wrongdoers. 
 Speaking of the action for recovery of a moveable. Pollock and 
 Maitland say — " An action we call it, but it is a prosecution, 
 a prosecution in the primary sense of that word, a pursuit, a 
 chase ; a great part of the legal procedure takes place before 
 any one has made his way to a court of law." ^ It is easily 
 transferred to the following of the king or judge, and calling 
 out for reparation. In later usage, " non-suiting " implied no 
 right, when the plaintiff was fined for his false claim. And 
 when, at the present day, judgment of non-suit is a bar to 
 any future action, we have a discharge, by force of law, of 
 the alleged right, if it ever existed.* 
 
 1 11 A.O. 671. 5 Of. Jur. Styles, ii. 704, &c. 
 
 2 Of. Lord M'Laren in Eobson v. " Erst. Imt. i. 6, 16. 
 Scliool Board of Hawick, 1900, 2 F. » Mist. ii. 156. 
 
 418 ; and Ersk. Inst. i. 6, 17 ad fin. " See Stephen, Com. iii. 560. 
 
COMPETENCY. 55 
 
 But the association of the ideas of pursuing and fleeing 
 are both ancient and widely spread. We find them in 
 ancient Greece, and in the Jewish institution of the avenger 
 of blood.i 
 
 The Scots term " pursuer " therefore comes from an 
 earlier age than the English " plaintiff." 
 
 SECT. X. — COMPETENCY. 
 
 (1.) We have alluded to competency. The etymology of 
 this word suggests the idea of something belonging to another 
 thing or person in point of fact. Hence the idea of fitness. 
 
 (2.) Competency is the existence of a right recognised by 
 law. So Tribonian says,^ " Libertas servo competere potest," 
 where the word may refer to the acquiring of a right. And 
 Stair speaks of "Interests and obHgations competent by 
 nature " (i. 5, 11). 
 
 (3.) Lord Watson's use, noted above, of the term is 
 in accordance with Eoman classical usage. Many instructive 
 examples will be found in L. 13, §§ 5, 14, 25, D. d& actionibus 
 empti et venditi (19, 1). These show that the phrase " actio 
 competit " is equivalent to " habere actionem," " agere posse," 
 or the converse, "judicio teneri." That is to say, they 
 express a right as vested in a person in the form of an 
 action.^ 
 
 (4.) " A competent action " in Scots law refers to a par- 
 ticular technical remedy provided by law.* This suggests " a 
 competent plea " in defence.^ Then we apply it to persons 
 and things. " A competent judge," ^ or " a competent forum," 
 means a judge or a court which has a right to deal with a 
 case — i.e., jurisdiction ; or a judge or a court whose aid a 
 plaintiff has a right to invoke.^ 
 
 ' Hastings, Did. of Bible ; Ency- * See Maokay, Practice, i. 436. 
 
 clopadia Biblica, s.v. Goel ; Smith, ° Green's Encyclopedia, s.v. 
 
 Diet. o/£Me,s.v., Blood, ReYeTigeT of. " L. 2, D. si quis in jus vocdtus, 
 
 ' Inst. i. 5, 1. &o. (2, 5). 
 
 ' Of. Munster v. Lamb, 11 Q.B.D. ' See Smith v. Lord Advocate, p. 
 
 p. 697. 112, infra. 
 
S6 RIGHT. 
 
 (5.) '•■ Competent," then, means " lawful," as when we speak 
 of " a competent witness," " competentes usurae," — lawful 
 interest.^ It may mean " having formal capacity," ^ as when 
 an act speaks of a person "competent to dispose by will." 
 This does not refer to mental capacity.^ 
 
 When we speak of an " incompetent judge," or " an in- 
 competent general," we mean one unfit for his post. This 
 usage is not derived from but is parallel to the legal ones. 
 
 (6.) Lastly, " a competency " means a fitting income 
 according to some assumed standard of comfort — " a compe- 
 tent provision." * 
 
 (7.) There are other similar applications of the term. 
 The Ordinance No. 75 of the Scottish University Commis- 
 sioners (1858) demands from candidates for graduation "a 
 competent knowledge of law." The professional standard 
 may be perhaps what this enactment has in view. 
 
 SECT. XI. — CASE. 
 
 (1.) " Case " is borrowed from the Latin " casus." Casus 
 is an event, accidental, merely happening, for which no person 
 can be blamed:^ 
 
 The original meaning of the word is simply the collec- 
 tion of facts which may give rise to an action.^ This may in 
 some instances involve the interposition of a person. So 
 Gains in L. 9, D. de inceTidio, &c. (47, 9), explains " casus " by 
 " negligentia " — importing personal responsibility. Ulpian, 
 on the other hand, opposes " casus major " to " negligentia " 
 in L. 7, D. de edendo (2, 13), while in Nov. 22, 15 pr., " casus " 
 means " loss." In the technical Scots phrase " casus amis- 
 sionis " the word means the " circumstances " under which the 
 deed to be proved has been lost. — (Green's Eficycl. s.v.) So 
 
 1 Code, V. 74, 1 ; Calvinus, s.v. * Stair, i. 5, 7 ; the Civil List Act, 
 
 2 See p. 71. 1901, preamble. 
 
 3 Stroud's Judicial Bid., s.v.; = Cf. L. 23, D. de R.J. (50, 17)' 
 Finance Act, 1894, s. 22 (2) (a). Calvinus, s.v. ' 
 
 " L. 10 D., de Leg. d:c. (1, 3). 
 
CAUSE. 57 
 
 in English procedure we have what is known as an " action 
 on the case." ^ 
 
 (2.) It then means the facts as presented by a party. 
 " The appellant has not succeeded in making out a case." ^ 
 That is to say, he has not proved and established a right. 
 From the point of view of the opposite party, we say, " he 
 has " a good answer " or " a good defence." 
 
 (3.) Then it means the view taken by the Court of the 
 facts, as it may be said of a pursuer, " He had no case." ^ 
 This is equivalent to the popular phrase " He has no claim," 
 —i.e., he has no " cause of action," no " title to sue," and no 
 " interest." These phrases will be discussed later. 
 
 (4.) As a new physical application, we may take the 
 " printed cases " in appeals to the House of Lords. 
 
 (5.) At the same time it is possible that the word " case " 
 
 in Scots practice represents " causa," and not '' casus " in 
 
 Latin.* Regiam, Majestatem uses " cause," " pley," and " action " 
 
 indiscriminately, but regards them as processes rather than 
 
 as " rights " vested in a person. The following passage shows 
 
 how the confusion might arise : — 
 
 " Chap. i. Of criminal causes, &c. ... 9. But thift and man- 
 slauchter taken up be dittay, sould be determined before the justitiar 
 be an aasize of neighbours, because in sic cases the King and his justitiar 
 are persewers." 
 
 So " casus belli " is explained as meaning " a cause " of 
 war.^ 
 
 SECT. XII. — CAUSE. 
 
 The word " cause " has been referred to. Its use in law 
 is technical rather than popular. A cause is an event by or 
 through which another event takes place. In legal usage it 
 is often applied to a title — the ground of a right, — e.g., " Causa 
 lucrativa, veluti ex donatione vel ex alia simili causa." ^ 
 
 ' Ashby V. White, 1 Sm. L.C. 231, ^ Houston v. Marquis of Sligo, 
 
 p. 258. 1885, 29 Ch. D. 462. 
 
 ' Per Lord Colonsay in Dunlop v. * See the various readings in Inst. 
 
 Johnston, Paterson, App. Ca. 1442, iv. 6, 23 ; cf. iii. 24, 3 ; Gaius, iii. 
 
 1443 ; c/. "An Equitable Case," 11 145,173. 
 
 A.C. 30. ^ Calvo, Diet. s.v. 
 
 ' L. 6, Imt. de legaiis (2, 20). 
 
S8 RIGHT. 
 
 " The plaintiff has been defamed, and has prima facie a cause 
 of action." These words are used in Munster v. Lamb, 1883, 
 11 Q.B.D., at p. 597, and are used interchangeably with 
 " the action is competent," " an action will lie," and others 
 above noticed. The word cause is commonly applied to a 
 judicial process, and is so used in modern " cause lists." "Agere 
 causam " or " defendere causam " may refer either to the 
 putting forward of a claim or the discussion of a title, or it 
 may regard the judicial process as the cause, and the decree 
 and execution as the effect. 
 
 SECT. XIII. — CLAIM. 
 
 (1.) The word "claim" comes to us from "clamor" 
 through the Normans. It signifies " a complaint," " a hue 
 and cry," as will be seen from the authorities referred to 
 hereafter. 
 
 As " action " points to self-help, so " claim " refers to a 
 " calling out," either to a wrongdoer to do right, or to society 
 to help. " Stop thief " serves both purposes. So Glanvill 
 (i. 5), " Cum clamat quis Domino regi aut ejus Justiciis de 
 feodo," &c. " Quhen anie man eompleins to the King," &c.^ 
 
 This mode of assertiag and enforcing a private right is 
 referred to in the Twelve Tables, and, if we may coin a word 
 from the obsolete term there used, we may describe it as 
 " obvagulation," when the creditor on every second day 
 (tertiis diebus) was allowed to make a disturbance before the 
 door of his debtor. It is known in India, where sitting 
 dharna before the door of a debtor until the creditor perhaps 
 died of starvation, so that his ghost might haunt the unjust 
 debtor, was a recognised mode of procedure until it was for- 
 bidden by the 508th section of the Criminal Code (Stokes, i. 
 291).^ Fasting was also known iu the ancient Irish law to 
 enforce claims, particularly against persons in high position 
 
 ^ Beg. Maj. i. 6, \. The word used " Balfom's Cyclopedia of India {Svd 
 
 there is " oonqueritur ; " but in i. 9, ed.), s.v. Dharna; Code of OetUoo 
 1, we find "clameum auum faciente." Laws, London, 1777, p. 19. 
 
CLAIM. 59 
 
 (Senchus Mor, i. 113 (Eolls Ser.)). The creditor waited 
 before the door of his debtor for a certain time, and if he did 
 not receive a pledge he got double the debt and double food. 
 
 (2.) These modes of enforcement were an indirect appeal 
 to public opinion. They prove that the idea of right exists 
 in some form prior to the existence of an organised State. 
 
 When the State is organised with a king as its head, the 
 call for redress is to him. This is familiar in the East, and 
 was common in early times in England.^ It survives in the 
 modern appeal to higher Courts. Whereas the old English 
 appeal {appellum) was a criminal proceeding against an indi- 
 vidual, the appeal (appellatio) to a higher Court came to us 
 through the Eoman and the Canon law. 
 
 (3.) The " hue and cry " was early adopted as a criminal 
 process, and was in England imposed as a duty on citizens. 
 Balfour (Fracticks, 522, 525) speaks of the " lauchful shout," 
 and of the " clamour and shout of the nichtbouris." The use 
 of the words " pursuer " and " suit " connect the ideas with 
 civil procedure. 
 
 (4.) A claim, like an action, becomes formal — a legal 
 
 claim. So 
 
 " Claim is a challenge of interest in anything that is in the possession 
 of another, or at least out of a man's own possession." " Continual claim 
 is where a man hath right and title to enter into any lands and tene- 
 ments whereof another is seized in fee or fee tail " (Tomlins' Diet. s.v.). 
 
 Scottish lawyers speak of claims in an action of multiple- 
 poinding, where several persons put forward competing rights 
 to a single fund or object. It is interesting to note how the 
 various meanings of " claim " shade into one another in such 
 procedure (Mackay's Practice, chap. Ixv). 
 
 A claim may be formal and yet false in substance. It 
 has been said " That the demandant be in mercy for his false 
 claim " (Eoscoe, Beat Actions, i. 329). 
 
 But to claim is " to demand as one's own or as one's due ; 
 
 1 Stubbs' Select Charters, s.v. ; cf. Newberry, Life of Bekhmara, 36 ; 
 Spencer, Sociology, ii. 88, 496, &c. ; Smith, Did. of Bihle, s.v. Judge. 
 Maine, La/io and Custom, 160, 185 ; 
 
6o RIGHT. 
 
 to seek or ask on the ground of right." Such a claim is a 
 
 legal claim — a just claim. Thus under section 2 of the 
 
 Agricultural Holdings (Scotland) Act, 1883, it is provided 
 
 that on certain conditions " the tenant . . . may claim 
 
 compensation ... in respect of improvement,"— i.e., he 
 
 may claim it successfully and receive payment of a sum (46 
 
 and 47 Vict. c. 62, sect. 2 ; cf. sect. 7, and p. 53, supra). 
 
 (5.) So a claim comes to mean " a right of claiming." Dr. 
 
 Murray (Diet, s.v.) quotes an old example as from an Act of 
 
 Henry VII. c. 20, section 7. The following formula from 
 
 Dallas' Styles (ii. 457) long survived in Scottish conveyancing : 
 
 " Together witli all riglit, title, interest, both property and supe- 
 riority, and other right, title, interest, claim of right and possession, as 
 well petitor as possessor, whatsoever, which I, my predecessors and 
 authors, heirs and successors, had, have, or any ways may have, claim, 
 or pretend thereto," &c. 
 
 (6.) Right and claivi are often interchangeable ; a claim 
 being a right in motion, put forward and asserted. In Clarke 
 V. Carfin Goal Co. (1891), A.C., at p. 417, we find examples 
 where the word is used, varying from a recognised right to a 
 mere pretence. And in section 55 of the Naval Prize Act, 
 1864, we find both "claim" and "interest" applied to the 
 right of officers and men to share prize. The " Court of 
 Claims," in connection with the coronation of the British 
 monarch, deals with alleged rights to undertake duties thereat 
 (see London Gazette, 3rd July 1901). 
 
 In regard to the claims or rights of jus relictm of a widow 
 and legitim in the case of children, the words are practically 
 interchangeable. Jus relictm and terce are spoken of as " legal 
 claims." ^ But the phrase is used in other cases also, e.g., in 
 Baird v. Bell, the right to exact payment for use of a common 
 gable is spoken of as " a legal claim against the owner " 
 (1898, AC, p. 429). So again— 
 
 " Where the Sheriff, under a fieri facias against A., has sold a par- 
 ticular chattel, B. may set up his claim to that chattel, either against 
 
 1 Cf. M'Laren on Wills (1st ed.), M'Onie v. Whyte, 1890, 15 App. Ca. 
 ii. 626 ; Jur. Styles (5th ed.), i. 503 ; 168 and 159. 
 
CLAIM. 6 1 
 
 the Sheriff or the purchaser from the Sheriff." — (Oastrique v. Im/rie, L.R. 
 4 H.L. p. 428 ; Blackburn, J.) 
 
 In Studd V. Cook, 1883, 8 A.C. at p. 597, Lord "Watson 
 said — 
 
 " Any words which, in a settlement of moveables, would be recog- 
 nised by the law of Scotland as sufficient to create a right or claim in 
 favour of an executor, grantee, or legatee, must receive effect if used with 
 reference to lands in Scotland. Thirdly, words sufficient to create a 
 right or claim to moveables are, when used in reference to lands, 
 declared to be equivalent to a 'general disposition' of such lands." — 
 {Cf. the provisions referred to, — the Titles to Land Consolidation 
 (Scotland) Act, 1868, sect. 20.) 
 
 The case of the North British Railway v. North-Eastern 
 Bailway, 24 E. (H.L.) 19, gives an example of " claims " far 
 in excess of " legal rights." 
 
 (7.) "With regard to the Crown, rights may be regarded 
 either as at rest (mere rights) or in motion (as claims), as 
 may be seen from a comparison of the two following 
 passages -. — 
 
 " The King, though he may, by a special pardon, secure the offender 
 from public justice, the exercise of which is a right of the Crown, cannot 
 discharge any private interest, arising to the party hurt, against the 
 criminal, or cut him off from his claim of damages." — (Ersk. Inst. 
 iv. 4, 105.) 
 
 " Lands of gavelkind tenure do not escheat upon an attainder for 
 murder, but descend to the heir free from the King's claim to a year day 
 and waste." — (Bythewood and Jarman's Oonveyancing, 4th ed. i. 141.) 
 
 In modern British law the rights of the Crown are closely 
 assimilated to private rights, but in the Sovereign we may 
 conceive that right and claim absolutely coincide, for the 
 supreme power would not claim if it had no right ; and when 
 it does claim it has power to make the claim absolutely 
 effective. But such conceptions bring us to the region of 
 metaphysics. 
 
 (8.) The term claim is used in international affairs, pro- 
 bably because there is in general no means of enforcing 
 claims except by the goodwill of the Government which is 
 the alleged debtor. Possibly the reason why such rights are 
 
62 RIGHT. 
 
 called claims is the tendency to exaggerate a small kernel of 
 right, which is so common when railway companies and cor- 
 porations are debtors. The element of imagination bulks so 
 largely that these claims often appear to the alleged debtors 
 to be mere claims, and nothing more. Thus, in a Treaty of 
 20th November 1815 for the liquidation of claims upon the 
 French Government (Hertslet, Europe, 378, at p. 391), Art. 
 xvi. provides — 
 
 " Governments who have claims to prefer in behalf of their subjects 
 engage to cause them to be presented for liquidation within a year 
 . . . after which time they are to forfeit all right to claim and 
 recovery." 
 
 The Treaty of Washington of 1871 was concluded for, 
 among other things, the settlement of the " Alabama claims," 
 " growing out of acts committed by [certain] vessels," and 
 certain other " claims " " arising out of acts committed 
 against the persons or property of citizens of the United 
 States " (Art. xii.). In the Treaty itself claims are treated as 
 being put forward by individuals, not by the State itself. 
 
 So in the House of Commons, on 24th February 1898, 
 Mr. Chamberlain spoke of " the Hinterland, to a part of 
 which we consider we have a most undoubted claim." 
 Perhaps this suggests that the alleged right may be disputed 
 by others. Again in the dispatch of Sir Edmund Monson 
 to M. Hanotaux of 10th December 1897 we read, " They 
 must not be understood to admit that any other European 
 power than Great Britain has any claim to occupy any part 
 of the valley of the Nile. " Claim " is translated by " droit " 
 in the French Yellow Book (1897-98), p. 2. 
 
 (9.) And, finally, the word comes to physical usages. In 
 America, Australia, and Africa " a claim " means the area 
 claimed and allotted to a miner — that which is claimed ; ^ or 
 it may mean sums payable under a claim, as " claims fall 
 in." ^ This usage is mediaeval (Ducange, s.v.), for a man may 
 
 ' Palmer's Precedents, 7th ed., ^ Per Lord Kinnear in Smith v. 
 
 form 41, a. 2 ; 8th ed., form 47, o. 1. Lord Advocate, 1899, 1 F. p. 746, 
 
POWER. 63 
 
 speak of " clamores meos," i.e., the claims against me and not 
 ly me. " Clamor " here is explained by dehituvi. It is also 
 used in Scots legal procedure for the document lodged in 
 making a claim in an action of multiplepoinding or competi- 
 tion (Mackay, Practice, ii. 109). This usage corresponds to 
 that of " title " and " obligation." It is evidence of a claim. 
 
 SECT. XIV. — POWER. 
 
 In the age of self-help right and power were necessarily 
 identified. " Action " suggested either the recognition of 
 private power or the placing of public power at the disposal 
 of the individual. " Claim " suggested the helplessness of 
 the individual by himself. 
 
 (1.) Power is undoubtedly used at first in a physical refe- 
 ence, and so are the words " posse " in Latin, " SwaaOai " in 
 Greek, and " can " in English. But it assumes a technical 
 signification when it means not mere power, but power re- 
 cognised by the State. The change is from mere ability 
 to act, '' capacity " or " faculty," to " authority." For ex- 
 ample, Ulpian says, " In factum actiones etiam filiifamiliarum 
 jposswnt exereere " (L. 13, D. de 0. et A. (44, 7) ). This refers 
 to an individual right. On the other hand, Pomponius says, 
 " Actiones adversus patrem filio prsestari non possunt," &c. 
 — (L. 7, eod.). This refers to the general law (right). The 
 long extract from Paul's work on the Edict, L. 4, D. de usurp, 
 et usueap. (41, 3) might be quoted in extenso as an illus- 
 tration of both usages. So in Greek '0 /uLaivofievos ovSev 
 a-wdWayfxa -rroielv Svvarai (Theophilus iii. 19, 8) : " furiosus 
 nullum negotium gerere potest" — (Gaius, iii. 106, Inst. iii. 
 19, 8). 
 
 This is common also in modern usage, thus : — 
 
 " A subject superior . . . cannot dispose of [his superiority] 
 by a subaltern grant." — (Ersk. Inst. ii. 5, 4.) 
 
 " No patron can present to the expectancy of a benefice ; for that 
 right arises only upon the death, &c. of the former incumbent." — {Ibid. 
 i. 6, U.) 
 
64 RIGHT. 
 
 In mediaeval charters we find potestas qualified by such 
 terms as legitima, libera, juridiea, &c. — (Charters of Abbey of 
 Cluny, — see p. 97, infra.) 
 
 (2.) Power and right may be identified. Savigny {System, 
 sect. 4) defines a right as " the power justly appertaining to 
 the individual person." Thus Boc-riht (Thorpe, Anc. Law of 
 Eng., 185) means the power of testing, and copyright, the 
 legal power of multiplying copies. The interpretation clause 
 (sect. 3) of the Titles to Land Consolidation (Scotland) Act, 
 1868, refers to decrees " appointing persons to exercise or 
 enjoy the rights or powers conferred," &c. Perhaps the most 
 common example of this usage will be found in the " powers " 
 of trustees. These may be private and extrajudicial, or 
 they may be specially granted by the Court. In Chapter 
 LXIII. of Lord M'Laren's work on Wills and Succession (3rd 
 edition) we find these powers discussed. They are spoken of 
 as rights (sect. 2203), and the terms " authority" and "privi- 
 lege " also occur. In fact this chapter gives examples of all 
 the terms '' liberty," " entitled," " may," " can," which are 
 associated with the idea of right.^ 
 
 (3.) We must now notice a technical usage which Scot- 
 land has recently borrowed from England : — 
 
 In English law " a power is an authority reserved by or limited to 
 a person to dispose, either wholly or partially, of real or personal 
 property, either for his own benefit or for that of others. The word is 
 used as a technical term, and is distinct from the dominion which a 
 man has over his own estate by virtue of ownership." — (Farwell on 
 Powers, p. 1.) 
 
 " Powers after the statute [of uses] still remained as mere rights of 
 designation." — (Sugden on Powers, 18.) 
 
 In the Bankruptcy (Scotland) Act, 1856 (sect. 4), 
 " property " and " estate " are defined as including " powers." 
 This suggests physical associations and connects the idea 
 with interest. This use of the word " power " is somewhat 
 wider than the older Scots use of the word " faculty." 
 
 (4.) But the word " powers " is more commonly applied 
 to official rights, as in the Act 60 Vict., cap. 11, sect. 4 — 
 
 ^ Cf. the use of tos, ultra vires, &c. (Brissonius, s.v.). 
 
POWER. 6s 
 
 " From and after the passing of this Act, there shall vest in the 
 Secretary of State in Council of India all rights, powers, and authorities, 
 discretionary or otherwise, which were, prior to the passing of this Act, 
 vested in the Trustees of the regular Widows' Fund and the Elders' 
 Widows' Fund respectively." 
 
 " Eights" may here refer to property and money, "powers" 
 to rights of acting — passive and active capacity. 
 
 The Local Government (Scotland) Act, 1889 (section 
 105), defines " powers " as including " rights, jurisdictions, 
 capacities, privileges, and immunities." Throughout this Act 
 " powers " are always associated with " duties." 
 
 The rubric of section 13 of the Agricultural Holdings Act, 
 1883, reads — " Power to proceed in absence," while the clause 
 itself provides that the referee "may proceed in absence " (see 
 also section 12). In section 16 "powers as referees" and 
 "powers of the Sheriff" occur with reference to what may 
 be termed " jurisdiction." Indeed Erskine (ItisL i. 2, 2) de- 
 scribes jurisdiction sometimes as a " right," and sometimes as 
 a "power " (ibid. i. 2, 6, &c.) 
 
 (5.) '' Power " is also applied to a delegated right of legis- 
 lation. According to the rubric of section 51 of the Titles to 
 Land Consolidation (Scotland) Act, 1868, " power " is given 
 to the Court of Session to pass Acts of Sederunt ; while the 
 section reads — " It shall be competent to the said Court, and 
 they are hereby authorised and required," &c. But wherever 
 an individual or a group of individuals are regarded as part 
 of the organic unity of the State, they may be treated as 
 having rights which are denominated powers. Thus the 
 British Legislature makes laws such as the British Settle- 
 ments Act, 1887, dealing with the powers of the King in 
 Council, or the Appellate Jurisdiction Act, 1876, dealing 
 with the powers of the House of Lords.^ 
 
 (6.) Powers enjoyed or conferred for the benefit of others 
 or for the public may become " duties ; " " may '' generally 
 
 ' Cf. Commonwealth of Aiistralia part V. ; Pupils Protection Act, sects. 
 Constitution Act, sect. 9, chap. I., 9 and 24 (repealed), 33, 40, &o. 
 
 E 
 
66 RIGHT. 
 
 means " must," — that is to say, official rights imply the 
 duties of the office in question. 
 
 " Statutes," says Maxwell, " wMcli authorise persons to do acts for 
 the benefit of others, or, as it is sometimes said, for the public good or 
 the advancement of justice, have often given rise to controversy, when 
 conferring the authority in terms simply enabling and not mandatory. 
 In enacting that they 'may,' or 'shall if they think fit,' or 'shall 
 have power,' or that it 'shall be lawful' for them to do such acts, a 
 statute appears to use the language of mere permission ; but it has been 
 so often decided as to have become an axiom that in such cases such 
 expressions may have — to say the least — a compulsory force, and so 
 would seem to be modified by judicial exposition. On the other hand, 
 in some cases the authorised person is invested with a discretion, and 
 then those expressions seem divested of that compulsory force." — On 
 Statutes, 3rd ed. p. 334. 
 
 In these last cases the person has a power and a right of 
 acting depending on his own discretion — ^judicial, so to speak. 
 The obligee in the one case can insist on performance ; in 
 the other, if the holder of the power act, he must do so in 
 accordance with justice, or, it may be, definite legal rules. 
 It may be noticed that the phrase "it shall be lawful," 
 equivalent to " may," looks at the relation from the point of 
 view of the State. This means that the law and the State 
 wUl recognise and enforce such and such action on the part 
 of the holder of the right. 
 
 (7.) By the Eoman lawyers potestas was also used as 
 meaning a group of rights, as we shall see " estate " and 
 other words used in the modern law. So Paul (L. 215, D. de 
 V. S. (50, 16)) says it was equivalent to imperium, patria 
 ■potestas, or dominium, according to circumstances. Justinian 
 can speak ot jus potestaiis as if the patria potestas were the 
 object of a right.^ The use of vianus was similar.^ We 
 may see a similar usage in the " running powers " of railways. 
 These are objects, as when Lord "Watson speaks of the " right 
 to exercise them," and imply a variety of rights to act. — 
 (K B. Baihoay, 1896, 24 E. (H.L.) 29.) 
 
 (8.) And here, as elsewhere, we return to another physical 
 
 ' Inst. i. 9, 2 ; cf. Gaius i. 55. ^ Hunter's Som. Law, 188, 223. 
 
POWER. 67 
 
 use of the term, in the common application of the term 
 "power of attorney" to a deed conferring powers. The 
 diplomatic use of the term " full powers " approaches this. 
 
 (9.) Finally, we notice the tendency to personify power 
 in the persons vested therewith — "the powers that be," 
 " potentates." And the equally common personal reference 
 in " the Great Powers " of Europe points to the physical 
 force at the bottom of all law. " Doubtless the supreme 
 foiver is, in the general case, the fountain of jurisdiction." — 
 (Ersk. Inst. i. 2, 3.) 
 
 (10.) Notwithstanding Bentham's objection,^ it seems 
 quite usual to employ right and power interchangeably. He 
 seems to err in suggesting that if we have " a right to the 
 services of a magistrate " we have " no power over him ; all 
 the power is on his side." 
 
 In the first place, it may be pointed out that our power 
 is over ourselves to apply to him for his " services." It is 
 this power which is popularly recognised, and so legalised. 
 In the second place, by means of appeals and complaints, we 
 may even have power over the magistrate himself. The 
 importunate widow exercised her power directly. A strong 
 and able counsel does the same in every-day experience. 
 The right of appeal and the known power and will to exercise 
 it are potent weapons in the weakest hand. Popular usage 
 has no difficulty in attributing power to every individual, 
 even the humblest subject, to judges and rulers, inferior and 
 superior, to the king himself, to bodies of legislators and 
 cabinets, the power (both physical and legal) corresponding 
 in some sense to the position of the person. The power 
 becomes legal when approved and supported by society. 
 But if the individual is helpless by himself, until supported 
 by society, can power be really affirmed in regard to him ? 
 We reply that, without the power of individuals, society 
 could not exist even in name. The point raised by Bentham, 
 
 ^ Morals and Legislation, 224. Cf. and Liberty in Legal Rights and 
 Hearn's distinction of Right, Power, Duties, 146-150. 
 
68 RIGHT. 
 
 although regarded by him as one of correct verbal usage, is 
 truly one of metaphysics. What is the ultiinate power, and 
 where does it reside ? The common sense man, with whose 
 view alone we are here concerned, finds a provisional answer 
 suitable for all practical purposes. 
 
 SECT. XV. — FACULTY. 
 
 (1.) Famltas (connected with facere, to do, facilis, easy) 
 signifies " means," " possibility," (non-legal) " power." — (Eoby, 
 Int. to Bigest, 75.) 
 
 " Ususfructus legari potest jure civili earum rerum, quarum salva 
 substantia uteudi fruendi potest esse facultas." — (Ulp. xxiv. sect. 26.) 
 
 "... non optulit peouniam. Quid si tunc facultatem pecunia) 
 non liabuit . . ? "—(Paul, L. 73, D. de proc. et def. (3, 3.) ). 
 
 " Item si quis facultatem restituendi non habeat . . ." — (IHp. 
 L.5,%6D. ad exhih. (10, 4.) ). 
 
 "... et respiciunt ad/acuZioiem dandi. Est autem /ocuZtes 
 personas commodum, incommodumque, non rerum quae promittuntur." 
 — (Venuleius, L. 137, § 4, D. (£e V. 0. (45, 1.) ). 
 
 In all these &&?,&& facultas means actual physical power. 
 
 (2.) When this power is recognised or reinforced by the 
 State it becomes '' legal power " or " right." So Gaius {Inst. 
 ii. 163) [si adierit hereditatem] " postea relinquendEe heredi- 
 tatis facultatem non habet." And Paul commences his book 
 on the Lex Falcidia with these words — " Lex Falcidia . . . 
 liberam legandi facultatem dedit usque ad dodrantem" 
 (L. 1, pr. D. ad Leg. Falc. (35, 2) ) while the law itself, which 
 he proceeds to quote, uses the words, " Jus potestasque esto." 
 In the texts— L. 22, D. de cond. inst. (28, 7) ; L. 18, § 2, 
 D. de damno infecto (39, 2) — we find facultas used along 
 with potestas or the verb posse. We may compare in this 
 connection the modern use of the three adjectives, " Faculta- 
 tive," " Potestative," and " Competent." We speak of a rule 
 as being merely facultative (Guthrie, Savigny, 2nd ed. p. 
 324) — i.e., as conferring a right without implying an obliga- 
 tion on the holder ; a potestative condition (Bell, Frin. 50) 
 depends on the will of a party ; while a competent action is 
 
FACULTY. 69 
 
 one which a party is entitled to raise (p. 55). So a res {jus) 
 m&rce facultatis is a right which is not lost hy non-user. — 
 (Bell, Fnn. 999, 2017.) 
 
 (3.) The Latin word returns to a physical usage as 
 applied to things or property over which a person has power 
 — pecuniary means. So Gains (ii. 154), " Qui facultates suas 
 suspectas habet ; '' and in the Decretals of Gregory IX. (v. 
 40, 33) we read, " Quia non sufficiebant ecclesise facultates." ^ 
 This still survives in English and American law. 
 
 " In the law of alimony ... it signifies in its plural fomi the 
 earnings, income, fixed property, or anything else, which the Court 
 takes into consideration in determining the sum or sums it will award 
 for alimony, whether temporary or permanent." — Bishop, Marriage, cCc, 
 ii. s. 888 (c/. Browne and Powle's Law of Divorce, 6th ed. 269). 
 
 (4.) In Scots law " faculty " is used as equivalent to 
 " power " in the technical English sense formerly explained. 
 Thus Lord Kilkerran describes a faculty to burden as "a 
 real right."— (1 Bell's Com. 41). Bell himself defines 
 a faculty reserved to the granter as an estate, — showing 
 the transition to the physical idea {ibid. 39 ; Ersk. Inst. ii. 
 12, 6). Such a faculty is a right, and so Lord M'Laren 
 (Wills, sect. 2035) can speak of " an estate over which the 
 disponer has only & jus facultatis." 
 
 (5.) In English Ecclesiastical law the word " faculty " is 
 of frequent occurrence. Dr. Ayliffe (Parergon, p. 221) points 
 out that the granting of a faculty or licence is " not a dispens- 
 ing with the law, but an execution and observance thereof." 
 It is possible for an individual to obtain a grant of a chapel 
 or a pew in a church by faculty of the ordinary — a high 
 judicial officer or dignitary, e.g., the Bishop.^ In Hallidny v. 
 Phillips, 1889, 23 Q.B.D. 48, the word "faculty" is used in 
 this connection along with " right," " title," and even to 
 denote the actual deed of grant. So again — 
 
 " The chief officer of the Archbishop of Canterbury is the Master 
 
 ^ Cf. tlie classical use of the word ^ Stephen, Ctnnm. ii. 710. 
 
 vires (Brissonius, s.v.). 
 
70 RIGHT. 
 
 of Faculties, to whom applications are to be made for the admission or 
 removal, under special circumstances, of notaries '' — (Phillimore, Biixl. 
 Lam (2nd ed.), ii. 945.) 
 
 The English licence to marry without banns is the most 
 familiar example of this usage. 
 
 (6.) In the Middle Ages the word " facultas " came to 
 mean a body of masters or doctors in liberal arts who had 
 the power of teaching and conferring degrees. The word is 
 used in this sense in the Bull of Pope Nicholas V. found- 
 ing Glasgow University, and it also occurs there, first, to 
 express, along with potestas, the power of the Archbishop as 
 Eeetor, after the pattern of Bologna ; and, secondly, to express 
 the power of reading and teaching given to graduates. 
 Popularly, the medical profession is spoken of as " The 
 Faculty." 
 
 Again, in the Faculty of Advocates, the Faculty of Pro- 
 curators, the Faculty of Physicians and Surgeons, the word 
 has come to mean an artificial person, a corporation — like 
 College in England. 
 
 (7.) Grotius {Be J. B. et B. i. 1, 4, &c.), after explaining a 
 right {jus) as being a moral quality belonging to a person to 
 hold or do something justly, goes on to explain that when the 
 moral quality is perfect it is called " facultas " as opposed to 
 " aptitude " — a fitness or moral claim. He prefers to call 
 facultas strict right {jus strictum), and says that this includes 
 power ; if over one's self, liberty ; if over others, authority, as 
 of a parent or master ; if over things, ownership, dominion, 
 full or less (as pledge, &c.). 
 
 Leibniz appears to refer to this passage when he distin- 
 guishes the degrees of right which spring from the right of 
 nature. He contrasts the three ideas of strict law {jus 
 strictum or facultas) equity and probity, each corresponding 
 to one of the three maxims — " Neminem Isedere, suum cuique 
 tribuere, honeste vivere." — {Be notionibus jur. et just., Erd- 
 mann, p. 119 ; Latta's Leibniz, p. 288.) 
 
CAFACITY; ABILITY. 71 
 
 SECT. XVI. — CAPACITY ; ABILITY. 
 
 (1.) Capacity (from capax, capere) refers physically to a 
 power of holding, as when we speak of the capacity of a 
 vessel: — 
 
 " Vasis argenteis legatis, ea omnia continentur, quss capacitati alicui 
 parata sunt."— (Paul, Smt. iii. 6, 86, Huschke's ed.) 
 
 (2.) " Capax " and " capacitas " were applied by the Eoman 
 jurists to the power or right of taking an inheritance. In 
 Ulpian's i^wZes, tit. 16, the added rubric " De capacitate" is 
 represented in the text by the words " capere possunt." ^ 
 
 (3.) In modern legal usage it is applied to a right more 
 or less generalised. It is power or ability to possess or 
 exercise rights. Thus in the rubric of the 6th section of 
 the Naturalization Act, 1870, we find "capacity of British 
 subject to renounce allegiance to Her Majesty," while the 
 rubric of section 3 speaks of "power of naturalised aliens to 
 divest themselves of their status." 
 
 Capacity to contract or to enter into legal relations refers 
 to conditions imposed by the law, which may be the basis of 
 a concrete right.^ 
 
 Capacity in its first conception is something understood 
 to reside in the person, which conferred " capacity " in a legal 
 sense, — i.e., a right or power to contract, to test, to inherit, 
 to marry, &c. The later conception is that of one or more 
 external physical conditions, such as age, sex, health, credit, 
 and such like, or rules more or less arbitrarily imposed by a 
 society, which are the foundation of the legal capacity or 
 right. It is the former view which prevails when capacity 
 is made to depend on the lex domicilii, and the latter when it 
 is made to depend on the lex loci contractus.^ 
 
 (4.) Capacity is an external physical condition — a char- 
 
 ' Cf. L. 55, D. de leg. et fid. (31), change Act, 1882, sect. 22, where we 
 
 and L. 29, D. de lib. leg. (34, 3). find the words "capacity or power to 
 
 ^ Cf. Code civil fran9ais, iii. 2, 2 ; incur liability." 
 
 Guthrie's Savigny, passim ; A. Weiss. ' Cf. Dicey, Conflict of Laws, 543, 
 
 Dr. Int. Pr. iii. 296 ; Bills of Ex- 701. 
 
72 RIGHT. 
 
 acter, as Erskine (i. 6, 1) speaks of "persons in their private 
 capacities, husband or wife," &c. We speak of a person 
 employed in the capacity of a servant, — (32 and 33 Vict. c. 14, 
 sect. 19 (3) ). This capacity points to duties and obligations 
 rather than rights.^ — (Brissonius, s.v. Cwpax.) 
 
 (5.) We have described capacity as ability. This word, 
 though less common, has a similar history. It comes from 
 the Latin habere, to hold. " Ability " may mean legal power. 
 " A disability " is an incapacity. Habili modo means " in a 
 competent manner,"- — (See Sussex Peerage Case, 11 CL & Fin. 
 at pp. 92, 93 : Calvinus, Ducange, Skeat, Stroud, s.vv. Habilis, 
 &c. Cf. Erskine's use of the words "power," "right," 
 " capable," " disability," &c. in Inst. iii. 10, 6.) 
 
 SECT. XVII. — STATUS. 
 
 Status is a term similar to capacity. It refers originally 
 to the persona standi in judicio — a general right to appear in 
 court in vindication of material rights. Now the usage is 
 extrajudicial. As Austin expresses it, " a status is a set or 
 collection of various rights or duties, or of various capacities 
 or incapacities to take or incur rights or duties." — {Jur. 725.) 
 Both " capacity " and " status " group the rights round the 
 person as a subject, while " estate " and the other phrases to 
 be afterwards noted, group them round the object. — (Sect, 
 xxi. (6) infra. Naturalisation Act, 1870, sect. 17, where 
 •' disability " is defined as a " status." ) 
 
 It is the same word Status, which, like Liberty, has 
 become universalised and personified in the modern " State," 
 which itself represents and enforces law and aU particular 
 rights. — (Pp. 95, 124, infra. Prof. Maitland, Gierke's Political 
 Theories of Mid. Age, xxv.). 
 
 SECT. XVIII. — TITLE. 
 
 (1.) Title is originally a mark or ticket. It is commonly 
 
 ' Gf. Ersk. Inst. iv. i, 6 ; Trayner's Maxims, s.v. Capax doli. 
 
TITLE. 73 
 
 applied to the inscription at the beginning of a book, indi- 
 cating the subject and perhaps the author, or to the headings 
 of the divisions of the Digest and our older legal treatises. 
 
 " And Pilate wrote a title and put it on tte cross." — (St. John 
 xix. 19.) 
 
 " Tell me once more what title thou dost bear." — (Merchant of 
 Venice, ii. 9, 35.) 
 
 If, as suggested by Lewis and Short, it is connected with 
 the root rt in tIvw and Ttfxdm, we may suppose that it was 
 first applied to the written incantation placed on a piece of 
 property by the prehistoric conveyancer for its protection. 
 The incantation made property sacred, and so " completed a 
 title." — (Cf. p. 38, supra.) According to Ducange, " titulus " 
 refers either to the boundary stone, or the inscription 
 thereon. 
 
 The transition from the popular to the legal usage is 
 illustrated by a constitution of Theodosius and Valentinian, 
 embodied in the Code of Justinian (ii. 16) under the title 
 "Ut nemo privatus titulos prsediis suis vel alienis imponat 
 vel vela regalia suspendat." What was forbidden was the 
 placing of " signs " of ownership on property without judicial 
 authority. — {Of. Novel, xvii. 15.) 
 
 (2.) In legal usage it is defined as a " cause " of posses- 
 sion.— (Brissonius, Calvinus, s.v.). A ticket on an article 
 exhibited " sold," a ticket on a seat in a theatre " engaged," 
 a card or a hat on a seat in the House of Commons, suggest 
 the association of ideas.^ The fact of having marked (titled) 
 the seat constitutes a legal " title " ; other persons respect it, 
 and the authorities keep the thing or the seat and so enforce 
 the right. So Ulpian (L. 13, § 1, D. de hered. pet. (5, 3) ) 
 says, " Omnibus etiam titulis hie ' pro possessore ' hseret et 
 quasi injunctus est. Denique et ' pro emptore ' titulo haeret," 
 and so on in other cases given. The " titles " of purchaser, 
 heir, possessor, are " causes " of possession. 
 
 ' In Scotland the word " ticket " to Leases (Montgomery Act, 10 Geo. 
 was formerly applied to obligations III. c. 51.) 
 like bills ; (Boss, Lectures, i. 45) ; or 
 
74 RIGHT. 
 
 (3.) The following passage illustrates the modern use of 
 iitle as the foundation of a right of property : — 
 
 " Nullo justo titulo prsecedente possidentes ratio juris quserere domi- 
 nium prohibet."— (L. 24, C. due. rei vind. (3, 32).) 
 
 It may also mean " a cause " of transfer of property. G. 
 
 J. Bell thus explains this later usage : — 
 
 " Lawyers distinguisli in transference the titulus transferendi dominii 
 and the modus transferendi dominii : tlie former being the conventional 
 will to convey ; the latter the overt act by which the real right is trans- 
 ferred."— (Prm. 1299-1300.) 
 
 This distinction was of importance in the former law of 
 sale, but is now generally regarded as of little practical use. 
 —(Holland, Jur. 149.) 
 
 (4.) In judicial proceedings we find the phrase " titulus 
 actionis " opposed to " causa debiti " — the former referring to 
 the merely formal ground of action, or the mere form of 
 action, the latter to the substantive merits. — (L. 69, D. de 
 fidejuss. et mand. (46, 1) ). 
 
 " A title to sue " appears to be a Scotticism founded on 
 the Eoman phrase " titulus actionis," just quoted ; it is 
 very often used when " a right of action " is meant. This 
 appears to be the case in Edinhurgh, United Breweries} The 
 Lord Chancellor (Herschell) treats the case as one of right, 
 Lord Watson as one of title. The following sentence of the 
 Lord Chancellor's opinion (p. 109) stands midway: — 
 
 " Would Dunn . . . come into Court and say, ' I am entitled 
 to claim that this contract shall be reduced 1' It is said that he has 
 that right because, although he has parted with the property, the per- 
 sons who are the present owners of the property, and who took from 
 him, are brought also into Court as co-pursuers, so that the two 
 together at all events could restore the subject-matter to Molleson. 
 Does that give them a title to sue ? " 
 
 i.e., a formal title. So in Duke of Atlioll v. Tm-rie} where 
 certain members of the public successfully vindicated a right 
 of way through Glen Tilt, the Lord Chancellor (St. Leonards), 
 at page 71, said the question was " whether the respondents 
 1 1894, A.C. 96. = 1852, 1 Macq. 66. 
 
TITLE. 75 
 
 have a right to sue." The Scots books regard this case as 
 decidiag " title." ^ The phrase "title to sue" ought to be 
 restricted to the formal legal title — the evidence of right.^ 
 For example, a legatee has no right to sue a debtor of the 
 testator, but he can obtain this right if he is allowed to make 
 up a title as execiitor. The title to sue removings is closely 
 connected with the completion of titles in conveyancing.* 
 So, as to title to defend, reference may be made to Keiller 
 V. Magistrates of Dundee* Mr. Keiller had a written title 
 to the foreshore in dispute, but no right; the Magistrates 
 had no written title, but the public had a right to use the 
 shore, and the Magistrates had therefore a sufficient "title 
 to defend." In fact the only proper use of the pleas "no 
 title to sue," " no title to defend," is against a person who 
 may have an interest, but requires to take some formal step 
 to vest himself with the right, and has failed to do so ; or 
 where there is an undoubted right somewhere and an 
 undoubted obligation somewhere, but the right to enforce 
 it is really official, and the person appearing has not the 
 proper representative character. Another example which 
 illustrates the phrases " claim," " good case," " right of action," 
 and others, is Whitehead v. Blaih, 1893, 20 E. 1045, where a 
 married woman sued with consent of her husband for dam- 
 ages arising from the death of her son. It was held that she 
 had no title to sue. Lord Kinnear justifies this, for he points 
 out that the instance might have been remedied. A person 
 who has no right at all can have no real title to sue.^ Any 
 other use than that indicated implies the treatment of the 
 whole law and all possible legal relations under this plea. 
 The laxity under notice is similar to that already discussed 
 in the " right of action " (p. 52). This use of the word title 
 is in short an example of the absolute confusion of right and 
 title about to be noticed. Sir Walter Scott puts the word 
 
 1 Cf. Magistrates of Edinburgh, 11 * 1886, 14 E. 191. 
 
 A.C. at p. 671. ' See remarks of Lord Young in 
 
 ^ Maokay, Practice, i. 279. Cambuslang West Church v. Bryce, 
 
 8 Bell, Prm. 1267. 1897, 26 E. 328. 
 
76 RIGHT. 
 
 " title " in the mouths of persons from whom we should 
 expect " right," apparently because it sounds better. — {The 
 Antiquary, passim.) 
 
 (5.) A right may be a title as the foundation of another 
 right, as in the phrases, " A bishop seised in right of his 
 church," " a husband seised in right of his wife." ^ In com- 
 pany law it is much discussed what is meant by a person 
 holding shares "in his own right." The ordinary meaning 
 seems to be that the shareholder should have such a title 
 that the company may safely deal with them as his shares, 
 while, on the other hand, it is maintained that he should not 
 only have the legal title, but also the beneficial ownership, 
 though this may be incumbered.^ 
 
 The phrase "completion of title" (Titles to Land Con- 
 solidation (Scotland) Act, 1868, sect. 24 ; Conveyancing 
 (Scotland) Act, 1874, sect. 4 (1) ) implies a title midway 
 between the abstract legal title and the concrete deed which 
 is evidence of the right. The imperfect title may be a written 
 contract of sale, missives, or a formal conveyance ; the title 
 is completed when all the formal steps have been taken which 
 are demanded by the law for vesting the owner with all 
 active and passive rights and obligations, — title to sue, 
 defend, remove tenants, &c. 
 
 In the Crown right and title may properly coincide, 
 because the mere vesting of the right may be held to give a 
 title as well. So we read in Balfour's Fracticks, p. 23, " Gif 
 ony Bischop deceis, the King hes richt and title to intromit 
 with and uptak the maillis, &c. of all lands, &c." It is on 
 this principle that the Crown vests absolutely by survivance, 
 and no written title is necessary. — (Craig, Jus Feud. i. 16, 47.) 
 This is also true of udal tenure in Shetland. Possession and 
 survivance are titles. — (Ersk. ItisL iii. 8, 77.) ^ 
 
 (6.) In modern usage the tendency is to identify right 
 
 ' Bythewood and Jarman, i. 3. ' " Mortiras sasit vivum," Tray- 
 
 '■^ Bainbridge v. Smith, 1889, 41 ner's Maxims, s.v. See p. 88, infra. 
 Ch. D. 462. 
 
TITLE. 77 
 
 and title. Thus in Castrique v. Imrie (L.E. 4 H.L. p. 425) 
 Mr. Justice (afterwards Lord) Blackburn said : — 
 
 "The first question whicli arises is, whether on these facts the 
 plaintiff had any title in the ship. ... No title in the ship was con- 
 veyed," &c. &c. 
 
 This case illustrates the use of " claim " (a right which 
 may be contested), " interest " (a limited right) ; and will be 
 noticed again for " privilege," and as showing how recognition 
 by foreign states may come to be necessary for the existence 
 of rights. 
 
 The following passage from Bankton shows how complete 
 the identification of right and title was in his day : — 
 
 " In the law of England a distinction is made between the terms 
 Estate, Right, Title, and Interest in lands. Estate or State signifies an 
 inheritance, freehold, term for life or years, tenancy by statute, mer- 
 chant, &c. which any man has in lands or tenements ; a Right 
 properly is where one is out of possession of his estate, by disseisin or 
 wrong, and has remedy by entry or action ; but Right includes also an 
 estate in esse in the case of conveyances ; thus, if a tenant in fee-simple 
 make a lease for years, and release all his right in the lands to the 
 lessee and his heirs, the whole estate in fee-simple passeth. A Title is 
 properly when a man has lawful cause of entry into lands whereof 
 another is seised, for which he can have no action, as title of Mortmain, 
 &c. ; but legally (Title) includes (Right) also. Interest is regularly 
 taken for a right to a term or chattel real, not yet commenced ; but in 
 legal understanding it extends to estates, rights, and titles. The terms 
 Right and Title are promiscuously used in our law. As to Estate, it is 
 generally taken for a man's land estate, but it is frequently applied to 
 moveables, as when we speak of one's personal estate, which compre- 
 hends both goods and nomina, or debts due to him. Interest compre- 
 hends every right or title one has to a subject, but sometimes it is taken 
 for a collateral or incidental interest, as a husband's interest in his wife's 
 estate, the common debtor's interest in his effects attached or arrested, 
 the heritor's interest in an action of poinding the ground." — {Inst. i. 597.) 
 
 The confusion is shown by Tomlin's attempt to distinguish 
 them (Diet., s.v.). He says title is more general than right. 
 " Every right is a title, but every title is not such a right 
 for which an action lies." 
 
 In the Agricultural Holdings Act, 1883, the rubric of 
 section 1 speaks of the " general right of tenant to compensa- 
 tion," but the section itself says " he shall be entitled " to 
 
78 RIGHT. 
 
 obtain compensation. This might be illustrated from almost 
 every statute. " Shall be entitled " is constantly used as 
 equivalent to " shall have a right to." 
 
 The confusion of riglit and title oxtends to the modern 
 use of the word /its; thus yws rdida- is treated as a thing, an 
 estate (p. 86) ; but when the phrase is put jure relictm, jure 
 coronce, &c.,jus becomes a " title." ^ 
 
 (7.) Austin finds fault with the usage, which treats title 
 as if it were synonymous with ri(/M, and points out that title 
 coincides with what Bentham called an investitive fact or 
 event, that is to say, " the fact, simple or complex, througli 
 which the party entitled was invested with ii viglit." (Jnr. 
 1010 ; Bentham, Morals and Lajii: 1^48.) 
 
 Dull' {Feiidnl Convei/ancivi/, 154, 1*72) carefully distin- 
 guishes a right from a title, by which he means ii written 
 title only, thus diiruriiig from Austin's use. The title is 
 often a matter of form, and any doioct therein may generally 
 be remedied, so that questions ui' title are resolved into mere 
 matter of expense. 
 
 In the phrase " right, title, and interest," " title " stands 
 for the evidence of the right. lu the ordinary form of trust- 
 disposition and settlement (Jur. Styles, 5th ed. ii. 575, &c.) 
 the single word is expanded thus — 
 
 "TogetluT witli the wliolu writM, titles, vouoliers, luid instructions 
 of my said estate, and all that has followed or may Iju ooiapetuiit to 
 follow thereon." 
 
 An interesting political application of this phrase occurs 
 in the works of John Lesley, Bishop of Eoss, the Scots 
 ambassador at the Court of Elizabeth. In 1584 he puljlished 
 " a treatise touching the right, title, and interest of the most 
 excellent Princesse Mario, (j)ueene of Scotland, and of the 
 most noble King James, Iier grace's sonnc, to the succession 
 to the croune of England," &c. The Latin edition published 
 in 1580 bore to be "De titulo et jure, &c." In a similar 
 work published by him in 1571 the same plirase occurs. 
 
 ' Of. Oonvoyanoing (Scotland) Act, 187'1, soots. C9 and 00 ; ISokk's f'oil'; 
 pp. 413, 41-1. 
 
TITLE. 79 
 
 Perhaps this last example shows the uselessness of 
 attempting nice distinctions. As is proved by the passage 
 just quoted I'l-nm llankton, "right, title, and interest" is 
 simply a formula for every rip;! it, \q'-^v\ and ccjuitable, if not 
 sontiiiunital, the j^ranlor iimy possess.^ 
 
 (8.) There are several physical applications of the term 
 " titlii." In the Thoodosian Codo'-' we find the phrase "Lar- 
 ,tj;itionalo8 til-uli" for burdens or paymonts imposed as taxes 
 for the purpose of largesses. 
 
 It is ol'tt'n applied to persons. "Titular" is the technical 
 name for the ^mipriotor of loiiids or tithes in Sc.otland, corro- 
 sjiondiuLi; to " iin]iropriat(irs" in England.'' 
 
 A title of nobility was formerly the evidence of power 
 
 and authiirity. Tin-, kingly title gives rights — the,yv/.s' coroncc. 
 
 Hlai'ksiono sin'aks of the " oflice, dignity, and duty " of a 
 
 Manjuis — tho protection of the marches of the kingdom. So 
 
 Karls and Dukos had rinbts and duties corresponding to their 
 
 titles. Masters and doctors wore persons who had tho right 
 
 aiul title to teach — the FacuUas doccndi. As a competent 
 
 judge n\ight be intellectually incompetent, so a person might 
 
 have a faculty to teach without a faculty of teaching. The 
 
 authority may disappear and leave the title — an empty name. 
 
 So Dean Swift spoke of a place — 
 
 " Wlu'Vi' iith's jrivo no nyht or pmivr, 
 And pcoi'iige is a witliored flower." 
 
 A title is now an liereditary right — a thing,* so that a 
 person may have a title to a title. 
 
 A very common use of " titles " is to denote " title-deeds." 
 — (,lur. Styles, 3rd ed. i. IGO.) "Evidence of title" would be 
 more accurate (Land Transfer Act, 1897, sect. 16, &o.). {Of. 
 Jur. Styles, iii. ."^14, — "Creditors . . . shoidd be ordained 
 to exhibit and produce tlieir respective rights, titles, and 
 
 ' l!riioi\i'.s /-rt/<f/ J/.M-/»i.<(7tli imI.), "Boll, /';•/)(. 1118 ; Tomliii, s.i>. 
 
 371 ;<•/', rorlociiis !■. lloiuiiTHiiii, 1808, Titular; Sir WiUlcr Soott, Iniiilwe, 
 
 '2U 1{,. 663,- iiicl tillo-cU'i'ils ttro not uoto l.o clmp. x.\ii. 
 ,u'.'..ssori('s nf land. •■ Bliicksl. Comii. i. 1!)0, 271, 397 ; 
 
 ■■' i. 10, 2; .\i. 7, 18; cf. Cod. r/'. Buekliurst Toorago, 2 A.O. 1. 
 .luat. X. -J:). 
 
8o RIGHT. 
 
 diligences." There are numerous examples of this usage in 
 the Titles to Land Consolidation (Scotland) Act, 1868, and 
 relative schedules.) ^ 
 
 " Eights " is sometimes used in exactly the same sense, — 
 e.g., " for payment of the blench duty contained in his rights 
 and infeftments of the same " (Dallas, ii. 457). In the other 
 example just quoted " rights " is generic, including " titles," 
 — voluntary deeds, and " diligences," — ^judicial decrees, &c. 
 
 So one volume of the Juridical Styles is titled " Moveable 
 Eights." If all that you know is your title, the transition to 
 identifying it v?ith right is easy. The scrip is all your right 
 in the railway. A paper note is only evidence of your right 
 to £1, but if you lose it your right is gone also. If you can 
 trace it, it will probably be in the hands of a bonajide holder. 
 
 In later ecclesiastical law title came to mean a district 
 in the city of Eome with a taxable area, and then a parish 
 church in Eome, as distinguished from an Oratory or Basilika. 
 This is a purely physical reference. It was due to the fact 
 that a person had to receive such an appointment before he 
 could be ordained priest. — (Ducange, s.v.). So we find in the 
 Decretals of Gregory IX. (iii. 4, 2), "Deponitur Cardinalis 
 qui in suo titulo non residet." — (Cf. " Non habens titulum," 
 Sexti Decretalia, iii. 4, 37). 
 
 Tomlin (Diet, s.v.) says that a title of a clergyman is the 
 church to which as priest he is ordained there constantly to 
 reside, for one reason, because in former days the name of the 
 Saint to whom the church is dedicated was engraved on the 
 porch, from whence the church itself was afterwards de- 
 nominated "Titulus." Another explanation connects this 
 usage with the Eoman one of payment or burden. 
 
 Dr. Ayliffe in his Parergon Juris Canonici Anglicani 
 (p. 403) says a title was required "to hinder persons in 
 orders from becoming beggars, to the great disparagement of 
 the priesthood." 
 
 1 Cf. the transfer of "Documents " Transfer of Title " in Sale of Goods 
 
 of Title" in the Factors Acts, and Act, sect. 21, rubric. 
 
INTEREST, 8i 
 
 (9.) But it must be borne in mind that the word title, is 
 
 used in ecclesiastical law in all senses corresponding to the 
 
 usages in municipal law. Dr. Ayliffe (Z.c.) says — 
 
 " The word title is in our law-books taken several ways ; some- 
 times it is put for the motive or consideration on which account domi- 
 nion or property is transferred. Sometimes a title is styled by the 
 name of Necessity, and sometimes 'tis called a token or sign of a thing. 
 Sometimes ecclesiastical orders, or any church dignity or pre(h)eminence 
 are called a title, and lastly, a benefice itself is sometimes called a title. 
 . . . The Archdeacon says that a canonical title is a spiritual motive 
 or consideration, on which account a person has a right or power given 
 him of dispensing matters relating to the Church, and such a title is 
 only agreeable to a clergyman. But a title to orders and a title to an 
 ecclesiastical preferment are different things. For a title to an ecclesi- 
 astical preferment accrues several ways, as by collation, presentation, 
 nomination, election, and by other ways and means of introducing a 
 title into an ecclesiastical benefice, whereby the person claims institu- 
 tion, confirmation, &c. ; but a title to orders only arises from the act of 
 obtaining some ecclesiastical benefice, or having a grant thereof (at 
 least) whereby he may claim ordination. There is also another title 
 which we call a title to the profits, and this is a spiritual right accruing 
 to a man from having institution given him to some living." 
 
 (10.) In the Latin version of the 131st Novel of Justinian 
 the title is given as " De Ecclesiasticis iitulis," corresponding to 
 the Greek " itepi tu>v eKK\ricna(7TiKwv kuvovcov kul Trpovo/j.icov": 
 but in the preface the Greek words are translated by " regulae " 
 and " privilegia." The word " titulus " does not occur in the 
 Novel itself, and the title may therefore mean " Of ecclesias- 
 tical rights or privileges," and may only be a very early 
 example of the confusion of right and title. 
 
 SECT. XIX. — INTEREST. 
 (1.) We have hitherto regarded right in various forms 
 from the point of view of the claimant and as vested in him, 
 but all rights have some object — some physical embodiment 
 outside of the subject claiming them, and there is a constant 
 tendency to identify the right with the thing claimed, and so 
 if the right is not already a right to or in a physical external 
 thing, it becomes itself a thing or finds external embodiment 
 in a " title." Even " interest " is no exception. Its first 
 
 F 
 
82 RIGHT. 
 
 reference is subjective, although it may now be taken as com- 
 pletely identifying right with its external physical object. 
 
 Interest is derived from the Latin interesse, and points 
 first to physical presence. If something is in the midst of a 
 crowd it is " interesting." The interest is partly subjective, 
 arising from the character or the position of the observer, 
 and partly from the nature of the thing. This usage is post- 
 classical (Ducange, Littrd). The classical usage will be found 
 in Gains, iii. 161, where Muirhead translates " quatenus mea 
 interest " by " damages for the loss I have sustained." ^ In 
 later usage Bamna et interesse means loss and damage. This 
 is the interest of the person wronged (Ducange), and this 
 phrase appears in modern French as Bommages et interUs or 
 Dommage-int^rets. — (Littrd.) 
 
 We may notice in passing the association of ideas of 
 interest as the payment made to a person by another who 
 enjoys the use of a capital sum belonging to the former. The 
 lender is interested in the capital, but the interest is his 
 special aim and "interest," if the borrower is able to pay. 
 Interest in this sense is pactional or legal damages for 
 withholding payment of the principal. The word has legal 
 associations, while " usurse " had associations of illegality and 
 immorality. Bartolus in his Commentary on the Code (i. 1, 7) 
 says — " Et ideo tenendum est, usuras nullo modo exigi ut 
 usuras, sed ut interesse." 
 
 (2.) Every right is necessarily an interest, or a group of 
 interests ; but there may be interests — political, social, scien- 
 tific, sentimental — which are not legal. So in ordinary legal 
 usage an interest may mean (a) a subjective feeling, varying 
 from the vaguest sentiment to an " equitable interest," which 
 Courts will protect ; (6) a limited right, fully recognised and 
 protected by law ; (c) the sum of such rights — a full absolute 
 right ; and (d) it may be a right absolutely identified with an 
 object — a thing. 
 
 (3.) In the debate in the House of Commons on 13th 
 ' See the texts quoted in Puclita, Gursus ii. p. 308 (8th ed.). 
 
INTEREST. 83 
 
 May 1897 (Hansard, 4th Ser. 49, c. 340) on the Lochearnhead 
 Eailway Bill, the word " interest " occurs several times, and 
 the meaning varies from a vague sentiment to a legal right. 
 
 " The interests of the public ought to be protected " (345). " He 
 had no interest in the Bill one way or the other " (347). " The proposed 
 route [was] injurious to their interests " (348). " Crofters whose 
 interests were injuriously affected " (349). 
 
 When we speak of the interest of a judge, notary, or 
 witness as a bar to his acting, we mean by interest a fact 
 which is an element in negativing his title, power, or right to 
 act. A subjective feeling is not enough : the interest must 
 generally be substantial and objective. — (Green's Encyclopedia, 
 S.V. Interest ; Smith, L.G. 10th ed. ii. 310.) 
 
 In political affairs, where rights are hard to define, 
 recourse is had to the vaguer idea of " interests." Thus, in 
 the charter of the British South Africa Company (sect. 3) 
 (Hertslet, Map of Africa, 176), the Company is authorised to 
 acquire " all or any rights, interests, authorities, jurisdictions, 
 and powers of any kind or nature whatever ; " and further, 
 " to hold, use, and exercise such territories, lands, property, 
 rights, interests, authorities, jurisdictions, and powers." 
 
 So in international affairs we read much of British 
 
 " interests " in the East, in China, and in the world in general. 
 
 — (Hertslet, Map of Europe, 2615 et seq.). 
 
 (4.) We then find "interest" used in the technical sense 
 
 of a limited right. So 
 
 " Interest is commonly taken for a chattel real, as a lease for years, 
 &o. ... In legal understanding an interest extends to estates, rights, 
 and titles that a man hath in or out of lands, &c." — (Tomlin, s.v.). 
 
 It is apparently often used as contrasted with right, i.e., 
 full right.^ " Eights and interests " occur in combination 
 in Welter v. Ker, L.E. 1 Sc. App. 11, in Lord Chelmsford's 
 opinion, and are perhaps thus contrasted. 
 
 In the Merchant Shipping Act, 1894, section 57, " equit- 
 able right " occurs in the rubric, but in the section " beneficial 
 ' Of. Definition of Property in Lunacy Act, 1890, sect. 341. 
 
84 RIGHT. 
 
 interest" is used, which is defined as including "equitable 
 
 interest." So again : 
 
 " Where a person dies possessed of real estate, the Court shall, in 
 granting letters of administration, have regard to the rights and interests 
 of persons interested in his real estate."— (Land Transfer Act, 1897, sect. 
 2(4)). 
 
 In Fraser v. Lord Zovat (1898), 25 E. 603, we find an Act 
 of 1774 referred to, which contained the comprehensive 
 clause, " saving to all and every person all such estates, 
 rights, titles, interests, claims, and demands of, unto, and out 
 of the lands and premises to be granted aforesaid." This is 
 an amplification of the phrase "right, title, and interest" 
 formerly noticed (p. 78), and really means " rights," whatever 
 shape they may appear to assume. 
 
 (5.) The interpretation clause of the Conveyancing (Scot- 
 land) Act, 1874, section 3, defines an " estate in land " as 
 including an interest " in fee." This may be in absolute 
 dominion. 
 
 We have already noticed the " title to sue " in connection 
 with the " right of action." To found such a right, which of 
 course does not necessarily imply a substantive right behind 
 it, a person must have both a title and an interest to sue. — 
 (Mackay, Practice, i. 279). By title is meant the formal legal 
 right, and by interest, some benefit from asserting the right or 
 preventing its infringement. These are both necessary to 
 maintain an action. The interest needs not be pecuniary, but 
 it must be one recognised by the law. Law raises a merely 
 personal subjective interest into a legal objective one. If a 
 person is duly vested with a legal right, he has both a legal 
 title and a legal interest to defend and vindicate it. The 
 interest recognised by law must be an objective material one ; 
 it has generally a market value. But the idea of interest 
 is wide, and may cover interests of property as well as more 
 limited rights. Thus in marine and fire insurance interest 
 often does mean property (Green's JEncyclopcedia, s.v. Interest). 
 
 (C.) An interest, if recognised by law and proved by a 
 
INTEREST. 8s 
 
 proper title, will thus become a right. The ordinary usage is 
 " to have a right." It may be to a thing, if it is proprietor- 
 ship, or " in a thing," if it is a more limited interest or estate. 
 Even if this is a mere feeling, it is an object to the mind. 
 The tendency is then to identify the external object which 
 gratifies the subjective feeling of right with the right itself, 
 somewhat in the same way as we confuse " tradere rem " and 
 " tradere possessionem." We naturally speak of giving de- 
 livery of a thing and giving a right to it — of having a thing 
 and having a right to it. Possession implies a right to 
 possess. Physical possession is a title. 
 
 Eight accordingly means a thing, the object claimed. 
 This practically identifies right and interest. Thus, Lord 
 Watson in Btudd v. Cook, 8 A.C. at p. 598, speaks of a dis- 
 position '■ of each or every right or interest in land." But 
 section 3 of the Titles to Land Act, 1868, had previously 
 defined "land" as including "heritable subjects, securities, 
 and rights." — (See Schedules, passim). 
 
 In Erskine's Institute (ii. 12, 6) we find a reference to a 
 " moveable right or subject." Courtesy, a reversion, a lease, 
 are all given as examples of heritable rights ; and the words 
 " faculty," " power," " privilege," " interest " all occur in this 
 section in the same connection as objects of legal diligence of 
 creditors. The right is subjective in its conception, but as it 
 always refers to an object, it soon becomes absolutely iden- 
 tified with that object, if it is not the case that it is truly 
 objective in the first instance, and becomes subjective on 
 reflection. So we can speak of the " mortgage of a right." — 
 (Howard v. Patent Ivory Manufaetwing Co., 38 Ch. D. 169). 
 
 So section 4 of the Bankruptcy Act, 1856 (19 and 20 
 Vict. c. 79) says that " ' property ' and ' estate,' when not 
 specially restricted, shall include every kind of property, 
 heritable or moveable, wherever situated, and all rights, 
 powers, and interests therein, capable of legal alienation." 
 
 To what we have already said as to the meanings of the 
 word/ws, it should be added here that this word is also in 
 
86 RIGHT. 
 
 Scots practice frequently used as " a thing," and may be 
 translated interest. Thus the jus mariti may be a thing, 
 while the right of administration is always a power. Bell 
 may be quoted : — 
 
 " [A husband's] jus mariti comprehends every subject wbicb forms 
 part of the common stock. It operates ipso jure like an assignation, 
 without the necessity of intimation ; and is available to his creditors, 
 either on the arrestment of particular funds, as interests or rents 
 become due, or by adjudging the right so as to make it available against 
 the rents of the wife's estate." — {Prin. 1561.) 
 
 Jus relictm is a thing. — (Bell's Prin. 1579). " The surviv- 
 ing widow has a third [or, if there are no children, one-half] 
 called jus relictm." As to jura crediti, Bell (Prin. 1339) says — 
 
 " Frequent occasions arise in which it is necessary thus to contem- 
 plate jura crediti as property, as in bankruptcy, on marriage, or on the 
 death of the owner." 
 
 " Incorporeal rights comprehend all jura ad res, the jus exigendi in 
 all obligations."— (Prm. 1338.) 
 
 " The right of patronage may be in a subject as an accessory of his 
 land, or as vested in him by infeftment, &c." " If once vested by 
 infeftment, patronage must ever after, like land, be transferred by 
 sasine."— (Pn'ra. 836.) 
 
 On the other hand, we must observe that the right of 
 electing ministers to parishes in Scotland under 37 and 38 
 Vict. c. 82, is a power vested in congregations, and failing 
 them, in Presbyteries, under certain regulations. 
 
 Interest as a money payment, already alluded to, may 
 perhaps be taken as another physical usage. 
 
 SECT. XX. — THE CLASSIFICATION OF EIGHTS. 
 
 (1.) The principal working classifications of rights are 
 classifications of interests or objects of right. Hence the 
 distinction of real and personal rights. All rights are objec- 
 tively personal, because they inhere in a person or persons : 
 but the distinction refers to rights as objects. This distinc- 
 tion carries us back to the identification of " right " and 
 " right of action." 
 
THE CLASSIFICATION OF RIGHTS. 87 
 
 The distinction between real and personal actions is drawn 
 in Justinian's Institutes (iv. 6, 1). The former were intended 
 to declare a right of property, status, or such like, and the 
 latter were founded on obligation — contract or delict — i.e., 
 they were distinguished according to the olyect aimed at. 
 
 Erskine says : — 
 
 " Actions are divided both by tlie Eoman law and ours into real 
 and personal. A real action or actio in rem is that which arises from a 
 right in the thing itself, or a, jus in re, and is grounded either upon the 
 right of property, which is the highest right that one can have in a 
 subject, or on a right of servitude, hypothec, pledge, &c., which are 
 inferior real rights. A personal action is that which is founded merely 
 in a right of obligation against a person or a jus ad rem." — {Irist. iv. 
 1, 10.) 
 
 Erskine speaks of grounds of action, but he next proceeds 
 to refer to the ends also. A real action aims at dealing with 
 a particular thing, irrespective of the particular individual 
 who may possess it. A personal action tries to enforce the 
 right through a person. 
 
 So Comyn says : — 
 
 " An action is denominated real or personal, as the thing sought to 
 be recovered is the one or the other." — (Dig., 5th ed., s.v. Action.) 
 
 This is an addition of the editor, for the original state- 
 ment was, that " a personal action is such as concerns the 
 person only, by which nothing but damages can be recovered." 
 The person here is the debtor or defender (defendant), and 
 not the creditor or pursuer (plaintiff). 
 
 In later usage the distinction was applied to rights 
 themselves. Bell (Prin. 2-3) divides rights into two classes 
 — (1) those which relate to property or things external ; and 
 (2) " those which relate to the person, the safety, liberty, and 
 reputation of men." This seems to be a new distinction, 
 but it is open to criticism, e.c/., is the right to the custody of 
 a child real or personal ? Bell then continues — 
 
 " Of the rights relative to property another division has been made 
 by lawyers into those which depend upon the engagement or obligation 
 of the person to give the thing, or to make it available to another in 
 perpetual or temporary use, and those in which, by immediate connec- 
 
88 RIGHT. 
 
 tion with the thing itself, without the intervention of another, it is said 
 to belong to the person. Eights of the former kind are sometimes 
 termed personal rights relative to things, being available only by 
 demand against a particular person. Rights of the latter kind are called 
 real rights, and are available against the thing itself in whosa hands 
 soever it may be found." 
 
 Bell's first division may be regarded as a natural one, de- 
 pending on whether the object of the right is a person or a 
 thing. The second division is technical, and is merely an 
 application of the distinction of real and personal actions to 
 rights themselves. In Scottish procedure it is useless ; for in 
 a mndimtio rei the possessor will be called for his interest, 
 and a petition for custody of a child may be personal in form, 
 but it gives a real right. — (See Ersk. Inst. iv. 1, 10.) 
 
 Blackstone's division of jura personaruni and jura reruvi 
 (i. 122) is adversely criticised by Austin as being illogical 
 and ambiguous, since jura personarum sometimes means rights 
 vested in persons and jura rerum rights over things. If 
 persons and things are the objects over which rights extend 
 the phrases may be defended ; but Blackstone's exposition is 
 very loose, and he does not so restrict it.^ 
 
 But even in land there may be real and personal rights. — 
 (Menzies' Conveyancing, 628.) This is another technical 
 usage in the law of Scotland. A " personal right '' to land 
 vests in an heir without service (Conveyancing (Scotland) 
 Act, 1874, sect. 9). A personal right here merely means a 
 right which has not been made evident by sasine or recording 
 a complete title. It is a true and absolute right to land — a 
 real right in one sense, but not real because unfeudalised, 
 i.e., not formally completed. 
 
 J. M. Bell (Zed. 760), speaking of such rights under an 
 unfeudalised conveyance, says — " [The disponer] has no real 
 right in himself, and is therefore not in a condition to give a 
 real right to another." If another person got a subsequent 
 disposition from the apparent owner on record, and recorded 
 his disposition first, he would be preferred before the holder of 
 
 ^ Of. Christian's note ad I.; and Austin, 43, 750, 803. 
 
THE CLASSIFICATION OF RIGHTS. 89 
 
 the unfeudalised conveyance. The right of the second dis- 
 ponee was made real, while the right of the prior one was an 
 action of damages against the fraudulent seller, or an action 
 of reduction against the purchaser, if he knew of the previous 
 sale, or took the conveyance gratuitously. The distinction 
 here is truly between a personal and a real title,, though it 
 may come to be between a real and a personal right, if the 
 second purchaser is in good faith and the seller is bankrupt. 
 The distinction between real and personal titles and rights in 
 this sense is drawn in the public interest. It is to protect 
 third parties, who are entitled to rely on the public registers. 
 
 (2.) The distinction of rights, heritable and moveable, 
 depends on the nature of the thing so described as regarded 
 by the law for purposes of conveyance and succession. 
 Historically it arose from the difference of interest which the 
 owner had in the object.^ It illustrates the absolute confu- 
 sion of the right and the object over which the right extends. 
 So Joannes Voet makes actions heritable or moveable. — (i. 
 8, 21.) 
 
 (3.) Civil rights may be opposed to criminal, — the right 
 to reparation as opposed to the right to prosecute and punish. 
 These may also be opposed to ecclesiastical rights or to military 
 rights. — (Austin, Jwr. 780.) Both of these last may be what 
 we have already referred to as " official " rights, the rights 
 involved in the duty of performing certain acts, or adminis- 
 tering a military code, and the powers necessarily involved 
 therein. Within the circumference of the ecclesiastical or 
 the military system we may have a complete code of quasi- 
 civil and quasi-criminal rights. The varying interests of 
 parties may bring these rights into collision. For example, 
 a person wronged may find it to his private interest to take 
 pecuniary compensation, while the public interest would 
 regard the transaction as " compounding a felony." — (See 
 p. 116, infra). 
 
 (4.) It is the distinction of kinds of interest which gives 
 
 1 Holmes, The Commum Lam, 350 ; Holland, Jw. 98. 
 
go RIGHT. 
 
 rise to the ideas of " radical right " {Smith, 22 E. 130), " trust 
 right," " beneficial right," " conditional or contingent rights," 
 &c. Eights we have seen are in their first conception the 
 result of action ; they are then regarded as the grounds of 
 action, and finally they come to be regarded as legal rights (in 
 a technical sense), though the actual obligation corresponding 
 may be only contingent or conditional. Strictly speaking, 
 there is no right and no obligation till the day of payment 
 comes or the condition is purified ; but the same intellectual 
 movement which pushed back right from the result — the 
 final cause — to the precedent cause of an action, pushed it 
 still further back to the result of a relation which may be 
 further developed by events. Conditional or contingent 
 rights are thus only rights in anticipation. "We deal with 
 them, value them, sell them, and raise money on them, and 
 so law has come to deal with them in bankruptcy, succes- 
 sions, entails, and other cases. The machinery by which this 
 is effected is the substitution of present rights for the so- 
 called future ones. 
 
 The doctrine of vesting subject to defeasance {Hood v. 
 Murray, 1889, 14 A.C. 124; Jur. Bev. x. 188) which has 
 recently attracted some attention from the Courts, is an 
 extreme application of the idea. Eights are then " defeasible 
 or indefeasible," and the machinery of trusts makes this 
 distinction possible. The trustees have legal rights which 
 enable them to provide for the beneficial rights held in 
 suspense, and the remote interests of perhaps unborn issue. 
 
 The assignation of a spes successionis recognises a still more 
 shadowy species of right. This phrase is applied to a con- 
 tingent right of succession depending on survivance, as well 
 as to the sanguine expectations of a poor relation who has 
 no legal claim whatever. — {Jur. Bev. v. 212.) 
 
 The ordinary will presents a similar difficulty. The law 
 now allows a man to convey, as at the present moment, 
 " all that shall belong to him at the time of his death." But 
 the early Eoman will and the Scots trust-disposition down 
 
THE CLASSIFICATION OF RIGHTS. 91 
 
 to 1868 caused him to divest himself (at least in words) as to 
 heritage at the date of the deed. Another way was to feign 
 that the will spoke at the date of death. 
 
 We may see in this process of realisation or idealisation 
 of interests a natural struggle between two ideas. The person 
 claiming a right tries to make actual, material, real objects of 
 his merest fancies and whims ; the person from whom the 
 right is demanded refuses to recognise claims unless they 
 can assume substantial material shape, and having assumed 
 this shape they are reduced to reasonable dimensions by 
 criticism, ridicule, and other circumstances. 
 
 (5.) But State action and recognition, to which reference 
 will be made presently, also contribute much to impress a 
 material meaning on the interests which men have in 
 things and in other persons and their conduct, although in 
 the first instance these may appear to be purely subjective. 
 Law can only deal with the external and visible, and if an 
 object is not so, law makes it so in order to make it intelligible 
 or workable. So personal claims, personal interests, and 
 moral rights, when formulated by the claimant and recognised 
 by society, become legal claims, legal interests, and legal 
 rights. Interests may then be classified as "lawful or un- 
 lawful." 
 
 Man is a social animal; but the law forbids certain 
 associations, and calls them conspiracies. All men have an 
 instinctive interest in amusement, but the law calls some 
 games, like bear-baiting and cock-fighting, unlawful. We 
 may here refer to one aspect of the group of cases to be 
 noticed hereafter (Chap. III.), the principal of which are the 
 Mogul Steamship Go. ; Allen v. Flood ; and Quinn v. Leathern 
 (1901, A.C. 495 ; Jur. Rev. x. 106, xiii. 452). FitzG-ibbon, L.J., 
 who tried this last case, directed the jury to determine " the 
 intent of the defendants, and in particular their intent to 
 injure the plaintiff in his trade, as distinguished from the 
 intent of legitimately advancing their own interests." This 
 charge was expressly approved by the Lord Chancellor, and 
 
92 RIGHT. 
 
 the distinction indicated was adopted by Lord Shand (p. 515). 
 You may ruin your neighbour by competition in trade or by 
 refusing to work with him, and persuading others to refuse 
 likewise. It is indecent to gloat over his misfortunes, but if 
 you cause them, it must be by means recognised in law. If 
 your material interests are lawful, malicious motives will 
 not make them unlawful. It may be suggested that if the 
 proximate intent is to promote lawful interests, the law does 
 not regard what it considers the remote motive of ruining all 
 others in the trade, even though the person acting has this 
 as his main, malicious interest. The law treats it as remoter, 
 because the results are subsequent in time. That you injure 
 the interests of a third party does not by itself make an act 
 unlawful. But the true test appears to be how it affects the 
 interests of society or the State. These interests are infinite. 
 Sometimes it may be the sacredness of person, of property, 
 or of contract that the courts mean by lawful interests. 
 Sometimes they refer to remoter ethical ends, determined by 
 the ideals of society. The three elements — (a) the interest 
 of the actor (defendant) ; (&) the interest of the injured corn- 
 plainer (the plaintiff) ; and (c) the interests of society— order, 
 freedom of trade, &c. are clearly set forth in the opinion of 
 Lord Lindley.i 
 
 SECT. XXI. — GEOUPS OF EIGHTS. 
 
 We have already noticed capacity and status, as well as 
 potestas, as indicating a group of rights vested in a person. 
 "We may here notice briefly certain terms which indicate 
 an indefinite group of rights or interests round a definite 
 object. These are originally concrete relations of fact, and 
 then abstract rights. 
 
 (1.) Dominium is such a term. The relation of a person 
 
 to a thing may be conceived as concrete, but dominium 
 
 becomes the abstract right of property — the relation of a 
 
 1 1901, A.C. pp. 534-537. See fui-ther on this subject, pp. 137, 138, 
 infra. 
 
GROUPS OF RIGHTS. 93 
 
 dominus to a slave or thing. Livy indeed expressly groups 
 " dominium et jus." 
 
 It then again becomes a thing in " domain," and in 
 political application it becomes concrete in " dominions." ^ 
 
 (2.) Property refers to the relation of a thing to a person. 
 It is peculiar to him — his own. 
 
 Then it is transferred to the thing. It is an interest in 
 a thing, or a group of interests. So English law speaks of a 
 general or a special property or an absolute property. — 
 (Benjamin on Sales, 1-2.) "[He] had a property or at least 
 an interest in the goods,"— (8 Q.B.D. 379). 
 
 Lastly we advertise " a property for sale," and speak of 
 " heritable properties." ^ 
 
 The Bankruptcy Act of 1856 (sect. 4) groups "property" 
 and " estate," and extends their meaning to heritage and 
 moveables, — (see pp. 64, 83, supra, and sub-sect. (6) infra). 
 
 The English Act of 1883 (sect. 168) provides that— 
 
 " ' Property ' includes money, goods, things in action, land, and 
 every description of property, whether real or personal, . . . . : Also 
 obligations, easements, and every description of estate, interest, and 
 profit, present or future, vested or contingent, arising out of or incident 
 to property as above defined." — {Gf. Local Govt. Act, 1888, sect. 100.) 
 
 This includes indefinitely rights springing from the thing. 
 
 '' Property " may be used abstractly for wealth in general. 
 — {Cf. Tennyson's Northern Farmer (new style) ; Austiu, 817). 
 
 We may notice here the identification of property with 
 right in general in the English Writ of Right (Blackstone, iii. 
 195), which was a form of process for the recovery of lands 
 in fee-simple, though it was afterwards employed for the 
 enforcement of inferior rights. It is also described in Skene's 
 Begiam Majestatem (i. 10 ; ii. 16, 20). The form there given 
 identifies right and property by speaking of the lands as " my 
 awin proper richt." 
 
 (3.) Possession may also be noticed. It passes through 
 
 ^ As to the dominium eminens — ^ Of. Titles to Land Act, 1868, 
 
 eminent domain — see Erak. Inst. ii. sect. 7, with Conveyancing Act, 1874, 
 1, 2. sects. 3 and 6. 
 
94 RIGHT. 
 
 the phase of (a) an actual physical holding : (J) then it 
 means the legal holding — the right to hold — presumed from 
 the actual holding : (c) then it is the abstract right recognised 
 bylaw — the jus possessionis, as distinguished from the mere 
 jm possidendi. In some quarters " possession and right are 
 in theory co-extensive terms " (Holmes' Common Law, 238) ; 
 but Professor Pollock {Possession, 2) says that, " whether in 
 the popular or the legal sense [it] does not necessarily concur 
 with title." But to discuss this point would carry us beyond 
 our present purpose. And finally it means the things 
 possessed — " great possessions." 
 
 (4.) Imperium is an official right, or group of such rights. 
 
 It is the abstract right of the general or military com- 
 mander, and finally, through the title of the Roman emperors, 
 it has become territory in the word " empire," while still 
 retaining its other meanings.^ 
 
 (5.) Eoyalties and lordships are rights — 
 
 " Thou and thine usurp 
 The dominations, royalties, and rights. 
 Of this oppressed boy." — (Shakespere, K. John, ii. 1. 176). 
 
 Now " royalties " is applied to rights of a particular kind, 
 e.g., under mining leases. Here they are regarded from the 
 converse side as duties or burdens. 
 
 (6.) And, once more, "estate" or "state" is an abstract con- 
 dition (Latin, status). In law it is applied to a group of rights 
 connected with concrete property, carved out of dominion. 
 As Blackstone explains (ii. 103), "an estate in lands, &c. 
 signifies such interest as the tenant hath therein." ^ This 
 usage is said to be borrowed from England in the Scottish 
 Conveyancing Act of 1874, section 3, where an " estate in 
 land " is defined as meaning " any interest in land," whether 
 in fee, liferent, &c. But it was long ago recognised in the old 
 phrase " heritable state and sasine." — (Eoss, Lectures, ii. 185.) 
 
 We must contrast with this the idea of an estate as a 
 
 1 Oelaus speaks of the Roman ^ Of. Stroud, s.v. Eight, 
 
 people having imperium over the 
 shores of the sea (D. xliii. 8, 3). 
 
PUBLIC AND GENERAL RIGHTS. 95 
 
 universitas of rights in succession or bankruptcy. Holmes 
 says " [estate] means the siatics or persona in regard to that 
 land formerly sustained by another " (Com. Law, 376). 
 The Bankruptcy Act of 1856, section 4, defines " estate " 
 as including all property, " and all rights, powers, and 
 interests therein," &c. The public who possess property 
 have been familiarised through Sir William Harcourt's 
 Finance Act of 1894 (57 and 58 Vict. c. 30, part i.), with 
 the idea of an " estate " as a universitas belonging to a person 
 deceased. 
 
 Lastly, it may mean a concrete property, or, politically, 
 concrete territory, and in the three " estates " of the realm, 
 Lords Spiritual, Lords Temporal, and Commons, the idea is 
 apphed to orders of persons, while " State " is applied to the 
 whole body politic — the greatest of corporations.^ 
 
 SECT. XXII. — PUBLIC AND GENERAL RIGHTS. 
 
 Rights may be general, national, public, or international. 
 The word " interest " is more often used in this connection, 
 the persons claiming the right being indefinite in number. 
 The classification may also be regarded as derived from the 
 nature of the object or interest — something incapable of ex- 
 clusive enjoyment or difficult of appropriation.^ 
 
 Thus in a highway there are "rights of the public." ^ It 
 has been decided that certain persons " locally interested " 
 have a " right to sue." So — 
 
 " [In England] every parishioner lias a right to enter the parish 
 church, and has a right to a seat in that parish church."- — (Halliday v. 
 Phillips, 1889, 23 Q.B.D. 57.) 
 
 For the purposes of the Military Lands Act, 1900, " public 
 right " means " any right of navigation, anchoring, grounding, 
 fishing, bathing, walking, or recreation." The right is called 
 
 ^ Cf. p. 72, sv^a. For the develop- domain " as a " universal right in 
 
 ment of the meanings of " status," the public" (/71st. ii. 1, 2). 
 
 see Pollock and Maitland, i. 390, ^ Duke of Atholl v. Torrie, 1852, 
 
 504 ; ii. 11. 1 Maoq. 65. 
 
 ^ Erskine speaks of the " eminent 
 
96 RIGHT. 
 
 public because it may be exercised by any member of the 
 public. 
 
 In an agreement between Great Britain and France in 
 1893, relating to the Gold Coast, it was provided that the 
 inhabitants of certain French villages should continue to 
 enjoy the " right of fishing." — (Hertslet, Maip of Africa, 591.) 
 
 Again, in a despatch from the Colonial Office of 26th 
 
 July 1897, we read : — 
 
 " British subjects, and Her Majesty's Government for them, have 
 only claimed the right of every subject of a free State to exercise their 
 undoubted right of fishery on the high seas."— (U.S. No. 4, 1897, p. 123.) 
 
 These rights are closely connected with the rights of the 
 Crown.— (Bell's Prin. 638, &c.). 
 
 The rights of the Crown may now be patrimonial and 
 private, or public and official. So Sir Walter Scott uses 
 sarcastically the phrase, " the rights of Scotland and Charles 
 Stewart." — {Antiquary, Chap. V.). This distinction is not 
 known to the earlier English law. It is associated with the 
 change of the King's person into a corporation sole, and the 
 idea that he is a trustee for the State. — (Pollock and Mait- 
 land, i. 502.)i 
 
 SECT. XXIII. — LIBERTY. 
 
 (1.) Liberty is the condition of a freeman. It implies 
 negatively freedom from restraint, and comes to mean posi- 
 tively a right or power to act. " Quid est enim," says Cicero, 
 " hbertas ? Potestas vivendi ut velis." So Justinian {I-nst. 
 i. 3, 1) defines it as " Naturalis facultas ejus quod cuique 
 facere libet, nisi si quid aut vi aut jure prohibetur." — (Quoted 
 from Florentine, L. 4 pr. D. de statu horn. (i. 5).) 
 
 Liberty is defined by Stair {Inst. i. 2, 1) as — 
 
 " That natural power which man hath of his own person, whence a 
 free man is said to be sum potestatis, in his own power ; and it is defined 
 in the law to be a na,biial faculty to do that which every man pleaseth, 
 
 1 In the case of Gammell v. H.M. sea-coast was affirmed. The words 
 
 Commissioners ofWoods and Forests, "sovereignty," "jurisdiction," "pat- 
 
 1859, 3 Maoq. 419, the right of the rimonium," &c. are used in the dis- 
 
 Crown to salmon tishings on the cussion (pp. 425, 463). 
 
LIBERTY. 97 
 
 unless he be hindered by law or force." " It is the most native and 
 delightful right of man." — {Of. Blackstone, i. 125.) 
 
 (2.) But a later usage treats " libertas " as a general right 
 — i.e., looked at as a power of acting free from external con- 
 straint. Examples will be found in the Charters of the Abbey 
 of Cluny, published by the French Government. In one 
 case we find a conveyance of a slave, " cum infantibus suis, 
 cUstn omni liiertate," — i.e., with all the right of a master over 
 her : in other cases it applies to conveyances of lands " cum 
 omni integritate et omni libertate." — (Vol. ii. 55, 250, 295, 
 332.) This does not mean with all " my right, title, and 
 interest," but " with all the right of a purchaser or donee." 
 We must connect this phrase with the " libera potestas " 
 or "libera facultas," which occur elsewhere in the same 
 volume (pp. 10, 93, 150). These deeds are nearly all dated 
 in the latter half of the eleventh century. 
 
 Ducange (s.v.) quotes a charter of 1160 in which " mea 
 libertate " means " with my consent " — i.e., of the granter. 
 The liberty is regarded as proceeding from a person instead of 
 being vested in the grantee. 
 
 (3.) Liberty is often used interchangeably with " power " 
 —e.g., in the House Tax Act, 1803 (43 Geo. III. c. 161, 
 sect. 60), " full power " is given to assessors to view and 
 examine houses ; and " they shall have liberty to pass through 
 any house," and " they shall also have liberty to make like 
 view and examination . . . twice in the year." 
 
 In the Juridical Styles (5th ed. i. 606) we find forms of 
 leases where " full power," " power," and " liberty " are 
 synonymous. We also find, " The second parties shall be 
 entitled and have full right and liberty." — (Of. MacSwinney 
 on Mines, 2nd ed. p. 229.) The use of " liberty " in connec- 
 tion with mining grants has tended to confusion with 
 " licence." — {Cf. MacSwinney, 268.) If a liberty is exclusive, 
 it is a right, and should be so described ; though, of course, 
 " right " might be as ambiguous. Eeference may also be 
 made to DuJce of Hamilton v. Graham, L.E. 2 Sc. App. 166, 
 
 G 
 
98 RIGHT. 
 
 where " liberty " in the original conveyance is spoken of by 
 
 the Lords as " a right," " a power," " an authority." — {Of. 
 
 Eoss Stewart on Mines, 84.) In Duke of Hamilton v. Dunlop, 
 
 10 App. Ca. 813, the words used are "liberty," "right," 
 
 " privilege." Here it was held that a reserved " liberty of 
 
 working coal " was a " reserved estate." 
 
 " Liberty " is used in private deeds where the discretion 
 
 of the person exercising the right is to be used, e.g., in a 
 
 marriage-contract this clause occurred — 
 
 " Full power and liberty ... to test iipon. and divide and appor- 
 tion . . . my whole means and estate." — {Campbell, 1887, 15 E. 103.) 
 
 In a bill of lading the words may occur " with liberty to 
 call " at certain ports. This gives a " right " — " a power of 
 deviation," or " entitles" the master to calL — (Zeduc v. Ward, 
 1888, 20 Q.B.D. 475.) 
 
 (4.) Liberty is more commonly associated with public and 
 official rights, or the political rights to be noticed in the next 
 section. It is a right belonging to a community or a person^ 
 implying negatively freedom on their or his part from a 
 higher or other power, and also positively power or jurisdic- 
 tion over certain other persons. Liberties and franchises are 
 treated by Blackstone as incorporeal hereditaments. — (ii. 37). 
 
 " Francliise and liberty are used as synonymous terms, and their 
 definition is a royal privilege, or branch of the King's prerogative, 
 subsisting in the hands of a subject." 
 
 Examples given are — 
 
 " To hold a court leet : to have a manor or lordship, or at least to 
 have a lordship paramount : to have waifs, wrecks, estrays, treasure 
 trove, royal fish, forfeitures, and deodands : to have a court of one's 
 own, or liberty of holding pleas and trying causes : to have the 
 cognizance of pleas, which is a still greater liberty, being an exclusive 
 right, so that no other court shall try causes arising within that juris- 
 diction : to have a baUiwick or liberty exempt from the sheriff of the 
 county," and so forth. 
 
 In the passage from Spelman, quoted below, libertas 
 refers to this jurisdiction as well as to the area over which it 
 is exercised, Balfour in his Fractichs (p. 39) speaks of — 
 
LIBERTY. 99 
 
 " Baronis havand power of pit and gallows.'' " Baronis quha hes 
 p4mlege and Ubertie of infang thif t and outfang tMft, quha thairfoir lies 
 power to sit and give dome in their courts, &c. within their baronie 
 boundis or libertie." " Baronis havand the power of outfang thift hes 
 gude richt and power to judge all thievis." 
 
 In the case of the Mayor of Penryn, 1878 (3 Ex. D. 292), 
 an example of a market will be found. It was there laid 
 down that such a grant, with the addition of the words "with 
 all liberties and free customs to such a market belonging," 
 does not imply a right to the grantee to prevent persons 
 selling marketable articles on market days within the limits 
 of the franchise, but such a right may be gained by imme- 
 morial enjoyment or prescription. It was said the plaintiffs 
 " had a title to such a market." 
 
 So of ecclesiastical jurisdiction Balfour {Practicks, p. 24) 
 speaks of — 
 
 " The haiUe kirk of this realme of Scotland, with all richtis and 
 liberteis pertening thairto." 
 
 These liberties imply that it is free from the State, how- 
 ever tyrarmical it may be to its own members. 
 
 (5.) We now come to distinctly physical usages. 
 
 In the Eoman law liberias, the status of freedom, came 
 near to being treated as a thing. " Libertas," says Paul, 
 " insestimabilis res est."— (L. 106, D. de B. J. (50, 17) ). The 
 title " On Legacies " {Inst. ii. 20, 25) speaks of a bequest of 
 libertas, and many other examples might be given. — (Cf. L. 5, 
 D. de Fideicommissariis libertatibus (40, 5), &c.) So in early 
 English law liberty was an incorporeal thing, of which there 
 was possession or seisin. — (Pollock and Maitland, ii. 145). It 
 was also in mediaeval times used for — 
 
 (a) A charter of freedom or manumission. — (Ducange.) 
 
 (b) A prestation given for protection. — {lb.) 
 
 (c) The jurisdiction, or area over which jurisdiction 
 extends, as in the following passage from Spelman : — 
 
 " Utfangthefe vero dicitur latro extraneus veniens aliunde de terra 
 aUena, et qui captus fuit in terra ipsius, qui tales habet libertates, Sed 
 
100 RIGHT. 
 
 non sequitur quod ille posset hominem suum proprimn, captum extra 
 libertatem suam reducere usque infra libertatem suam, et ibi eum judioare 
 ex tali libertate; debet enim quis juri subjaoere ubi delinquit. Proprios 
 enim latrones et alienos infra libertatem suam oaptos judicare possunt." 
 — (Glossary, ed. 1687, p. 314 ; Thorpe, Glossary, s.v.) 
 
 SECT. XXIV. — POLITICAL EIGHTS. 
 
 (1.) However the association arises, civil rights suggest 
 political. It may be, as Mr. Spencer says, because the latter 
 support the former. — (Justice, p. 176). These rights are 
 either liberties and immunities from acts of others or powers 
 to act. In mediaeval usage the phrases " Libertas ecclesi- 
 astica vel canonica," " Libertas Eomana " indicate freedom 
 from other jurisdictions — citizenship. — (Ducange, s.v.). 
 
 Famous examples of this are the Petition of Eight and the 
 
 Bill of Eights at the Eevolution. In the former the petitioners 
 
 pray for — 
 
 " Their rights and liberties according to the laws and statutes of 
 this realm." 
 
 The violation of these rights involved also the violation 
 of ordinary private civil rights. Freedom, liberty, and 
 franchise are here treated as rights to exemption from 
 arbitrary taxation and martial law. The Petition quotes 
 the Great Charter that no freeman "be disseised of his 
 freehold or liberties." In the Bill of Eights the phrase 
 " rights and liberties " occurs several times, including, no 
 doubt, the technical meaning of "liberty" already noticed. 
 The latter Act contains several clauses dealing with the suc- 
 cession, but it avoids speaking of the " rights " of the Kiag. 
 It refers to " power of dispensing with laws," " regal power," 
 " titles to the Crown," " power, authority, jurisdiction." It 
 was enacted — 
 
 "That all and singular the rights and liberties asserted and 
 claimed in the said declaration are the true, ancient, and indubitable 
 rights and liberties of the people of this kingdom."— (Sect. 6). 
 
 The phrase " political and other rights, &c.," is applied by 
 the Naturalization Act, 1870 (sect. 7), to rights of citizenship. 
 
POLITICAL RIGHTS. loi 
 
 (2.) The term " civil rights " is applied in American law 
 to the rights secured under the 13th and 14th Amendments 
 to the Constitution.^ These rights are generally the same as 
 those referred to in the English Bill of Eights. — {Gf. Bouvier, 
 Bid. S.V. : Story on The Constitution, 4th ed. ii. 646.) The 
 phraseology used shows that a right of person, or to liberty, 
 or of worship implies that these objects are external things 
 or acts possible through the body, just as we saw in last 
 section " liberty " is turned round from being an object — a 
 status vested in the person — and becomes "a right" itself 
 with other things and acts as objects. 
 
 Article 5 of the Treaty of Berlin of 1878 combines the 
 
 phrases : — 
 
 " The following points shall form the basis of the public law of 
 Bulgaria : — The difference of religious creeds and confessions shall not 
 be alleged against any person as a ground for exclusion or incapacity in 
 matters relating to the enjoyment of civil and political rights," &c. — 
 (Hertslet, Map of Europe, 2769 ; see also 2785, &c.) 
 
 — i.e., what would be popularly described as Liberties. 
 
 So a general right in the inhabitants of a territory with a 
 quasi-political complexion is called " a liberty." In the 
 Treaty of Washington, 1871 (Arts. 18, 19, 20), the phrase 
 " liberty ... of taking . . . fish . . . with permission 
 to land upon the said coasts " is used indifferently with " right 
 of fishing." Again, certain fisheries in concrete are reserved. 
 
 (3.) Like the words " Law," " Right," &c., the word 
 " Liberty " has assumed a wide generalised meaning. Liberty 
 has been spoken of as if it were the opposite of govern- 
 ment. — (Seeley's Political Science, pp. 101, 12.5, &c.) But 
 this seems to be an exaggeration. To a person strug- 
 gling for freedom, liberty is the negation of the actual 
 government which here and now oppresses him. But the 
 abolition of this government necessarily implies the setting 
 up of a positive government of his own if the society is to 
 endure. Even brigands must have rule. There is law even 
 
 * This may be aB opposed to "criminal " rights ; see p. 89, supra. 
 
I02 RIGHT. 
 
 in hell, as a high authority suggests. So negative liberty 
 always becomes positive. If, then, liberty is a positive right, 
 the rights claimed by rulers and by their subjects come 
 into collision, and the problem comes to be how to 
 harmonise those rights in an organic whole. The rights 
 claimed by Louis XIV. may have been necessary to con- 
 solidate the French State; but when this aim had been 
 achieved, summum jus became summa injuria, and his 
 subjects asserted their rights in the Eevolution. Liberty of 
 a people, as in the Constitution of the United States of 
 America, must be very different from the libeHas of a single 
 individual in the legal sense. It is an abstract figurative 
 expression, and may amount to little more than the absence 
 of apparent foreign domination. 
 
 (4.) It may be sufficient to point out here that " freedom " 
 is used in much the same senses as " liberty," as when we 
 speak of obtaining the " freedom of a city or corporation " — 
 right of trading, &c. — " the freedoms and privileges of burghs." 
 — (Stair, ii. 3, 2.) So again Stair speaks of " common 
 freedoms of every nation to fish in the sea " (ii. 3, 69). 
 
 " Franchise " has also been incidentally illustrated in 
 some of the examples already quoted. It is specially applied 
 to the right of voting for Members of Parliament. — (Ashby v. 
 White, 1 Sm. L.C., 10th ed. at p. 257.) 
 
 (5.) The political rights of the Crown are described by 
 such words as " Prerogative" (p. 117) or "Sovereignty."^ 
 
 SECT. XXV. — LICENCE. 
 
 (1.) Licence, to which reference has been made above, 
 may be noted here, though it originally regards the relation 
 from the side of law — licei — it is lawful. 
 
 " Ilk maister may give libertie to his bondmen, swa that he doe 
 the samin with the King's licence." — {Eeg. Maj. ii. 14.) 
 
 (2.) Zicentia is defined as a facultas, e.g., docendi, in the 
 
 ^ See Bryce's Studies m Sist. and Jur. ii. 49, where the principal authori- 
 ties are referred to. 
 
PRIVILEGE. 103 
 
 case of a graduate of a university. This still survives in the 
 title of the clerical licentiate in this country and in the 
 usage of Continental universities. 
 
 (3.) To have a licence is to have a right, as in the case of 
 working mines and minerals (MacSwinney on Mines) or in the 
 common case of following certain trades. — (Highmore's Excise 
 Laws, ii.) 
 
 (4.) A licence is the document evidencing such a right. — 
 (Stamp Act, 1891, &c.). 
 
 (5.) Strange to say this legal term has been turned into 
 its very opposite as an abuse of liberty. Perhaps this throws 
 light on the use of liberties by kings and rulers as well as 
 by their subjects. 
 
 SECT. XXVI. — PRIVILEGE. 
 
 '' Licence " suggests a class of words which explicitly 
 involve the interference of society or the State by the recog- 
 nition or creation of rights, in a form prior to action at law. 
 This may be by legislation or by the conferring of a special 
 title. 
 
 (1.) Privilegium is originally a law enacted against or in 
 favour of a single individual. So Festus explains the word 
 "privus." Cicero says (de Leg. iii. 19, 44) that such laws 
 were abolished by the Twelve Tables. 
 
 (2.) In the later law it was applied to rights conferred by 
 law on special classes of persons, e.g., the right conferred on 
 soldiers of making a testament without the usual formalities. 
 — {Lnst. ii. 11). In the Code of Justinian the rights of clergy 
 are spoken of as privilegia (cf. C. i. 2, 10, and 12, &c.). In 
 C. vii. ^2>,jusfisci and privilegium fsci are used indifferently, 
 and in the following title privilegium dotis is used. 
 
 A privilegium was a true legal right belonging to a class 
 of persons, soldiers, clergy, married women, and others, on 
 grounds of public utility. The phrase jus sifigulare used by 
 Paul (L. 16, D. de leg, &e. (1, 3)) expressed the same idea. 
 Jus singulare may also be regarded as a branch of the law 
 
104 RIGHT. 
 
 giving peculiar rights or remedies, and not merely a group of 
 rights arising in. particular circumstances recognised by the 
 general law (y%s commune). The distinction was technical 
 and hard to maintain.^ 
 
 (3.) In the Canon law, closely following the Eoman usage, 
 privilege means a special law, but is used generally as mean- 
 ing a right. 
 
 So Isidore of Seville (Decret. i. 3, 3) says — 
 
 " Privilegia sunt leges privatorum quasi privatse leges. Nam privi- 
 legium inde dictum est, quod in private feratur." 
 
 In relation to the laity the rights of the clergy are privi- 
 leges in the sense used in the collections of Justinian : — 
 
 " Every step or degree in order carries with, it its own privileges, 
 and also entails its own duties in the Churoli. These privileges and 
 duties are partly temporal, partly spiritual." " Formerly the temporal 
 privileges of order were large, and extended both to the persons and 
 property of the clergy." — (Keiohel, Ganon Law, i. 252). 
 
 In a note the author refers to an authority who enume- 
 rated fourteen privileges as enjoyed by the clergy in A.D. 1429. 
 In a later passage (ii. 30) Mr. Eeichel defines a privilege as 
 
 " A private law conferring some special advantage on a particular 
 place or body of men within the Church, at variance with the generally 
 received law, which either exists by custom or by some special grant." 
 
 This privilege is an exception to the ordinary canon law, 
 and is analogous to a faculty, a licence, or a dispensation — a 
 legitimation or justice — a grace or favour. The custom of 
 granting such exceptional rights may give rise to an actual 
 right to demand exceptional treatment. Justice will abolish 
 or explain away the exceptional character. — {lb. p. 31.) 
 
 The tendency of privilegium to become a common right 
 may be illustrated by the rule of Pope Boniface VIII., given 
 in Sexti Decretalia, v. 12, 7 — " Privilegium personale personam 
 sequitur, et exstinguitur cum persona," which appears in our 
 law in the very dubious form — "Actio personalis moritur 
 
 * See Savigny, System, i. 61 et seq. ; Lindley, Jurisprudeiice, 27, 30, xxii. 
 
PRIVILEGE. 105 
 
 cum persona" {Jnr. Bcv. v. 375). Privilege is regarded here 
 as a right and therefore a right of action. 
 
 Fripilqjiiim is a common term in ecclesiastical convey- 
 ancing. So the rights conferred on the University of 
 Glasgow by the Bull of Pope Nicholas, already quoted, are 
 desci'ibed by the words, " Omnibus et singulis pririlq/iis 
 libertatibus honoribus exempcionibus immunitatibus . . . 
 utantur" {Miinimenta Aim. l^nii: Glasg. i. 4. Cf. Sexti 
 Bavcfalia, v. 7, 2. University of Wales Act, 1902.) 
 
 Even by the beginning of the thirteenth century a new 
 physical meaning has been attached to the word. " Privi- 
 legium ' means the deed granting pri^oleges. " Si Papa in 
 aJiquo privilegio vel seriptura, ^Src." — {Sc.vti jDa-rctalia, v. 7, 
 10, de priinlcffiis.) This chapter deals with the forms of 
 "privileges," and illustrates the use of jiis commnne — (the 
 civil law, or the canon law, or both) — with the ideas of liberty 
 and pi"erogative. 
 
 In more modern times the chai'ter of the East India Com- 
 pany was described as a " privilege." — {Calmdar of State 
 Pojhi-s, Colonial, 1513-1616, Xo. 2S1.> This is a continua- 
 tion of the canonical usage. 
 
 (4:.) " Privilege "' is loosely used as signifying the rights of 
 a class of persons, or of a corporation (Austin, o35 ; Blackst. 
 Com. i. 272). This usage has found its way into English law 
 from ecclesiastical sources along with the Italian theory of 
 the Corporation ^^Gierke and Maitland, Folitkal nuorics of 
 the Middle Affc, p. xiv.) So the charter of Charles II. to 
 the East India Company gives them power to possess 
 "lands, rents, primh(jcs. libei'ties, jui'isdictions, francliises, 
 and hei-editaments." These are treated as things, and so 
 we have almost a reduplication of abstract rights in concrete 
 interests. 
 
 Numerous examples might be quoted from Balfour's 
 Fradieks of the use of " privil^e," with " power," " Hbeity," 
 .»ic. ^see pp. 25, 39, 40-47, .Src.). 
 
 (5.) Privilege comes nearly to be used as meaning "an 
 
io6 RIGHT. 
 
 official right." In DaUas' Styles (I. Pt. ii. p. 46) we find a 
 style of a " Tack of the Assize Herrings of the West Seas of 
 Scotland, in favours of J. S., Sheriff of Bute . . . with the 
 ^privilege of holding Courts of Justiciary, and several other 
 liberties." In this deed the jurisdiction is treated as a thing, 
 like a lease of toUs. 
 
 The word is applied to the powers of constables in the 
 Burgh Police (Scotland) Act, 1892. Section 96 provides that 
 special constables " shall have the same 'powers and privileges 
 as constables of police appointed and acting under this Act." 
 This refers no doubt to the immunity of officials (p. 107). 
 
 (6.) This term is also applied to political rights. The 
 rights of citizens are spoken of as privileges. This implies a 
 comparison with foreigners, and those who are merely resi- 
 denters. In the correspondence as to the Bloemfontein Con- 
 ference (July 1899) we find (p. 8)— 
 
 "A citizen lie may be . .in respect of his obligations. But in 
 respect of Ms privileges, he is but half, and less than half, a citizen." 
 " All the rights as well as all the obligations of the old burghers " (p. 10). 
 So " persons who shall be capable of all the privileges, whilst they 
 are liable to none of the obligations of citizens " (Naturalization Com- 
 mission Rep. 1869, p. xv). 
 
 (7.) In wlUs we find the word applied to private rights, 
 and powers of trustees. Perhaps it has filtered into these 
 from ecclesiastical sources. Thus, in the form of a trust- 
 disposition and settlement (Jur. Styles, 5th ed. ii. 583) the 
 testator is made to confer upon his trustees certain " powers, 
 privileges, and immunities/' and the same words are used in 
 section 2 of the Executors (Scotland) Act, 1900. These 
 powers may be regarded either as ordinary private rights or 
 as a species of official rights. — (Cf. M'Laren, WUls and 
 Succession (1st ed.) ii. 589). 
 
 (8.) It is also loosely used as applying to the group of 
 rights attached to property, e.g. — 
 
 " An absolute estate, to which all the privileges and all the incidents 
 of the ownership of an estate belong" (Lord Westbury in D. of Hamilton 
 V. Graham, L.R. 2 Sc. App. 179). 
 
PRIVILEGE. 107 
 
 In old titles we read the phrase — 
 
 "With parts, pendicles, prvdleget, and pertinents" (cf. Dallas, ii. 
 391, 404), "with liberties, primleges, &c." (ib. 446, 488). 
 
 We are told in Tomlin's Dictionary (s.v. Eecovery) — 
 
 " The power of suflfering a common recovery was a prwilege insepar- 
 ably incident to an estate tail." 
 
 So Bell (Com. i. 149) speaks of " the privilege '' and " the 
 privileges of a British ship," and of " British privileged ships." 
 This is the old personification of the ship in a new form. 
 
 (9.) The modem usage in the law of Scotland is closely 
 connected with the later Eoman usage and the clerical usage 
 of privileges, which we have seen to be defined as laws or 
 rights of a special class of persons. 
 
 Privileged writings belong to commerce. Merchants, as 
 a class, have the privilege or right of making valid contracts 
 in forms which would be invalid if used by other members of 
 the community. — (Bell, Frin. 21.) This statement has been 
 put in another way. " Privilege " has been applied to a 
 special body of law, as when the law merchant is described 
 as "a privilege or special law, differing from the common 
 law." — (Quoted in Eeport of International Law Association, 
 Nineteenth Conference, p. 42.) 
 
 Persons in certain positions — ^judges, public officials, 
 masters, and others acting in the public interest — as Paul 
 says, in the text last quoted, " propter aliquam utilitatem " — 
 are said to be privileged when ordinary citizens in similar 
 circumstances would be held liable for slander or libel. Such 
 persons have this privilege — a particular right — not to 
 slander, but to act without fear of consequences to others. — 
 (Bell, ih. 2045, &c.) 
 
 The privilege of Members of Parliament involves freedom 
 from arrest for debt ; the privilege of ambassadors, immunity 
 from the local jurisdiction — negative rights. 
 
 (10.) A privilege being a right, it is specially applied to 
 rights in competition. Paul's words may connect this usage 
 
loS RIGHT. 
 
 with the others already noticed — " Privilegium fisci est inter 
 omnes creditores primum locum tenere." (Se,nt. v. 12, 10). 
 
 " Privilege " is defined in Article 2095 of the French Code 
 as a right which the quality of the debt gives to a creditor of 
 being preferred to other creditors, even hypothec-holders.^ It 
 sometimes comes near to being objectified as a thing {cf. Bell, 
 Com. ii. 99), where the seaman's lien for wages is spoken of 
 as " more properly a privilege on the price of the ship when 
 sold." This usage is referred to in the following passage : — 
 
 " It does appear to me that tlie word ' privilege ' as used here is 
 used mucli more in the sense in which it is used by Lord Tenterden iu 
 his work upon shipping, of a charge upon a vessel which the person is 
 entitled to realise by sale, than in the sense of saying simply that amongst 
 all the several persons who may have claims when the ship comes to be 
 sold, B. is to stand in a favoured position." — (Gastrique, L.K 4 H.L. 444.) 
 
 In like manner, in the law of Scotland a debt is said to 
 be privileged when the creditor has a privilege or particular 
 right of preference over other creditors. Such are the medical 
 attendant in a last sickness, the Crown for taxes, landlords for 
 rents, servants for wages in a bankruptcy. — (Bell, Prin. 1402.) 
 
 (11.) " Privilege " is often used for " Right " in general. — 
 (Austin, 535 ; Bell, Com. i. 97-99.) 
 
 SECT. XXVII. — BMNEFIGIUM, BENEFIT, ETC. 
 
 (1.) Benefit is closely analogous to privilege. 
 
 Etymologically ieneficiwm is a good deed, a favour, done 
 by one person to another ; but the word benefactor is used 
 only in an ethical sense, with a tendency sometimes to restrict 
 it to persons who give money — preferably in large sums. It 
 is a title which gives a right to the donee, and the whole 
 subsequent history of the word regards the idea from this 
 standpoint, except perhaps where the conferring of a 
 gratuitous benefit confers a title to revoke for ingratitude. 
 Justinian speaks of the donees as those " in quos leneficium 
 coUatum est"— {Inst. ii. 7, 2 ; cf. Stair, i. 8, 2.) 
 
 1 See ItaUan Cod. Civ. ill. 23, 1. 
 
BENEFICIUM, BENEFIT, ETC. 109 
 
 Seneca has left a work entitled Be Beneficiis, in seven 
 books, in which he discusses the moral aspects of the subject. 
 A benefit does not consist in what is done or given, but in the 
 intention of the donor — " Itaque non quid fiat aut quid 
 detur, refert, sed qua mente, quia beneficium non in eo quod 
 fit aut datur consistit sed in ipso dantis aut facientis animo." 
 The poor man with his humble oifering honours the gods ; 
 while the wicked do not escape the judgment of impiety 
 though they deluge their altars with the blood of victims. — 
 (i. 6.) The idea of a henejicium here presented from the 
 standpoint of the doer may be compared with that oijustitia, 
 discussed hereafter. 
 
 (2.) In the Eoman law particular classes of rights or 
 privileges were known as heneficia — e.g., B. competentice; B, 
 ordinis ; B. divisionis ; and this last is still recognised in Scots 
 law. — (Bell, Frin. 252, 268.) Ulpian speaks of citizenship as 
 a heneficiuni (L. 1, § 2, D. ad mun. et de incolis (50, 1) ), just as 
 the Naturalization Act, 1870, speaks of " any right or privi- 
 lege as a British subject." — (Sect. 2 (2) ; Blackst. Com. i. 272.) 
 Papinian speaks of the anulorum aureorum beneficium in the 
 title Be jure aur. an. (40, 10), while Javolenus (D. i. 4, 3) 
 speaks of an act of Imperial legislation as " beneficium Im- 
 peratoris, quod a divina scilicet ejus indulgentia proficiscitur." 
 
 (3.) " The benefit of clergy " is popularly used for the 
 privilegium clericale — (Blackst. Com. iv. 365) — what Browning 
 calls " the clerkly privilege." But this doctrine is older than 
 the Canon law. Modestine (L. 18, D. de proc. et def. (3, 3) ) 
 speaks of " religionis beneficium." The same idea runs all 
 through the laws of Manu ; but in China, though there are 
 privileged classes, such as the Literati, priests seem to be 
 punished with exemplary severity. — (Alabaster, Chinese 
 Criminal Law, 108, 533.) 
 
 (4.) The word was early used in the feudal law for estates 
 given out for the life of the grantee. — {Lil. Feud. i. 1, 5, 
 and 6 ; Craig, Jus Feud. i. 4, 7 ; Pollock and Maitland, i. 44.) 
 The authority of Seneca is appealed to. — {Lib. Feud. ii. 23, 1.) 
 
no RIGHT. 
 
 (5.) The word was also used in its ordinary meaning in 
 the Canon law, as in the phrase " Beneficium restitutionis in 
 integrum." — (Decretals of Gregory IX. i. 41, 10.) The feudal 
 usage just noted was also borrowed, and survived in ecclesi- 
 astical conveyancing, as we see from the " Gift of the tack of 
 the teinds of the parish of Colmonel, &o. to the Eector and 
 Principal of the University of Glasgow," &c., dated 11th May 
 1685, as given by Dallas (I. pt. ii. 47). The words are 
 " together with all right, title, and leiiefit whatsoever, which 
 his Majesty had," &c. The word "benefit" marks an 
 ecclesiastical estate. 
 
 From this use the estate of a cleric, the cure of souls, 
 came to be and still is called " a benefice." Eight and its 
 object are here identified. — (Decretals of Gregory IX. iii. 12 ; 
 Sexti Decretal, iii. 9, 2.) The benefice is a beneficium ecclesi- 
 asticum to distinguish it from ordinary legal ones. 
 
 In England a benefice is an estate which may be attached 
 by creditors (Bell's Com. i. 123). Miuisters in Scotland may 
 have rights and interests therein and titles thereto (Stair, ii. 
 8, 26). 
 
 (6.) We still use the word " beneficiary " for the person 
 who has right —beneficial interest — under a trust, no doubt 
 because the law of trusts came to us through the Church. 
 
 SECT. XXVIII. — OFFICIAL EIGHTS, POWERS, AUTHORITY. 
 
 (1.) Eights may be official, i.e., arising from or connected 
 with an office or certain duties : — 
 
 " The right of the bailiffs ... is to exercise the powers and autho- 
 rities of constables . . . Now a constable is entitled to arrest . . . 
 he may arrest on the direct information of eye-witnesses. Having 
 arrested him, I make no doubt that the constable could search him." — 
 (p. Robertson, L. J.G., in Jackson v. Stevenson, 1897, 24 R. Just, at p. 40.) 
 
 " There would be no objection to the right of entry being given to a 
 police officer."— (Report of Commission on Sale of Intoxicating Liquors, 
 p. 4, Clubs.) 
 
 " A lapse is a devolution of the right of presenting from the patron to 
 the bishop, from the bishop to the archbishop, from the archbishop to 
 the king."— (Bankton, ii. 86.) 
 
OFFICIAL RIGHTS, POWERS, AUTHORITY, iii 
 
 It was the official right to punish or to exact a fine to 
 which Erskine refers when he speaks of " the right which 
 accrues to our sovereigns on the commission of crimes." — 
 (Inst. iv. 4, 109 ; cf. Prerogative, p. 117, infra.) 
 
 (2.) A court is thus said to have a right to decide a case, 
 i.e.. power, jurisdiction — e.g., N. E. Railway v. N. B. Railway, 
 (1897), 25 E. 346—" the power of the Commissioners." In 
 Maule, 1825, 1 W. & S. 282, Lord Eldon denied that the 
 Court had " a jurisdiction ... to oblige the parent to inform 
 the Court of Session . . . what property he has, &c.," and in 
 the same sentence spoke of them claiming " a right somehow 
 or other to determine what is his free income." 
 
 In Shaw v. Gould (L.E. 3 H.L. 55), Lord Westbury said : — 
 
 " The wtole reasoning of the Judges in the Scotch cases is founded 
 upon the right of the Scotch Courts to redress any wrong committed by 
 either of the spouses, if the act be done within the territory of Scotland." 
 —(P. 88.) " Eight or authority of any court."— (P. 76.) 
 
 " Power " or "jurisdiction" is more commonly used. 
 (3.) A Legislature has a right to make laws. Thus — 
 
 " The rigM to legislate over the Bays of Newfoundland, to which 
 that Act applied, of which Conception Bay is one, had been conferred on 
 the Legislature of Newfoundland." — (p. Lord Blackburn, Direct U. S. 
 Cable Co. v. Anglo-American Telegraph Co., 2 App. C. 422.) 
 
 " Plenary powers of legislation." — (The Qxieen v. Burah, 1878, 3 
 App. C. 889, 904.) 
 
 " The Legislature is entitled to do much : it has almost unlimited 
 powers. It has even the power to do what is wrong, and we are bound 
 to obey it."— (p. Lord Neaves, M'Laren v. Menzies, 1876, 3 E. 1159.) 
 
 The British Settlements Act, 1887, speaks in section 3 of 
 the Queen in Council exercising " powers," which Sir William 
 Anson paraphrases by "the right to legislate."— (Zaw and 
 Custom of the Constn. ii. 268.) 
 
 In the case of The Mayor, &c. of Canterbury v, Wyhurn, 
 1895, A.C. 89, at p. 93, Lord Hobhouse uses even " compe- 
 tency" in this sense. — (See p. 55, supra, and p. 113, infra.) 
 
112 RIGHT. 
 
 SECT. XXIX. — JUEISDICTION. 
 
 (1.) The official right primarily associated with the office 
 of Judge is jurisdiction. The Latin word assumed all the 
 various meanings in modem use. 
 
 (a.) Jurisdictio originally is simply juris dictio, — the pro- 
 nouncing of a legal judgment : Prmtor . . . qui 
 Bomce jus dicit (Cic. Fam. 13, 14). Jms inter cives 
 dicito (Lex Plmtoria, Bruns, 43). 
 
 (6.) The administration of justice generally : Juris- 
 dictionem confeceram (Cic. Fam. 2, 13, 3). 
 
 (c.) Legal authority, — jurisdiction, power : Jurisdictio 
 prcetorum (Gains i. 6). 
 
 {d.) General authority, — control in a popular sense. 
 
 (e.) A place where justice is administered, — an assize 
 town : MediterranecB jurisdictiones (Phny, Nat. Hist. 
 V. 29). 
 
 (2.) In our law jurisdiction is defined as the "power a 
 Court possesses of trying a cause and pronouncing therein 
 valid and enforceable decrees " (Mackay, i. 165). Li Smith v. 
 Lord Advocate, 1899, 1 F. 741, "No jurisdiction," and "no 
 power " are used by the Judges indifferently. Dicey defines it 
 as " the right or authority of a Court" [Conflict of Laws, 207). 
 
 Jurisdiction is regarded from two points of view — (a) as 
 a power extending over the persons or things, subject to the 
 Judge's authority ; and (&) as excluding certain other Courts, 
 or, if absolutely exclusive, all other Courts. It is a right 
 from both points of view. 
 
 In the Lmperial Japanese Government v. P. and 0. Com- 
 pany, 1895, A.C. 644, several expressions occur which connect 
 "jurisdiction" with "right" in a Court, and make jurisdic- 
 tion the object of a right. 
 
 " There was a clear recognition of the right of the Consular Court to 
 exercise jurisdiction in Japan, not only in the case of offences committed 
 by Americans against Japanese, but in the case of civil claims which. 
 Japanese might have against American citizens. It cannot be doubted 
 that the intention was that the jurisdiction thus conferred should be 
 
JURISDICTION. I T 3 
 
 exclusive, and that American citizens should enjoy immunity from 
 being sued as well as from being prosecuted in the local Courts of 
 Japan."— (P. 653.) 
 
 In the Foreign Jurisdiction Act, 1890, "the expression 
 ' jurisdiction ' includes power." This may be regarded as 
 an aspect of sovereignty. — (Cf. Hertslet, China Treaties, pp. 
 434 and 436 ; Dicey, Conflict of Laws, p. 38 ; Lib. Feud. ii. 
 54.) 
 
 (3.) " Jurisdiction " is applied to political supremacy, as 
 in the Articles of Confederation of the United States of 
 America in 1781, which combine " power, jurisdiction, and 
 right."! 
 
 It may be doubted whether the term " jurisdiction " 
 applied to the powers of the Secretary of State by the 
 Naturalization Act, 1870, sect. 8, is political or quasi-judicial. 
 
 (4.) In such statutes as the Army Act, the British Settle- 
 ments Act, 1887, the Appellate Jurisdiction Act, 1876, and 
 in Acts of Parliament reforming its own constitution, we see 
 persons or bodies of persons created by the law and at the 
 same time representing the law to all individuals who are 
 subject to it. These statutes confer official rights or jurisdic- 
 tions, and in virtue of ofi&ce the persons are liable to duties. 
 
 (5.) In international affairs it is loosely used with a 
 political reference. The Treaty of Washington, 1892, uses 
 the phrase "jurisdictional rights," and Article 6 refers to 
 " exclusive jurisdiction " in Behring Sea ; " exclusive rights in 
 the seal fisheries," " claims of jurisdiction," " rights in the 
 Behring Sea," "rights of Eussia as to jurisdiction," " right of 
 protection or property in the fur seals." 
 
 (6.) In the Universities (Scotland) Act, 1889, sect. 14 (2), 
 the word is applied in a still vaguer sense in the combination — 
 
 " Powers duties, jurisdictions, and privileges of chancellors, 
 rectors, assessors, principals, professors, university lecturers, assistants, 
 recognised teachers, or examiners," &c. 
 
 ' Biyce, American Commonwealth, Hearn'a Legal Sights cmd Duties, p. 
 3rd ed. i. 690. Of. the usage in 18. 
 treatises on International Law and 
 
114 RIGHT. 
 
 And these words are quoted in the preamble of Ordinance 9 
 of the Commissioners and applied to the General Councils, 
 which are not courts and have no powers of governing. 
 
 Gibbon {Hist. Bury's ed. i. 40) speaks of the power of 
 life and death of a master over slaves as a "jurisdiction." 
 This makes it almost a private right. 
 
 (7.) In the following passage from the judgment of Lord 
 Westbury in Enohin v. Wylie (10 H.L.C. 1), dealing with 
 jurisdiction, we see the right or power of a Court looked at 
 from the other side of the relation as a duty — 
 
 " It is the right and duty of [tlie] judge [of the domicil] to constitute 
 the personal representative of the deceased. . To determine who 
 
 are the next of kin. . . is the prerogative of the judge of the 
 domicil." . . " The Court of Chancery has no more right than the 
 Court of Probate to exercise the jurisdiction," &o. — (Pp. 13 and 14.) 
 
 Jurisdiction here is the object of a still more abstract 
 right. 
 
 (8.) " Jurisdiction " may be regarded as property — an 
 actual thing. — (Pollock and Maitland, i. 512.) Eoss (Led. ii. 
 37) refers to a charter by Lewis le Debonnaire, who 
 
 " Gives to a laic Lord the lands of Villare Fontes, with power to 
 administer justice, civil and criminal, within its hounds, and discharg- 
 ing all the judges ordinary from interrupting him in the exercise of 
 that right." 
 
 When jurisdictions had become heritable, they were 
 already things in the eye of the law — pertinents of property. 
 — (/wr. Eev. ix. 428). In Queen v. Eeyn, 2 Ex. D. p. 167, &c., 
 examples will be found showing that jurisdiction is regarded 
 as a power, and almost as a thing — an object. 
 
 A jurisdiction to impose fines is a valuable property. In 
 old English the " Gerihta Cyninges — Jura Begia — rights of 
 the Crown," are defined by Thorpe as 
 
 " Fines arising from certain offences, accruing to the King, and 
 constituting a considerable portion of his revenue." — {Glossary, s.v.) 
 
 At the present day it is sometimes dimly hinted that 
 some municipalities might not square their accounts if a 
 
AUTHORITY. 115 
 
 proper proportion of the citizens did not periodically become 
 drunk and disorderly. The power of exacting fines may be 
 " a liberty " of a burgh. 
 
 But the most common physical usage is the application 
 to " the area of territory over which a court has jurisdiction." 
 — (Dicey, Gonjl. of Laws, 207 ; Merchant Shipping Act, 1894, 
 sect. 686. Gf. the phrase " districtum et jurisdictionem " in 
 i>i6. Fmd. ii. 54.) 1 
 
 SECT. XXX. — AUTHORITY. 
 
 (1.) Auctoritas is the quality of auctor, and may refer 
 either to rights or duties. An auctor (corrupted into English 
 author) may be the small tradesman who made something 
 and sold it in his shop. He is an author, in several senses, 
 of his goods. The purchasers take a good title from him as 
 their author — assignatus utitur jure auctoris. The law of 
 copyright illustrates the confusion between "an author," in the 
 popular and the legal sense, and " a publisher." — (Jur. Rev. 
 xii. 217.) 
 
 (2.) The word auctoritas is applied to private rights in 
 
 the Twelve Tables.— (Cie. De Off. i. 37.) " Authority " is still 
 
 used in that reference along with " power," "jurisdiction," 
 
 "privilege," and other phrases already examined. In the 
 
 Finance Act, 1894, sect. 22 (2) (a), it is coupled with 
 
 " power " of disposal ; and again it is used for a title to act 
 
 in the Bills of Exchange Act, 1882, sects. 22-26 of which 
 
 deal with " capacity and authority of parties." " Capacity " 
 
 suggests a right arising from some quality in the person 
 
 himself ; " authority " suggests a right arising from the act 
 
 of some other person. The 2l8t section of the Sale of Goods 
 
 Act, 1893, speaks of " the authority ... of the owner," 
 
 and also of " the seller's authority," in the same transaction. 
 
 This double usage is similar to that of the word heneficmm, 
 
 already noticed (p. 108, supra). 
 
 ' Is the idea personified in 4 Mae- "great ultimate appellate jurisdio- 
 queen's Appeals, 339, where the " tion of the ooimtTy " ? 
 House of Loi-ds is spoken of as " the 
 
ii6 RIGHT. 
 
 (3.) In the Eoman law aiwtoritas was applied to official 
 rights, as in the case of a tutor, or a magistrate, or the 
 Senate. — (Brissonius, s.'V.) Stair (iv. 1,1) uses "authority" 
 and "jurisdiction " of the Lords, &c. indifferently. 
 
 (4.) The application of awtor to the instigator of a crime 
 suggests " capax doli " (p. 72), responsibility and such ideas 
 (p. 161). 
 
 (5.) " The word avMoritas is used to express the force 
 and validity of statute law, of legal opinion, and decided 
 cases." — (Smith, Diet. Antiq. s.v.) This is stUl a common 
 use, as we find even the books quoted spoken of as authorities. 
 
 (6.) As authority means law, the word is applied to a 
 higher power, which determines rights as a court — for ex- 
 ample, the Eailway Commissioners. — (North British Railway, 
 24 E. (H.L.) 30.) 
 
 (7.) The persons vested with official rights are "the 
 authorities." So bodies are called " local authorities," " har- 
 bour authorities." — (Local Government Act, 1888, s. 100 ; 
 Merchant Shipping Act, 1900.) 
 
 SECT. XXXI. — CEIMINAL EIGHTS. 
 
 Official rights, such as jurisdiction, suggest criminal as 
 distinguished from civil rights.^ Criminal rights, which we 
 may here regard as the special rights conferred on persons 
 by the laws dealing with criminals, may be regarded as a 
 species of official rights, and hence, as we have seen, they are 
 described as " privileges." As official rights they are generally 
 represented as duties or laid down in the form of laws. We 
 may regard the criminal as a person who pushes his ordinary 
 rights to an extreme — summum Jus summa injuria. He 
 loves sport, but it takes the form of torturing or killing 
 human beings. He defends himself against attack, but too 
 often by killing his opponent. He has a desire for property, 
 and so he takes what he wishes and removes by force or 
 death any who stand in his way. Such conduct raises in 
 ■■ Ersk. Inst. iv. 4, 105, 106 ; Lindley, Jur. 59 ; p. 89, su;n-a. 
 
PREROGATIVE. 117 
 
 others the natural right of self-defence, and would result in 
 strife and anarchy. The criminal law attempts to restore 
 order by recognising in private individuals some modification 
 of the right of self-defence or other natural instinctive im- 
 pulses, such as apprehending a felon in the act \ ^ by giving 
 public officials the right to arrest, the right to prosecute, the 
 right to try and sentence, and the right to punish. "We may 
 compare Stephen's Criminal Procedure, Arts. 96-98, where the 
 law is laid down in the form of rights, with the same author's 
 Digest of the Criminal Law, Art. 220, where the same series 
 of acts is put in the form of an exceptional law. The 
 criminal law provides for the rights of the accused to notice, 
 citation, trial, and all the formalities enacted to secure 
 that no injustice is committed under the guise of justice.^ 
 The accused has a general right to freedom and to immunity 
 from attack. The attack may be in the forms of legal process, 
 and hence the protection of his rights by according to him 
 the right to a regular and fair trial. 
 
 This point of view is different from that of Erskine {Inst. 
 bk. iv.), who treats the criminal law in the same manner as 
 Eousseau (Contrat Social, ii. 12) as being not a separate 
 system of law but as the sanction of all other laws. 
 
 SECT. XXXII. — PREROGATIVE. 
 
 (1.) The Latin " preerogativus " refers originally to the 
 Roman tribe or century which was called upon first to vote. 
 It is naturally extended to the title which determined the 
 right, and to the right itself. The word is used in a general 
 sense by Ulpian as to the rights of provincials, " consuetudi- 
 nem istam et hujusmodi prserogativas." — L. 4, § 5, D. de off. 
 proc. &c. (1, 16). 
 
 (2.) The right of the Crown is the royal prerogative. 
 
 Blackstone says that applies " to those rights and capacities 
 
 which the king enjoys alone " (Com. i. 239). We may take 
 
 ^ Of. Macdonald's Orim. Law, 3rd ' Of. Stephen, Procedure, Arts, 
 
 ed. pp. 251, 260, 280, 426, &o. 191, 198, 302. 
 
ii8 RIGHT. 
 
 Comyn's account of this subject though it is from a strictly 
 technical point of view. According to this author (s.v) — 
 
 "The king's prerogative comprelienda all the liberties, privileges, 
 powers, and royalties allowed by the law to the Crown of England." 
 
 " It was enacted ' Quod magna charta teneatur tam in his quae ad 
 regem pertinent, quam ad alios,' and therefore no prerogative of the 
 king can be claimed contrary to Magna Glvmia.'' 
 
 This assumes that the rights of king and subjects were 
 equally provided for by law. Among the enumerated pre- 
 rogatives are included — 
 
 " Dominion of the sea ; " " authority to send ambassadors ; " " to make 
 leagues ; " " to make reprisals ; " " and so, if a subject of a foreign prince 
 or State takes or spoils the goods of a subject of England, and his 
 sovereign, upon a letter of request to him by the king, refuses to do 
 right, the king may, by his writ, arrest the body or goods of him who 
 did wrong." "The king has the sole authority to declare war or peace." 
 " The king, by his proclamation, may enforce the execution of laws.'' 
 " The king has full prerogative and jurisdiction to do justice and right to 
 all within his kingdom in all causes, ecclesiastical or civil." " The King 
 of England is supremum caput eoclesice Anglicanas." " This title of 
 supreme head of the English Church was first attributed to the king 
 by the clergy in Convocation." 
 
 At an earlier date the prerogative was spoken of plainly 
 as the rights of the king : — 
 
 " Hec sunt jura que Eex Anglie solus et super omnes homines 
 habot in terra suft, commoda pacis et securitatis institucione retenta : 
 infraccio pacis regie per manum vel breve date : denegildum : placitum 
 brevium vel preoeptorum ejus contemptorum : . . . quincunqiie de- 
 spectus vel maliloqium de eo : castellacio trium scannorum : titlagaria : 
 furtum morte impunitum : murdrum : falsaria monete sue : incendium : 
 hamsocna," &c. — (Thorpe, 224 ; Leges Regis Henrici I. x. ; cf. Pollock 
 and Maitland, i. 495). 
 
 Erskine speaks of the prerogative in the same way {Inst. 
 iv. 4, 105, 109 ; cf. i. 5, 14). 
 
 (3.) " Sovereignty " is sometimes applied to the group of 
 political rights vested in the ruler ; but in so far as the idea 
 belongs to law it may be treated as synonymous with " pre- 
 rogative." When a person or a group of persons claim 
 sovereignty, it becomes the object of a right — a thing — like 
 
SO-CALLED '' RIGHTS OF GOD." 119 
 
 jurisdiction or dominion, and the person has a title thereto 
 which may be discussed. 
 
 Popular usage has no difficulty in delegating the right, 
 and in dividing it according to interests — spiritual or tem- 
 poral — or over areas. The problems of ultimate sovereignty 
 are really metaphysical. — (Bryce, Studies, ii. 49.). 
 
 SECT. XXXIII. — SO-CALLED "EIGHTS OF GOD." 
 
 In passing we may notice a usage which connects right 
 as vested in a person with law in general as a system of 
 order to which all beings are subject. The rights of God are 
 precisely similar to the rights of a king. It was a common 
 idea down to the time of the Schoolmen to regard God as the 
 legislator who enacted the Divine law. Suarez entitled his 
 great work " De Legibus ac Deo Legislatore." 
 
 The phrase " rights of God " is used by the 1738 trans- 
 lator of Grotius {Be J. B. et P., Prelim. Disc. 49). Again 
 [God's] " actions may be grounded on the sole right of his 
 sovereign dominion and jurisdiction over us " (ii. 20, 4, 2). 
 
 Pufendorf {Law of Nature and Nations, ii. 4, 3, Dr. 
 Kennet's trans.) speaks of God, " Who by virtue of His 
 imperial right hath enjoined men such certain duties by 
 natural law." 
 
 This is an anthropomorphic conception in accordance 
 with the idea of legal relations between God and man — 
 covenants, laws, judgment, and so forth. God has rights 
 over man because He is his Maker and has therefore a legal 
 title to treat him as His property. He is also his Euler, 
 Who has enacted laws for him. The whole system of oaths 
 and vows is founded on this idea. These give God con- 
 tractual rights over man. — (See pp. 126, 153, infra.) Pro- 
 fessor Lorimer, while denying that man has rights as against 
 his Creator, maintains the converse. — {Inst, of Law, 2nd ed., 
 pp. 205, 210.) This denial is a theological adaptation of the 
 proposition that the king can do no wrong. 
 
I20 RIGHT. 
 
 SECT. XXXIV. — TRANSMISSION OF EIGHTS. 
 
 Formally all rights are alike, whether of a monarch to 
 an empire, a judge to his court, a merchant to his fleet, a 
 crofter to his plot, a child to his toy, a dog to his bone, — 
 if in these last cases we may presume to know the miad of 
 the subject. It is, in the first instance, the object of rights 
 — the interest— that makes them differ. But the object 
 takes its character from the mind of the person claiming the 
 right — from the physical power of enjoying and enforcing 
 it, — and ultimately from the ideas and institutions of the 
 society to which the claimant or the possessor of the rights 
 belongs. We are here confronted with a metaphysical pro- 
 blem, which haunts the practical lawyer at every turn, but 
 which he generally resolves in the practical way in which 
 Samuel Johnson disposed of Bishop Berkeley's idealism. 
 
 For this reason theoretically the trans-mission of rights is 
 impossible and absurd, although in practice we confuse 
 tradere rem and tradere possessionem. A succession or an 
 assignation is merely a title.^ Being vested in a different 
 person, the feeling of claim is necessarily different, and it is 
 only for certain practical purposes, such as the investigation 
 of title, that technical law treats the right of the author and 
 of his successor as the same. Indeed for many purposes it is 
 quite immaterial that the father or any ancestor of the 
 present proprietor was a former proprietor. The rights of 
 the present proprietor generally depend on the fact of pro- 
 prietorship or possession, and not on the fact that he was 
 once an heir or a successor or purchaser. — {Cf. Holmes, 
 Common Law, Lects. x. and xi.) It is admittedly a fiction to 
 say that the heir is " eadem persona cum defuncto : " but it 
 is as much a fiction to say that an estate is the same thing 
 
 1 Of. Sale of Goods Act, 1893, sect. which bars his right, are all elements 
 
 21 et seq. The rubric speaks of a in the new title of the vendee. These 
 
 transfer of title ; but the right of the sections afford another illustration of 
 
 owner and the act of the seller, the confusion of rigM and title (p. 76, 
 
 coupled with his authority, or the supra). 
 consent or conduct of the owner. 
 
RIGHTS ORIGINAL, SECONDARY, ETC. 121 
 
 to every proprietor. One may value it for the scenery, 
 another for sport, a third for grazing sheep, and a fourth for 
 minerals. When once a person has been proprietor, his 
 affection for the estate may not cease even when he has 
 sold it. All conveyances provide against a demand by the 
 seller for restitution. He may still have an interest, but it 
 is not one recognised by law. And even when a court tries 
 to decide whether A. or B. is heir to X., the possession of X. 
 and his death are facts or titles which enable the court to 
 decide who has the title of heir, and therefore present rights 
 as proprietor. 
 
 SECT. XXXV. — EIGHTS ORIGINAL, SECONDARY, ETC. 
 
 We may now understand how rights come to be arranged 
 as original, natural, or divine, and primary, secondary, 
 tertiary, and so forth, as far as we choose to proceed. Thus — 
 
 1. The right (law) of Nature or of God gives certain 
 
 general rights — life, feelings, will, external things, &c.; 
 
 2. The right (law) of the land gives rights of liberty, 
 
 property, succession, &c. ; 
 
 3. By a right of succession on the death of A., X. succeeds 
 
 to his whole estate, including lands ; 
 
 4. By right of proprietor, X. claims rent from T., a 
 
 tenant ; 
 
 5. By a creditor's right X., on T.'s failure to pay, attaches 
 
 his goods ; 
 
 6. By a similar right, on T.'s failure to redeem them, X. 
 
 sells the goods and pays himself a sum to account 
 of rent ; 
 
 7. By further rights X. claims in T.'s bankruptcy, or 
 
 exacts payment from a cautioner, and so forth. 
 
 The true rights are those which are asserted in an action. 
 The rights prior thereto are titles or elements of a title, while 
 the subsequent rights are so called because they may be put 
 into force in detail on the concrete circumstances arising. 
 
122 RIGHT. 
 
 Each right is one link in a great chain. The only right in 
 such a case as is here sketched may be to take payment of 
 the rent due. The other rights are so called because they 
 are necessary acts connecting the claimant or society with 
 the debtor-tenant. For some purposes we can treat each 
 link as the whole chain. Just as the breaking of one link 
 is the breaking of the chain, so the alleged debtor may attack 
 the alleged creditor's claim at one point, which then appears 
 as a particular right. Professor Holland proposes to call 
 certain rights antecedent and other rights remedial. In one 
 sense aU rights are remedial, because it is the disturbance of 
 the concrete relation that reveals the existence of original 
 rights and creates legal rights. Eights of action are generally 
 called remedies (see Broom's Lex/al Mctxims, 7th ed. p. 150), 
 and it thus appears to be an unnecessary metaphysical 
 distinction to call a right in the precise form which it may 
 assume prior to action a remedial right. It may happen 
 that the secondary right — the so-called remedial one — is 
 preferred by the wronged creditor to the original right. 
 
 Eights are also conceived as arranged in an ascending 
 scale of higher and wider interests. Thus we have in regard 
 to a single case — 
 
 1. Private rights of an individual — rights of action, &c.; 
 
 2. Jurisdiction of judges, &c. (official rights); 
 
 3. Sovereignty of the ruler (political rights) ; 
 
 4. International right or law, as in the practice of inter- 
 
 vention, &c. (p. 128, infra). 
 
 5. The Divine Sovereignty (so-called rights of God) ; and 
 
 6. Some would add absolute right, which G-od Himself 
 
 must obey. 
 
 What this last means, or if it means anything, and the 
 relation of 3, 4, 5, and 6 to each other and to 1 and 2, are 
 questions of metaphysics. As a general rule, the ordinary 
 man, whose views mainly concern us here, makes these ideas 
 intelligible either by the very crudest materialism, or by a 
 spiritualism which ignores the facts of experience. 
 
COLLISION OF CONCRETE RIGHTS. 123 
 
 SECT. XXXVI. — COLLISION AND MARSHALLING OF CONCRETE 
 RIGHTS.! 
 
 (1.) We have hitherto generally regarded rights as claims 
 of a single person, or of a group to a joint undivided interest ; 
 or of a number of persons to an object, like a sum of money, 
 which can be divided so as to satisfy them all. But suppose 
 a single indivisible object is claimed by several persons. 
 They may have different titles. They all have the feeling 
 of claim which in certain circumstances we call a right. Then 
 one claimant may admit the feeling of another, but maintain 
 that his own right is prior, better, juster. He calls the 
 feeling of his rival a right, from a polite deference to his sus- 
 ceptibilities. His claim is no right, but it would be a right 
 if a preferable claimant were not here. Hence the inter- 
 ference of courts to determine competing rights — i.e., claims 
 — and make one of them a true right. How they proceed in 
 so doing cannot be discussed here. It may be by declaring 
 one claim to be false — a deliberate fraud ; it may be by 
 balancing titles, when one is declared to have a greater right 
 — majios jios, the phrase used by Glanvill. This may mean a 
 higher right in the eye of the law, such as dominium, com- 
 pared with mere possession. It may be by some rule laid 
 down in the pubhe interest, such as giving servants, clerks, 
 physicians for deathbed charges, and the Crown for taxes, 
 a preference in bankruptcy. It may be by laying down a 
 set of all but arbitrary rules to save time and prevent 
 conflict. 
 
 Take the forms of summons in the Scots action of niul- 
 tiplepoinding (competition) (Sch. (A) Court of Session Act, 
 1850 ; Sch. (A) Sheriff Courts Act, 1853; and Sch. (A) Sheriff 
 Courts Act, 1876). The .holder of the fund asks that he 
 should make only one payment to the person " who may 
 have jiist right thereto," or pay the balance, after deducting 
 expenses, to the person who " may be found to have the best 
 
 ' Seo further on this subject the discussion of Justice (Chapter VL), 
 
124 RIGHT. 
 
 right thereto." This shows that " right " may be only a 
 subjective phenomenon in the mind of a claimant. The 
 form of the 1853 Sheriff Court Act simply says payment 
 should be made " to those having right thereto ; and the 
 defenders should produce their claims," &c., and " such of the 
 defenders as shall be found to have no right should be pro- 
 hibited from troubling him [the holder of the fund] in time 
 coming." A claim may thus be merely a " pretended right,' 
 as the 1850 Act suggests. 
 
 (2.) We may also have conflicts in conjunct rights or 
 common property among strangers (Bell, Com. i. 61). These 
 must be resolved by means of contract or custom, or by 
 resolving them into several rights. 
 
 (3.) So also in England we have conflicts of ec[uities, and 
 one claimant may have " a better equity " than another (11 
 A.C. 30.) 
 
 (4.) And once more, what is called the " conflict of laws " 
 may be taken as a particular case of the conflict of rights, — 
 one right recognised by a foreign law clashing with another 
 similar right recognised by the native law (p. 130, infra). 
 
 SECT. XXXVII. — RECOGNITION BY SOCIETY OE THE STATE. 
 
 (1.) We have seen interference by society or the State, 
 implicit in the forms of Obvagulation, Dharna, Fasting, and 
 explicit in the action at law, in grants of privileges, 
 benefits, prerogatives, and official rights, and finally in the 
 solution of collisions between rights. Eecognition by 
 society is necessary to constitute all rights, even those of 
 the Crown or of Parliament. The Emperor of all the 
 Eussias could not exercise his powers or rights of govern- 
 ment unless his subjects acquiesced and obeyed, and sur- 
 rounding nations and their rulers abstained from interfering 
 with him. In early times the recognition is instinctive 
 because society is imperfectly organised. At the present 
 day, when the State is highly organised, and to the superficial 
 
RECOGNITION BY SOCIETY OR THE STATE. 125 
 
 observer largely artificial, we can find all law defined as a 
 command by the de facto ruler. But we have artificial rules 
 demanded by the nature of the society to which we belong, 
 and these are recognised by definite artificial courts consist- 
 ing of a definite number of judges. We can speak of these 
 as natural and artificial in the same way as we speak of all 
 human creations as artificial or natural. As a result of this 
 distinction we divide rights into natural or instinctive, and 
 legal or conventional rights. 
 
 (2.) Eights are then classified according to their origin — 
 the court, or the persons, or the document which creates the 
 right. In the protracted litigation between the East Coast 
 Eailways we find distinctions drawn between " legal rights," 
 i.e., rights originating at common law or ordinary railway 
 law ; " statutory rights " — rights conferred by their special 
 Acts ; " contractual rights " — arising from agreement between 
 the companies ; and the special rights arising from arbitral 
 decisions of the Eailway Commissioners. These last are 
 genuine rights, embodied in the actual use of rolling stock 
 and rails, but they are not " legal rights " in a narrower 
 technical sense. — {N.B. Railway v. N.E. Baihvay, 24 E. (H.L.) 
 19, and 25 E. 333.) This classification is according to form, 
 whereas the distinction formerly noticed (p. 91) between 
 " lawful " and " unlawful " interests was one as to matter — 
 the objects of the rights. 
 
 (3.) The interference of the State and its courts thus gives 
 rise to a distinction between forms and substantive right. 
 Both are rights, but the latter in an especial sense. So 
 Erskine speaks of " judgments on particular points of either 
 right or of form" {Inst. i. 1, 47), and says they are " accounted 
 part of our customary law." 
 
 (4.) In the early history of law we find devices to support 
 and buttress up rights from the outside — attempts to fortify 
 rights by society while the State was still weak for this 
 purpose. Suretyship and pledge are such devices. These 
 give the creditor an additional right or rights in support of 
 
126 RIGHT. 
 
 his original right. They fulfil extrajudicially the same 
 purposes as the right in modern practice of appeal to the 
 courts and of enforcing rights directly. They have survived 
 their original purposes and have taken their place in modern 
 practice subject to the iron hand of law, like all other legal 
 rights. Suretyship is an extension of the obligation over the 
 family in its personal aspect. Both this institution and 
 pledge are an enlargement of the interest of the creditor. 
 
 The early English law of warranty illustrates the prin- 
 ciple. As Pollock and Maitland show, " the primary 
 obligation of the warrantor in old times was not that of 
 making compensation. His obligation to give his tenant 
 a tenement equal in value to that whence he had been 
 ejected was but a secondary obligation arising from the 
 breach of the primary obligation, namely, the duty of de- 
 fending the tenant in his possession 'against all men who 
 can live and die.' If the tenant was attacked by process of 
 law, he vouched his lord, he called upon his lord to defend 
 the action, and the lord if he did his duty defended it. Now 
 here we see a great force at work. Do what we may to make 
 all men equal before the law, a rich man has and must always 
 have advantages in litigation; he can command the best 
 advice, the best advocacy. But in the Middle Ages the 
 advantages of the rich and powerful must have been enor- 
 mous. Happy, then, was the tenant who could say to the 
 adverse claimant : — ' Sue me if you will, but remember that 
 behind me you will find the earl or the abbot.' Such an 
 answer would often be final. We must understand this if we 
 are to understand the history of commendation. The owner 
 of land who gives it up to a great man, and takes it back to 
 hold by rent and services, receives a ' valuable consideration 
 for the surrender and submission.' This is so even within 
 the sphere of law and litigation ; he has made his hold upon 
 the land secure, for he has at his back a warrantor whom no 
 one will rashly sue. We must add that he has a lord who 
 may use carnal weapons, or let loose the thunders of the 
 
RECOGNITION BY SOCIETY OR THE STATE. 127 
 
 Church in defence of his tenant." — {Kist. of English Law, 
 i. 287, 2nd ed. p. 306.) 
 
 (5.) "We may see here, too, another aspect of the criminal 
 law. This may be regarded as an artificial system of rights 
 set up in the State in order to fortify the rights of the indivi- 
 dual. His rights in his person, his property, or his family 
 are not merely his own ; they belong also to the State, and it 
 may be a duty to enforce them, though the individual may 
 be tempted meekly to suffer injustice lest a worse thing may 
 befall him. To obviate this wrong to society the State either 
 compels the individual to prosecute the criminal or takes the 
 prosecution out of his hands. 
 
 (6.) But as the State grew in strength the interference 
 of rulers became more direct. They acquired rights which 
 secured the rights of their subjects. 
 
 The opening book of Britton on the Laws of England 
 deals with the royal rights. The ruler had a personal interest 
 in the peace and order of his kingdom, and had a pecuniary 
 interest in fines and forfeitures, as we have seen in the case 
 of liberties and jurisdictions. In order to vindicate his own 
 rights, the king vindicated the rights of his subjects and 
 unconsciously made law. The coroner now represents the 
 public interest ; his name shows that he first represented the 
 Crown. — (Britton, op. cit. ; Skene's Beg. Maj. pp. 4, 6, 7, " The 
 Crowner's office.") 
 
 The Mediaeval Church was interested in pious bequests 
 by its devotees, and it has transmitted to us the law of testa- 
 ments and succession. It was only the other day that the 
 name of the Ecclesiastical Court — the Commissary Court — 
 was abolished in Scotland. 
 
 The Admiralty Court was to keep order on the seas and 
 prevent disputes with foreigners. It had also forfeitures and 
 profitable emoluments. — (Select Pleas, Selden Society, vol. vi.; 
 Thomson's Acts, s.v. Admiral.) The Droits of Admiralty are 
 still part of the Crown revenue. 
 
 The Begiam Majestatem begins by telling the fees of the 
 
128 RIGHT. 
 
 great Officers of State. The Ordonnances of the French Kings 
 are arranged on the same principle. The rights of the king 
 come first, and the first of these is the administration of justice. 
 — {Les Edicts et Ordonnances des Boys de France, Lyon, 1571.) 
 But go back to the dimmest antiquity and we find the 
 same thing. Babylonian and Greek priests, Eoman ponti- 
 fices, and kings like Khammurabi looked carefully after their 
 revenues from fines and forfeitures, and incidentally adminis- 
 tered law. Homer and jEschylus represent suppliants as 
 under the protection of Zeus. A wrong to the suppliant is a 
 wrong to the god and will be avenged. An injury to a slave 
 is an injury to his master, an insult to a servant or a subject 
 is an insult to his ruler : — " Inasmuch as ye did it not to one 
 of the least of these, ye did it not to Me." 
 
 But the motives of rulers in administering law need not 
 be pecuniary.^ It may be to keep peace within their dominion ; 
 it may be to gratify the instinct of ruling ; it may be to see 
 justice prevail among men. But in all cases the claim of the 
 ruler to legislate and to administer the law, and generally to 
 govern, is put forward as "a right," and is recognised or 
 disputed by his rivals or his subjects as a "right" in the 
 same sense as the most obscure individual claims to own the 
 clothes he wears and to work for a livelihood. 
 
 The development of the same idea is seen in international 
 law. The rights of the individual become the rights of his 
 State, and are enforced as such. 
 
 (7.) In a previous section (p. 91) we have noticed how law 
 tends to materialise abstract ideas in order to make them 
 intelligible. The converse is also true, that law cannot exist 
 without treating the ideas, feelings, and claims of individual 
 men as concrete physical facts,^ which are made intelligible 
 by social ideas and social abstractions. These ideas and 
 abstractions are social in so far as they are from a different 
 point of view from that of the individual. He must always 
 be the centre of a circle, but it may be an ever-widening one. 
 > Bvyce, Studies, i. 26. ^ See note, p. 5. 
 
RIGHT AS LAW. 129 
 
 SECT. XXXVm. — EIGHT AS LAW. 
 
 (1.) Eight may mean law in the old English and the 
 
 modern German sense. It is so used in poetry — 
 
 " When in, my dreadful husband and the world 
 Broke, — and I saw him, master, by hell's right." 
 
 (Tlie Ring and the Book, vii. 1586.) 
 
 It is SO used also by some modern writers on jurispru- 
 dence, but it is doubtful if the revival or innovation is suc- 
 cessful, and it is safe to advise the reader always to consider 
 whether " right,'' even when used in a strictly legal sense and 
 not in the moral sense of " justice," means " law " or " a 
 right." Thus— 
 
 " It would be useless to have right (jus) in a State, unless there are 
 persons competent to administer it (jura)." — (Twiss, Bracton, i. 21.) 
 
 " Likewise civil right, which may be called customary right, is a 
 term applied in one manner to the statute right of each city ; in 
 another manner, to all which is not praetorian right, and sometimes it 
 detracts from and sometimes it adds to natural right, or to the right of 
 nations. Another right is sometimes acquired in cities approved by the 
 custom of those who use it, than without ; nevertheless such custom 
 ought to be observed as law. Likewise civil right is a term applied to 
 every [kind of] right which a city observes, whether it be natural or 
 whether it be civil, or a right of nations, and such like." — (lb. i. 25.) 
 
 (2.) If a right is not a " vaHd " right till recognised or 
 enforced by the State or society, then it is easy to regard this 
 recognition as the essential element of a right — right par 
 excellence. This recognition is the anima anirnai, the very 
 soul of right — the law in general, or the State as a whole ; so 
 the tendency to identify right with its elements is sufficient 
 to explain this usage also. 
 
 (3.) " Eightf ul " is thus generally used as meaning 
 
 "lawful," as when conveyancers speak of a "rightful owner." ^ 
 
 His title is in accordance with law, but from a moral point 
 
 of view may be unrighteous. But even this word has a 
 
 technical usage, as meaning "possessing a mere right." 
 
 Comyn (s.v. Action) explains that — 
 
 ' Bythewood and Jarman, i. 7, and precisely the same sense. — Gifford's 
 passim. In some old Scots Charters ffist. Description of Zetland, p. 63 ; 
 the word "righteous" is found in Seg. Majestatem, ii. 55.) 
 
 I 
 
130 RIGHT. 
 
 " Real actions ancestral are possessory, viz., when the ancestor 
 dies in possession ; or rightful when only a right descends from the 
 ancestor." 
 
 (4.) The institution of monarchy, with personal and at the 
 same time official rights, which include the administration of 
 justice and the enactment of laws, suggests personification of 
 the State itself. If we personify the State or the nation, and 
 regard the whole law — ^justice — the King's peace, as the 
 demand which it makes and the obedience which it claims, 
 we make one gigantic right. This is Eight {BecM, Droit) in 
 the objective sense of some German metaphysicians. In this 
 sense there is only one right in the State, and one obligation 
 on its subjects, viz., to claim and accord obedience to the law. 
 
 (5.) The right of an individual when recognised by a 
 particular State is a positive right sanctioned by a positive 
 law. Thus in Gastrique v. Imrie (L.E. 4 H.L. 436) the 
 phrase is used, " an English right," as meaning a right sup- 
 ported by English law, and which would be enforced in an 
 English court. A right is truly a right when it has been 
 submitted to a court as a claim, and has been " ranked and 
 preferred " in the concrete. It occupies a still stronger posi- 
 tion and perhaps a higher plane when it is such a claim as 
 the courts of all civilised countries would recognise, because 
 if recognised and enforced by only one State it may be truly 
 unjust. The science of Private International Law tries to 
 determine what are the precise conditions that entitle a claim 
 to be treated as a right valid in more than one civilised 
 country, and perhaps in the whole world. 
 
 (6.) But carry the recognition further. We may imagine 
 rights to be recognised and guaranteed by G-od as well as by 
 man in positive laws, and then we have the distinction of 
 " Divine Eight " and " Human Eight." — (Grotius, De J. B. et 
 P., i. 1, 13 ; cf. p. 119, supra; The Ring and the Book, x. 279.) 
 
 And so right in respect of this element of recognition 
 attains the highest moral idea which was even at first im- 
 plicitly present in the idea of straightness, with which we 
 
FINAL DEFINITION OF RIGHT. 131 
 
 saw it started. From the humble concrete court deciding a 
 single petty case, it goes up to the right of the State, to that 
 of all civilised States, and finally to that ultimate idea of 
 justice which seems ever to recede as concrete institutions 
 and positive laws appear to approach thereto. 
 
 We see this in the practical discussions of the subject. 
 The lawyer, by reference to his statute-book, and decided 
 cases (Jurisprudence), will tell you the precise rights of a 
 prosecutor, or of an accused person, as to a charge on any 
 crime ; but the question as to " the right to punish " and 
 " the right to rebel " is discussed by philosophers, who ex- 
 pound the law of Nature, or theologians, who expound the law 
 of God.i 
 
 SECT. XXXIX.— FINAL DEFINITION OF EIGHT. 
 
 "We may sum up the result of our inquiry so far as having 
 given us a definition of a right. It is a claim, a power, a 
 faculty, a liberty, an authority, a privilege, a prerogative, a 
 capacity to act or to possess dominion, empire, power, 
 authority, immunity, status, or some interest put forward 
 actively if necessary in the form of a case or action at law, 
 and recognised by the State in accordance with right, law, 
 and justice. Each of these ideas in turn, and for some 
 special purpose, or in some special aspect, appears to be the 
 essential element. It may be the actual deliberate claim of 
 the subject, or the feeling which prompts the claim, or the 
 substantial object claimed — the real interest — or the recog- 
 nition by the State or society as representing the law. The 
 word right is correctly and commonly applied to all these, 
 and vulgar usage has even gone further and applied it to the 
 corresponding obligation, which we must consider in our 
 next chapter. 
 
 And to these practical definitions of right the philo- 
 sophical correspond. We may, with Ahrens,^ describe it as a 
 
 ^ Cf. Green's Ledwres, ii. 486, 422 ; chapters xxix. and xl. ; 
 le oomte de Vareilles-Sommiferes, Les Politics, 78, 305, &o. 
 primcipes fondamentaux du droit, ^ Proit Naturel, i. 158. 
 
132 RIGHT. 
 
 claim or pretension ; with Leibniz and Savigny,^ as a power ; 
 with Kant, as a privilege ; with von Ihering,^ as an objective 
 interest protected by law ; or again with Kant,^ as the ex- 
 ternal conditions of co-existence in society ; or with Hegel,* 
 as including morality and the whole life of human society. 
 
 At first the right and the thing are absolutely confounded ; 
 might is right. Then abstraction is made of the particular 
 right, e.g., possession, redemption, &c. But it was the Eoman 
 law which attained to the abstraction of a right in general — 
 jus the soul, of which corpus — res was the body. Particular 
 rights, then, become conventional things, and we end by using 
 the tautology, right of possession, right of liberty, right of 
 action, right of jurisdiction, &c., and we may almost say now, 
 without talking nonsense, that a free man has a right to his 
 rights ; and it is right that by right he should have right to 
 his rights. In other words, it is just (righteous, equitable), 
 that by law a man should have liberty and power to maintain 
 and protect his interests. 
 
 ^ Ohligationenrecht, i. p. 4 ; cf. ^ Phil, of Law (Hastie), 45. 
 
 Holland, p. 79. « Phil, of Right (Dyde), 40. 
 
 ^ Geist des rom. RecMs, iii. pp. 339, 
 351 ; (Meulenaere) iv. 328. 
 
CHAPTER III. 
 BOND— OBLIGATION— DUTY. 
 
 SECT. I. — RELATION OF DUTY TO EIGHT. 
 
 (1.) Every right is in its first aspect a right to act. The 
 " dominion over the creatures " is primarily a right to appro- 
 priate wild animals, the epithet " wild " implying the actual 
 absence of law and society, though these exist elsewhere. It 
 is then, secondarily, a right to exclude others — a right to in- 
 terdict interference. Possession is a right to defend physical 
 detention. Liberty or immunity is a right to be exempt from 
 aggression by others, or a right to free and unfettered activity. 
 These rights, even in their negative aspects, express them- 
 selves in active defence. " Exception " becomes " action." 
 
 So, in technical law, the first right is a right of action, — 
 that is to say, it is the natural impulse of dominion and pos- 
 session, regulated by society. The action is first an actual 
 action — rude self-help. Then it is regulated self-help. Then 
 it includes exceptions which are originally a form of defence ; 
 and finally it becomes identified with any legal procedure, till 
 the very threat of an action becomes a means of vindicating 
 rights — or, in some cases, of levying blackmail. The cheat 
 makes a fictitious right to damages by making up a trumpery 
 case. " Legal " process becomes illegal oppression. 
 
 All rights are in motion in this sense, that they are re- 
 vealed to us in the Kving processes of aggression and defence. 
 The conception of rights at rest is an anatomical abstraction 
 reached by analysis only. 
 
 (2.) To right in every sense that is borne by that word 
 there corresponds an obligation. If the right is legal, so is the 
 
134 BOND— OBLIGATION— DUTY. 
 
 obligation ; if the right is contingent, imaginary, or moral, so 
 is the obligation. If a multitude of particular rights can be 
 grouped into a single right like property, so may an indefinite 
 number of particular obligations be grouped into a single 
 obligation. This correspondence in idea is shown by the use 
 of the words jihs and right. Jus, we have seen, signifies a 
 bond or tie as well as a right or power. 
 
 A phrase such as " Do me this right " ^ makes the right 
 a single object of prestation, as well as of claim or demand. 
 " Eectum " in mediaeval Latin meant " dues or tribute," as well 
 as " right," from the creditor's standpoint. — (Ducange, s.v.). 
 
 (3.) If we might venture to amend Savigny's definition of 
 obligation as a dominion (^R&rrschaft), we might say, " an 
 obligation is the subjection of one person to another to the 
 extent of certain isolated acts of the former, which are 
 subjected to the will of the latter." ^ Ohligatio was a 
 Eoman technical term for a special tie. Two persons were 
 united in jure. Why were they so united ? Because they 
 were bound by an obligatio. And why so bound ? Because 
 they had been brought together by a contract, or because by 
 a delict one had unloosed the tie that naturally bound them. 
 It was simply the shifting of the same metaphor into another 
 word, as the mind struggled to analyse the relation. And so 
 we go on, and ask why do men contract ? Because they are 
 social animals drawn together and already related, or because 
 they are attracted by an irresistible and inexplicable internal 
 force, or in obedience to duty. 
 
 In classical usage, " obligatio," like jus, meant the relation 
 between a debtor and his creditor ; sometimes denoting the 
 claim or right of the creditor, and sometimes the duty of the 
 debtor. How natural this usage is may be shown by the 
 vulgar error of persons who ask, " What right have I to do 
 this ? " " Am I entitled to pay this sum ? " when they mean 
 
 ' Shakespere, Taming of the Shrew, after the laws and usages of this 
 
 i. 2. Of. the form of Judicial Oath, realm." 
 
 31 and 32 Vict. c. 72, a. 4 : "And ^ Ohlig. i. p. 4 ; Holland, Jur. 229. 
 I will do right to all manner of people 
 
RELATION OF DUTY TO RIGHT. 135 
 
 " Am I bound to do this ? " " Am I bound to pay this sum ? " 
 or " What law compels me ? " 1 
 
 (4.) A right in its main aspects consists in doing some- 
 thing, or receiving and accepting something. So an obliga- 
 tion consists in performing some act — a prestation — or in 
 refraining from performing an act. Even in this latter case 
 the obligation may be resolved into acting, for it is an active 
 inhibition of the subject himself from performing the act. 
 The notion of obligation or duty seems to carry with it pain 
 or suffering — passivity — and hereby it is distinguished from 
 the pleasurable activity of right. We may generalise the 
 idea as it appears in positive and negative servitudes. A 
 positive servitude of passage over a field appears as a right of 
 walking or driving over it by the owner of the dominant 
 tenement. The obligation of the servient is to refrain from 
 putting obstacles and perhaps gates on the path. A negative 
 servitude of light appears as a right on the part of the 
 dominant to interdict the erection of buildings on the servient, 
 or to remove them when erected. The obligation is to 
 abstain from erecting them, and if erected to remove them. 
 
 (5.) The same act in the same person, and with reference 
 to another identical person, may appear either as a right or as 
 an obligation. It depends partly on the feeling, the animus 
 — mens — with which the person regards it, and partly on 
 the recognition of this feehng by society. A person may 
 hug a grievance till he actually makes it a part of himself, 
 and will be more grieved to have it remedied than he ever 
 was to have it at all. A very striking example is afforded by 
 the " Court of Claims " set up by the King before the Coro- 
 nation. The " services " to be rendered at this ceremony are 
 regarded by the claimants and by others as special rights or 
 privileges.^ A person may buy a thing and feel it an 
 intolerable burden to carry away ; a person may sell a thing 
 and be hound to deliver it, and yet rejoice to be rid of it. 
 
 ' Journal of Jurisprudence, 1889, ^ Times, Dec. 6th, 1901, and fol- 
 
 j). 42. lowing days. 
 
136 BOND— OBLIGATION— DUTY. 
 
 The seller is bound to deliver ; the buyer is bound to take 
 delivery. This reciprocity runs through all relations from 
 the most rudimentary physical relation of parent and child, 
 husband and wife, master and slave, up to the glad obedience 
 of love, devotion, and loyalty ; it applies to the rule of an 
 autocrat who is master and servant of his people, and to 
 that "service which is perfect freedom." But in speaking 
 of rights and duties or obligations as being throughout 
 reciprocal, we must make sure that we compare them from 
 the same standpoint of all parties to them. The right of a 
 policeman to capture a thief corresponds to an obligation on 
 the thief to go peaceably to the police office, as well as to 
 obligations on the part of other citizens either to abstain from 
 interfering or actively to assist in the capture. If the thief 
 refuse to acknowledge his obligation, the policeman ties him 
 physically and carries him. He is then " bound " to go. We 
 should generally speak of the answering to an accusation, the 
 clearing of his character, or the submission to punishment, 
 as a duty incumbent on him as a good citizen. But the thief 
 may defy society, and wish to be treated so far as possible as 
 a thing. At the same time the police have a duty to their 
 superiors to capture the thief, and a duty to the thief to treat 
 him humanely ; and there are corresponding rights in the 
 superior official or in the thief to call the policeman to 
 account. These rights and duties are similar to those imposed 
 on the prisoner, even if he has been unjustly condemned to 
 a period of imprisonment. He has rights, but these do not 
 include a right to defy prison discipline. We shall see, how- 
 ever, in the following chapter that even the right and duty 
 of resisting law and settled government may be imposed on 
 a person who belongs for example to a body of conspirators. 
 The law of this association is in conflict with the law of the 
 land or of the wider society of the State. The relations may 
 be different, but the resulting ideas and feelings of obligation 
 or duty are the same. 
 
 (6.) The relation of proprietor between a person and a 
 
RELATION OF DUTY TO RIGHT. 13? 
 
 thing is sometimes taken in modern law as a type of a right ; 
 and to this it is said there corresponds an obligation on all the 
 world not to interfere with the thing. The practical view is 
 that there is an obligation on an actual trespasser to make 
 restitution or reparation. The obligation on A. B. C. D., &c. 
 is an invention useful for some purposes and misleading in 
 others. If, instead of appropriating a thing, you hire a porter 
 to carry yom- bag, you have appropriated the services of this 
 man. Lawyers wiU tell you that you have a jus in 'personam, 
 whereas in the former case you had a jus in re ; but the 
 distinction which is apt to be overlooked is that you have 
 now a living and conscious object of your right, instead of an 
 inanimate one. The servant's will acts in creating the object. 
 But you have also as much as in the former case 2. jus in re in 
 the services of this man, and he has 2. jus in re in his job — in 
 your employment. Why will porters fight for a commission, 
 or fight to retain it ? They are merely vindicating their jus 
 in re against their particular world. When once a contract 
 is made between A. and B., there are mutual rights and obli- 
 gations from the ordinary point of view, but there are also 
 obligations, of the same kind as in the case of property, laid 
 on C. D. E. and all the rest of society to abstain from inter- 
 fering with A.'s right in B.'s prestation and B.'s right in A.'s 
 prestation.^ 
 
 The case of Liimley v. Gye, 2 E. & B. 216, shows that a 
 right to services is truly a jus in re, and so is in contrast to 
 Allen V. Flood, 1898, A.C. 1, where the relation between the 
 master and the servant alleged to be dismissed was not really 
 contractual. The act complained of in the former case caused 
 a contract to be broken ; the act in the latter prevented a 
 contract from being made. These cases show that the right 
 which an employer has in the services of an employee is 
 analogous to a right of property in a thing, and implies an 
 obligation on all third parties to abstain from interfering with 
 
 1 Professor H. Sidgwiok has overlooked this point, — Politics, 2nd edition, 
 p. 31. 
 
138 BOND— OBLIGATION— DUTY. 
 
 the constituted legal contractual obligations between the 
 original parties. In AlUn v. Mood the question was not 
 merely as to the right of the plaintiff to take employment, 
 but as to the right of the employer to refuse it, and the rights 
 of other workmen to refuse employment in the event of the 
 plaintiff being employed. 
 
 In the subsequent case of Quinn v. Leathern (1901, A.C. 
 495) the principle in question was applied to the wider right 
 of carrying on a trade. At p. 534, Lord Lindley said — 
 " [The plaintiff] had the ordinary rights of a British subject. 
 He was at liberty to earn his own living in his own way, 
 provided he did not violate some special law prohibiting him 
 from so doing, and provided he did not infringe the rights of 
 other people. This liberty involved liberty to deal with 
 other persons who were willing to deal with him. This 
 liberty is a right recognised by law ; its correlative is the 
 general duty of every one not to prevent the free exercise of this 
 liberty, except so far as his own liberty of action may Justify 
 him in so doing." At p. 525 will be found an earlier dictum 
 of Sir W. Erie to the same effect, and on the following page 
 Lord Brampton quotes with approval a dictum of Lord "Wat- 
 son in Allen v. Flood as to the remedy : '' Any invasion of 
 the civil rights of another person is in itself a legal wrong, 
 carrying with it liability to repair its necessary or natural 
 consequences, in so far as these are injurious, to the person 
 whose right is infringed." 
 
 (7.) It is sometimes suggested that there are obligations 
 without rights in the laws as to education of children, vacci- 
 nation, cruelty to animals, and such-like. It is admitted that 
 the public — the State — has a general interest in the enforce- 
 ment of such laws. This being so, the State has in every case 
 taken the precaution of investing a certain definite individual, 
 or class of individuals, with the power of prosecuting for 
 penalties. The State invests these persons with an official 
 right, corresponding to the definite obligation laid on the 
 individual, as in the Infants' Life Protection Act, 1897, 
 
THE BINDING FORCE. 139 
 
 or it may allow private prosecutors or common informers a 
 right of prosecution. The actio popularis of the Eoman and 
 of the Scots law illustrates the device. — (D. 47, 23). In 
 recent times the State has created crowds of government 
 inspectors and police. Each of these may say " L'Etat c'est 
 moi." If a shopkeeper is bound to have just weights and 
 measures, an inspector has the right to examine and confis- 
 cate them if light. 
 
 (8.) This dispute is very much a logomachy. There are 
 two elements in relation, and it is convenient to apply the 
 word " right " to the one side, and " obligation " or " duty " to 
 the other. The negative is seriously maintained by English 
 writers, but they are misled by the accidental technical 
 use of the word " obligation " in English law. The idea of 
 obligation as a legal tie is late of appearing in English law, 
 and we see it becoming detached from the general duty of 
 restoring property lent or deposited. — (Pollock and Mait- 
 land, ii. 172, 183, 205). Eights may thus be said to have 
 appeared historically before obligations were technically 
 recognised, but to argue from this that rights can exist with- 
 out obligations is Hke maintaining that the blood did 
 not circulate in the body until the time of Harvey. The idea 
 of right is perhaps simpler, or it was first distinguished 
 because right and action were identical, and the technical 
 right has been usefully expanded by analogy to all relations. 
 Those who affirm that rights and obligations do not co-exist 
 and correspond exactly, have merely omitted to notice that 
 the term obligation and its synonyms have gone through a 
 process precisely corresponding to that which we have ex- 
 amined in the case of " right " and its synonyms. 
 
 SECT. II. — THE BINDING FORCE, 
 
 (1.) Slavery is the starting-point of obligation. In this 
 institution we find the physical meeting-point of the ideas 
 of property, obligation, and political subjection. This is 
 
t4o BOND— OBLIGATION— DUTY. 
 
 shown by the Latin words manus, mancipium, tenere, which 
 apply to things as well as human beings. The last applies to 
 obligation as well as possession. The rod of the taskmaster 
 is the symbol of dominion ; it indicates right, power, autho- 
 rity, empire, on the part of the holder, but it also indicates 
 no less emphatically the nature of the relation in which the 
 subject or the person bound stands to the holder. We who 
 know only in vague outline human relations in the distant 
 past, and even those who describe them as contemporaries, 
 but see only the surface, may consider that the relations of 
 husband and wife, parent and child, master and servant, ruler 
 and subject, are formally and substantially identical. But, 
 as in modern law, the legal form of " corporation " includes 
 many diverse associations of men, so in ancient law, persons 
 might be roughly classed as slaves, whose duties were in 
 many respects sharply contrasted. In its first conception, 
 the idea is necessarily limited, but when men conceived 
 themselves as servants, slaves, or subjects of their gods, it 
 became possible to extend by analogy the ideas of obligation 
 and duty to the whole of man's moral and religious rela- 
 tions, and to treat right and duty as being absolutely 
 correlative. The history of substantive law may be regarded 
 in one aspect as a history of this differentiation correspond- 
 ing to the development of the human personality and the 
 organisation of society. 
 
 The physical associations with " obligation " are evident 
 in Stair's account of liberty. He explains (i. 1, 22) that 
 
 " Obligation is tliat which is correspondent to a personal right, 
 which hath no proper name as it is in the creditor, but hath the name 
 of obligation as it is in the debtor ; and it is nothing else but a legal tie 
 whereby the debtor may be compelled to pay or perform something to 
 which he is bound by obedience to God, or by his own consent and 
 engagement." 
 
 Liberty, as Stair teaches, is abridged (1) by '' obediential 
 obligations " to others, as when furious persons or children 
 are restrained ; (2) by punishment ; (3) by engagement, 
 " whence restraint and incarceration of the debtor's person, 
 
THE BINDING FORCE. 141 
 
 until he do all the deeds that are in his power for the satis- 
 faction of his creditor " ; (4) " hy subjection unto authority " ; 
 and (5) " by bondage, slavery, or servitude " (i. 2, 4-9). Stair 
 thus appears to make obligation the negation of liberty, as 
 elsewhere we have seen liberty treated as the negation of 
 obligation (p. 101, su'pra, and of. Hobbes, Leviathan, chap, 
 xxi). 
 
 The question is asked, what constitutes the binding force 
 of an obligation ? The ceremony of delivery of a baton — 
 festuca — physical submission by putting the arm round the 
 neck, the private prisons of the early Eomans — point to the 
 power which enforces an obligation as being that of a private 
 individual. 
 
 The person claiming the right acts — goes through a 
 pantomine or real ceremony indicating the power which he 
 wishes to exercise in enforcing his right. But the State in 
 its very first attempts to regulate obligations interposes with 
 its force. An action is the first form of law in the Twelve 
 Tables, the Salic Law, and other codes. The State — magis- 
 trates or witnesses — assist and put their force at the disposal 
 of the private individual. The debtor is regarded as bound 
 now, because he was regarded by himself and his creditor as 
 lawfully bound at first. 
 
 Finally, an obligation is an invisible bond. It is the 
 feeling of the debtor, and not the power of the creditor or of 
 the State. The feeling may arise because he is helpless in 
 the hands of the creditor, and an appeal to the State would 
 be useless — might even make matters worse. But it may 
 ultimately arise because he has given his word, or because he 
 knows or considers the claim to be really just. It may be the 
 heartfelt gratitude of a slave who owes his life to his master. 
 
 (2.) The parable of the unjust servant shows that proceed- 
 ings such as are there described were sufficiently familiar to 
 the audience addressed, either as ordinary events, or tradition, 
 or popular imagination. A king is described as making reck- 
 oning with his servants, and the narrative proceeds : — 
 
142 BOND— OBLIGATION— DUTY. 
 
 " And when he had begun to reckon, one was brought unto him 
 which owed him 10,000 talents. But forasmuch as he had not where- 
 with to pay, his lord commanded him to be sold, and his wife and 
 children, and aU that he had, and payment to be made. The servant 
 therefore fell down and worshipped him, saying, Lord, have patience 
 with me, and I wiU pay thee all. And the lord of that servant being 
 moved with compassion released him and forgave him the debt. But 
 that servant went out and found one of his fellow-servants which owed 
 him a hundred pence ; and he laid hold on him and took him by the 
 throat, saying. Pay what thou owest. So his feUow-servant fell down 
 and besought him, saying, Have patience with me and I wiLL pay thee. 
 And he would not, but went and oast him into prison till he should pay 
 that which was due. So when his fellow-servants saw what was done, 
 they were exceeding sorry and came and told unto their lord all that 
 was done. Then his lord called him unto him and saith to him, 
 Thou wicked servant, I forgave thee all that debt because thou be- 
 soughtest me : shouldest not thou also have had mercy on thy fellow- 
 servant, even as I had mercy on thee ? And his lord was wroth and 
 delivered him to the tormentors (gaolers, Liddell and Scott) till he should 
 pay aU that was due." — (Matt. 18, 24 (Revised Version).) 
 
 We must not regard this as an obsolete institution of 
 antiquity. It is at this moment competent in Scotland to 
 apprehend and imprison a foreigner (including an Englishman 
 or Irishman) from whom an alimentary debt is claimed, and 
 who threatens to leave the country, until he find security 
 to answer an action for the debt. Down to the year 44 
 Victorise such warrants were common for ordinary debts. 
 Again, in the case of apprentices and workmen imprisonment 
 was a recognised mode of compulsitor:^ 
 
 (3.) There was a law of debt in Egypt prior to the eighth 
 century B.C., which allowed a creditor to seize and imprison 
 his debtor. We do not know that he was made a slave ; the 
 idea may have been penal, because debt was incurred by 
 foolish and immoral extravagance, akin to dishonesty. This 
 law was repealed by Bocchoris, who reigned about 812 B.C. ; 
 and the ground of the reform was that the bodies of the 
 citizens belonged to the State and it required them for pubKc 
 services both in peace and war. The statement of Diodorus 
 as to this reform (i. 79) is corroborated by Egyptian docu- 
 
 ' Jur. Eev. xiv. 68. 
 
THE BINDING FORCE. 143 
 
 ments, in so far as they make no reference to attachment of 
 the person.^ But while this was so as to private debts, the 
 State reserved power to imprison its own debtors, as is proved 
 by the Eosetta stone, where the liberation of prisoners is 
 mentioned.^ But we find contract and slavery touching at 
 other points. In polygamous countries it is difficult to 
 distinguish between slaves and inferior wives ; but in ancient 
 Egypt the law as to slaves was extremely humane and their 
 personality was recognised in many ways. M. Eevillout ^ 
 gives in extenso a curious marriage-contract, dated in the 
 fourth year of Psammeticus (667 B.C.), between a woman 
 Tenesi, the daughter of Anachamen, and Amon, son of Put'a, 
 whereby she conveys herself with all her property, and 
 ■' even the clothes on her back," to Amon for ever and ever. 
 She expressly calls herself his servant. The deed is evi- 
 dently an inferior kind of marriage-contract, in the form of a 
 sale, by the woman herself. This comes very near a personal 
 obligation. M. Eevillout compares the relation of these 
 parties with that institution which is referred to in the Book 
 of Exodus.* At a much later date we find the canonists 
 speaking of marriage as a mutual slavery (mufua guodammodo 
 sermtus).^ 
 
 (4.) We learn both from Diodorus and Plutarch (Solon, 15) 
 that Solon forbade any one to lend money upon security of 
 the person (e-Trt to<"? o-wfiacri) of the debtors. Prior to this 
 enactment the State was on the verge of revolution owing to 
 the discontent of the poor. Plutarch says (13) that the 
 whole people were in debt to a few wealthy men, as tenants 
 cultivating their farms and paying a rent, or as hired 
 labourers : or else they had raised loans on personal security 
 and had become the slaves of their creditors, who either 
 employed them at home or sold them to foreigners. Others 
 had sold their children and had left the country. 
 
 ' E. Eevillout, Oiligaticms, 204 ; ^ Cows de droit igypt. i. 105. 
 
 Wilkinson, Ancient Egyptians, i. * xxi. 1-4. 
 
 310-312. s Deor. \l<^ para 32, 2, 3. 
 
 2 Records of the Past, iv. 72 ; cf. 
 Grenfell, Laios of Ptol. Phil., p. 145. 
 
144 BOND— OBLIGATION— DUTY. 
 
 Solon poetically transfers the idea of slavery from the 
 poor Athenian debtors to the land which was mortgaged. 
 Here again we find the boundary stone (o/jo?) on which was 
 inscribed a notice of the amount of debt. These as a badge 
 of the slavery of his native land Solon overthrew : — 
 
 '* (TViJ.lw.pTvpol'q raOr &v iv dUrj x/'dyoi' 
 fi7p-7]p fi€yl(7TTj Saifihwv 'OXvfiTriwv 
 dpio'Ta Vij fiiXacva, Trjs iyoj Trore 
 Upovs aveiKov iroXKaxv TreinjydTas 
 trpbadev 5^ SouXeiJoutraj vvv 4\evdipa-" ^ 
 
 A poor tenant in ancient Greece, or modern Ireland, or 
 India, who has mortgaged his plot of land to a usurer, and 
 hardly finds subsistence for himself and his family after 
 satisfying in part the claims of his creditor, may well envy 
 the lot of a slave. His freedom exists only in name. The 
 creditor may be more exacting than a taskmaster.^ Thus 
 history shows that the poor, when the burden of private 
 debts and obligations becomes intolerable, come to regard it 
 as imposed by the State. The transition from private wrong 
 to political wrong is easy, for if the State can relieve the 
 burden by force, and if it fail to put forth its power, it 
 becomes responsible for the existence and the continuance of 
 the wrong. And if the rich are the governing class, it is easy 
 to identify the public with the private oppressors.^ 
 
 (5.) We may see the close association of ideas between 
 
 mortgage and slavery in the history of Nehemiah, where he 
 
 describes the outcry of some of the Jews against their 
 
 brethren. They had mortgaged their lands, vineyards, and 
 
 houses : they had borrowed for the purpose of paying 
 
 tribute : — 
 
 " And, lo, we bring into bondage our sons and our daughters to be 
 servants, and some of our daughters are brougbt into bondage already ; 
 neither is it in our power to help it ; for other men have our fields 
 and our vineyards." — (v. 5, Revised Version.) 
 
 1 Aristotle, Ccmsliiution of Athens, ^ See Beauohet, Dr. aih. iv. 458 
 
 12, 30. See note as to boundary seq., as to imprisonment in other 
 
 stones in Sandys' ed. p. 45. Stetes than Athens ; cf. Dareste, &c., 
 
 - Cf. Baden-Powelli Village Com- Recueil des inscr. jur. grec. i. pp. 208 
 
 munities in India, 136, &c. and 282. 
 
THE BINDING FORCE. 145 
 
 Nehemiah relates how he obtained the cancellation of 
 these debts. 
 
 (6.) The transference of the idea of slavery from the 
 owner to his land by Solon, as well as by the Jews in the 
 time of Nehemiah, is explained by the fact that in a remote 
 anticLuity men personified things. They tried and punished 
 them as responsible for wrongs.^ In England, down to little 
 more than fifty years ago, any animate or inanimate thing 
 that caused the death of a person was forfeited to the King 
 and devoted to pious purposes, as Deodand.^ This personifi- 
 cation still survives in the maritime lien for damage caused 
 by collision of ships. — (Holmes, /.c.) 
 
 It was no doubt a similar personification of land estates 
 which suggested the word servitude ; so that the framers of 
 the French Code found it necessary to state that " servitude 
 established no pre-eminence of one estate over another."* 
 The Greek translation of servitude by SovXela brings the idea 
 more clearly before us. And may we not imagine that there 
 was some popular fallacy which provoked the maxim " Ees 
 sua nemini servit ? " 
 
 (7.) The history of Eome also affords illustration of the 
 connection of debt and bondage. The nexum was a legal 
 transaction, suggesting binding, tying, and slavery. At an 
 early period impiisonment, if not slavery, was the compulsitor 
 to enforce payment of debt, and the rich Patricians at one 
 time filled their houses like prisons with debtors. The abuse 
 of the rights of creditors became a menace to the State, and 
 was dealt with in the Twelve Tables ; but the ultimate 
 remedy was, like that of Bocchoris and Solon, to restrict the 
 right of the creditor to the goods only of his debtor.* Cessio 
 honorum is a process still recognised in Scotland, although 
 imprisonment for debt has been practically abolished. 
 
 Slavery and condemnation to work in mines were also 
 
 ^ Arist. Const. Athens, 59; Plato, ^ Art. 638; 'H.ohaea' Common Law, 
 
 Laws, 873, E. 383, &o. 
 
 ^ Holmes' Common Law, Lect. I. ; * Muirhead, Moman Law, 2nd ed, 
 
 Pollock and Maitland, ii. m. 93, 153, 
 
146 BOND— OBLIGATION— DUTY. 
 
 recognised as punishments in Eoman law.^ It was the 
 punishment next to death (L. 28, § 6, D. de, Pcenis (48, 19) ). 
 In more recent times Eussian criminals of the worst class 
 were sent to work in Siberian mines.^ Penal servitude as a 
 punishment for crime is a virtual slavery under British law. 
 
 (8.) In the formulae of Marculfus (ii. N'os. 27-28) we find 
 another application of the same idea. There a debtor under- 
 takes to work so many days a week for the creditor while 
 the debt is unpaid, or gives him power to sell him as a slave 
 in satisfaction thereof. In the form given by Beignon (N"o. 
 26, p. 237, ed. Paris, 1665) a solemn pantomime is described, 
 wherein the debtor allows the creditor to place his arm on the 
 debtor's neck, and make him a slave in ease of default in pay- 
 ment. Although this collection is later than Justinian, the 
 forms themselves are no doubt much older. The ideas involved 
 are not unlike those of the old Egyptian marriage-contract 
 already quoted. They both imply that through the notion of 
 ordinary slavery the person has come to be as it were techni- 
 cally proprietor of himself. His personality is split up into 
 the person who contracts, and the personality in his body or 
 the status ingenuitatis which he alienates. — (Bruns, 386.) ^ 
 
 (9.) Mr. Cleasby (Icelandic Dictionary, s.v.) says that the 
 word " skuld," which means a debt or due, " in the oldest law 
 means a kind of serfdom or bondage, in payment of debt, 
 like that of an dbmratus or nexus in the Eoman law." — (Cf. 
 GrdgAs I., 205, 232, 234.) This word is the same as the 
 German ScJmld, which means first crime, trespass, and then 
 debt. These words are connected with the German " sollen " 
 and the English " shall," " should," which will be dealt with 
 hereafter (p. 171, infra). — (Kluge, Mym. W. luch, s.v.) Pro- 
 
 1 Smith's Z>ic<. ^wi. s.OT. Metallum, semetipso (Ho. x.). Was the price 
 Poena ; Mommaen et Marq., Ant. Mom. received a pemlium ? cf. L. 21 D. de 
 A. 334. Statu hominum (1, 6). The earlier 
 
 2 George Kennan, Siberia, London, Roman law overcame the difficulty 
 1891. by the appointment of a mndex— 
 
 3 In the additional /oj-WMite wteres assertor libertatis —who supplied the 
 of Beignon, we find a conveyance necessary persona. (Gains, iv. 21 ; 
 (Obnoxiatio, No. xvi.), and in the Muirhead's ed. p. 278). 
 
 following collection a Venditio de 
 
THE BINDING FORCE. 147 
 
 fessor Skeat says that the derivation of Schulter, shoulder, is 
 uncertain. Is it not that part of the body on which a burden 
 is laid ? 
 
 (10.) We may say that early law had not yet distinguished 
 real and personal obligations. A bond for money might 
 involve what we should call a pledge of the debtor's body. 
 The confusion is caused by the ambiguity of the interest 
 which the obligation affects. Is this interest an external 
 corporeal body, or the soul — the personality — of the person 
 interested in it ? The close connection between personal 
 debt and the body of the debtor is shown by the phrase 
 eiri Toiy adfiacTi used by both Aristotle and Plutarch.^ That 
 the rights over the debtor's body were real is shown by the 
 provision of the Twelve Tables as to division of the body. 
 Those who wished to bury it had first to redeem it from the 
 creditor.^ Diodorus mentions a curious law of the Egyptians 
 which recognised a pledge of the bodies of one's relatives or 
 ancestors. This probably acted as a compulsitor by prevent- 
 ing the regular burial of the debtor.* 
 
 The punishment of dead bodies is an exemplification of 
 the same idea. Thus the bones of the sacrilegious Alcmai- 
 onidai were disentombed and cast beyond the borders of 
 Attica.* The trial of the dead body of his predecessor by 
 Pope Stephen VII., described by Browning,^ is another ex- 
 ample. The treatment of the body of Cromwell by the 
 Eoyalists appears to us horrible and contemptible; but it 
 was natural and significant, — a revival of a lower and earlier 
 order of legal ideas. 
 
 (11.) There is another institution which forms a link 
 between dominion, slavery, and free contract, — that is, serf- 
 dom. Legal provisions as to serfs are found in the Code of 
 Theodosius as well as in that of Justinian. They were free, 
 
 ' Const, of Athens, 6, 1, 9, 1. * Arist., Const, of Athens {Ssbudys), 
 
 ' Ihering, Evohitvm of the Aryan, p. 1, where the various accounts of 
 
 56. this process are collected. 
 
 ^ Diod. Sic. i. 93 ; Wilkinson, Anc. ^ The Bing and the Book, x, 
 ' ■, i. 311, 
 
148 BOND— OBLIGATION— DUTY. 
 
 but were bound to the soil, and migbt be sold along with 
 it. They paid a rent to their owner. Of serfs there were 
 two classes, one almost free peasants, and the other nearer 
 slaves {adscriptitii) who had no property. — (Hunter, Roman 
 Law, 3rd ed. 163. Smith, Diet, of Antio[. s.v. " Colonatus." ) 
 We meet this institution also in mediaeval England ; it was 
 abolished in Eussia only about forty years ago, and it 
 explains the position of the French peasantry before the 
 great Eevolution. In form it varies, some cases being hard 
 to distinguish from slavery, and others from absolute freedom. 
 Sometimes the serf is bound to do work for his lord per- 
 sonally ; sometimes to pay in money or kind. It is difficult 
 to say whether this is a tax or a rent for the land, or a 
 personal rent. — (Pollock and Maitland, Hist. i. 395 ; Maine, 
 Law and Custom, 307.) 
 
 (12.) It has been already suggested in our discussion of 
 right that the original sceptre was the measuring rod, re- 
 quired for making allotments or adjusting disputes between 
 the holders of allotments of land. But the rod has different 
 purposes, and we may also see in the sceptre of the king a 
 lineal descendant of the rod of the taskmaster — on the one 
 hand, political subjection gilded and ornamented tUl it be- 
 comes a pleasure as well as a duty to loyal subjects : and on 
 the other, a stick to remind the slave or the criminal dream- 
 ing of what he calls freedom that he has a heavy burden of 
 duty. The baton, the badge of dominion ; the Eoman fasces 
 and axe; the spear in Eoman mancipation; the festuca in 
 Eoman and mediteval conveyances; the staff and baton in 
 modern resignations of lands in Scotland ; the delivery of 
 a pen in the later Scots law ; the truncheon of a special 
 constable; the cane of the schoolmaster; the baton of the 
 conductor of an orchestra; the baton which authorises an 
 engine-driver to proceed on a single line of rails ; all these 
 are symbols of authority and right. 
 
 On the part of the obligant or subject the symbols are 
 equally significant. They aU imply subjection, which may 
 
THE BINDING FORCE. 149 
 
 vary from absolute slavery to willing co-operation on the part 
 of the nominal subjects.^ The Egyptian and Assyrian sculp- 
 tures show political subjection by portraying groups of men 
 awaiting death, kissing the ground before the king, or stand- 
 ing with their arms tied behind them as in the rock sculptures 
 of Darius at Behistun. " He hath put all enemies under His 
 feet." The Eomans had the ceremony of passing under the 
 yoke. Marculfus, in the case alluded to above, represents the 
 debtor as allowing the creditor to put his arm on his neck : in 
 mediseval homage the vassal placed his hands within those of 
 the superior.^ In Assyrian sculptures we see captives clasp- 
 ing their hands as if in prayer. This attitude means the 
 abandonment of arms and of active resistance. Prostration 
 or kneeling is an unfavourable attitude for attack, and so 
 emphatically signifies subjection. 
 
 With the Egyptians political subjection and slavery 
 might be synonymous, for the conquered peoples became 
 State slaves ; but when subjection meant merely the regular 
 payment of tribute, the idea of abstract obligation was almost 
 suggested. The Assyrian Kings enslaved nations, while the 
 individuals enjoyed comparative freedom. At the present 
 day, when it is wished to apply an opprobrious term to a 
 political or social relation, it is described as slaverJ^ 
 
 The distinction between civil and political rights and 
 obligations is not always drawn. Solomon's glory was largely 
 gold, material wealth, and slaves. A king was a great pro- 
 prietor. So in Egypt the wealth of the king enabled him 
 to maintain standing armies without what we call taxation.^ 
 In our own country the distinction has been facilitated by 
 the squandering of the royal patrimony by some English 
 and Scottish kings. The royal state must be preserved, and 
 so it has to be maintained by contributions and payments 
 from his subjects — political payments. 
 
 ' Spenoer, Sociology, ii. 176: Pol- Of. the Latin phrase dare manus, to 
 
 lock and Maitland, ii. 184 ; Par- surrender, 
 
 dessns, Loi Salique, 616. ^ Grenfell, Laws ofPtol. Phil. (Int. 
 
 2 Britton (Nichol's ed.), iii. 4, 17. of Prof. Mahaffy), xxvii. 
 
ISO BOND— OBLIGATION— DUTY. 
 
 The Temporal Peers in the House of Lords are a survival 
 of the same idea. Their great possessions, which they ori- 
 ginally acquired as a reward or payment for real or sup- 
 posed services to the State, have given them a pre-eminent 
 interest ia the State. In fact, the Idng was only primus 
 inter pares, and his peers naturally undertook and were 
 expected to undertake political duties. To others were 
 assigned lucrative political functions. The offices became 
 hereditary, but as this became injurious to the State, the 
 title was left and the holder was reheved of the duties. 
 The peers have been deprived of most of their judicial and 
 administrative functions except as representing the king's 
 government ; but they retain their property and the right of 
 assisting in legislation, while their relations to their servants 
 and tenants belong to the private law. 
 
 So loose has the idea of obligation become, and so gene- 
 rally diffused, that the word has almost lost its meaning in 
 ordinary intercourse. Churchmen forget the contradiction 
 involved in the Pope's description of himself as Servus 
 servorum Dei. In ordinary usage the smallest feeling of 
 gratitude may be described by saying, " I am obliged." But 
 the ordinary formula of correspondence — '' I am your obedient 
 servant," " Yours faithfully," or even " Tours truly," do not 
 imply the devotion of a slave, but merely that the writer — if 
 he means anything — regards himself as bound to his corre- 
 spondent by the ties of ordinary morality. And in some 
 cases a title expressing duty or obligation comes to be asso- 
 ciated chiefly with rights. The words "officer" and "minister" 
 both afford examples. 
 
 (13.) Maine's formula of the progress of society from 
 status to contract here presents itself in a slightly different 
 form. Some men progress from thing to person. A slave is 
 a rational, speaking thing. He may be allowed to contract, 
 but when he fails to fulfil his obligations he is reduced to his 
 former state. A slave is under obligation to his master — 
 duties of status. But when he is freed his obligations of 
 
PUBLIC AND SUPERNATURAL FORCE. 151 
 
 gratitude become moral and in some cases legal. The duties 
 of the master are few in his first status, but convention, 
 public opinion, and then actual legislation alter these. The 
 progress from slavery to freedom is simply the development 
 of consciousness, which reveals rights, and this consciousness 
 in the popular form of conscience, which reveals duties. 
 
 SECT. III. — PUBLIC AND SUPERNATUEAL FOBCE. 
 
 (1.) The primitive man was no psychologist. His first 
 rude assertion of right was "action." This action was 
 violence — binding and slavery. And just as unconscious 
 analysis pushed back "action" to the antecedent rights im- 
 plicitly involved, so the binding of the debtor in the mantis 
 injectio and such legal processes was found to imply a 
 binding in the antecedent relation — an obligation or a duty. 
 The person who bound himself by a formal bond was like a 
 criminal who is liable to be sentenced at any time when 
 called on. For the moment he appears free, but the potential 
 slavery is always hanging over him. Again, the person 
 wronged demanded reparation and revenge in one process, as 
 these are still given in the modern French law. If he could 
 not get sufficient reparation he took more revenge. The State 
 for its own purposes put down private revenge, and found 
 the process profitable, indirectly by protecting taxable sub- 
 jects, and directly by exacting fines. The debtor was a 
 criminal, or quasi-criminal, for the creditor did not care 
 whether his failure was due to fraud, deceit, or innocent 
 misfortune.^ Nor did the debtor draw distinctions, because 
 the effect on liis person was the same. But, as in the case of 
 rights, modern law has analysed the action on the side of the 
 debtor, and has found that the remedial binding in action 
 implies antecedent obligations of various degrees culminating 
 in the ultimate idea of moral duty. 
 
 (2.) Our modern analysis shows us two parties lound to 
 
 ' This idea actually survives in Erskine, Inst. i. 1, i. 
 
152 BOND— OBLIGATION— DUTY. 
 
 each other by contract or in some other way, and the State, 
 the Law, approving, sanctioning, and enforcing the obligation 
 resulting from the tie. But this is not explicit in ancient 
 law. If the creditor is sufficiently strong he enforces his 
 own rights. But if he is unable to do so, he procures assist- 
 ance. To assist the individual creditor, who is helpless, the 
 State or a superior is brought in as an actual 'party. The 
 same ideas which, as we saw in the last chapter, led to 
 the invention of suretyship, which is a device to make ful- 
 filment sure by multiplying the debtors, or causing other 
 persons to bring moral pressure to bear on the principal debtor, 
 gave rise to the idea of making an obligation more secure by 
 giving a truly powerful creditor the right of enforcement. 
 There were always powers sufficiently strong for every debt. 
 The private individual might secure his right through the 
 Fisc, or the King, or the Church, or G-od ; the King himself 
 could always appeal to God, if his own power, or that of his 
 earthly allies, failed. But this device gave the State a direct 
 interest in the obligation, and secured the debt for the credi- 
 tor. As we have shown how a single right might be analysed 
 into a series of antecedent rights, so an obligation affected 
 not only the principal debtor, but his family — children and 
 slaves — and his property. Suretyship was an artificial exten- 
 sion of the family. It gave the creditor a new right, while 
 his interest was still in one sense the same. It created a 
 new artificial debtor, while pledge created a new artificial 
 prestation. But the penalty to the fisc, or the oath to the 
 gods, put another creditor alongside the original one to assist 
 him. 
 
 Before men adopted these devices they had recourse to 
 magic, like the West Indian negro of to-day. This is alluded 
 to in the Babylonian contracts presently to be quoted, in 
 which there is a special curse aimed at sceptical unbeKevers. 
 The Michaux stone, which is dated about 1100 B.C., con- 
 tains a marriage settlement. It marks the boundaries of a 
 piece of land conveyed by Sirusur, the son of Killi, to his 
 
PUBLIC AND SUPERNATURAL FORCE. 153 
 
 daughter. The rude figures carved on the stone are perhaps 
 magical. The inscription (as translated by MM. Oppert and 
 Mdnant) consists of a description of the lands and most 
 circumstantial denunciations of any who shall attempt to 
 remove the landmark. The conveyancer of these days had 
 no mean knowledge of theology, as well as of all the diseases, 
 pains, and aches which might affiict humanity.^ 
 
 In the later Assyrian deeds the curses are less elaborate. 
 In one ^ the person attempting to challenge the conveyance 
 " shall pay ten minas of pure silver and ten minas of wrought 
 gold into the treasury of Istar, who inhabits the city of 
 Nineveh," but in the following deed, an exchange of slaves, 
 the formula of eviction is different. The person is to pay 
 ten minas of silver, and invokes Assur, Samas, Bel, Nabu, or 
 any other " as guarantee of his right " (op. cit. pp. 211, 213). 
 
 In the Sargon stone, which is four centuries later than 
 the Michaux stone, the curses are by no means elaborate,^ 
 and in the documents of the time of Cyrus, two centuries 
 later still, they have practically disappeared. In these there 
 are penalties stipulated occasionally, without saying to whom 
 they are payable. The priests and the government were so 
 strong that they did not require to be more specific* 
 
 M. de Coulanges {La citi antique (10th ed.), p. 72) quotes 
 Eoman and Etruscan examples, which prove that the practice 
 was very widespread. 
 
 (3.) Turning to Egyptian remains, we find an example of 
 elaborate invocation of deities in the treaty between Eameses 
 and the Hittites.^ This is similar to the Homeric example, 
 presently to be referred to. M. Eevillout points out that in 
 Egypt, after imprisonment for debt was abolished by Boc- 
 choris, the prisons were still full of the debtors of the king.^ 
 He quotes'' an edict of Tiberius, in which this emperor 
 
 1 Records of the Past, ix. 92 ; * Peiser, Babyl. Vert, 17 and 169. 
 Oppert and Menant, Vocv/ments, 85. ^ Secords of the Past, iv. 25. 
 
 Of. the curses on boundary stones in ^ Droit Comml., p. 116 ; supra, p. 
 
 the British Museum, Catalogue, p. 86. 142. 
 ^ Oppert and Menant, p. 209. ' Obligations en droit igyptien, 209. 
 
 2 Peiser, Keilsch/rift. Acten-Stiicke, 
 p. 9 ; cf. p. 21. 
 
1 54 BOND— OBLIGATION— DUTY. 
 
 dealt with the abuse of imprisonment on the pretext of the 
 interest of the fisc, and prohibited imprisonment for the 
 future except as to malefactors and public debtors. It seems 
 that under the Ptolemies a stipulation for a penalty in favour 
 of the king changed the jurisdiction and brought the debtor 
 before the Eoyal Courts.^ This procedure is similar to the 
 fiction which originally gave the Court of King's Bench 
 jurisdiction in England. As Blackstone (iii. 43) explaios, the 
 defendant was presumed to have committed a trespass which 
 made him liable to pay a fine to the king. 
 
 In the Papyri published by Messrs. GrenfeU and Hunt 
 we find various interesting clauses illustrating this point. 
 Thus in loans of wheat, dated in the second century B.C., 
 we find a penalty of 50 per cent, for failure, and execution 
 allowed in accordance with law.- Among the Oxyrhynchus 
 Papyri,* also edited by these scholars, we find in docu- 
 ments of the first century of the Christian era the siddi- 
 tion of penalties payable to the public treasury. In one 
 case, dated 77 A.D., the sale of a slave-girl is intimated by 
 declaration on oath by the Emperor Vespasian.* The seller 
 Bacche, daughter of Hermon, with consent of her guardian, 
 swears that the slave is her property, that she is sound, and 
 that the price has been paid. Oaths by the Emperor are 
 conmion in these volumes. Then in the sixth century A.D. 
 we find two acknowledgments of debt by Flavius Psensoerius 
 to Joannes, a notary of ApoDinopolis. For the security of 
 the creditor they are said to be " holograph with my own 
 hand." The debtor professes his readiness to pay with Gtod's 
 help (crw QeS). The deeds begin with a cross. Perhaps 
 this points to a supernatural sanction.^ 
 
 (4.) We may take the treaty in the Third Book of the Iliad 
 
 as a specimen of an early Greek contract. There the gods of 
 
 both Greeks and Trojans are called as witnesses, and 
 
 penalties are invoked on the party who shall break the 
 
 ' Obligations en droit igyptien, 206. ^ ii. 254, 256, 263 ; <•/. i. 165. 
 
 2 Ser. i. pp. 39, 50 ; cf. Ser. ii. * ii. 233. 
 
 p. 50. ^ Gvenfell and Hunt, ii. 139, 140. 
 
PUBLIC AND SUPERNATURAL FORCE. 155 
 
 bargain. M. Beauchet ^ quotes a passage from Theophrastus, 
 in which certain sacrifices to Apollo or Zeus were required in 
 the ease of transfer of immoveable property. Polybius in 
 a well-known passage ^ draws a contrast between the Greeks 
 and the Eomans in respect of their fidelity to contracts, very 
 unfavourable to the former. Perhaps the Eomans believed 
 in their deities, while the Greeks saw nothing but witnesses 
 and seals.^ 
 
 In a passage of the Second Code of Gortyn a penalty is 
 imposed in favour of the State when a person with whom an 
 animal is deposited denies the deposit in a legal process. A 
 similar penalty is imposed in another Gortynian decree, 
 where the guarantors of a freed slave do not interfere by 
 force, when an attempt is made to reduce him again to 
 slavery.* 
 
 (5.) In the title of the Digest Be, Jure, Fisci (49, 14) 
 Callistratus enumerates among the grounds on which the 
 fisc can claim rights " pcenam ... ex contractu private." 
 
 It will be more convenient to discuss later the Eoman 
 ideas of Mos and Fas ; but we may notice here that the re- 
 lated ideas of Fides and Fiducia illustrate the point under 
 discussion. Whether Fides was actually personified may 
 be questioned, but through the stigma of infamia attach- 
 ing to breaches of faith and other wrongs, a very operative 
 sanction was added by society to the ordinary legal powers 
 of enforcing obligations and duties.^ The early belief in the 
 gods, and in their power to punish perjury, makes an oath 
 sacred, and enables early society to dispense with much of 
 our elaborate machinery of law, although it must be admitted 
 that it also gives rise to devices for evasion, and for satisfac- 
 tion of the gods by other means than literal fulfilment. 
 
 (6.) In the formulae of Marculfus the fisc is added as a 
 party to secure performance if the granter, or his representa- 
 
 ' Droit ath&n. iii. 326. " Dareste, &c., BAcudl des incr. 
 
 2 vi. 56. Jii^- grec., 394, 404, 
 
 ' Cf. Beauchet, iv. 56. ' Hunter, Rom. Law, 431, note ; 
 
 Muirhead, Bom. Law, 49, 133. 
 
I S6 BOND— OBLIGA TION—D UTY. 
 
 tives, infringe the contract. Sometimes this is combined with 
 the supernatural penalties of the Church. Thus we find in 
 the style given for compounding a felony (ii. 18). the gi'anter 
 in case of a breach says — "inferamus tibi cum cogente fisco, 
 duplum, quod nobis dedisti." ^ In many of the other styles 
 we find examples of the 'pmna dupli — corresponding to the 
 double bond which plays so large a part in the Eoman and 
 earlier English law.^ 
 
 The Scottish practice of imprisonment for debt, which 
 was modified and almost entirely abolished in 1880, was not 
 much dissimilar. The process of putting to the horn, which 
 made the debtor a rebel against the king, is described by 
 Sir Walter Scott in The Antiquary (chap. 39). 
 
 But this mode of making obligation effectual extended 
 beyond the sphere of strict contract. We find it in charters 
 and testaments. Pardessus^ observes — " The kings contented 
 themselves in general by threatening with their indignation 
 the breakers of the charter ; nevertheless, there were many of 
 them, whose sincerity cannot be doubted, where imprecations 
 are inserted. . . . These clauses are very frequent in the 
 deeds of individuals . . . Some present a sort of luxury of 
 expressions, always directed to the divine vengeance and 
 eternal damnation." An example of such curses in a testa- 
 ment will be found in Marculfus (ii. 17), and the volumes of 
 the Charters of Cluny are full of the actual documents.* 
 
 The Babylonian priests and the mediseval notary ahke 
 appealed to supernatural fears. The person who feared and 
 believed was effectually hound. The awful imprecations and 
 denunciations of the ancient Babylonian and of the mediseval 
 European documents prove the weakness of law and of the 
 secular government, as well as the power of the priesthood. 
 If a man can enforce his rights by means of a public or 
 
 1 See also 22, 24, 32, 36 ; Bignonius, ^ ^^ j Saligue, p. 644. 
 
 No. 23, p. 136, &c. ■* Cf. Essays in Anglo-Saxon Law, 
 
 ^ See Koss' Lectures, i. 19. It was p. 190. 
 also used in Greek practice, Beauchet, 
 It. 431. 
 
SYNONYMS OF OBLIGATION. 157 
 
 private penalty, or by monetary interest, or by means of a 
 surety, and all through regular legal officers, there is no need 
 of invoking on his debtor the wrath of Baal or Astaroth, 
 floods, famine, and plague, or the fate of Sodom and 
 Gomorrah, of Korah, Dathan, and Abiram, of Judas, together 
 with the eternal pains of hell. But, as we have already 
 seen, later Babylonian and Assyrian documents are much 
 shorter and simpler. In the Egyptian and Eomano- 
 Egyptian documents we find oaths and references to the 
 Emperors, which may imply a great deal of the early religious 
 pains and penalties, but law in these has absorbed religion. 
 
 SECT. IV. — SYNONYMS OF OBLIGATION. 
 
 As we have drawn up a table of words associated with 
 right (p. 50), we may now draw up a similar table of words 
 associated with obligation. An obligation may be regarded — 
 
 1. From the point of view of the respondent in litigation. 
 
 — Liability to action; responsibility ; answer; able- 
 ness ; no answer : no case ; ^ guilt ; sin, &c. 
 
 2. From the point of view of the respondent, as an actual 
 
 extrajudicial debtor. — Liability. 
 
 3. As the evidence or foundation of obligation. — Written 
 
 obligation ; bond ; office ; motive, duty or interest ; 
 causa debendi. 
 
 4. As the object of prestation. — Obligations; services; 
 
 offices ; munera ; debts ; duties ; burdens ; charges ; 
 canon; kains; obligations, &c., real and personal, 
 contingent, civil and political ; subjection, 
 0. From the point of view of the respondent, considering 
 a possible claim. — Liability (contingent). 
 
 6. As special and official duties. — Subjection to authority 
 
 or jurisdiction ; allegiance, &c. 
 
 7. From the point of view of the judge deciding a dis- 
 
 pute. — Validity of obligation. 
 
 > A good answer or a good case is a right. 
 
158 BOND— OBLIGATION— DUTY. 
 
 8. As negative obligations. — Duties ; hurdei^s, &c. 
 
 9. From the point of view of the State and society. — 
 
 Duty ; law ; justice ; validity, &c. 
 
 SECT. V. — ACTION AND OBLIGATION. 
 
 (1.) " Obligations are the mothers of actions." — {unrepei 
 yap rSiv aytaySsv al evoxaC)^ We may take this statement as 
 applying to obligations in the modern sense, as well as to 
 rights, for the Greek word merely represents the Latin 
 " obligatio." 
 
 The proper unit of obligation is the object of a decree, 
 for which force may be used — imprisonment or other — 
 just as a right in the writ of right was such an object; 
 and such a decree we may hold to be the true unit of law. 
 
 The close relation of right and obligation in connection 
 with legal action may be illustrated from Scots procedure. 
 Professor Holland {Jur. 85) has given an analysis of a right, 
 but what the learned Professor is really analysing is an action. 
 The plaintiff he calls the person of inherence, the defendant 
 the person of incidence. Now this may be reversed. If 
 we regard the obligation, the defendant is the person of 
 inherence, the plaintiff is the person of incidence — the 
 person in whose favour the prestation is to be made. 
 Thus, if A. sue B. for a debt and obtain decree, when B. in 
 our former procedure " advocated " the cause to the Supreme 
 Court or now appeals to it or the House of Lords, his name 
 may be transposed as plaintiff in his character of advocator or 
 appellant. In a suspension he would be complainer, and in a 
 reduction, similar to the English procedure for rectification 
 or cancellation, he would be the actual pursuer or plaintiff. 
 Of course, in these latter cases, he is suing for the vindication 
 of his right of liberty against an erroneous or unjust decree. 
 But when he was formally defender he was doing the same. 
 
 1 Theophilus, Inst. iii. 13 ; Fleta, Of. "parit actionem," L. 42, § 2, D. 
 ii. 56, 2; "Est mere de play" ; de proc. et def. (S, 3) ; and LI. 6 and 
 Britton. i. 29, 2; Braoton, f. 99. 1 , D. de pactis (1, li). 
 
ACTION AND OBLIGATION. 159 
 
 In many cases it is merely a matter of convenience or acci- 
 dent who stands " pursuer " in an issue, but we associate 
 generally rights with a pursuer and obligations with a defen- 
 der. And just as we regard a relation sometimes as a right 
 and sometimes as an obligation or duty, so it is possible to 
 transpose the formal position assumed by the parties when 
 they require to come into Court.^ 
 
 We must not assume that pursuers and plaintiffs have 
 always a true right, for there is often oppression under forms 
 of law. In the age of self-help the aggressor must have 
 been still oftener a wrongdoer, since he did not require to 
 begin his process by submitting his claim to the judgment 
 of a Court. 
 
 (2.) As rights are in their first conception rights of action, 
 so are obligations liability to action — that is to say, successful 
 action (p. 53, supra). Professor Hunter ^ points out that 
 originally the question submitted for trial was " whether the 
 plaintiff has made a true assertion, not whether he has a 
 legal right, or the defendant has failed to perform a legal 
 obligation." Next, " the question submitted for trial is 
 whether the defendant ouffht to pay a sum to the plaintiff, 
 that sum being in fact a wager as to the truth of an asser- 
 tion. Another step, and we find the plaintiff claims ex- 
 plicitly rem suam esse, implying, but not asserting, that 
 the plaintiff has a right of ownership." So it is a later step 
 to say that the defendant is hound to pay or deliver some- 
 thing involved in a contract, and not merely that he should 
 pay the sum stated as a wager in the special process. As law 
 progresses, the questions into which the Courts inquire are 
 pushed further and further back. We can trace this de- 
 velopment in the history of the Latin word " reus." At first 
 it means a party to a cause, and is so used in the Twelve 
 Tables. Then it means specially the defender and the 
 accused. And finally, it means the debtor in a contract, as 
 
 1 Another example will be found demurring may sustain the part of 
 in Bracton (f. 986), " [a defendant] in a plaintiff.' 
 
 ^ iioman Law, 125. 
 
i6o BOND— OBLIGATION— DUTY. 
 
 in the common phrase " reus promittendi." — (Hunter, Roinan 
 Law, 454) ; and it also applied to criminal guilt in the phrase 
 mens rea. 
 
 (3.) In the early English action for deht to enforce an 
 obligation in genere we are told, " the plaintiff rested his 
 claim on a simple extrajudicial promise, and not on a ' causa 
 debendi' or assertion of right. The judge pronounced no judg- 
 ment on the validity of the obligation, or whether it was a 
 real ground of action. It was not a suit in the modern sense, 
 but an application to the Court to carry out a judgment made 
 by the plaintiff. When the debtor refused payment after the 
 demand, he was thereafter fined for ' borh-bryce ' " — a pay- 
 ment to the Crown as for breach of the peace. — {Essays in 
 Anglo-Saxon Law, 192, 279.) 
 
 There is a distinct idea in some cases that the judicial 
 award is a reward to the plaintiff and a punishment to the 
 defendant. This might be simply the result of clever plead- 
 ing of the one or stupid pleading of the other. In the legal 
 game the plaintiff won. This was his right, and the founda- 
 tion of his right. 
 
 (4.) We have seen that a person who has a right is said 
 to " have a case " — a right of action. In like manner a 
 person accused must be guilty of something. The mere trial, 
 the accusation, the very suspicion is a stigma — crimen, a 
 charge, becomes crimen, a crime. Thus all words that imply 
 judgment take to themselves the meaning of condemnation, 
 as if there could be no other judgment (c/. Kplvw, Judico, 
 doom, judgment, &c.) 
 
 Mr. Justice Holmes points out (Common Law, 82) that 
 Austin regards " the liability to an action as a sanction, or, in 
 other words, as a penalty for disobedience." This is a 
 popular idea on the part of those who seek revenge by civil 
 procedure, as well of those who have to endure the burden of 
 the cost. The Workmen's Compensation Act of 1897 (60 and 
 61 Vict. c. 37) in section 1 (2) (&), uses the phrase "the 
 employer . . . shall not be liable to any proceedings," 
 
RESPONSIBILITY. i6i 
 
 which appears to adopt the Austinian view.^ In the case of 
 Munster v. Lamb (p. 58 ; cf. Primrose, 4 F. 783) "liable to an 
 action," " answerable in damages," " can be put to answer," 
 are used indifferently. The most familiar example of this 
 idea is the notice " Trespassers will be prosecuted" which in 
 Scotland means nothing but liability to an action for inter- 
 dict. Successful prosecution is suggested (p. 53). 
 
 SECT. VI. — EESPONSIBILITY. 
 
 (1.) Eesponsibility corresponds to the idea of action and 
 right. The early Eoman procedure took the form of claim 
 and answer before the Praetor, and Gaius (iv. 16) gives the 
 very words of the formulas employed. This form was also 
 used extrajudicially in the Sponsio and Stipulatio? In medi- 
 aeval law essoins or excuses for non-compearance bulk largely.^ 
 The aim of the procedure was to compel the defendant to 
 appear and answer,* and in criminal procedure the Courts at 
 a later date resorted to something like torture to compel the 
 accused to do so.^ In the Ecclesiastical Charter of William 
 I. of England we read '• ibique de causa vel culpa sua re- 
 spondeat."— (Thorpe, 213; Melville and Bigelow, 854.) A 
 respondent is now bound to answer or he may be held 
 confessed. If he has a good answer this wiU be the limit of 
 his obligation. 
 
 (2.) The usage is then extrajudicial. The person was 
 convened to the action because he was liable, and hence the 
 words " liable," " responsible," " answerable," " bound " are 
 used interchangeably. Respondeat superior ; 
 
 " The master is responsible for the acts of his servant, and that 
 person is undoubtedly Uable who stood in the relation of master to the 
 wrongdoer." — (Cited in Broom, Maxims, 6th ed. 844.) Cf. Workmen's 
 Compensation Act, 1897, section 1 (2) (6).) 
 
 ' Of. Local Government Act, 1888, ^ Segiam Majestatem, i. 8. 
 
 s. 100, and Scottish Act, 1889, s. * Pollock and Maitland, ii. 692, 
 
 105, "Liabilities." 605. 
 
 2 Muirhead, Gaius, 210 ; Bruns, ' Stephen, Hist. i. 298. 
 382. 
 
i62 BOND— OBLIGATION— DUTY. 
 
 Section 79 of the Taxes Management Act, 1880, deals, 
 
 according to the rubric, with the " liabiKty of parishes." The 
 
 enactment itself says — 
 
 " No parish shall be answerable for the acts, neglects, or defaults 
 of a collector appointed by the Board . . nor shall a parish be liable 
 to be re-assessed for an arrear or deficiency of the land tax or the duties 
 arising from any default or failure of such collector." 
 
 The Merchant Shipping Act, 1894 (sect. 503), says that 
 shipowners shall not be " liable to damages " beyond a certain 
 amount, while the repealed Act of 1854 (sect. 504) used the 
 phrase " answerable in damages." 
 
 The Lord Chancellor (Halsbury) uses the phrase " respon- 
 sible in damages for injury " in The, Canadian Facific Rail- 
 way V. Boy, (1902), A.C. 228. 
 
 (3.) We next speak of a responsible cautioner or a respon- 
 sible person, ■i.e., a person who could fulfil his obligations if 
 called upon. — {Ex parte Harrison, 28 Ch. D. 369 ; c/ " a re- 
 sponsible bidder," Bouvier, Diet, s.v.) 
 
 (4.) Then we transfer it to things : — 
 
 " Incorporeal rights also ... are responsible to creditors under 
 certain restrictions ; and finally, moveable property . . . may be 
 applied by creditors to answer the debts of the owner." — (Bell, Oomm. 
 i. 18 ; cf. p. 121.) 
 
 " The liability of the ship and the responsibility of the owners in 
 such cases are convertible terms ; the ship is not liable if the owners 
 are not responsible, and vice versd. No responsibility can attach upon 
 the owners if the ship is exempt and not liable to be proceeded against." 
 —(Quoted in 6 P. D. 150.) 
 
 (5.) Eesponsibilities are responsibility in a concrete form. 
 
 SECT. VII. — GUILT — Sm. 
 
 (1.) The English word " guilt " reflects in its history some 
 of the ideas associated with •' obligation." According to 
 Professor Skeat (Diet., s.v.) it probably means originally " a 
 tine or a payment by way of recompense for a trespass ; and 
 the word is to be connected with the Anglo-Saxon gyld, a re- 
 compense. Both words are from the Teutonic base OALD, 
 
GUILT— SIN. 163 
 
 to pay, whence Anglo-Saxon gyldan, to pay, yield." He 
 connects it with the English yield} 
 
 (2.) " Guilty " and " not guilty " are now used in criminal 
 procedure. The accused is called on to answer to a charge by 
 the formula " Guilty or not guilty ? " But in England the 
 plea of " not Guilty " survived till recently also in civil pro- 
 cedure, and is still pleadable under certain restrictions.^ This 
 latter usage is not known in Scotland, probably because 
 the establishment of a public prosecutor makes a clearer line 
 of demarcation between civil and criminal procedure. 
 
 (3.) Guilt is now treated as a mental state, actual or 
 presumed, in accordance with the maxim, actus non facit 
 reiim, nisi mens sit rea (Broom, Maxims, 7th ed. 249). This 
 is an advance in analysis, for early law treats even such an 
 act as manslaughter by misadventure as a crime.^ 
 
 (4.) A sin is an offence against God ; sin is guilt, in the 
 view of a supernatural law. The Lord's Prayer, as given by 
 St. Matthew (vi. 12), describes sins as "debts" — " Et 
 dimitte nobis debita nostra, sicut et nos dimittimus debitor- 
 ibus nostris." This translates 6ipei\r)iJi.aTa ; St. Luke (xi. 4) 
 uses ra? afiaprla^ ^fxwv — " peccata nostra " — " our tres- 
 passes." Peecatum is used by Modestine for delictum, when 
 he says, "Ex peccato obligamur, quum in facto quEestionis 
 summa constitit " (L. 8, D. de 0. et A. (44, 7) ) : that is in 
 criminal cases. — {Of. Hobbes, Works, iii. 278.) 
 
 The legal origin of the notion of sin is shown by the 
 definitions. Thus Augustine, as quoted by Scavini {Theolog. 
 Mor. Univ. 15th ed. i. sec. 706), says, " Peecatum est dictum 
 vel factum, vel concupitum contra legem feternam," while 
 the author himself adds as the common definition, " Libera 
 legis divinae violatio." Again the Westminster divines de- 
 fined sin as " any want of conformity unto or transgression 
 
 ' Cf. Bosworth and Toller, Did., ^ Bouvier, Did., s.v. Not Guilty ; 
 
 S.VV. "Gylt," "Gild." The former Sweet, Did., s.v. Cf. Pollock and 
 
 occurs in the translation of the Lord's Maitland, ii. 670. 
 
 Prayer. See also the German ;SctoM, ^ Dareste, &o., Inscr. jur. green. 
 
 the Anglo-Saxon sA^W, and Icelandic 15: cf. Holmes, The Oominon Law, 
 
 akuld (p. 146). 60, &c. 
 
1 64 BOND— OBLIGATION— DUTY. 
 
 of the law of God." Are sins spiritual obligations q%asi ex 
 contractu and quasi ex delicto ? 
 
 (5.) We may also notice here that the Latin Pcbtm (Greek 
 TToivri) is originally quit-money or a fine, though it was after- 
 wards contrasted with Multa. The duty or obligation of the 
 delinquent was to give recompense, and hence the word 
 came to apply to all the inflictions which he had to endure. 
 — (Smith, Did. Antiq., s.v.) The use of the word solvere, with 
 its associations of untying and paying, is instructive in this 
 connection. — (Lewis and Short, s.vik ; Ihering, Oeist, i. 2*77.) 
 
 SECT. VIII. — APPEAL TO PUBLIC. 
 
 In our discussion of right we saw a claim take the form 
 of making a public disturbance in the custom of obvagula- 
 tion, sitting dharna or fasting — -an attempt to excite public 
 sympathy in favour of a poor creditor against a rich debtor. 
 We may see a corresponding idea in the exposure of a 
 debtor that he might be redeemed by his friends. The 
 Twelve Tables made provision for the debtor who was in 
 prison being brought out and exhibited publicly to the 
 praetor, and the amount of his indebtedness proclaimed 
 (Bruns, 20). Von Ihering has eloquently described the 
 miserable plight of such a debtor who had no friends, and 
 whom no one considered worthy of redemption (Evolution of 
 the Aryan, 54). In obvagulation, the poor creditor was the 
 picturesque object of pity ; in the procedure subsequent to 
 manus injectio, it was the poverty and helplessness of the 
 debtor which appealed to the public. In one aspect the re- 
 sponse of the debtor was a claim of right. The poor debtor 
 makes a positive claim to freedom because he cannot pay. 
 He asks mercy, and then public opinion turns round, 
 acknowledges his right to mercy, and enforces the duty of 
 being merciful on the creditor. We see this in a popular 
 form in the story of The Merchant of Venice, and in a legal 
 form in the abolition or regulation of imprisonment for debt, 
 
LIABILITY. 165 
 
 in the Eoman and Scottish cessio bonorum, in modern bank- 
 ruptcy laws, and in the American Homestead laws, which 
 reserve to a debtor a certain amount of landed property 
 which his creditors cannot attach (Bouvier, s.v. " Homestead"). 
 As corresponding to the idea of claim, we have the phrase 
 " I do not feel called upon " to do something, which means 
 " I do not feel bound or obliged legally or morally." " I do 
 not acknowledge any claim on me " to do so. 
 
 " The person using the defamatory words had some call or duty or 
 lawful interest to speak or write." — (Ersk. Prin. 19th ed. p. 105.) 
 
 SECT. IX. — LIABILITY. 
 
 (1.) The word " liable " appears to be of English forma- 
 tion. There is no Latin or French term corresponding, 
 although it is understood to be connected with Her or ligarc, 
 to bind. It may be formed from " he," and mean originally, 
 as the Imperial Dictionary suggests, " lying open to " ; but 
 the legal meanings are now well established, and it is not 
 improbable they have been deduced from a false etymology, 
 and the word has thus been filled with meanings analogous 
 to all the Eoman ideas of binding in jus and obligation 
 — contract — religion — allegiance — lien. 
 
 (2.) " Liability " means the potentiality of obligation. 
 It is the extrajudicial aspect of responsibility. As when we 
 speak of a company whose liability is unlimited, although it 
 may actually be solvent many times over. So the Companies 
 Act, 1862, says, " The liability of the members . . . may 
 . . . be limited to the amount, if any, unpaid on the 
 shares " (sect. 7). We speak also of the liability of ship- 
 owners, and the limitation thereof (Merchant Shipping Act, 
 1894, Part viii.). So we speak of the liability of a husband 
 for his wife's debts ; the liabiHty of a master for his servant — 
 employers' liability. The implication here is that the debt 
 or obligation must, might, or should be established against 
 the wife or servant in the first place. 
 
 In all these cases something must occur — the company 
 
1 66 BOND— OBLIGATION— DUTY. 
 
 must fail, the demand must be made on the husband — before 
 an actual enforceable obligation emerges, but there is a ten- 
 dency to treat the primary obligation as a merely formal link. 
 Thus in the statement, " the liability of the defenders is to 
 be measured by the law of Scotland," it is the process of 
 measuring which makes the term appropriate. — [Kemdrick, 
 1897, 25 E. at p. 86.) In a previous sentence the Lord 
 President says, " The collision having occurred on the high 
 seas, the rights and liabilities of the parties cannot be deter- 
 mined by the Ux loci delicti." 
 
 We may see tautology in the Bankruptcy Act, 1856 
 (sect. 56), when it speaks of " liability for such debt," — debt 
 being the object of prestation, and liability the affirmation 
 of obligation. In the Partnership Act " liability " is more 
 general than " obligation " (sects. 9-12 and 24.) In section 
 41 " debts " are distinguished from " liabilities." 
 
 (3.) In some cases, even when we contemplate the actual 
 existence of the obligation, we speak of liability, e.g., when we 
 speak of a person who commits a certain offence being liable 
 to or in a penalty, but we may imply that he must be tried, 
 convicted, and sentenced (the precise penalty being defined) 
 before the obligation arises. — (Glasgow Police Act, 1866, sect. 
 149 ; Burgh Police Act, 1892, sect. 123.) 
 
 When Dr. Broom {Maxims, 7th ed. 280) speaks of " pro- 
 perty — its rights and liabilities," he is referring to possible 
 obligations which may emerge through certain events or acts 
 of the owner or possessor. In the Bills of Exchange Act, 
 1882 (sect. 56), we read — "A person . . . incurs the 
 liabilities of an indorser." This means simply obligations, 
 and particularly obligations to pay, as opposed to duties which 
 are in this statute regarded as obligations to act. So Lord 
 Watson, in Barling v. G^-ay and Sons (1892, 19 E. (H.L.) 
 p. 33), spoke of " a new right and corresponding liability." 
 
 In the following example " liable " is used in the sense of 
 " bound," the >word having thus had a history exactly the 
 reverse of " obligatio " : — 
 
LIABILITY. 167 
 
 " To find the defender liable to the pursuers in the expenses of 
 process."— (P«r«/i General Station Committeev. Boss, 1897, App. Ca. p. 498.) 
 
 Here it is the taxation and decerniture that intervene 
 between the finding in question and payment. But we 
 occasionally find it said, " the defender was found liable in 
 (so many) guineas of expenses." 
 
 (4.) The term is applied to general obligations apart from 
 money, e.g., " a servant accepting gratuities is liable to dis- 
 missal." This is to leave a discretion to the railway com- 
 pany employing him. It is applied to political obligation, 
 or rather obligation of etiquette, in the 37th section of the 
 Victorian Act, given in 18 and 19 Vict. c. 55, which speaks 
 of " officers liable to retire from office on political grounds " 
 — i.e., who are bound to go out of office when their party has 
 ceased to be in a majority in the elected Legislature. — (Anson, 
 Constn. ii. 270.) 
 
 (5.) We now come to what approaches another physical 
 usage. By accountants and in the balance-sheet appended 
 to the Companies Act, 1862, " liabilities " is used to include 
 possible claims not acknowledged as debts, but loosely it is 
 used simply as debts. 
 
 The following case is similar. In Hearn's Draft Code for 
 
 Victoria (Part xv. sect. 1) he proposed to enact — 
 
 " The estate of a deceased person shall be the aggregate of his 
 liabilities and of his rights, including his realty at the time of his death, 
 so far as they are not extinguished by his death." 
 
 The same phrase occurs in the 2nd section as to the 
 presumed continuance of liabilities and rights. And section 
 6 refers to liability " upon any obligation " — obligation here 
 being used in a narrow sense of bond, or contract, or obUga- 
 tion imposed by law. The title of this part of Hearn's Draft 
 Code is " the descent of liabilities," which appears to make 
 them positive things, even in the person of the debtor. There 
 is a similar use of the word " debt." 
 
 By the English Bankruptcy Act, 46 and 47 Vict. c. 52, 
 section 37 (8), liability is defined as including — 
 
1 68 BOND— OBLIGATION— DUTY. 
 
 "Any compensation for work or labour done, any obligation or 
 possibility of an obligation to pay money or money's worth on the 
 breach of any express or implied covenant, contract, agreement, or 
 undertaking, whether the breach does or does not occur, or is or is not 
 likely to occur, or capable of occurring, before the discharge of the 
 debtor, and generally . . . any express or implied engagement, 
 agreement, or undertaking to pay or capable of resulting in the pay- 
 ment of money or money's worth, whether the payment is fixed or un- 
 liquidated, as respects time, present or future, certain or dependent on 
 any one contingency or on two or more contingencies : as to mode of 
 valuation, capable of being ascertained by fixed rules, or as a matter of 
 opinion." — {Gf. definitions in Local Government Acts, p. 161, supra.) 
 
 In these last examples the liahilities are the debts, obli- 
 gations, or sums of money which are to be deducted in 
 estimating and forming the universitas of an estate (p. 95). 
 
 (6.) Things are personified as liable for debts (p. 162). 
 
 SECT. X. — GSOUND OF OBLIGATION. 
 
 (1.) We have already dealt with " cause " as a title. A 
 
 legal transaction or a wrongful or injurious act may confer a 
 
 right on one person. We must now observe that it creates 
 
 a corresponding obligation on another person or group of 
 
 persons. Thus Gains (iii. 129) : — 
 
 " [A re in personam transjcriptio fit veluti si id quod ex emptionis 
 causa aut conductionis aut societatis mihi debeas inde expensum tibi 
 tulero." "There is a transcription from thing to person when, for 
 example, I enter to your debit a sum you already owe me by reason of 
 a purchase, a conduction, or a partnership." — (Muirhead, Gains, p. 226.) 
 
 It is evident that a contract and a breach of contract 
 cannot create obligations in the same sense. Breach of 
 contract may be a delict, and so in England you may some- 
 times sue on tort as well as on contract. And in like 
 manner, as we shall see presently, law itself may be regarded 
 as creating obligations in a wider and also in a narrower 
 sense. 
 
 (2.) We have seen the idea of right was associated with 
 moral right, rectitude, justice, righteousness. In like maD^ner 
 there is a distinct association of obligation with wrongdoing 
 and unrighteousness. We have already seen that an action 
 
GROUND OF OBLIGATION. 169 
 
 in itself is regarded by Austin and by the Workmen's Com- 
 pensation Act as a sanction (p. 160, supra). In an ordinary 
 Scots summons by which an action is commenced there is 
 a statement that the defender refuses or delays to pay or 
 perform his obligation. By a fiction he must be made a 
 wrongdoer, although the action is a friendly one brought to 
 determine a genuine dispute. 
 
 (3.) Mr. Justice Holmes (Common Law, p. 79) has shown 
 that the English " law of torts abounds in moral phraseology. 
 It has much to say of wrongs, of maUce, fraud, intent, and 
 negligence," and yet the more popular view is that " a man 
 is answerable for all the consequences of his acts, or, in 
 other words, that he acts at his peril always, and wholly irre- 
 spective of the state of his consciousness upon the matter." 
 — (Ibid. p. 80.) This is only a rude psychology. The person 
 wronged demands reparation, and thinks he will obtain this 
 more easily if he shows that the wrongdoer is a danger to 
 society as well as to the claimant himself. Both parties 
 may have been guilty of acts of violence, and the only means 
 of distinguishing them may be the animus of the actor. 
 The claimant was vindicating a right ; the wrongdoer was 
 the man who first without cause disturbed the even con- 
 tinuity of social life. The claimant may also argue that the 
 wrong was malicious and might be repeated, because the 
 wrongdoer refuses reparation. If the act were accidental, or 
 if the wrongdoer truly repented, he would be ready to prove 
 this by an offer of all the reparation in his power. With 
 the claimant personal prejudice imputes malice, but law has 
 other reasons for doing the same. Law can deal only with 
 external facts, and it saves trouble to presume malice when 
 injury has been dpne and you wish to compel reparation. 
 Bes ipsa loquitur.^ So the British Legislature in 1880 passed 
 an Employers' Liability Act, in which they made the em- 
 ployer responsible for the negligence of foremen and others. 
 By a fiction the employer was made a wrongdoer. The true 
 
 1 Pollock and Maitland, ii 473 se^. 
 
lyo BOND— OBLIGATION— DVTY. 
 
 reason was that as a matter of public policy it was thought 
 expedient that the contract of hiring should involve an im- 
 plied term of insurance by the master against certain accidents 
 to the servant. This is the general principle of the Work- 
 men's Compensation Acts, 1897 and 1900, though there may 
 be some expressions inconsistent with this new idea. 
 
 (4.) As in the question of right we saw law was disposed 
 to discuss title, the external visible evidence, so in obliga- 
 tion the demand is " Show me the bond." The defender, 
 debtor, accused is presumed free or innocent. Unless he is 
 clearly bound he goes free. Hence law thrusts aside under- 
 standings, anticipations, and vague feelings, and demands 
 solemn ceremonies, written evidence, or something equi- 
 valent. 
 
 This accounts for the identification of obligation with the 
 written evidence thereof, as rights mean title-deeds, — an 
 apparently inevitable physical usage. Blackstone says : — 
 
 " An obligation or bond is a deed whereby the obligor obliges him- 
 self, his heirs, executors, and administrators, to pay a certain sum of 
 money to another on a day appointed." — (ii. 340.) 
 
 The word does not appear in this sense in the Stamp 
 Act of 1891, but the use of obligation for bond is common. 
 It occurs in the Code (iv. .30, 7). It is also used in modern 
 French. It is so used in Scots law so far back as Balfour 
 of Pittendreich's time.^ 
 
 (5.) We have already seen that the recognition of the 
 State makes rights effective (p. 124), and that in like manner 
 the public force may be regarded as making obligations 
 effective, In popular usage laws are spoken of as binding 
 and as creating obligations. Law has even been defined as 
 a command by a sovereign binding his subjects. It is suffi- 
 cient to notice here that law may be a ground of obligation 
 (1) by recognising and enforcing private obligations, as in 
 enforcing contracts and trusts; and (2) by creating and 
 
 ' Pradicks, 1<19 ; Ross' Lcdares, i. 31. 
 
POWER AND DUTY. 171 
 
 enforcing public obligations such as of allegiance, the fulfil- 
 ment of public services as jurymen, witnesses, constables, 
 soldiers, labourers (the corvde), and the payment of taxes. 
 Law hi this connection is used in two distinct senses. It is 
 either the general recognition and enforcement of obligations 
 by society or it is in addition a particular cause of obliga- 
 tion or a title to rights.^ 
 
 SEOT. XI. — POWER AND DUTY. 
 
 " May " we saw expressed a right in the form of a 
 " power " (p. 65). In like manner " shall " imports an obli- 
 gation. It is a pure statement of fact plus the feeUng of 
 " ought," " must," or " obhgation " or " cause." " Shall " is 
 said to mean " I owe : I am under an obligation," and finally, 
 " I have offended," and " I am under a penalty." — (Skeat, 
 Bid. s.v.) The feeling referred to is the general one of the 
 members of society or the State, as well as of the individual, 
 and always is translated into some physical form. 
 
 In the Board of Trade Bye-laws of Eailways we find 
 liabilities imposed in the future tense with " will," eg., " the 
 passenger will be required to pay the difference." This 
 evidently assumes that " shall " is only a future tense.'' It 
 puts the obligation as a statement of fact. Perhaps the 
 change of word is to mitigate the harshness of the penal 
 chai'acter of the payment. It presumes the innocence of 
 the traveller, and that he undertook to pay when he entered 
 the train. It takes for granted power and will to pay, 
 though there is an implied obligation in the background, 
 i.e., the penalties of the law courts. 
 
 " May " appai'ently confers a right or a jurisdiction, and in 
 so doing imposes at the same time an obligation on the 
 person vested with the right to exorcise the same. " Shall 
 have power '' is subject to the same observation. " Shall if 
 
 ' It is so used by Gaius smd Modes- ^ Hih< the ti'anslatiou of the Doea- 
 
 tine, LI, 1 ot r<'2, D. do 0. d A, loguo (Exodus xx.) iu the Greek aud 
 (44, 7). the Latiu Viilgatn. 
 
172 BOND-OBLIGATION— DUTY. 
 
 they think fit " imposes an obligation, and in so doing raises 
 a right sometimes absolute in the person for whose benefit 
 the power is given. "It shall be lawful" comprises both 
 sides, and adds the recognition of the State or society. 
 
 The case of Julius v. Loi'd Bishop of Oxford, 1880, L.E. 5, 
 App. Ca. 214, contains many valuable dicta illustrating this 
 topic : — 
 
 " Where a statute directs the doing of a thing for the sake of 
 justice or the public good, the word ' may ' is the same as the word 
 ' shall.' ... If the object of giving the power is to enable the 
 donee to effectuate a right, then it is the duty of the donee of the 
 powers to exercise the power when those who have the right call upon 
 him so to do. And this is equally the case where the power is given 
 by the word ' may,' if the object be clear." — (Lord Blackburn, p. 243.) 
 
 This case illustrates the ideas of power, jurisdiction, 
 obligation, and duty in courts of law, and also proves how 
 wide is the legal application of the idea of " right." It is 
 a weighty authority in support of the criticism given of 
 Bentham's view of power in the last chapter (p. 67, supra). 
 
 SECT. XII. — DUTV AND INTEREST. 
 
 We have already dealt with interest as the object of a right. 
 It may also apply to the prestation in an obligation, but 
 this usage is not legal, for interests can always be translated 
 into rights. The interest of a defender is a right vested in 
 him. An artist who contracts to carve a statue in marble, a 
 shoemaker undertaking to make a pair of shoes, a porter 
 hired to carry a burden, are all interested in a peculiar form 
 in the object of their respective contracts, and in their own 
 acts constituting part thereof. Their interest is necessarily 
 different from that of the creditor. 
 
 Duty and interest are frequently associated by Gibbon in 
 his History. The reference here is to a motive for an act or 
 a course of conduct. Duty implies some higher motive than 
 personal interest; whereas interest may imply personal, 
 selfish motive. A duty might be merely a burden ; while an 
 
D UTY AND INTEREST. 1 73 
 
 interest might invest the duty with the aspect of a right. 
 Some moralists seem to think duties ought to be disagreeable : 
 if the acts become pleasant, the presumption is that they are 
 wrong. So in law duties are often regarded as burdens, and 
 rights as privileges. 
 
 We have already seen the idea of interest associated 
 with the motive for the exercise of a right.^ It may also 
 be the motive for the performance of an obligation. If the 
 obligation is lawful and lawfully performed, a malicious in- 
 tention on the part of the debtor will not make it unlawful. 
 
 There are two instances in which the law connects duty 
 and interest, — one of these is the case of a judge, the other 
 that of a witness. A judge is interested in his work, but his 
 interest ought to be professional or scientific. If he is inte- 
 rested pecuniarily or materially in a case, he must decline to 
 pronounce a judgment (Mackay, Practice, i. 95). His proper 
 interest is to do justice, and this coincides with his duty. 
 Any other interest is corrupt and unlawful. 
 
 Again, a witness is bound to give evidence and to tell the 
 truth, but " interest " formerly disquahfied him, and now may 
 lay his testimony open to suspicion. His proper interest is 
 to promote the ends of justice, and this coincides with his 
 duty (Green, Encycl. of Scots Law, s.v. Interest ; Best on Evi- 
 dence, 8th ed., 178-180). 
 
 Again, interest may be regarded as a debt. This usage 
 has already been referred to from the side of right (p. 82). 
 
 Obligations may be classified according to the interests 
 involved ; but this subject will be dealt with later (p. 190). 
 
 We may also notice, as we did with rights, the impossi- 
 bility of transferring obligations (p. 120). This depends on 
 what we regard as the interest transferred, for every person 
 connected with a transaction has necessarily a different in- 
 terest. If it is such a prestation as payment of a definite 
 sum of money, the obligation for practical purposes is trans- 
 ferable. In the Eoman law and in Scots law novation and 
 1 P. 91, supra; 14 Jm. Rev. 326. 
 
174 BOND— OBLIGATION— DUTY. 
 
 delegation — modes of transferring obligations — are treated as 
 modes of discharging prior obligations. That is to say, 
 instead of treating the transaction as a transfer, the obliga- 
 tion is discharged and a new one created. In English law it 
 is only recently that such transfers were recognised.^ 
 
 And, again, we may have collisions of obligations as we 
 have collisions of rights. In law these are dealt with as 
 collisions of rights, — for example, in bankruptcy. Casuistry 
 attempts to deal with collisions of duties by marshalling them 
 in order of importance, i.e., according to social interests. 
 
 SECT. Xm. — SERVICE. 
 
 (1.) " Service " is the prestation of a servus, a slave. It 
 is frequently used in the same sense as " office," as in 
 ecclesiastical usage, — Divine Service. These meanings are 
 post-classical. The Latin word " servitium " meant (1) the 
 condition of a slave — slavery ; and (2) a body of servants, a 
 usage which is stUl maintained in such phrases as " The 
 Civil Service," " The Medical Service," &c. 
 
 (2.) In Eoman law it was applied to the mutual relations 
 of lands, buildings, &c. in servitudes. 
 
 (3.) Feudal usage applied the term to the homage or 
 obligation due by a vassal to his lord.^ An interesting 
 account is given by Britton (iii. 4) of the ceremony of 
 homage and of the means of compelling the liege lord to 
 accept, or the vassal to do, homage. Craig (Jus Feudale, ii. 
 17, 33) applies the term to all prestations due by a vassal, 
 feu-duty (canon), or any other return. 
 
 (4.) The word " service " is applied in England to what in 
 Scotland is called the " execution " of a writ by an officer of 
 Court.* The usage is common also in Scotland, and is recog- 
 nised by Stair (iv. 3, 5). It is an example of ironical polite- 
 
 > Muirkead, Gains, p. 550, &c. ; = Lib. Feud. ii. 28, 1 ; 24, 6 ; 26, 17; 
 
 Bell, Prim. 576-579 ; Holland, Jur. 36 ; 37, 1, &c. 
 
 295, 301. * Court of Session Act, 1850, s. 20, 
 
 Sch. B. 
 
SERVICE. 175 
 
 ness ; the person on whom service is made is treated as the 
 master. 
 
 (5.) The " service " of heirs to their ancestor, as still 
 followed in Scotland, combines two usages. This process 
 down to 1847 proceeded on a brieve from Chancery in Scot- 
 land. A brieve was a writ issued in the King's name 
 directing and commanding a judge to do justice, or give 
 redress to the person who obtained the writ. The obedience 
 to this " charge " and command was " service." Balfour in 
 his Practicks (pp. 418-441) speaks constantly of the " serving 
 of a brieve," meaning thereby the process by which the 
 remedy was carried out. Stair (iv. 3, 15), in the course of 
 his exposition of this subject, says, " All these brieves must 
 be served with inquests, and so cannot be served before the 
 Lords in the first instance." Brieves were common for many 
 purposes iu the older law of Scotland. There were brieves 
 of idiotrie, brieves of perambulation, brieves of lyne or linea- 
 tion, brieves of division, brieves of richt, but the most 
 common was the brieve of mortaneestrie or inquest. It is 
 this last which is represented to some extent in modern 
 "service" as heir. This mode of procedure was borrowed 
 from England, as we see from the treatise Quoniam Attachia- 
 menta, but fell into desuetude upon the institution of the 
 College of Justice in 1532 (Mackay, Practice, i. 268). It is still 
 represented in England by the system of writs for the com- 
 mencement of actions at law.^ The procedure in a Scottish 
 " service " was in certain cases before the Sheriff of a county, 
 and in other cases before the Sheriff of Edinburgh, assisted 
 by a jury.^ The question put to each of the jurors was 
 " Serve or not ? " ^ and by their verdict they " served " the 
 person as heir. This when returned to Chancery was " service 
 of the brieve " in Balfour's sense. But the word occurred in 
 the brieve also in the sense of feudal service or homage. 
 One of the heads of inquest was " per quod servitium 
 
 ' Stephen's Comm. iii. Dr. Cowel ' Jur. Styles, 3rd ed. i. 368, &e. 
 
 {Institutes, iv. 6) says that brieves ^ Ihid. p. 377. 
 
 were often confounded with actions. 
 
176 BOND— OBLIGATION— DUTY. 
 
 tenentur \sc. terrsej.''^ This question was specifically 
 answered in the verdict, and this occurrence of the word may 
 have tended to keep it in common use as applied to the 
 process. When a person " serves himself heir," it may be 
 thought that the act is formal homage, which entitles him to 
 enter on his inheritance. 
 
 (6.) " Service " as now used in Scottish conveyancing 
 procedure is a form of action for the establishment of the 
 character of heir. It is a right, and is commonly used also 
 as describing the document which evidences the right. A 
 service is a title to land, and if the lands are described in it, 
 as is done in " a special service," the document is treated as 
 a formal conveyance from the dead ancestor to his heir.^ 
 
 (7.) It is stiU competent in Scotland to speak of " serving " 
 tutors-at-law to minors or idiots (Bell, Frin. 2079, 2103), or of 
 " serving a widow to her terce of lands " {iUd. 1601). This is 
 an example of the confusion of right and action. If a person 
 claiming a right holds a brieve which can only be challenged 
 by some peremptory objection, the formal recognition of this 
 right is spoken of as service of him thereto.* 
 
 (8.) The phrase " I am at your service " may possibly 
 regard " service " as the right of the employer, rather than 
 the obligation of the speaker. 
 
 SECT. XIV. — OFFICIVM—Qif^V:m—MVNUS. 
 
 (1.) Officium means primarily an actual prestation — some- 
 thing de facto done. Then abstractly it means the doing — 
 doing successfully or doing right (KaropOw/uLa). 
 
 Then it comes to mean what one ought to do or is bound 
 to do, i.e., duty (Cicero, De Ojfficiisy Office (duty) on the 
 mental side finds expression in external offices (duties). 
 Lewis and Short {s.v.) define it as " a voluntary service, a 
 kindness, favour, courtesy, rendered to one whose claim to it 
 
 1 Stair, iv. 3, 5. s ^^^^^ j g^ 25 ; ii. 6, 13. 
 
 ' BeU, Prin. 779, 1824. Titles to • Grant's Aristotle, 3rd ed. i. 324 
 
 Land Oousolidation Aot, 1868, s. 46. 
 
OFFICIUM—OFFICE—MUNUS. 177 
 
 is recognised, while heineficium (p. 108, sup-a) is a service ren- 
 dered where there is no claim." This follows the distinction 
 drawn by Seneca {Be Beneficiis, iii. 18), who adds ministerium 
 as the compulsory prestation of a slave. The use of the word 
 " service " will be noted, as it carries back the metaphor to 
 slavery, which we have seen is the connecting link of all the 
 ideas of obligation. 
 
 (2.) Like the word service, office has long had ecclesiastical 
 associations ; prayers are dues to or for the dead, or to the 
 Deity — the offices of the Church {Const. Clement, iii. 14). 
 
 (3.) It is also used in a moral sense in the phrase " kind 
 offices," and in a bad sense in the word " officious.'' 
 
 (4.) And, finally, "officium" comes back to physical mean- 
 ings. A man's office is the source of his duties. The office 
 of Secretary of State, for example, implies duties. It is 
 applied to returns and dues, offerings, revenue (Ducange). 
 It was also applied to a body of officials — persons vested with 
 " official " rights and duties (Lewis and Short, Ducange), as 
 when we speak of " The Home Office," &c. 
 
 And thus it even comes to mean the building in which 
 duties are performed. This usage is as old as Pliny, but is 
 common in the Scots Entail Acts and certain revenue 
 statutes. — (Dowell's House Tax Acts.) Offices of a mansion- 
 house are the buildings where servants perform their duties. 
 
 (5.) In " the insolence of office " the ideas of service and 
 
 duty have disappeared. The rights involved, which were 
 
 necessary to enable the holder to perform his duties, have 
 
 become paramount, and are exaggerated into wrongs in an 
 
 active form. Blackstone says that — 
 
 " Offices, which, are a right to exercise a public or a private em- 
 ployment, and to take the fees and emoluments thereto belonging, are 
 also incorporeal hereditaments." — (ii. 36 ; cf. Bell, Comm. i. 121.) 
 
 A man, he says, may have an estate in them. This illus- 
 trates the proposition which we discussed at an earlier stage, 
 that the same legal relation may be from one point of view 
 a right, from another an obligation. Many persons regard an 
 
 M 
 
178 BOND— OBLIGATION— DUTY. 
 
 office as a title to a salary, and not as imposing any serious 
 public duties whatever. We have already noticed the change 
 of meaning in the words " officer " and " minister " (p. 150). 
 
 (6.) The Latin nmniis is closely associated with ojicium, 
 and passes through similar changes of meaning. If the 
 ordinary derivation is correct, it has its origin in the concrete 
 burden of repairing or defending the city walls (mcenia). 
 Festus says, "Munus significat officium, cum dicitur quis 
 munere fungi: itemdouum, quod officii causa datur. — (Bruns, 
 345.) The title of the Digest Br muncribus ct hoiioribiis 
 (50, 4) amply illustrates the connection of burdens and official 
 rights. Cicero joins the words when he says : — 
 
 " Multi ita sunt imbeoilli senos, ut nulhini officii aut omnino vitso 
 munus exsequi possint." — (De Sen. 35.) 
 
 (7.) In modern usage munus is applied to public offices. 
 These are discussed as rights in the case of Hastie, 1889, IG 
 E. at p. 733. But a munus publicum involves official duties, 
 as in the case of clergymen, registrars, returning officers in 
 elections, common carriers, and others (Green's Encycl. s.v.). 
 
 SECT. XV. — DEBT — DUTY — TO OWE — OUGHT. 
 
 (1.) Debt has a physical reference; dehdhcrc, dchere, is to 
 withhold a thing in point of fact. Then if we go behind the 
 mere fact, we find a man withholding against the owner's 
 wish, or unlawfully ; that is, when he owes something, and 
 ought to pay. " Debitor " is a person who can be compelled to 
 fulfil an obligation — applied first to loans and then extended 
 to other obligations. — (Hunter, Soman Law, 3rd ed. 454; 
 L. 108 D. de V. S. (50, 16) ; L. 66 D. dc B. J. (50, 17).) 
 
 (2.) The confusion between owiirg a definite thing and a 
 sum of money is referred to by rollock and Maitland (p. 139, 
 supra). A debt is conceived as consisting of definite coins. 
 
 (3.) The debt becomes a tiling — a sum of money — an in- 
 corporeal thing. So the English Mercantile Law Amendment 
 Act (19 and 20 Vict. c. 97, sect. 5) speaks of paying " a debt," 
 
DEBT— DUTY— TO OWE— OUGHT. 179 
 
 ie., paying a sum of money, so as to discharge a debt. We 
 may have real debts affecting land, and personal debts exi- 
 gible from a person's estate generally. These are due to 
 private creditors; but when they are payments to feudal 
 superiors or to the Crown they become duties; or to the 
 church or law courts, they are dues. Duties may be sued for 
 as debts due to the Crown. — (Taxes Management Act, 1880, 
 sect. Ill (1) ; c/. the use of "Liability," p. 167, supra) 
 
 Debts, duties, and dues may all be regarded as rights — 
 or objects of right, as when a person collects debts, &c. So 
 English law speaks of an " action of debt," which is the 
 proper remedy for non-payment (Blackstone, ui. 1 54), and ia 
 1867 Parliament passed the " Debts Eecovery (Scotland) 
 Act,'' which in section 2 uses the same phrase.^ 
 
 (4.) Duty comes from the same root through Norman- 
 French (though the word does not occur in Continental 
 French). According to Murray the earliest English usage is 
 conduct or action to a superior — homage, and then feudal 
 prestations. And then it means the obligation underlying a 
 course of such prestations — an office : " the duty of a con- 
 stable ; " " the duty of fencing machinery ; " " an obligation 
 of duty." ^ — {Heaven v. Pender, p. 196, infra ; Glasgow Police 
 Act, 1866, sect. 93.) And then it may mean general, legal, 
 or moral obligations. 
 
 It may also mean a single act of such general duty, — e.g., 
 " perform a duty " (19 and 20 Vict. c. 97, sect. 5). " A duty 
 imposed by our obligations " is the phrase used by President 
 M'Kinley on 6th December 1897 in his Message to Congress. 
 We might almost have anticipated " an obligation imposed 
 by our duties," but obligation implies rather a legal bond 
 which might not be disregarded — a perfect obligation, giving 
 rise to a relation at once legal and moral. Perhaps he meant 
 treaties and written declarations. In the Bills of Exchange 
 Act, sect. 39, and following, the rubric contains the words, 
 " general duties of the holder." Duties appear to be obliga- 
 ' Of. 1 Viot. c. 41, The Small Debt Act. ^ Cf. " Officii munus " (p. 178). 
 
i8o BOND— OBLIGATION— DUTY. 
 
 tions to ad, as compared with liabilities, which we have 
 already suggested are obligations to pay (sects. 53-58). So 
 in the Burgh Police (Scotland) Act, 1892, sect. 55 and follow- 
 ing sections deal with " Powers and duties of Commissioners," 
 — "of&cial" rights which are necessary to enable them to 
 perform their official duties. Under section 79 the constables 
 make a declaration that they will faithfully discharge " the 
 duties of the office." 
 
 And, finally, it is used for the special payments from land 
 called " feu-duties," or taxes on transactions (stamp duties), 
 or taxes on goods, which are known as " duties," as others are 
 called " customs " or " rectum " (Stamp Act, 1891 ; Taxes 
 Management Act, 1880 ; Bell, Gomm. ii. 19-20, deals with 
 honds for the King's duties). 
 
 (5.) The words " owe " and " ought " have been inciden- 
 tally mentioned. They are derived from the Anglo-Saxon 
 agan, " to own, to possess," and belong to the same group as 
 the English " own," Scots " ain," German " eigen " (Eigen- 
 thum, property). — (Bosworth and Toller, s.v.) 
 
 The original meaning of " owe " is " to own or possess " : — 
 
 " This is no mortal business, nor no sound 
 That the earth owes." 
 
 (Shakespere, Tempest, I. ii. 407.) 
 
 If you " owe " with the animus domini, you " own." The 
 thing is your own — ^your property (proprium). If you " owe " 
 — possess — a thing for another or against his will, then you 
 " owe " it to him in a new sense. The Anglo-Saxon word was 
 also used in an active sense — " to make another own or possess 
 — to give, deliver, or restore," — the association of ideas is the 
 same as in dehibere, detiinere, and no doubt regarded specific 
 things before being applied to debt in general. The word 
 thus appears to translate exactly the Latin dehere. 
 
 Then the past tense " ought," which retains, but in spell- 
 ing only, the " g " of the Anglo-Saxon and modern German, 
 is now applied generally to moral and legal obligations and 
 duties. The conclusion of a Scots summons is that the de- 
 
BURDEJSr. ig: 
 
 fender " ought and should be decerned and ordained " to pay, 
 &c. These words here are merely auxiliaries with a meaning 
 half ethical and half grammatical, or they may refer to the 
 duty of the Court, while the actual binding force of the law 
 on the defender is projected into the words " decerned and 
 ordained " (p. 314, infra)} 
 
 SECT. XVI. — BURDEN. 
 
 (1.) " Burden," in legal usage, is synonymous with " debt,' 
 " duty," and " obligation." This application is evidently 
 taken from the simile of a load placed on a person's back or 
 shoulder (of. p. 146, supra). The prestation of a slave, who 
 is a mere beast of burden, or of a free hired porter, is the 
 service of carrying. 
 
 (2.) The Latin word onus is frequently used in this way, 
 and very numerous examples are given by Brissonius (s.u). 
 It was applied to servitudes, taxes, legacies, and debts of all 
 kinds. " Pondus " is also used in Justinian's collections 
 (Brissonius, s.v.). " Burden " is then transferred to duties or 
 debts in general. Thus Erskine (Inst. i. 6, 56), in discussing 
 the duties of a father to his children, speaks indifferently of 
 his being bound or ohliged to maintain them, or of the burden 
 falling on him. 
 
 (3.) The phrase " burden of proof" refers to the obligation 
 of a party to prove his averments as a condition of his suc- 
 ceeding in his action.^ The person on whom such burden is 
 imposed is generally bound to lead. This obligation is a 
 corollary from the right of the accused or of the defendant to 
 his personal right of freedom or immunity from attack. It 
 becomes a special obligation when the prosecution fails, and 
 the prosecutor is fined for his false accusation, as in old 
 
 ^ Cf. the Latin tenere to possess, as a causa debendi (pp. 76, 94, 140, 
 
 and Uneri to be bound : these point and 170, sii/pra). 
 
 to slavery. The Anglo-Saxon and ^ Indian Evidence Act, sect. 101, 
 
 English words regard the possession Stokes, ii. 909. 
 
i82 BOND— OBLIGATION— DUTY. 
 
 English procedure.! The burden of proof must be distin- 
 guished from the obligation to prosecute, when in English 
 procedure a prosecutor is bound over to prosecute (Stephen, 
 Big. of Cnm. FroccdKrc, Art. 194). 
 
 (4.) "When a person conveys property in mortgage or 
 pledge we extend the idea from the person to the subjects 
 which he conveys in security, and wo speak of an estate 
 being burdened with debt (p. 144, supra). So we read — 
 
 "Creditor prmh'a sibi ohlupta, ox causa pignoria locare recto 
 poterit."— L. 23 D. ikpig. ot hyp., &o. (:2(), 1). 
 
 " It is leasum to ouy man to bind or obliss his gudis and gear." — 
 (Balfour, Practicks, 150). 
 
 In the case of Dowager Bicchcss of Montrose v. Stiuirt, 
 1887, 13 A.C. 81 (at p. 87), the phrase " real burden " is used 
 as opposed to "personal obligation" — as meaning a debt 
 exigible from " real " estate as opposed to " personal " estate 
 — moveables. 
 
 (5.) The phrase " real burden " is also used in a technical 
 sense in Scots law as applying to 
 
 "An inherent condition of the feudal right, ruimingwilh the land, 
 [which] may be onlorcod by porsoual action against the \-asfial for tho 
 time being by the party or parties for whose bonoCit it is imposed." 
 
 " To constitute a real burden or condition either in feudal or bur- 
 gage rights, which is elfectual against singular successors, words must 
 be used in the conveyance which clearly express or plainly imjily that 
 the subject itself is to be affected, and not the grantee and his heirs 
 alone."— (Bell, Prin. 10th ed. 861.) 
 
 It is iu truth an obligation which runs with the land, and 
 for the enforcement of which tho creditor has a right to pro- 
 ceed against the land luul the moveable property thereon, 
 and the rents payable therefrom. The proprietor for the 
 time being is obligant if there is a person with an interest 
 to enlbrce it. The reality of tho obligation is still more 
 appiuout if the obligiint is not bound beyond the value of 
 the subjects. It is unnecessary lioro to deal with tho legal 
 
 ' PoUook and Maitland, ii. .117; mipni. As t» tho rislita of a litigant 
 cf. Stair, iv. ;lll, 4, " t\w bunUui or si'c Uurroch 1\ iivn; 1901, 1 V, 3il0 ; 
 boiiolit ol iirobtttiou." Soti p. 117, li Jiir. }!ev. 323. 
 
BURDEN. 183 
 
 formalities required to make the right real, to affect remote 
 
 successors and third parties ; and also with the question 
 
 whether it applies to stipulations, other than money ones. 
 
 If this last point be doubtful, legislation may be required to 
 
 declare the law, for certainly the public convenience requires 
 
 that stipulations as to building and maintaining buildings 
 
 should continue enforceable for an indefinite period.^ Scots 
 
 law distinguishes between a real burden as here explained, 
 
 and a personal obligation binding the owner for the time 
 
 being of certain subjects. — (Magistrates of Arbroath v. Dickson, 
 
 1872, 10 M. 630.) Ownership is here the cause of obligation 
 
 (title). 
 
 (6.) A servitude may be regarded as a concrete obligation 
 
 which goes with land. It applies to any owner of the land. 
 
 It may be a real right as well as a real burden, as in the case 
 
 of a right of way. It may go with certaia lands as a 
 
 pertinent, like the right of stillicide. We may also see a 
 
 perpetuation of the original idea of burden or slavery in the 
 
 servitude " oneris ferendi," where one house leans on another, 
 
 like a master on a slave. 
 
 " Servitudes on land are rights of a definite and known description, 
 whetlier as burdens on the debtor's property or as privileges augment- 
 ing its value." — (Bell, Convm. i. 19 ; Code Civil Fran9ais, 637, 638, where 
 the word used is " une charge," — see next section.) 
 
 (7.) Eeal burdens are regarded as " estates in land." '^ So 
 it is said also personal servitudes are truly limited estates. — 
 (Austin, 853.) And Bell, under the title of "estates by 
 reserved burden," says — (Gomm. i. 39) : — 
 
 " The fee may be burdened with a sum to be paid to the granter, 
 or with an annuity to be paid to him periodically, or with a sum pay- 
 able to a third party. This is called burden by reservation or real 
 burden. . . [The creditor] has a real right which bin creditors 
 
 may attach." 
 
 (8.) " Burdens " is loosely applied to all payments due by 
 
 1 Of. Marshall's Tr. v. M'Neill, ^ Conveyancing Act, 1874, sect. 3. 
 
 1888, 15 E. 762 ; and Cowie v. 
 Mmrden, 1893, A.C. 674. 
 
1 84 BOND— OBLIGA TION—D tITY. 
 
 a proprietor of lands as such — e.g., feu-duties, ground-annuals, 
 and " public " burdens, which are described as " taxes " and 
 " rates," when regarded from the side of law.^ These last 
 words imply regulation and proportion. In the formula of 
 conveyances " with and under the real burdens, conditions, 
 &c." " burdens " probably refers to pecuniary obligations,^ 
 and the other words are an attempt to raise other obligations 
 to the same level of reality. 
 
 SECT. XVII. — CHARGE — LIEN. 
 
 (1.) The word "charge" in Scots, English, and French 
 involves the same metaphor as " burden." It is connected 
 with " cargo,'' and the EngUsh and French words relating to 
 the loading of ships. We speak of a charge when we load 
 a gun. — (Skeat, Murray, s.v.) 
 
 (2.) In Scots legal language a charge is an order or com- 
 mand to a person to perform some legal act : examples occur 
 in the translation of Qtwniam Attachiamenta (chaps. 49, 
 50, &c.), where the common formula runs in the name of 
 the King : — 
 
 " To our justiciar, schiref, provost, and baillies, &e. — We com- 
 mand and charge you, &c." 
 
 So also in the common form of summons, which begins an 
 action in the Scottish Court of Session, we find the writ con- 
 cludes thus : — 
 
 " Our will is herefore, and we charge you that on sight hereof ye 
 pass and in our name and authority lawfully summon, warn, and charge 
 the said defender, &c." — (Maokay, Practice, i. 375.) 
 
 The former " charge " refers to the official duty of the 
 messenger-at-arms, the latter to the duty of the defender to 
 compear. With this may be compared the ordinary form in 
 actions of interdict which asks the Court " to interdict, pro- 
 hibit, and discharge " the respondent from doing something. 
 
 ' Bell, Lectures, i. 641. Conveyancing (Scotland) Act, 1874, 
 
 ^ See Menzies, Lectures (Stiirrook's sect. 32, Soh. H. 
 ed.), 579 ; Bell, Lectures, i. 615 ; 
 
CHARGE— LIEN. 185 
 
 — {Juridical Styles, iii. 458.) But the ordinary usage is to 
 apply " charge " to the written order executed or served by 
 an ofBcer of court, calling upon a debtor or obligant to pay a 
 sum or perform an obligation therein specified. — (40 and 41 
 Vict. c. 40, sect. 3 ; Graham Stewart, Diligence, p. 290.) The 
 charge makes the burden of debt more onerous, for on the 
 expiry of a certain number of days the creditor may proceed 
 to attach the debtor's property, and in certain cases imprison 
 the debtor himself. 
 
 (3.) The common English usage of " charge " in regard to 
 crime,^ illustrates the close connection between the position 
 of an ordinary civil debtor and a person who is alleged to 
 have committed a crime. The mere accusation is a burden. 
 As Sir J. F. Stephen remarks {Hist. i. 254, 274), the assertion 
 in the indictment by the grand jury went a long way to the 
 conviction of the accused. Perhaps the practice of loading 
 prisoners with chains, according to the " gravity " of their 
 offence kept before men's eyes the closeness of the metaphor. 
 But it is very ancient. The Psalmist affirms of his " ini- 
 quities," " as an heavy burden they are too heavy for me " 
 (Ps. 38, 4). This appears to be the text of Scripture which 
 suggested directly the burden on the back of John Bunyan's 
 Pilgrim. The metaphor is that of laying something on one — 
 laying to one's charge. So .Bracton (143&) uses the phrase 
 " crimen imponi " — which is certainly not classical. And 
 Britton, while he speaks of the royal duty as noster charge (i. 1, 
 1 ; cf. i. 17, 2), and speaks of jurors being " chargez de quel fet 
 il deyvent dire veritd " (i. 5, 9 ; cf. iii. 4, 15), does not call 
 accusations " charges," but uses the phrase " sicum le apelour 
 ly met sour '' (i. 23, 7, and 10). Between the date of Britton 
 (Edward I.), and that of the English Bible (James I.), the 
 word has become recognised as meaning an accusation, but 
 it does not appear as a technical term in indictments. In 
 the record of an indictment and conviction of murder {temp. 
 
 '' It is also French, see Code d' instruction crimiTielle, Arts. 231, 247, 248 ; 
 cf. 16, 22, &o. 
 
1 86 BOND— OBLIGATION— DUTY. 
 
 2 George III.) given by Blackstone (IV. App. i.), the narrative 
 and conviction give the phrase "charged u'po'n him." The 
 use of this word indicates a change of view and a growth of 
 humanity. Instead of looking at the act from the poiat of 
 view of the pursuer or accuser as a crime, it regards it from 
 the standpoint of the accused as a load — a burden from 
 which he had to clear himself. 
 
 We may connect this with the Anglo-Saxon Lad} which 
 meant an excuse or defence against a charge, and particularly 
 the purgation by ordeal. In the simple lad, the iron weighed 
 one pound, and it increased in weight with the gravity of the 
 offence, till in the threefold lad, it weighed three pounds. 
 
 In later times the idea might only be the passing on of 
 the " charge " of the great assize or of the grand jury to the 
 culprit. As the executioner would hereafter " do his duty,'' 
 so did the jury fulfil their " charge " by charging the prisoner. 
 This double association of the word "charge" is like that 
 noticed in connection with the word " service " (p. 174, supra). 
 
 The word " charge " has now become technical in the 
 Army Act (sect. 45, &c.) and the Eules of Procedure there- 
 under (9 B.), where " a charge " is defined as " an accusation 
 contained in a charge-sheet that a person amenable to mili- 
 tary law has been guilty of an oiJence." — (Manual of Military 
 Laiu.) The same term appears in the Indian Code of Criminal 
 Procedure (Whitely Stokes, Anglo-Indian Codes, ii. 358). 
 
 (4.) In Scotland the history of the word in this sense is 
 shorter. It is not used by Sir George Mackenzie, who yet 
 speaks of the defender being " burdened with more than one 
 defence at once " (Works, folio ed. ii. 226) ; it occurs on 
 every page of Hume's Commentaries ; but it does not appear 
 as a technical term in indictments. This application was 
 made in schedule A. of the Criminal Procedure (Scotland) 
 
 1 This word is represented in and Index, s.v. "Lad"; Bosworth 
 
 English by "load," and is connected and Toller, Anglo-Saxon Diet., s.vv. 
 
 with the verb "lead," and the German "Lad," " Ladian," &c. ; Duoange, 
 
 "laden," "Last," &c. See Thorpe's i.v. "Lada"; Grimm's IV. Bwdi, 
 
 Ancient Laws of Eiigla'iid, Glossary s.v. "Last." 
 
CHARGE— LIEN. 187 
 
 Act, 1887, where the noun " charge " is used instead of the 
 verb, which is used in the forms given under the Army Act 
 and the Indian Code. 
 
 (5.) In French usage, " charge " may refer to official 
 duties, public taxes, or personal obligations by an heir and 
 other persons (Merlin, s.v.). 
 
 (6.) In English and French usage a charge may be a 
 burden on property : ^ — 
 
 " Hypothfeques et autres charges r^elles " (Code Civil, art., 958) — 
 " [Succession] duty shall be a charge on the property " (Finance Act, 
 1894, sect. 18(1) ; cf. sect. 20(2).) 
 
 " The expression " incumbrances " includes mortgages and termin- 
 able chm-ges " (lb. sect. 22 (&).) 
 
 The following section (23 (10) ), applying the Act to Scot- 
 land, defines " incumbrance " as including 
 
 " Any heritable security or other debt or payment secured upon 
 heritage." 
 
 " The word " charge " runs through aU the Scots Acts 
 amending the law of entail ; while it does not occur in this 
 sense in the Conveyancing Acts.^ Thus an heir of entail 
 may on certain conditions "charge with debts or incum- 
 brances " the entailed estate. — (Eutherfurd Act, 11 and 12 
 Vict. c. 36, sects. 4, 18, 25; cf. 45 and 46 Vict. c. 53, 
 sects. 4, &c.) So 38 and 39 Vict. c. 61, sect. 8, speaks of 
 charging " the fee and rents of such estate," while 10 Geo. 
 III. c. 51, sect. 13, speaks of a " charge against succeeding 
 heirs." It will be noticed that in some cases the charge is 
 by force of law ; in other cases it is judicial ; and in others 
 again extrajudicial. 
 
 (7.) A charge by a judge to a jury, or by a bishop to his 
 clergy, lays down the duties which they ought to perform. 
 
 1 Comyn.IW^esi, Chancery, Appen- ^ "Burden" appears to be Scots 
 
 dix ; Seton's Judgments and Orders, for the English "charge." Compare 
 
 s.w. "charge," "charging order": the speeches of the Lord Chancellor 
 
 Reports des Cases, argue et adjudge and Lord Watson in Duchess of 
 
 in le temps del' Roy Edward le Montrose, 13 A.C. 85. Cf. Bell, 
 
 Second, pp. 213, 214, 505 : Merlin, Prm. 979, and Code Civil, 637. 
 Mp. de Jwr. s.v. 
 
1 88 BOND— OBLIGATION— DUTY. 
 
 The phrase will be found in Britton, as already quoted (p. 
 185) ; and also in the Years-books of 20 and 21 Edward I. 
 (Horwood's edn., Eolls Ser., p. 21 ; cf. 21 Edward I. (1293), p. 
 277 ; Eeports, 17 Edward II. {dt. swpra), p. 505.) 
 
 (8.) The word occurs in the general sense of " duty " in 
 all the speeches delivered at the opening of the New Law 
 Courts in London in 1882.— (10 Q.B.D. 1.) 
 
 (9.) The charge becomes identified with the prestation, as 
 when we speak of " legal charges " — i.e., lawyers' fees. The 
 word occurs frequently in this sense in the Acts of Sederunt 
 passed by the Court of Session to regulate fees. In an 
 account of charge and discharge, the charge is a collection of 
 debts and liabilities ; the discharge is a collection of credits. 
 
 (10.) In popular usage a thing intrusted to a person may 
 be described as " a charge." We speak of a ministerial 
 charge — a benefice. The writ giving a charge is in Scots 
 practice itself called a charge (1 and 2 Vict. c. 114, schedules 
 Nos. 4 and 8) ; and " charge " may also be applied to such a 
 document as an indictment (see Whitely Stokes, Indian 
 Codes, ii. 358). 
 
 (11.) A charge may be regarded as a right, as in the 
 following example : — 
 
 "It shall be lawful for the Court ... to declare such law 
 agent entitled to a charge upon and against, and a right to payment out 
 of the property . . . which shall have been recovered," &c. (54 
 and 55 Vict. c. 30, sect. 6.) 
 
 This provision, following the EngUsh law of 23 and 24 
 Vict. c. 127, sect. 28, and the Irish one of 39 and 40 Vict. 
 c. 44, sect. 3, assimilates the right given to one of lien over 
 papers and titles.— (Bell, Prin., 1388, 1438.) The usual 
 definition of a lien is a charge. 
 
 (12.) The idea is embodied in a person — an officer — in a 
 chargi d'affaires, who temporarily performs the duties of an 
 ambassador, without enjoying all his privileges. This seems 
 to be a particular example of a more general French usage 
 (Merlin, s.v). 
 
CANON— KAIN. 189 
 
 (13.) Lien is often associated with charge, but its use is 
 more technical. The French word lien is applied to the 
 chains of a slave or prisoner (Britton, i. 6, 2) ; the ties of 
 blood ; or the bonds of matrimony — personal relations alone 
 (Littr^, s.v^. We read in Britton : — 
 
 " Obligacioun est lyen de dreit dunt acun est 116 a doner ou a fere 
 aciine chose, et si est mere de play," &o. (i. 29, 2). 
 " Homage est un lyen de dreit " (ill. 4, 1). 
 
 Here the word is used to translate the Latin vinculum 
 juris. 
 
 (14.) Apparently " lien " refers originally to the binding 
 or tying of the property of a debtor, and is described in all 
 the books as a right ; and, further, as a right affecting things. 
 (Stroud, Bid., s.v. ; Holmes v. Tatton, 24 L.J.Q.B. at p. 351 ; 
 Bouvier, s.v.) The reason may be that the word was adopted 
 in this meaning along with the doctrine — spurious French, 
 like Lord Brougham's " CoUaborateur." The word is only a 
 recent importation into Scotland, for such rights as it 
 indicates were described by Stair and Erskine as " a right of 
 retention " or " a hypothec." ^ There is no such title in 
 Morison's Dictionary of Decisions. The word was popular- 
 ised in Scotland by George Joseph BeU, but the Sale of Goods 
 Act, 1893, sect. 62, translates it for the benefit of Scotsmen 
 by " right of retention." 
 
 SECT. XVIII. — CANON — KAIN. 
 
 (1.) The word canon, in the sense of law, will be dealt 
 
 with later. Canon means a measure, and hence a rule — a 
 
 law. In Justinian's Code it is applied to legal payments of 
 
 tribute and grain, public burdens. — (x. 23 ; xi. 22, 3 ; and 23.) 
 
 In the second of these texts, '' Neminem patimur in mutando 
 
 canone urbis Eomee, nostras clementise beneficium postulare," 
 
 it means the amount of tax paid. — (Smith, Diet. Ant., s.v., 
 
 i. 356). 
 
 • Of. the English and the French version of the Japanese Civil Code as 
 to hypothecs. 
 
1 90 BOND—OBLIGA TION—D UTY. 
 
 (2.) In Scots law it is extended to private payments under a 
 feu-charter — (Craig, Jus Feudale, ii. 3, 34) — " Semper aliquis 
 canon certus constituitur ; " and the process of irritancy for 
 non-payment of leM-duty is known in practice imder the 
 name of " declarator of irritancy oh non solutum canonem." — 
 (Conveyancing Act, 1874, sect. 4 (3).) This usage is medi- 
 aeval — (See Ducange, s.v.) 
 
 (3.) In old Scots law the word canon is corrupted into 
 kain, being borrowed from the G-aehc. Dallas, Styles, ii. 343, 
 345, gives " kains, customs, casualties, &c.," but here it refers 
 to the rights which accompany the transference of a benefice. 
 The word still survives in the phrase " kain fowl." This is a 
 prestation — a due — a duty, but paid according to law, and 
 hence it is called " kain " fowl, i.e., a fowl given secundum 
 canonem. — (Eoss' Lect. ii. 495.) 
 
 SECT. XIX. — CLASSIFICATION OF OBLIGATIONS. 
 
 (1.) The question is sometimes discussed whether rights 
 or obligations should be made the basis of the classification of 
 legal relations. In the view explained above of the absolute 
 correspondence of rights and duties, it may be thought that 
 the question should disappear. But this is not so. Eights 
 are classified according to interests — the matter of rights — 
 the ends aimed at by the subjects claiming the rights. So 
 we may classify obligations according to the interests — the 
 ends and aims of the debtor — the subject of the obligations. 
 For some purposes law may treat the interest of all parties as 
 identical, as, for example, in the transfer by sale of a thing. 
 But even in the simplest case the real interests of the parties 
 are divergent ; and it is only by a fiction and sometimes only 
 by sheer force that they can be identified. For broad general 
 classes — public, private rights — rights of person, freedom 
 and liberty, rights over things, the family, &c., we can 
 hardly do otherwise than adopt the creditor's standpoint 
 of claim, but when we come to definite rights which must be 
 
CLASSIFICATION OF OBLIGATIONS. 191 
 
 embodied in a decree, implying obligations in a narrower 
 technical sense, it would be unsatisfactory to enumerate the 
 wide general duties of the debtor, corresponding to the wide 
 rights of the creditor, and so law books naturally specify the 
 precise points in which the freedom and the rights of the 
 debtor are limited. It is a matter of convenience. Eights 
 from the creditor's standpoint tend to become unlimited. To 
 become legal they must become precise and definite. The 
 necessary definition is attained if we regard them from the 
 point of view of the debtor, and in specifying the precise 
 rights recognised by the law we enumerate the duties and 
 obligations which restrict the freedom of the debtor. The 
 policy of the law is to regard a man free where he is not 
 expressly bound, and hence the precise enumeration of 
 obligations (p. 170, supra). 
 
 In drafting Acts of Parliament or private deeds it is 
 entirely a question of convenience whether we express the 
 law in the form of rights or of duties, just as in hterary com- 
 position we may use either the active or the passive voice. 
 It depends on what we wish to emphasise. Thus, in the Bills 
 of Exchange Act, 1882, the law is expressed sometimes as a 
 right, sometimes as a duty or liability, and sometimes as a 
 rule or definition. Sometimes the relation may be regarded 
 as a claim in one definite person enforceable against various 
 persons in certain circumstances, or, again, it may be regarded 
 as a liability in one person, which various persons may 
 enforce. 
 
 (2.) We have already noticed that in early law real and 
 personal obligations are confused. The distinction is drawn 
 in the names of specific legal institutions, such as services 
 and servitudes — suretyship and pledge. 
 
 (3.) One of the earliest classifications attempted is from 
 the point of view of the practical lawyer, who puts enforce- 
 able obligations in one class and unenforceable in another, 
 and then struggles with more or less success to square this 
 division with his moral feelings, for he finds a large mixed 
 
192 BOND— OBLIGATION— DUTY. 
 
 class on the border line, which gradually becomes enforceable 
 as legal skill and the general feeling of justice advance. The 
 history of equity in Eome and in England illustrates the 
 process. We have the distinction of fo/sta nuda and pacta 
 vestita, and the enforcement of the former by equity. We 
 have the doctrine of consideration in England, with all the 
 refinements of " moral consideration." 
 
 (4.) Then we have the Eoman classification of enforceable 
 obligations into those arising from contract and those arising 
 from delict, to which we have already referred (p. 168). 
 The purpose of this classification is to facilitate procedure, 
 judicial or extrajudicial. The slightest progress of society 
 must have shown that it was too narrow and quite insuffi- 
 cient for practical purposes. Hence the addition of such 
 classes as obligations quasi ex contractu and quasi ex delicto. 
 There were ex hypothesi only two classes, and any other obliga- 
 tions must be adapted by a legal fiction in order to be placed 
 in one or other of these classes. Such instances of moral 
 obligation or clear common sense justice were involved in 
 the case where a person managed the affairs of his neighbour 
 in his absence, or where a tutor maladministered the aifairs 
 of his ward. We may take it that this classification had 
 broken down by the time of Gains, who made his third class 
 " aut proprio quodam jure ex variis causarum figuris." — 
 (L. 1, pr. D. de 0. et A. (44, 7) ). 
 
 (5.) But the most useful classification is what we have 
 already noted to be the common one with reference to 
 interests or ends, and so we have m all our old moral 
 philosophy treatises classifications of duties — (1) in regard to 
 the family ; (2) in regard to commercial life ; (3) in regard to 
 the State ; (4) in regard to humanity in general ; and lastly, 
 in regard to one's self and God — which last two may always 
 be resolved into duties to one's neighbour, if they ever come 
 within the scope of ethical science, and so at bottom they are 
 ultimately legal. 
 
 (6.) The distinction of civil and natural obligations in the 
 Koman sense was drawn by the Eoman lawyers thuS' — 
 
CLASSIFICATION OF OBLIGATIONS. 193 
 
 "A civil obligation was enforcible directly by action at the 
 instance of the creditor in it ; a natural obligation was one that, by 
 reason of absence of formalities, defect in the capacity of the individual, 
 or other cvoilis ratio, was not enforcible by action, though recog- 
 nised as a vinculum aquitatis" for many legal purposes. — (Muirhead, 
 Oaius, 220.) 
 
 This distinction reappears in moral philosophy, which, 
 in the hands of earlier writers, was to a great extent a subli- 
 mated Eoman law, in the form of perfect and imperfect 
 obligations. The distinction is practically drawn by Cicero 
 — (Be Off. i. 3). The liability of a beggar who has committed 
 an assault on you, but has no other property than his rags 
 and the stick he used, is a specimen of a •perfect obligation. 
 The gratitude of a rich and generous friend whose hfe you 
 have saved is a specimen of an imperfect obligation. The 
 distinction seems to be that some obligations are enforced in 
 law courts and others are not. The list varies according to 
 the state of civilisation, the skill of the legal profession, and 
 other circumstances. Dr. Eeid gives an account of the 
 doctrine as one of perfect and imperfect rights which shows 
 that right and obligation are interchangeable. — (Active Powers 
 (Hamilton's ed.), ii. 644.) Perhaps when it was written 
 Professor Lorimer's polemic was necessary {Inst, of Law, 2nd 
 ed. 281), but the classification is now merely of historical 
 interest. It became a dangerous fallacy when it was adopted 
 by morals, applied to duties and pushed into the spiritual 
 sphere. The Stoic doctrine, that all sins are alike heinous, 
 was a safer moral rule. 
 
 (7.) In early law there is no distinction between civil 
 and criminal obligation. The Eoman actions, Furti, Injuri- 
 arum, &c., are proof of this. The following section from the 
 laws of Hlothhsere and Eadric takes the same view : — 
 
 " If one man call another perjurer, in another's ' flet,' or shamefully 
 bespeak him with abusive words, let him pay a shilling to him who 
 owns ' the flat,' and vi. shillings to him to whom he said the words, and 
 xii. shillings to the King."— (Thorpe, Ancient Laws of England, 14.) 
 
 What we now call the criminal law in Britain is an abstract 
 
 N 
 
194 BOND— OBLIGATION— DUTY. 
 
 form of what was once a valuable patrimony of the Crown 
 (pp. 118, 127) in exacting penalties. As with the King's 
 private gardens and picture galleries, which may become 
 national property, so the jurisdiction over crime has become 
 nationalised. The King's peace is the national peace. What 
 was formerly an ordinary personal obligation is now a moral 
 duty, and a distinct branch of law and practice. But it 
 must be borne in mind that none of the payments above 
 specified would then have been regarded as arising from 
 '' obligation," for, as we have seen, the idea of abstract obliga- 
 tion was late of receiving express recognition in English law. 
 There is a popular impression that all law is ultimately 
 criminal; and Bentham and Austin undoubtedly support 
 this view (Holmes, Com. Law, 82). But it would just be as 
 accurate to make all laws ultimately civil as the forms of 
 English procedure tend to do. Many forces have combined to 
 draw the distinction between civil and criminal responsibility 
 and obligation. We have seen on the side of right, the 
 weakness of the individual impelled him to put his particular 
 right under the protection of society or the State ; the 
 strength of society impelled it to claim the jurisdiction or 
 right to deal with acts of violence affecting the general 
 peace ; the necessity of procedure and frequently the import- 
 ance of the interests involved had the same effect ; the selfish 
 interest of the State in fines tended to make its jurisdiction 
 exclusive, and even to punish the compounding of felonies, 
 which was the lawful practice of an early age ; and now on 
 the side of obligation we find classes of persons who cannot 
 pay fines, for the rich oppressor either pays well or not at all, 
 and we extend the idea of payment. Q,uod non hahent in mre, 
 luant in pelle} The debtor has to suffer in person if he can- 
 not pay his debt ; the criminal is punished also in person 
 because he cannot pay his fine ; though in mediaeval law the 
 process is reversed, for it is quite common, as the pages of 
 Marculfus and the mediaeval codes show, to transmute punish- 
 ^ Quoted by Moncreiff, L.J.C., in Bute v. More, 9 M. 187. 
 
CLASSIFICATION OF OBLIGATIONS. 195 
 
 ment for crime into a money payment. This payment is the 
 material object common to both transactions. The idea 
 common to both is abstract obligation. 
 
 As we have seen, in the modern law there is a tendency 
 to regard liability to action as a sanction or penalty (p. 160). 
 So Erskine, in discussing the civil remedy of divorce (i. 6, 47, 
 and 48), speaks of " punishment " and " penalty," terms which 
 would be more appropriate in the criminal or the ecclesiasti- 
 cal law, for the " loss of tocher " is imposed on the offending 
 in favour of the innocent spouse, and not in favour of the 
 State. It is rather of the nature of reparation to the spouse 
 wronged than punishment of the wrongdoer. 
 
 (8.) The Scots division of obligations into " conven- 
 tional " and " obediential " has not been made solely with 
 reference to the form in which the obligations originate. It 
 has been made with ethical or religious ends in view, in 
 order to show that these obligations, which might be thought 
 weaker than legal ones solemnly undertaken, are in reality 
 stronger, and have a natural or even a supernatural sanction. 
 Speaking of obedience. Stair (i. 1, 19) says : — 
 
 " Hence do arise those obligations upon man, which are not by his 
 own consent or engagement, nor by the will of man, but by the will of 
 God. And, therefore, these are fitly called obediential obligations. 
 . . . Such are also the obligations betwixt husband and wife, 
 parents and children, and the obligations of restitution, reparation, and 
 remuneration ; in all which we are engaged not by our will and con- 
 sent. And such are the obligations which the civilians call quasi ex 
 contractu. . . ." 
 
 (9.) The division of obligations as expressed or implied ^ 
 may mean only — (1) obligations proper, in the narrow sense ; 
 and (2) aU others. But is an obligation arising from statute im- 
 posing liability on owners of houses express, or is it implied 
 from residence? Is the liability arising from warranty 
 express, when the precise form and extent of liability cannot 
 be foreseen ? Is the obligation to provide for the safety of 
 workmen only implied, though it is laid down, and will be 
 ^ Blackstone (iii. 154) speaks of " contracts express and contracts implied." 
 
196 BOND— OBLIGATION— DUTY. 
 
 enforced by the courts, and was in view of the parties when 
 the contract was entered into ? 
 
 Hmmn v. Pertder, 1883, 11 Q.B.D. 503, illustrates the 
 difficulty of this classification. Heaven was a workman in 
 the employment of Gray, a painter. He was injured by the 
 breaking of a rope, which allowed a staging outside a ship to 
 fall, the staging and rope having been supplied by the de- 
 fendant, the owner of a dock. The Court of Appeal, revers- 
 ing the decision of the Court below, held the dock owner 
 liable. This Court had proceeded on the groimd that there 
 was no contract between the parties, and no fraud, and there- 
 fore no obligation. In deKvering judgment in the Court of 
 Appeal, the Master of the EoUs (Brett, afterwards Lord Esher) 
 laid down a general rule, which, however, was not accepted 
 by the other members of the Court. He remarked : — 
 
 " If a person contracts with another to use ordinary care or sVill 
 towards him or his property, the obligation need not be considered in 
 the light of a duty ; it is an obligation of contract. It is undoubted, 
 however, that there may be the obligation of such a duty from one 
 person to another,' although there is no contract between them with 
 regard to such duty " (p. 507). 
 
 He then instanced two drivers meeting, or a railway company 
 
 contracting to carry a third party, or the owner of a house or 
 
 land permitting a person to come to it, and continued — 
 
 " It should be observed that the existence of a contract between two 
 persons does not prevent the existence of the suggested duty between 
 them also being raised by law independently of the contract by the 
 facts with regard to which the contract is made, and to which it applies 
 an exactly similar but a contract duty." — (Gf. " Contractual Rights," &c., 
 p. 125, supra.) 
 
 The cases as to fencing machinery show that as between 
 two persons an "implied obligation" may mean only one 
 imposed by statute ; and if so, why is that not express ? If a 
 statutory duty is express, why not one imposed by common 
 law and reasonable custom ? 
 
 Implied obligations, Mke implied rights, are examples of 
 the rules : cuicmique aliquis quid concedit, concedere videtur et 
 1 Cf. the tautology of Eight of Liberty, &c., p. 132, supra. 
 
CLASSIFICATION OF OBLIGATIONS. 197 
 
 id sine quo res ipsa esse nonpotuit (Broom, 357) : In contractis 
 tacite insunt quce sunt maris et consuetudinis (ib. 640) : Omne 
 maj'ios continet in se minus (ih. 138). The principal obligation 
 must be undoubted, and the absence of the secondary one 
 would defeat it so clearly that it must have been in the view 
 of a reasonable person entering into the contract. 
 
 Thus implied obligations may be deduced by interpreta- 
 tion from statutory duties or contractual duties. 
 
 (10.) When we grasp the idea that obligation is not con- 
 fined to a point of time — that the tie is continuous, and may 
 be separated from the resulting prestation as in obediential 
 or implied obligations, which are truly latent till the time 
 comes for performance, we easily pass to contingent and con- 
 ditional obligations and debts, corresponding to contingent 
 or conditional rights. 
 
 Hearn (Draft Code, XI. 5) speaks of " contingent and 
 conditional contracts," but we usually speak of " pure, future, 
 conditional and contingent debts or obligations." These can 
 be valued and ranked in bankruptcy (1856 Act, sect. 53). The 
 Eoman lawyers explained the difference of such obligations by 
 saying of future obligations or debts — " dies cedit sed nondum 
 venit." So the law recognises them as debts and allows dili- 
 gence in security. In the others dies nee cedU nee venit. 
 
 We make artificial conditions in contracts, or we make 
 stipiilations to evade the results of natural events, and then 
 we speak loosely of the facts and circumstances which make 
 up " a case " as conditions. 
 
 Legacies and bequests are treated by Bell in a similar 
 way, but as contingent or conditional rights of the legatee, 
 and not debts of the trustee. So we oppose to these con- 
 tingent rights " unrestricted " right,i or " absolute " right.^ 
 
 The law of vesting is treated generally as applying to 
 rights of succession, including legacies and other provisions. 
 But a corresponding doctrine of vesting may be applied to 
 conditional obligations in the modern sense. 
 
 1 Murray, 1896, 22 E. 927. ' Simpson's Trs., 1890, 17 K. 581. 
 
198 BOND— OBLIGATION— DUTY. 
 
 (11.) The division of joint, or joint and several obligations 
 (Lindley, Ixxiv.) is technical, and implies a clear distinction 
 between the abstract tie and the prestation. It depends on 
 the object — the prestation. The right, if it is correal, or the 
 obligation, if it is such, will be extinguished by one per- 
 formance though there are several persons interested — one 
 obligant out of many can pay the debt ; or if the debtor pay 
 to one who has the right to discharge, he is free. The pay- 
 ment may be an event — title or cause — giving rise to new 
 rights or obligations between the creditors or the debtors 
 inter se. 
 
 (12.) As we had public rights, which might be exercised 
 by any individual member of the State, so we may have 
 public obligations. These may be undertaken and fulfilled 
 by a government as representing the body politic. In the 
 sphere even of crime corporate liability and corporate re- 
 sponsibility are very ancient ideas. The family or the state 
 might suffer punishment for the wrongdoing of a single 
 individual.^ Municipalities or counties may be responsible 
 for damage done by rioters.^ 
 
 So in modern public international law the State under- 
 takes contractual obligations in treaties dealing with the 
 post-office, railways, and commercial matters, while on the 
 side of delict it claims rights and exacts satisfaction for itself, 
 though the injury may be one only to an individual ; or in 
 some cases where individuals are numerous or powerful they 
 may persuade the State to use its whole power on their behalf 
 to enforce private rights, as if they were public. In like 
 manner on the side of obhgation we may find a State, includ- 
 ing many innocent individuals, called upon to make repara- 
 tion or to suffer punishment for the delinquencies of one or 
 more individuals, as in the recognised doctrine of general 
 reprisals, and in the common practice of punitive expedi- 
 tions in India and Africa. 
 
 ' Cf. Bagehot, Physics a-nd Politics, - Mevohant Shipping Act, 1894, 3. 
 
 103. 515 ; cf. Johns, Tfie Oldest Code, p. 6. 
 
SUBJECTION. 199 
 
 (13.) Obligations or duties may be described as political, 
 civil, official, ecclesiastical, inilitary, and so forth. These 
 terms imply either that the obhgations arise from the relations 
 in which the person is placed, or that they are undertaken 
 or imposed with the object of accomplishing some end, as 
 the maintenance of the State, or some particular office, the 
 Church, the Army, &c. Political obligations will be dealt 
 with in connection with the word " subjection." 
 
 (14.) It is possible also to classify obhgations as we have 
 done with rights. They may be antecedent and remedial ; or 
 primary, original, natural, imprescriptible and inalienable, or 
 sanctioning, secondary, tertiary, and so forth. We may take 
 the primary duty of a man or a citizen, and follow it through 
 the various forms of obligation to which it gives rise as the 
 circumstances (causes) change. — (See p. 1 21, supra.) The com- 
 monest example in legal practice is when specific performance 
 is impossible, and damages become prestable. " In locum 
 facti imprestabilis subit damnum et interesse " (Stair i. 17, 
 16). This was the idea of the grim legal humorist, who 
 first said, " Quod non habet in aere, luat in pelle." 
 
 (15.) We noticed certain words which indicated groups 
 of rights (p. 92). It wiU be sufficient to note here that 
 such terms as " estate " and '' office " denote also groups of 
 obligations. 
 
 SECT. XX. — SUBJECTION. 
 
 (1.) The Latin words " subicere," " subjectus," suggest 
 slavery, though the literary use has rather a pohtical refer- 
 ence, as in referring to whole nations : — 
 
 " Parcere subjectis et debellare superbos." 
 
 (Vergil, Mneid, vi. 854.) 
 
 The reference in legal usage may be to property : " Omnis 
 res quae dominio nostro subicitur, &c " {Inst. iii. 19, pr.), or 
 to the patria potestas : " homines . . . juri nostro subjectos " 
 (Gains, ii. 95 ; cf. 161 ; iii. 104; L. 21, § 2 D. ea; quib. cans. 
 Tnaj. &c. (4, 6) ) ; or to liability to taxation : " Ees exercitui 
 
200 BOND— OBLIGATION— DUTY. 
 
 paratas prsestationi vectigalium subici non placuit " (Paul, L. 
 9, § 7 D. de puhl. et vect. &c. (39, 4)); or to a liability to 
 pay penal interest: "Maximis usuris vice cujusdam poense 
 subiciuntur " (L. 38 D. de neg. gestis (3, 5) ). In the Latin 
 Vulgate the word is applied to dominion over the earth and 
 beasts (Gen. i. 28 ; Ps. viii. 8.) 
 
 (2.) The modern usage is political, as the notion of 
 dominion has become political (p. 93, supra.) The word 
 " subject," which is correlative with " ruler," suggests that the 
 king "has put all his enemies under his feet," though the 
 obedience is now voluntary. This word therefore contains 
 in germ aU the confusion between law and politics. 
 
 We regard the king and his subjects as bound by a 
 special tie, which is called " allegiance " ; but though the 
 king binds himself by an oath, we do not usually say he is 
 subject to the nation. The words " liege " and " allegiance " 
 are commonly derived from "ligare'' to bind, the binding 
 force of this obligation being applied to the subject and not 
 to the ruler. Professor Skeat shows that this is an error 
 {Bict. S.V.). He connects " liege " with the German ledig, as 
 meaning free. May it not be from the Latin legitimus ? A 
 liege lord would thus be a lawful lord (Scott, The Talisman, 
 ch. vi., &c.). But whatever may be the origin of the word, 
 the idea has been transferred from the ruler to the subject, 
 and in virtue of this allegiance and service of his subjects 
 the king may be regarded as officially bound to administer 
 justice and afford protection against enemies. The force 
 behind this obligation may be the king's conscience, or his 
 belief in a supernatural sanction. Discontent of the subjects, 
 the fear of rebellion, and actual rebellion are sufficient, for 
 actual compacts in legal form between kings and their sub- 
 jects are common, and must have some meaning.^ 
 
 In political obligations we see the ideas of legal obligation 
 and moral duty almost coinciding. Thus in the Naturaliza- 
 tion Act, 1870, section 7, we read — 
 
 See Magna Oharta ; Motley's Law, p. 130, as to Poland ; Bryce, 
 United Netherlands ; Sigel's Slavonic Stiidies, ii. 10 et seq. 
 
SUBJECTION. 201 
 
 " An alien to whom a certificate of naturalization is granted, shall, 
 in the United Kingdom, be entitled to all political and other rights, 
 powers, and privileges, and be subject to all ohUgations to which a 
 natural-born British subject is entitled or subject in the United King- 
 dom," &c. 
 
 " Subject " is here synonymous with " liable," as we see 
 from the following : — 
 
 " A class of persons who shall be capable of all the privileges, 
 whilst they are liable to none of the obligations of citizens." — (Mr. 
 W. V. (now Sir William) Harcourt, Naturalization Comrmssion Report 
 (1869), p. XV.) 
 
 A citizen is subject to certain definite obligations, because 
 he is subject to the ruler and subject to the laws. In short 
 this word, starting from its associations of conquest and 
 slavery, has been applied to all relations in ever-widening 
 circles until it embraces even moral and religious ideas. 
 
 (3.) In the claim of jurisdiction by a tribunal we saw a 
 right against all the world — particularly other tribunals. 
 We may regard the subjection of the individual as the 
 obligation corresponding to this right. But in conflicts of 
 jurisdiction between courts we see the property idea emerge 
 — not necessarily heritable or patrimonial, but official and 
 exclusive property — and an obligation on courts not to inter- 
 fere with but to respect the jurisdiction of other courts. 
 " Do as you would be done by " applies to courts and states 
 as well as individuals, but such respect may not arise from 
 any motive higher than fear of reprisals. Thus in the second 
 Orr-Uimng case (10 App. Ca. at p. 542) Lord Watson said— 
 
 " There is, to my mind, a broad distinction between a radical defect 
 of jurisdiction and jurisdiction to entertain, stay, or dismiss a suit, 
 according to the discretion of the Court. The latter is the kind of 
 jurisdiction exercised by the Scotch Courts in the case of foreign 
 trustees ■ and they are in my opiaion bound ex comitate to allow a 
 similar jurisdiction to foreign Courts in the case of Scotch trustees. 
 How far the Courts of Scotland are entitled or hound to criticise 
 and control the discretion of a foreign Court in sustaining its own 
 jurisdiction, when that discretion has been honestly exercised, it is 
 not necessary ... to consider." ..." The Court of Session would 
 have been bownd by its own decisions, at once to dismiss any such 
 
202 BOND—OBLIGATION— DUTY. 
 
 action " (p. 543). ..." The principles upon wliich it lias hitherto been 
 held in cases of this kind that the Court of Session was forum incon- 
 veniens are in my opinion as binding upon its judges as any rules of 
 positive law." (lb.) ..." I am also of opinion that the First Divi- 
 sion had power to grant, and rightly granted, the limited interdict" 
 (p. 544). 
 
 Lord Fitzgerald (p. 551) put right and obligation or duty 
 
 into juxtaposition in saying — 
 
 " There is no question as to the jurisdiction of the Court to decree 
 a sequestration, but as to whether the authority to do so ought to have 
 been exercised." 
 
 The interference of a court with a person who is not sub- 
 ject to its jurisdiction may thus be a wrong against another 
 court or another state as well as against the individual. 
 It is an offence of the same kind as was dealt with in Lumley 
 V. Qye (p. 137, supra). The obligations involved are — (1) a 
 strictly legal obligation of the respondent to answer to his 
 proper court ; (2) a duty on the court to do him justice ; and 
 (3) a duty on other courts and states to abstain from undue 
 or unlawful interference with the case. 
 
 The words " justiceable " and "justiciable" apply to 
 persons, things, or acts which are subject to the jurisdiction 
 of a court.^ 
 
 (4.) The phrase " subjected to " is sometimes used as 
 making " liabilitj' " more emphatic. We find an example in 
 the Ballot Act of 1872. The directions for voting in schedule 
 II. say that a voter who takes a paper out of the polliug station 
 " will be guilty of a misdemeanor, and be subject to imprison- 
 ment," &c. The Act itself (sect. 3) says, " he shall be liable," 
 &c. It seems the common form in the bye-laws as to travel- 
 ling of all the leading British railways to use the words, 
 " Every person [offending] is hereby subjected to a penalty." 
 This is condemnation in anticipation and is contrasted with 
 the ordinary " liability " for damage done.^ Some other codes 
 of bye-laws combine the words " liable and subjected to." 
 
 1 Gf. D. F. Marais, 1902, A.C. ^ ^hese bye-laws are given all in 
 
 109, at p. 114, where this word is used the official time-tables, 
 with " competent " and " have juris- 
 diction. " 
 
LA W AND DUTY. 203 
 
 (5.) We speak of the " subject " of a right, meaning the 
 person in whom the right is vested. The usage is convenient, 
 and comes to us through Kant from the logical and gramma- 
 tical use of the word.^ 
 
 (6.) In Scots Conveyancing the term " subjects " is applied 
 to lands, houses, and other property. This is an adaptation 
 and extension of the usage first above noticed. — (Titles to 
 Land Consolidation Act, 1868, sect. 3, &c.). 
 
 SECT. XXI. — LAW AND DUTY. 
 
 As we have seen, the Latin Jus, and the modern words 
 Droit, Becht, and Bight, mean not only a right, but also the 
 law which recognises rights ; so it seems easy to extend the 
 written bond which makes obligations, to the implied, neces- 
 sary, still higher obediential bond which unites spouses, 
 parents and children ; and, finally, to the general bond which 
 unites all men in society. As we personified the State, and 
 regarded the whole law as the demand — the one great claim 
 — which it made on the subject, so now we may regard all 
 law as only one great duty — one great obhgation — obedience. 
 And as we are apt to forget that there are natural bonds 
 prior to written bonds, so we are apt to assume that law is 
 only a written duty — the command of a superior — because 
 in the present day legislation is active. But before men 
 learned to make written bonds they made verbal ones. Before 
 they learned to speak we know they must have had real ones.^ 
 The social instinct of which we are now conscious must have 
 been present in man, however far down we may trace him 
 in animal development. There is a social bond even among 
 the least gregarious animals. The recognition by society 
 which we saw created right has also created obligation and 
 duty, by teaching, demanding, and enforcing obedience. The 
 natural laws which we observe to prevail, as a physical fact, 
 in all social groups, are gradually learned by man, and on 
 
 ^ Of. Gierke, Maitland, xx. ; Lind- ^ Grierson, Tlie Silent Trade, p. 
 
 ley, Jur. App. ii. ; Holland, Jw. 87. 62, &o. 
 
204 BOND— OBLIGATION— DUTY. 
 
 these he founds positive laws, by which he strives to bind 
 his fellows to certain definite lines of conduct. And within 
 the area allowed by these laws individuals by contract bind 
 each other, so that, like a pyramid, the idea of obligation 
 covers the whole of human relations, while the apex of duty 
 reaches high into heaven. The relations and obligations 
 which at first appeared to be only physical, become legal or 
 moral or religious, according to the view taken by the grow- 
 ing consciousness of the individual and society, until duties 
 and services become claims, privileges, rights in the senti- 
 ment of loyalty or religious ecstasy. 
 
 As we summed up the idea of Eight by saying, "It is 
 right that a man should have right to his rights," so we may 
 say every man has a (moral) duty to perform his duties (to 
 his neighbour), and pay his duties (to the Government). In 
 other words, he is bound (by natural law) to fulfil his (civil) 
 obligations and (political) duties (Honeste vivere). 
 
CHAPTER IV. 
 
 LAW. 
 
 SECT. I. — COLLISION OF EIGHTS AND DUTIES. 
 
 When natural forces come into colKsion, the resultant is a 
 single effect, in which full justice is done to each original 
 force. A heap of sand has an angle of repose. 
 
 Persons in society come into collision. The existence of 
 a right and of a corresponding obligation implies opposi- 
 tion and contact, which in the ordinary normal case is a state 
 of peaceful equilibrium, but if this be disturbed the change 
 of circumstances may give rise to excessive friction and heat. 
 An external event — an accident — may alter the interests of 
 the parties. A change of mind in the parties may transform 
 a right into an obligation and an obligation into a right. 
 When persons feel rights, and come to express these in the 
 form of claims as against particular individuals, these claims 
 also appear in collision with those of all other persons — 
 the world in which they live. Collision is of the essence of 
 right, and has been implied in all our previous discussion, 
 but it must now be set apart for separate treatment, along 
 with the physical fact of sympathy on which law is founded.^ 
 
 Two persons wish to stand on the same spot to see some 
 performance or occurrence. We may take this as the simplest 
 example of a collision of claims. If they fight for the place 
 they will probably injure each other, and defeat their 
 original purpose, for while they are fighting the spectacle may 
 be over. To anticipate the rule of Nature, Prior tempore 
 
 ^ Adam Smith, Moral SeniiTnents, and lock-outs, see Reeves, State Ex- 
 pt. 3rd. As to sympathetic strikes periinetits in Aiistralia, die, ii. 88. 
 
2o6 LA W. 
 
 potior jure is prudent for many reasons. First, the second 
 place may not be really inferior to the first ; secondly, even 
 if it is, the fighting for the first may not get it, but may give 
 it to a third party ; thirdly, the presence of a companion in 
 the first place may be a positive advantage to point out inci- 
 dents, and enable both to see better ; fourthly, each may 
 think his presence and the acquiescence of the other may 
 establish a precedent, and he himself will be first next time. 
 An ancient amphitheatre may be taken as a type of an 
 orderly society. If all crushed and pushed on the level 
 ground none would see or hear. But the invention of a 
 theatre enabled all to see at once. The Latin ordo (from 
 root of orior, I rise) ^ points originally to physical separa- 
 tion of rows — tiers rising one above the other. The seats 
 might be marked laterally. The order of choice might be 
 fixed by priority ; or by ticket, allotted either by ballot or 
 by priority of application, or by special reservation. The 
 ticket is a title — titulus. Ajoj seat in the building is a 
 privilege ; some might prize even a glimpse for a minute. 
 Each seat has its own special advantage ; if in the front, 
 you see and hear better, but you may see too much, and you 
 may be exposed to danger ; if at the very back you see less of 
 the stage, you see more of " the house," which is often much 
 more interesting than the stage. 
 
 Here, then, is a type of law. The crowd sympathise with 
 a person who has been waiting patiently, and they resent the 
 rudeness of a new comer who tries to elbow his way in. 
 They all feel the case their own, hoot at the intruder, and 
 help to push him out. Then come professional door-keepers ; 
 the persons in charge, the police, keep order and show 
 persons to their seats, or keep the crowd outside standing en 
 queue. The crowd, from habit or from rational conviction, 
 adopt the same rule, and take the places assigned to them. 
 There are no doubt other disturbing elements in a theatre 
 crowd — e.g., the new woman, who combines the extreme past 
 
 ' Mommsen, StaatsrecM, iii. 459 ; quoted in Smith, Diet. Aniig. s.v. ordo. 
 
COLLISION OF RIGHTS AND DUTIES. 207 
 
 and the extreme future by rudely pushing to the front, on 
 the ground that men ought to be polite and give way to 
 " ladies " — ^lace, avx dames. This is merely a disturbing 
 element, which must be dealt with in settling places. It may 
 result probably in her finding a place somewhat higher than 
 she would have got otherwise ; or it may provoke a reaction 
 which will put her lower. 
 
 Prior tempore potior jure is a type of a natural law in 
 the jural sense. It is a rule deduced from experience; it 
 generally attains the end desired — namely, order. It has a 
 physical basis in history, for those who were first in the 
 world had many rights as against their successors. It has 
 a sanction in the feeling of claim and the fists of the person 
 in possession ; it often raises a feeling of duty and obligation 
 of acquiescence in the breast of the later arrival compelling 
 him to respect vested interests ; and finally, it has the support 
 of society, whose interest is order, and to whom it generally 
 is unimportant who occupies any particular spot. If the 
 feeling raised in the breast of the new comer is not one of 
 acquiescence, but of resentment against the first occupant, his 
 interests may found a new claim, which may be acquiesced 
 in by the person in possession ; if not, the ultimate result 
 will depend greatly on the position assumed by society. If 
 this approves of the new claim, it will lay down some more 
 general rule than mere priority. 
 
 All the world is a theatre ; and all the men and women 
 are actors or spectators. The problem placed before those 
 who temporarily manage the world-show, is how to keep 
 order and so arrange things that everybody may occupy a 
 comfortable space, and see or do just enough to satisfy him. 
 Laws are the means discovered or invented for this purpose. 
 Just as the theatrical manager drills his chorus and his 
 troupes of dancers and the various actors to make their 
 entrances and their exits at the proper time, and to arrange 
 themselves picturesquely on the stage while they are there ; 
 and just as the door-keepers and others arrange the audience 
 
2o8 LA W. 
 
 in order in their seats in the auditorium, so rulers and 
 governors, kings, wise men, first-men, leaders, draw up rules 
 and drill their subjects until these rules become instinctive 
 intuitions. In one view the proximate end is merely order 
 among the particular individuals concerned, and the remote 
 end liberty to exercise all their faculties and powers as human 
 beings. In another view the proximate end is liberties, 
 claims, rights, so that all may be satisfied ; and the remote 
 end is order, the ideal state in which the individual holds 
 the position suited to his capacity of promoting the ends 
 of Society. — {Of. Lorimer, Inst, of Law, 368.) 
 
 The framing and the application of such rules become a 
 special art, and hence the rise of the legal profession from 
 the highest legislative and judicial functionary down to the 
 humblest executive officer. To the subjects who obey 
 these laws, or follow them in their conduct, a simple rule, 
 apparently axiomatic, to which it is difficult to find a plaus- 
 ible alternative, appeals with irresistible force. It may be 
 applied in directions extending far beyond what its inherent 
 reasonableness warrants. Thus prior discovery is not neces- 
 sarily the sole basis of property; nor is primogeniture an 
 irresistible law of nature in succession. Breeders of stock 
 might prefer secundogeniture on grounds of analogy and ex- 
 perience. The ordinary civilised man is ready to obey ; and 
 some savages may be intimidated. An infallible church, a 
 hint of the manners of good society, a printed rule in a book 
 of etiquette, even a ready opinion given by a person with a 
 loud voice, are all examples of ordinary means of command- 
 ing obedience. 
 
 A change of interest and the resulting dispute as to right 
 may arise, as we have seen, from an external event. A 
 malicious person sets fire to a building while it is still in 
 the builder's hands. The delinquent cannot pay. Who 
 is to bear the loss ? Or it may be struck by lightning, 
 and the same question arises.^ The builder has many argu- 
 
 1 M'Intyre v. Clow, 2 R. 278, a case where a building was blown down. 
 
COLLISION OF RIGHTS AND DUTIES. 209 
 
 ments. The erection was on the ground of the other party ; 
 the other party has paid as he went along ; the materials 
 were delivered ; and the builder put his labour into them as 
 the work progressed. He is a poor man and cannot afford 
 to lose, while the landowner is rich. The landowner says 
 that he merely advanced money to accommodate the builder ; 
 he has got no benefit from the work ; why should he pay a 
 penny ? At first sight this is an insoluble puzzle ; and the 
 case becomes still more complicated when the parties allow 
 their feelings to work. Each thinks his opponent mean, the 
 one because he will not pay, the other because he demands 
 payment. When law intervenes it forbids violence ; but when 
 it attempts to make science it finds difficulties. It may speak 
 of acts of God, and loss falling where it lights — res 'pe.rit 
 domino. This is pretty much an evasion. What else is 
 open ? The richness or poverty of the parties may disturb 
 the judgment, but is truly irrelevant in the first instance. 
 At least it is a dangerous principle to apply, for it may lead 
 to the respecting of persons and the contradiction of elemen- 
 tary justice. We make theories of property in land, delivery 
 of moveables, and at the end come to a decision in accordance 
 with custom, precedent, the ideas and prejudices of the com- 
 munity. This is perhaps logical if you admit the premises. 
 But at bottom it comes back to the first rule, " Don't fight," 
 and the parties then settle down to make the best of their 
 difficulty. Bloodshed or litigation is unprofitable for repara- 
 tion of the disaster. But the friends of the disputants and 
 the community may have an interest in the dispute. They 
 may even quarrel as partisans. And if they find the problem 
 insoluble they may out of charity subscribe, and so bear a 
 share of the loss. As a legal invention, insurance meets such 
 cases — organised contractual subscriptions for charity. In- 
 surance gives the public a real pecuniary interest in 
 calamities, and so we see insurance companies set up estab- 
 lishments for the extinction of fires. Insurance has made 
 the loss their own. For their own sake they strive to 
 
 
 
2IO LAW. 
 
 extinguish fires, and so benefit indirectly the original pro- 
 prietor and the neighbouring proprietors. Insurance is thus 
 much more than a legal invention. 
 
 "We may profitably postpone a definition of law, and also 
 a discussion of the various terms which are synonymous 
 with it, until we have observed the various aspects in 
 which law presents itself in actual life. It changes 
 with the society to which it applies, and also with the stand- 
 point from which we view it. In early times, when right was 
 a mere vague claim, when abstract obligation was perhaps 
 unknown, and duty a vague feeling more religious than 
 legal, law was correspondingly vague. In early English 
 rigM expresses both the claim of the person and the recogni- 
 tion of it by society ; and we may say that in our artificial sense 
 law did not exist. In still earlier times order was kept and 
 violence repressed by leaders or heads of tribes ; they decided 
 disputes by reference to customs which they knew, or by what 
 they thought justice. They had not even rules of procedure. 
 Such skill or science as they possessed was traditional and 
 instinctive like their poetry and eloquence, their agriculture, 
 architecture and art. 
 
 The change in the laws of Cnut in England from the use 
 of right to lagu (law) marks a transition to an organised 
 state and definiteness in law ; and though the word " law " 
 retains its place in subsequent history its meaning must 
 surely change, when we think of the gradual differentiation 
 of the officers and practitioners of the law — king, judges, 
 advocates, sohcitors, notaries, accountants, patent agents, 
 officers, policemen, inspectors of multitudinous kinds, juries, 
 remittees, reporters, witnesses — scientific, medical, ordinary — 
 all practising law, limbs of the law or lawyers in some 
 sense. Each new application or extension has added 
 something to our idea of law. Every age has widened the 
 definition as a practical art with corresponding science, and 
 ultimately a philosophy which appeared to explain the whole 
 satisfactorily at least for the time. In early history we find 
 
COLLISION OF RIGHTS AND DUTIES. 21 r 
 
 law and politics identified in the ordinary civil and crinainal 
 laws, and law and ethics identified in the family and 
 marriage laws. Eeligion, too, is either politics or the super- 
 natural side of it. The history of law on its formal side is 
 the history of this differentiation in officers and mode of ex- 
 pression. Even when law appears, it is a single complex pheno- 
 menon. There is no distinction in Hebrew law between pro- 
 cedure, evidence, substantive law, and execution. It is said 
 that the witnesses formulated the charge ; if two agreed that 
 might be sufficient to secure condemnation, and finally the 
 witnesses stoned the culprit.^ 
 
 Eights and duties both involve law. A right is claimed 
 by one as a member of society, and the person asserting it 
 impliedly asserts that any other member in his place would 
 be entitled to make the same claim and receive the same 
 judgment. It is not a merely temporary feeling, a capricious 
 claim, but a feeling which belongs to him as a man. He calls 
 both for the substantive object of the right and the recog- 
 nition of the right by the State or society. The much per- 
 secuted Shylock combiaed these : — 
 
 " Justice ! the law ! my ducats and my daughter." 
 
 {Merchant of Venice, ii. 8, 17.) 
 
 though in his mind the ducats came first, then his daughter, 
 while justice and the law were merely means for their 
 recovery. When a man calls his claims rights, he affirms 
 that the interests of society are involved in the satisfaction 
 of these claims. 
 
 So a duty is not merely a physical bond or necessity. It 
 is laid on him as a member of the society to which he belongs; 
 and any other man in the same position would have the same 
 burden imposed on him. He feels bound, because every man 
 expects that he will do this duty. Slaves may require com- 
 mand. A word of expectation suffices for free men. As we 
 have seen, the old Irish code prescribed " fasting " in the 
 
 1 Innes, Trial of Jesus Clvrist, 27 and 41 ; p. 51, mpra. 
 
212 LAW. 
 
 case of persons of distmction. The appeal to the King's 
 conscience and honour is enough. 
 
 We may illustrate this from ordinary legal procedure. 
 When a superior court remits to an inferior judge to pro- 
 nounce a particular judgment, it may be said his function is 
 no longer judicial, but executive. He is bound to obey and 
 he does obey. Thus the Judicial Factors Act, as we shallsee 
 later, may declare a sheriff " bound " without expressing any 
 sanction. The judge administers the law because it is the 
 law, and not because he is bound. The good citizen obeys 
 the law instinctively and unconsciously. Eight, duty, and 
 law may be absolutely identified. 
 
 In point of form the abstract notion of " case " is the 
 meeting-point of right, duty, and law. It implies the 
 abstraction of certain facts and the formulation of a claim 
 to do something in consequence thereof. It implies the 
 existence, both in the Eoman and in the modern sense, 
 of an obligation, which is " the mother " of an action 
 (p. 158). It implies lastly the weighing and balancing 
 of evidence and of competing rights, which result in a 
 deliberate judgment on the facts as presented. But the 
 decree is law in a new sense. The claimant now feels that 
 he has a true right ; the respondent that he is now really 
 bound. The decree supersedes all that precedes it, and the 
 change in the relations of parties may be enormous. In the 
 Eoman law even litiscontestation operated as novation of an 
 obligation. 
 
 SECT. II. — LAW A PROCESS OF DEFINITION. 
 
 Definition is the essence of law in its aspects of claim, 
 prestation, and recognition. Definition either settles disputes 
 or anticipates them, and so prevents possible collisions 
 of claims. It may be said that when we get a group of facts 
 which make a stateable " case," definition is already implied. 
 Thus the early law of property is a question of " titles " and 
 
LAW A PROCESS OF DEFINITION. 213 
 
 marchstones and allotments — voixoi and voiJ-oi The stones 
 set up solve or prevent disputes ; they are evidence to 
 strangers and to judges ; and their removal is a deadly crime. 
 Without the invention of money, weights, and measures the 
 law of obligations could not have been developed. The Latin 
 " nummus " is connected with vkfiw (I distribute) — voft.o'i — 
 numems — Numa and Numitor, primitive lawgivers. Money 
 enables parties to make their rights definite, and it enables 
 a debtor to know how to pay, and when he has paid if he is 
 really free. It enables the judge to compromise — Solomon's 
 difficulty does not arise — for as a general rule both parties 
 are somewhat in the wrong, and the desire to gratify loth is 
 natural : 
 
 " Thus 
 Was justice ever ridiculed in Rome : 
 Such be the double verdicts favoured here 
 Which send away both parties to a suit 
 Nor puffed i\p nor cast down, — for each a crumb 
 Of right, for neither of them the whole loaf." 
 
 (Browning, The Ring and the Booh, ii. 747.) 
 
 There are two directions in which the order of a primitive 
 community might be broken : — First, by infringement of ex- 
 isting rights ; and, secondly, by violent attempts to redrese 
 wrongs. These give rise to the two main ingredients of 
 early codes— Criminal Law and Civil Procedure. This is in- 
 deed a modern way of speaking, for they are truly co-ordinate 
 branches of law, and not separate, as we now regard them. 
 
 There is a collision between the right of the creditor to his 
 claim and the right of the debtor to his liberty, and the right 
 of the public to peace. It is these matters which early codes 
 regulate. The first provision of the Twelve Tables deals with 
 citation, and only allows force in case of resistance or flight ; 
 it allows an excuse for age or illness, and provides for litiga- 
 tion being carried through in the daytime. One oi the rules 
 permitted what we have called " obvagulation " (p. 58) and 
 ran thus : " Cui testimonium defuerit, is tertiis diebus ob 
 portum obvagulatum ito " : i.e., if one has no witnesses (as 
 
214 LAW. 
 
 in ordinary procedure), let him make a disturbance before 
 the door of his debtor every second day. We may imagine 
 what it may have been when the creditor was unrestrained ; 
 there would be a continuous disturbance of the whole neigh- 
 bourhood for days and nights on end ; but now that his 
 power is limited, he may achieve his end quite as well. As we 
 have seen, this mode of recovering debts prevailed in India 
 down to our own day, when sitting dharna was practised.^ 
 The similar procedure of Fasting was regulated, as we have 
 seen from the ScTvchus Mor, by restricting it to the case of 
 debtors " of distinction." 
 
 "An eye for an eye, and a tooth for a tooth" was no 
 doubt the reform of a system which exacted a life for an eye, 
 or even for a tooth. Instead of rude, instinctive retaliation, 
 this limitation of the unbridled wrath of the person wronged 
 implied deliberation and judgment, so that he might take the 
 eye or the tooth and nothing more or less.^ 
 
 Such a provision of the Twelve Tables as allowing monsters 
 to be killed at birth may well have been an attempt to re- 
 strain a custom of general infanticide, and the statement of 
 Dionysius that five near neighbours were required as witnesses 
 shows an attempt to represent the State effectually in de- 
 ciding the question of life or death. — (Bruns, Fontes I. B., 7.) 
 
 The whole procedure narrated in the Third Table is in the 
 way of limitation of cruelty and caprice. Delays are to be 
 given — thirty days. Fetters are limited to fifteen pounds ; ^ 
 the prisoner-debtor might live at his own cost ; but if he could 
 not, the creditor was to allow him a pound of spelt a day — 
 more if he liked. The debtor was to be brought out on 
 market days in the comitia before the praetor, and the amount 
 of his indebtedness proclaimed ; and then only could he be 
 sold as a slave. 
 
 Compare the old English law : — 
 
 1 See ia«)s o/iiTamM, Bahler's trans. in the World, Edinburgh, 1903, p. 
 viii. 49, note. 43. 
 
 - Johns, The Oldest Code of Laws * But see Muirhead's Boirmn Law 
 
 (2nd ed.), p. 191. 
 
WITNESSES AS JUDGES 215 
 
 " Let no man take any distress, either in the shire or out of the 
 shire, before he has thrice demanded his right in the hundred. If at 
 the third time he have no justice, then let him go at the fourth time to 
 the shire-gemot, and let the shire appoint him a fourth term. If that 
 then fail, let him take leave, either from hence or thence, that he may 
 seize his own." — {Lams of King Onut, Thorpe, 165.) 
 
 Thus law is regulated self-help. 
 
 WilHam the Conqueror in his laws provided : — 
 
 " Interdicimus eciam ne quia occidatur vel suspendatur pro aliqua 
 culpa, sed enerventur oouli, et abscindantur pedes, vel testiculi, vel 
 manus, ita quod truncus remaneat vivus, in signum prodicionis et 
 nequicie sue : secundum enim quantitatem delicti debet pena maliflcis 
 infligi. Ista precepta non sint violata super forisfacturam nostram 
 plenam." — No. xvii. (Thorpe, 213.) 
 
 This appears now to suggest revolting cruelty. When 
 written, was it not promulgated in a spirit of humanity ? 
 Had it occurred to persons putting down crime that the 
 punishment should fit the offence ? 
 
 The whole law of taxation is a regulation of capricious 
 exactions — a balancing of the right of the individual to his 
 liberty and private property, and the right of the State to 
 exact the means of self-support and self-defence. — (Cf. Pollock 
 and Maitland, i. 70.) 
 
 One other example may be given. We have already seen 
 how the right of action may be abused, by being made a 
 means of persecution or of gratifying revenge. It is a right 
 which the courts are slow to disturb {Neale v. Gordon Lennox, 
 1902, A.C. 465), but when the action is made an end in itself, 
 it is a wrong to the defenders, and now the legislature has 
 interfered by the Vexatious Actions Acts, 1896 and 1898. 
 The vexatious litigant may, on the application of the Lord 
 Advocate, or the Attorney-General in England, be deprived 
 of his right of raising actions, unless he can prove a prima 
 facie case to the Court. 
 
 SECT. ni. — WITNESSES AS JUDGES. 
 
 Witnesses are members of society immediately interested 
 
2i6 LAW. 
 
 in a dispute. They may be interested because they are 
 spectators. They may have seen the result of the wrong. 
 The bystanders are the first witnesses, and they are naturally 
 appealed to as the first arbiters and judges. In any case 
 they discuss the matter and pass judgment on it. As in 
 Browning's great tragedy the husbands take one view, the 
 wives another ; knowing men of the world take a third, and 
 others according to their standpoint. They may be friends of 
 the claimant or the respondent, merely reinforcing the claim 
 or the answer to it by stronger assertion. 
 
 In early criminal procedure, which was merely summary 
 execution, the witness was essential. But for secret crimes 
 the Eoman qucestio, mediaeval torture, and the modern French 
 procedure were resorted to for the purpose of extorting con- 
 fession and making the accused a witness in the modern 
 sense against himself. — (Stephen, Hist. i. 532, iii. 477.) 
 Under such a system innocent persons sometimes preferred 
 to suffer punishment than to undergo torture. — (Fisher, 
 Social Germany in Luther's Time, pp. 45-47.) 
 
 We may take the appeal to or the interference of a third 
 party — witness, arbiter, and judge all in one — as the first 
 physical aspect of law in a special sense. 
 
 The primitive Enghsh juries were witnesses who spoke to 
 the facts or to the character of the accused. They were 
 interested in the parties and the peace of the locality. This 
 fact still survives in the oath administered to jurymen. 
 They might also be judges and possible executioners, as in 
 the early English hue and cry^ and in the Hebrew pro- 
 cedure,^ and as there is always a tendency of interests to 
 become personal, it is only reasonable that an appeal should 
 be allowed to a higher power. The most ordinary witness 
 even in modern practice becomes a partisan and must be 
 corrected by cross-examination. The more he knows, or 
 thinks he knows, the nearer he comes to fancy himself a 
 judge. The scientific and skilled witness is an avowed 
 
 1 Pollock and Maitland, ii. 577. ^ Pp. .51 and 211. 
 
WITNESSES AS JUDGES. 2 1 7 
 
 partisan paid by his own side. He is an advocate. 
 Witnesses are at iirst accidental, and, if we may say so, 
 natural. The stage of invention is reached when persons are 
 called or prepared to witness a legal transaction. In the 
 Eoman procedure, where acts were done before five witnesses, 
 it was a judicial representation of the State to see that things 
 were done regularly, as in the ceremony of mancipation, and 
 in the procedure de inspkiendo ventre, where five matrons 
 were called in. — (D. 25, 4 ; Bruns, 199.) So also in Anglo- 
 Saxon laws as to sales of cattle.^ The four witnesses to 
 contracts required by Mohammedan law, so often mentioned 
 both in the Qur'dn and The Thousand-and-one Nights, are the 
 same ; so are the modem witnesses to deeds. 
 
 The modern judge may become a witness. There are 
 many facts relevant to the inquiry, matters of every-day 
 experience, which he knows or must discover for himself. 
 He may have a view of the subject in dispute. He judges 
 of the demeanour of witnesses and of the parties with his 
 own eyes. He is a witness who judges by hearsay corrected 
 by facts and careful scrutiny. The modern arbiter, the 
 referee, or remittee, who judges without hearing evidence, is 
 often a witness himself. He inspects before he reports his 
 judgment. 
 
 Foreign law is proved by witnesses who may be fairly 
 judicial or purely partisan, like advocates. 
 
 An advocate is a witness as to the law, which he assists 
 the judge to discover. Interruptions from the bench are his 
 cross-examination. 
 
 As witnesses come before the Courts they also claim 
 rights, and these rights are necessarily a subject of regulation. 
 The early law of evidence is thus a law of procedure. The 
 ruler may be merely telling a crowd of accusers that they 
 must speak only one at a time. But witnesses may feel that 
 they have other rights than merely to get a hearing. Their 
 
 ^ Pollock and Maitland, ii. 182 ; cf. the Code of Khammurabi, sect. 9, 
 &c. ; Johns, The Oldest Code, p. 3. 
 
2i8 LA W. 
 
 feelings may have been outraged by seeing a crime committed, 
 and they demand a right to punish — to cast the first stone. 
 To question their veracity or their judgment may be felt by 
 them to be a personal wrong. 
 
 And finally, in modem practice we have the right claimed 
 and enforced of compelling a person to give evidence. This 
 is a supplementary right of the right of action. To give 
 evidence is a •pvhlic duty. 
 
 The oath which still survives in modern procedure carries 
 us back to the very earliest conception of a witness. If the 
 person could not carry through a transaction in presence of 
 the requisite human witnesses he called God to witness, for 
 He was all-seeing and aU-knowing, and if the oath were false, 
 it was assumed that God would punish the perjury in His 
 own time and way.^ The medieeval Christian or Mohammedan 
 who dealt summarily with a felon caught in the act — as a 
 judge still deals summarily with contempt of court — had no 
 difliculty in extending and attributing to supernatural beings 
 the same powers of judgment and punishment. These knew 
 the law and also all the facts accurately, and they had abso- 
 lute power to award and execute the appropriate penalty. 
 Modern theology tends to postpone and mitigate, if not 
 abolish, the penalty, and hence the proposal made in some 
 quarters to abolish all oaths as unnecessary. It may even 
 be dangerous to rely on them as a security. 
 
 SECT. IV. — THE RULER AN EMBODIMENT OF LAW. 
 
 In the person of the king, or a judge with jurisdiction, or 
 public bodies within the State, rights, duties, and laws are 
 practically interchangeable ideas. Jxhra regia may mean the 
 Eoyal laws or the patrimonial revenue derived from taxes, 
 fines, and forfeitures. — (See Leges Hen. I., p. 118, supra). 
 
 The king is a person who claims jurisdiction over other 
 persons — his subjects ; and in making his claim he excludes 
 other neighbouring kings who might covet his place, nobles 
 
 1 P. 418, infra. 
 
THE RULER AN EMBODIMENT OF LAW. 219 
 
 in his kingdom who also might aspire to rule. When the 
 king's claim is recognised within the State it becomes 
 national law — a part of the law of the land. When recog- 
 nised outside of the State it is international law. 
 
 In the early king we find politics and law united. In 
 his person he is a definition of law in all its senses — a 
 physical embodiment of law. He naturally and unconsciously 
 assumes jurisdiction and the duty of judging. He is recog- 
 nised and appealed to by his subjects as ruler and judge. 
 The legal fame of Solomon was founded on his skill as a 
 judge, and not on his wisdom as a legislator. In the East 
 the idea still survives (p. 59, swpra). In the West it 
 survives in our use of the word Court, and in forms of legal 
 writs. 
 
 The witness, as we have just seen, may become a partisan 
 as full of prejudice as one of the parties, and may even 
 become a criminal, as we see in the institution of lynch 
 law. Hence an arbiter becomes necessary to adjudicate 
 between the secondary rights of the witness and the rights of 
 society and the State. 
 
 The king in one aspect is a proprietor looking to the 
 prosperity of his domain. He does not distinguish between 
 dominion and jurisdiction. His motives may be the same as 
 those of a slave-owner who prevents his slaves from injuring 
 each other, or a stock-breeder who keeps beasts from fighting.^ 
 This natural confusion of private dominion (property) and 
 public jurisdiction is seen in many relations. Thus, in the 
 time of the Ptolemies as well as in the days of the Pharaohs, 
 Egypt was, for practical purposes, regarded " as the personal 
 property of the sovereign." ^ Was the revenue drawn by the 
 king a land tax or rent ? and after all what is the differ- 
 ence ? ^ 
 
 ' Perhaps the Eomans in their Story of the Khedivate, p. 70, &o., and 
 
 treatment of conquered races were an the opinion of Lord Kinnear in Smith 
 
 exception. Bryoe, StwUes, i. 26. v. Lerwick Harhowr Trustee!:, 17th 
 
 "^ Grenfell and Mahaffy, Revenue March 1903, 40 S.L.E., p. 509. 
 Lams of Ptolemy Philadephus, Int. ^ It is a similar question whether 
 
 xxvii. ; c/. Gen. xMi. 18, 26 ; E. Dicey, the property and endowments of the 
 
220 LA W. 
 
 As we shall see hereafter, the earliest judges were viceroys 
 or deputies of the ruler. They were rulers of an inferior 
 rank. So an ancient Hebrew story tells us how Moses 
 sympathised with a Hebrew who was beaten by an Egyptian 
 and thereupon killed him. The nature of his self-imposed 
 office is shown by the question asked by a Hebrew next day, 
 " Who made thee a prince and a judge over us ? " The 
 question implies that if Moses had held a commission the 
 whole position would have been changed. 
 
 It is no doubt true that the modern king becomes more 
 or less a private individual, in so far as his private rights are 
 concerned. Law, like religion, has becom.e a spiritual as well 
 as a physical force ; and just as the king may be officially 
 the head of the Church, but yet take part in public prayers, 
 which place him on the same level as other worshippers, so 
 the king, as official head of the State, may be incapable of 
 doing wrong, while in all his private affairs he himself 
 loyally acknowledges the supremacy of law.^ 
 
 SECT. v. — IINWKITTEN LAW. 
 
 Witnesses, judges, and rulers are the physical beginnings 
 of law. The compilation of codes and the distinction of 
 written and unwritten law imply the invention of letters and 
 a great advance of civilisation. But law must have existed, 
 like poetry — and probably iu a versified form — prior to the 
 invention of letters. It must then have been the subject of 
 oral tradition with all the value and all the danger of legal 
 maxims. These are good servants, easily learned and re- 
 membered, but bad masters if they are interpreted strictly 
 and as rigid law. Law, then, was spoken or unspoken. The 
 inspired judges who inquired of their gods would prove their 
 inspiration by their knowledge of traditions ; they trans- 
 established churches are public or ^ In early English law this was 
 private. The question was an acute so in a somewhat different sense. — 
 one in ancient Egypt, as is shown by Pollock and Maitland, i. 496. 
 the authorities quoted in the last 
 note. 
 
UN WRITTEN LAW. 221 
 
 mitted the tricks of their trade to their successors. A 
 decision would be remembered by the people and the judges. 
 That was law — the true unit of legal analysis — the single 
 judgment or doom — a law corresponding to a right and a 
 duty. It implied all that is in law, just as the humblest 
 weed on the garden walk and the smallest insect in the 
 summer breeze imply all the mystery of life. So old 
 collections of laws — the Judgments of Khammurabi, the 
 Dooms of Cnut, the Gonsolat del Mar, the Jugemens D'OUron 
 — are collections of decisions transformed into precedents. 
 
 Before such decisions as these were officially col- 
 lected into codes, they were used and relied on by private 
 individuals, as we see from the petition of Dionysia among 
 the Oxyrhyncus Papyri (ii. 168). 
 
 This is partly the value of public corporal punishment. 
 The pillory, the jougs at the church door, the gallows — all 
 bring home to the spectator the knowledge that a doom has 
 been pronounced and executed. This is law. It is a later 
 idea to apply the name of law to the rules like those of the 
 Conqueror (p. 215, supra), which regulated the powers of 
 executing and maiming criminals. 
 
 When our libraries were wandering minstrels our law 
 reports were the memories of old men.^ As boys they had 
 perhaps been whipped at the riding of the marches.^ 
 
 The boundary stone was the earliest evidence of title.^ 
 " Cursed be he who removeth his neighbour's landmark " ! 
 We have seen how the Babylonian conveyancers amplified 
 their denunciations. Plato says boundaries are sacred to 
 Zeus. Ato? op'iov nev Trpwroi vo/j,oi bSe elpriaQw, k.t.X. — 
 (Laws, viii. 842e; Jowett, v. 411.) The Eoman poets have 
 also legal associations, as when Vergil speaks of a stone — 
 
 " Limes agro positus, litem ut disoerneret arvis." 
 
 {^neid, xii. 898.) 
 
 ' See Sigel'a Slavonic Law, 52, 94, ^ Stair, ii. 3, 73 : Erak. Inst. ii. 
 
 108, 138, &o. 6, 2, and the authorities collected in 
 
 , ^ Stair, iv. 43, 7 ; Wallace, Russia, Grieraon, The Silent Trade, pp. 11 
 
 chap, xxiii. ad fin. and foil., 28. 
 
222 LA W. 
 
 And Ovid in the familiar passage {Fasti, ii. 659) where 
 he tells us that the god Terminus refused to yield place to 
 Jove says : — 
 
 " Tu populos, urbesque, et regna ingentia finis : 
 Omnis erit sine te, litigiosus ager." 
 
 The statue of the god Terminus " was merely a stone or 
 post stuck in the ground to distinguish between properties." 
 When ornament was sought, the carved figure of the god was 
 naturally suggested. He personified and represented law.^ 
 
 " The boundary stone at its first setting up was consecrated with 
 peculiar ceremonies. A trench being dug, a victim was sacrificed ; the 
 blood was poured into the trench, while the ministrants were veiled ; 
 . . the body of the victim, along with corn, fruit, incense, honey, and 
 wine, was cast into the trench, and the whole consumed by blazing 
 pine-brands ; the boundary stone was set upon the bed of ashes . . . 
 On the festival [of Terminalia] the owners of adjacent property crowned 
 the statue with garlands and raised a rude altar on which they oflfered 
 up some corn, honeycombs, and wine, and sacrificed a lamb or a sucking 
 pig. They concluded with singing the praises of the god." — (Smith, 
 Diet. Antiq. s.v.) 
 
 The invention of letters has important efiects. It makes 
 tradition precise — makes solid what before was fluid. Law, 
 then, almost changes its nature. Before it was a rude and 
 physical infliction ; now it is the written doom — decree — 
 particular or general — still physical and inevitable. 
 
 Writing can be used either far the future or the past — 
 either to issue a general decree for time to come or a par- 
 ticular one for the present, or to record the dooms of the 
 past as precedents. 
 
 The Eoman edicts, founded on experience of the past, 
 dealt with the future. Our law reports deal only with the 
 past and are framed with a view to future use, as the 
 share list of the Stock Exchange gives you yesterday's prices, 
 so that you may fix those of to-day. The small variations 
 and the short steps required from day to day may be taken 
 
 ' Of. Lord Avebury's views as to daries, Origin of Civilisation, 6th ed. 
 Hermes and his relation to boun- p. 318 ; pp. 43, 153, supra. 
 
UNWRITTEN LAW. 223 
 
 by ordinary legal practitioners. Great changes and great 
 chasms must be bridged by legislation. After the bridge is 
 made by legislation the ordinary routine of the legal prac- 
 titioner and administrator again commences to apply the law 
 to ordinary life. Progress is a multitude of steps. Again 
 the law is seen not so much in the general act of legislation 
 as in a multitude of decrees or legal decisions, judicial or 
 extrajudicial. The hasty, stupid, or it may be dishonest 
 Act of Parliament has to be interpreted and applied in 
 accordance with justice. 
 
 In modern practice we may notice an interesting combina- 
 tion of both of those modes of proceeding, that is to say, 
 by actual general legislative decree, and by collecting and 
 publishing cases as precedents. All railway companies 
 issue bye-laws, which are approved by Government and 
 have the force of law, dealing with police offences or 
 attempts to defraud the companies. Although these laws are 
 duly pubHshed in various forms and exhibited openly, they 
 seem to be unknown to many members of the public. Even 
 public prosecutions, and reports of these in the newspapers, 
 do not appear to be sufficient. The railway companies there- 
 fore make out lists of the names of the persons prosecuted, 
 the particular offences and the punishments inflicted, and 
 exhibit these prominently in all their stations. This pillory 
 is effectual. The concrete cases are more easily understood, 
 and hundreds read these bills who would not read, and read- 
 ing could not comprehend, the laws. It adds considerably 
 to the punishment, as we see from BiMhan v. The North 
 British Railway, 1894, 21 E. 379, and hence some French 
 railways omit the names. To some persons these reports of 
 " cases " lay down the law for the first time — they are the law ; 
 whereas the upright citizen would find the law of the land 
 without stringent bye-laws, or even the moral law and his 
 own conscience behind all, an amply sufficient guide, while 
 the circumstances would themselves often suggest the proper 
 course of conduct to adopt — to him a natural law. 
 
224 ZAIV. 
 
 SECT. TI. — CODES. 
 
 When the necessary di\Tsion of labour or the recognised 
 skill of one man marks off the judge from the ruler, we may 
 say we have the first stage of the professional lawyer. He 
 also, like the private individual, claims rights which come 
 into conflict with rights of individuals and society. These 
 collisions require regulation. We then come to the era of 
 Codes of Law. We require codes for two purposes — (1) to 
 instruct the judges, or (2) to restrain theii- caprice. 
 
 The Jewish code in Exodus (xxi. 1) is a text-book forjudges. 
 " These are the judgments which thou shalt set before them." ^ 
 Nowhere is this better illustrated than in the laws of Manu. 
 The first six chapters deal with supernatural matters, and with 
 the Brahmans who are members of the spiritual society, and 
 their rights, privileges, and duties. Chapter VII. b^ins — " I 
 will declare the duties of kings, (and) show how a king should 
 conduct himself, how he was created, and how (he can obtain) 
 highest success." The king belongs to a lower caste than 
 the Brahmans, but his duties invest him with great power, 
 and this chapter gives him many precepts and hints on 
 Oriental politics. Among his duties is that of dispensing 
 justice, and so Chapter VIII. begins : — 
 
 " A king desirous of investigating law cases must enter liis court 
 of justice preserving a dignified demeanour, together with Brahmanas 
 and with experienced councillors. There, either seated or standing, 
 raising his right arm, without ostentation in his dress and ornaments, let 
 him examine the business of suitors, daily (deciding) one after another 
 (all cases) which fall under the eighteen titles (of the law), according to 
 principles drawn from local usages and from the Institutes of the 
 sacred law." 
 
 Here follows a short outline of law, hints as to witnesses, 
 and rules as to debts, deposit and pledge, sale, partnership, 
 and other legal topics. This is an incidental digression to 
 enable the king to do justice to his subjects. The following 
 chapter deals with husband and wife and family law, which 
 is outside of the ordinary royal administration of justice. 
 • C/'. The Code of Khammm-abi ; Johns, Tlu Oldest Code, pp. vi. and 57. 
 
CODES. 22 5 
 
 The code concludes with lists of sins and punishments, so 
 that it was ultimately supernatural sanctions which operated 
 on the king and rulers to compel them to do justice to their 
 subjects in respect to ordinary material rights; and on husbands 
 and patresfamiliarum, to compel them to observe the ethical 
 code, which was law within their little circle of jurisdiction. 
 
 Professor Sigel gives many examples of this use of codes, 
 as in the Bulgarian " Instruction for Judges " {Slavonic Law, 
 pp. 18, 52, 139, &c.). 
 
 This aspect of law is seen so recently as in the Sale of 
 Goods Act, 1893, which gives rules for ascertaining intention 
 as to whether the property in goods sold has passed (section 
 18). So the Partnership Act, 1890, gives " rules for deter- 
 mining existence of partnership " (section 2). 
 
 Much of the discussion in Eoman law (e.g., Book II. of 
 the Institutes as to property) was for the information of 
 judges called upon to decide such questions, just as lawyers 
 or inspectors of poor may discuss cases in which the paupers 
 themselves have little direct interest. 
 
 Professor Dicey {Conflict of Laws, p. 4) defines private 
 international law as a set of rules to guide judges in the 
 choice of law. But all rules were originally for judges, 
 while no rules are at the present day intended for their ex- 
 clusive use, or even for that of practitioners. 
 
 A judge is only a man, and more especially in primitive 
 society, and where laymen act in this capacity, he is not very 
 different from the other members of the community. His of&ce 
 is a privilege, a right, a jurisdiction, and he may be tempted to 
 twist his decisions to suit himself, or his friends, or his order. 
 Codes restrain this tendency. They are not legislation in the 
 modern sense, but in general compilations of well established 
 customs. The code is a law to regulate the conduct of the 
 judge in the administration of justice. The demand for a 
 " general " rule, and the definition of law as " a general 
 command " are due to the notion of justice, which excludes 
 the arbitrary caprice of the judge. 
 
226 LA W. 
 
 The Eoman law gave an action against a judge who made 
 a cause his own. It created a liability g'Mosi ex delicto. But 
 in primitive times the evil may have been a real one and the 
 remedy more than doubtful. In the first century B.C. it was 
 found necessary to restrain the Praetor from arbitrarily 
 altering his edict. — (Of. Johns, The Oldest Code, sect. 5.) 
 
 These primitive codes gave or regulated rights of action, 
 and they also set up definite rights in place of the vague 
 desire of revenge. In a recent Government report as to affairs 
 in Egypt a story is told of a native who quarrelled with a 
 neighbour about a small heap of manure, and ended by 
 murdering him. When asked why he did not go to the law 
 courts with such a trifling matter, his answer was — " I wanted 
 revenge ; the courts would not give me this." 
 
 Thus the Anglo-Saxon codes gave definite rights to the 
 king and to the person injured, and so attempted to regulate 
 and restrain the vague feeling of revenge. It operated 
 variously ; it gave a pecuniary recompense to the person 
 wronged ; it punished the criminal ; and it threatened 
 punishment to the breaker of the peace and the law. 
 
 Eeference may here be made in passing to an interesting 
 volume published by Mr. Ernest Alabaster, of the Chinese 
 Customs Service, on Chinese Criminal Law (London, 1899). 
 We see in the Chinese codes the characteristics of other 
 ancient codes. The earliest were composed for the judges. 
 The first regular code " appears to have been divided into six 
 portions ; the first three parts relating to practice, the fourth 
 to the general administration, and the last two consisting of 
 an exposition of offences " (Int. xl.). The codes recognise 
 fundamental laws, independent of the head of the State. 
 They also allow self-government within the family, as in the 
 laws of Manu, and leave local guilds to decide matters of 
 commercial law. A remark of the Emperor Ch'ien Lung 
 is quoted : — " The object of law is to avoid the necessity for 
 private vengeance, and law once satisfied, it would never do 
 to allow the individual to take further action " (p. 6). One 
 
CODES. 227 
 
 of the peculiarities of Chinese law is excessive definition and 
 drawing of distinctions, as, e.g., in murder; another is the 
 prolixity of inquiries through appeals. But however grotesque 
 the details may sometimes appear, the rules are law as much 
 as the statutes of the third year of His Majesty King 
 Edward. 
 
 Sir Henry Maine (Ancient Law, chap, i.) has drawn a dis- 
 tinction between the Eoman and the Indian codes that the 
 latter were framed at an earlier epoch in the history of the 
 people to whom they applied than the former, and were 
 therefore instrumental in strangling the legal progress of the 
 people ; whereas the Eoman law progressed in spite of, or 
 rather because of, their early code. Another distinction may 
 be suggested. A code is a machine to define and modify 
 rights. Its result depends on the use to which it is applied. 
 The Indian codes were framed by priests to restrain and 
 define the rights of the people ; the Eoman code to restrict 
 and define the powers of judges and the powerful classes. 
 The Indian codes were framed and used by priestly castes to 
 enslave the people, and the people acquiesced. The Eoman 
 code was framed and enforced by a people demanding 
 freedom, and the genius of the people went on expanding 
 and improving the law, and altering the machinery to suit 
 their progressive ideas. 
 
 The rigidity of rules which in courts first applied to 
 procedure and writs, — where a word of variation or misspell- 
 ing, or a stammer on the part of a defendant, was sufficient 
 to settle the action, and fatal to the success of the party ,^ — has 
 in later times been applied to the substantive rules of law 
 and rules of evidence, except where legislation interfered. 
 It must often have been felt, before it was said by Lord 
 Chancellor Westbury, that " the rules [of construction] which 
 govern the transmission of property are the creatures of 
 positive law, and when once established and recognised, 
 their justice or injustice in the abstract is of less importance 
 ' Pollock and Maitland, ii. 602, 
 
238 LAW. 
 
 to the community than the fact that the rules themselves 
 shall be constant and invariable." Again, " I am fully 
 sensible of the absurdity of the legal reasoning on which this 
 proposition is founded. . . . The only answer is that the law 
 is so settled." ^ A flexible rule invites persons to disregard 
 it wherever their interests clash. If the rule were to vary 
 with the judge or according to his whim, there would be no 
 guarantee for justice. " Formalism is the twin-born sister of 
 liberty." « 
 
 We must beware of imagining that all written law is 
 alike. The Twelve Tables, the Praetorian Edict, and the 
 Imperial Constitutions are very different in style and intent. 
 Gibbon ridicules the diffuseness and the florid style of Jus- 
 tinian's Constitution at the commencement of the Digest 
 with its quotation from Homer, but Justinian was not legis- 
 lating in our sense of the Word. He was an emperor solving 
 legal problems and writing an imperial treatise, as Ulpian 
 and Papinian did, as a predecessor played the fiddle, and as a 
 modern representative writes poems, makes speeches, and 
 paints pictures. The man who practises any of these arts 
 must follow the laws of the art like the humblest subject. 
 There is no royal road to distinction. Justinian posed in the 
 character of a scientific, philosophic lawyer, just as he posed 
 in the character of a successful warrior. He did not wxike 
 laws, he expounded law; he had a taste and a sense of 
 justice which led him to appreciate elegantia. A neat 
 solution of a knotty problem in law appealed to him in the 
 same way that a neat solution of a geometrical problem does 
 to a mathematician. He was the first lawyer, the first 
 jurisconsult of his age, as he was the great conqueror and 
 general. Quifacitper alium facit per se. The triumphs of 
 Belisarius, and Tribonian, his servants, were his very own. 
 He had at least the merit of choosing good servants.^ 
 
 1 Ralston v. Hamilton, 1862, ^ Von Ihering, Geist (5th ed.), li. 
 
 Paterson, H.L.0. 1137. The officially p. 471, quoted by Pollock and Mait- 
 
 revised report is slightly different, land, ii, p. 561 ; Gains, iv. 11. 
 but the words originaUy spoken seem ^ Cf, Bryoe's Studies in History 
 
 more forcible. and Jurisprudenxe, ii. 318. 
 
RULES OF PROCEDURE AND EVIDENCE. 229 
 
 So at the present day the wisdom of a legislator is not a 
 powerful caprice, but a higher kind of judicial skill and 
 instinct which can decide many cases by anticipation in a 
 general rule. The Praetorian Edict was successful legislation, 
 for it was the gradual result of the judicial experience of 
 generations. Kiags and rulers have abandoned the attempt 
 to legislate outside of experience. It is the modern well- 
 meaning but ignorant middle-class philanthropist who now 
 attempts to make men sober and virtuous by Act of Parlia- 
 ment. 
 
 SECTION VII. — EULES OF PEOCEDUEB AND EVIDENCE. 
 
 Law, we have thus seen, becomes a definite set of rules 
 which law courts enforce in the first instance mainly to 
 regulate their own procedure and the rights of parties in 
 conducting inquiries. We have professional lawyers on 
 the bench — professional, because their right to that position 
 is exclusive. 
 
 With the advent of judges there commences a system of 
 simplification and creation of rigid rules known to the judges 
 themselves. It is to facilitate their work that they deal strictly 
 with litigants. They examine titles because this is the most 
 simple and obvious element of a right. It is formalism 
 outside of court procedure, and dealing with what appears to 
 be the substance of the dispute. They shut their eyes 
 to everything else, for cases must be decided somehow, or 
 litigation would be endless. They recognise a few contracts, 
 real or verbal; afterwards they find that literal contracts 
 are also easily proved and then they stop. All the rest are 
 imperfect, — not obligations at all. They resolve questions 
 of right into questions of evidence, questions about facts and 
 intentions into questions of words and their interpretation. 
 It may be suggested that the English doctrine of considera- 
 tion is the survival of an age when judges were rigidly strict 
 as to proof, or hardly distinguished procrf' from procedure. 
 
23° LAW. 
 
 Dickson in the first paragraph of his treatise on Evidence 
 oombines the various purposes of rules when he says — 
 
 " The main object of such rules [is] to exclude valueless and decep- 
 tive proofs, to secure regularity in the investigations, and to confine 
 within reasonable limits the duration and expense of judicial pro- 
 ceedings." 
 
 We have seen that witnesses are the first representatives 
 of law, for they represent society, as judges and rulers at a 
 later stage represent the organised state and law in a 
 technical sense. In the modern law witnesses survive in all 
 the different forms which they have assumed historically. In 
 early law the witnesses were accusers and executioners, or, on 
 the contrary, persons who by their oaths could exculpate the 
 accused. But when they are treated as merely prejudiced 
 parties who are to speak to facts, of which the court will 
 judge, a new art on the part of judges and other legal prac- 
 titioners is called iato existence — the art of cross-examina- 
 tion.^ The witness is a human document, difficult to read, 
 but subject to interpretation. The laws of evidence are 
 part of this art. 
 
 The modern law of evidence is a system of rules giving in 
 a general form the results of experience as to human nature. 
 In a criminal case a loving husband will lie to save his wife, 
 and we formerly refused to put him into the witness-box. In 
 other cases the temptation is not so strong, and we trust to 
 general honesty, skill in cross-examination, and other evi- 
 dence. The whole list of presumptions on which courts 
 proceed are maxims of wisdom, handed down by ex- 
 perience— 
 
 " Nemo presumitur donare." 
 
 " Chirographum apud debitorem presumitur solutum." 
 
 " Pater est quern nuptiae demonstrant." 
 
 Each of these is a statement of some fundamental fact of 
 
 human nature. The recent Criminal Evidence Act was both 
 
 supported and opposed on the ground of human weakness 
 
 1 See Stephen's History, i. 379,432, as to the history of cross-examination. 
 
RULES OF PROCEDURE AND EVIDENCE. 231 
 
 and frailty. The success or failure of the Act depends on 
 how it is administered. The puhlic reserve to themselves 
 the right, of giving a verdict which must confirm that of their 
 representatives, the jury. 
 
 The la.w of evidence is in its conception a body of rules of 
 common sense, a sort of law of nature. Being "common " sense, 
 it is felt that judges cannot safely be allowed to depart from its 
 injunction^. The statements of fact are turned into impera- 
 tive comniands, and the judge is then hound to apply those 
 rules. I^ess injustice is done by making such rules than by 
 leaving ]Dhe judges free. Such rules as the exclusion of hear- 
 say evidence, and the refusal to receive copies of document? 
 while tlie originals are extant, both save time and prevent 
 injustice. To sift such evidence would occupy an amount of 
 time out of proportion to its value, and would encourage 
 slovenly methods of prosecution and defence. Juries and 
 judges are not experts in search of truth, but practical men 
 desirous of acting in a matter of serious import to all con- 
 cerned. The law of evidence is a body of safe working rules, 
 the observance of which is a duty and a law for the protec- 
 tion of material rights. As in all material machinery and 
 engineering works a large margin of strength is demanded in 
 orfler to ensure safety, so the rules of evidence are designed 
 to minimise the possibility of mistakes in ascertaining facts. 
 Moreover, custom and the feeling of right and duty operate 
 with the parties litigating. The litigant has a right to 
 prove certain facts in certain ways, and has an absolute 
 right to exclude certain evidence — to prevent his adversary 
 proving his case in an irregular way. These ideas were in 
 recent times rigidly applied, for evidence and procedure were 
 not distinguished, until the law of evidence became a 
 scandalous injustice. For the denouncing of these abuses 
 and the pointing out of the way of reform the name 
 of Jeremy Bentham will ever be held in affectionate remem- 
 brance by his fellow-countrymen. The long series of 
 Evidence Acts, ending with the Criminal Evidence Act of 
 
232 LA W. \ 
 
 1898, appear to make evidence more than ever strifct lavp. 
 This is only in form. In substance they restore the lav? of 
 nature and common sense. The parties have a right to give 
 evidence, the judge is bound to hear the evidencte of the 
 accused, if he tender it. He is not bound to believe it. The 
 absolute exclusion was only rational if the evidence "was to be 
 implicitly accepted, or if it vyas to be regarded as absolutely 
 worthless, and the hearing of it merely a waste of judicial 
 time. 
 
 The invention of letters of course alters the ideq, of evi- 
 dence. We may see in the sacredness of the Eomaii literal 
 contract,^ the survival of an age when all writ was holly. But 
 when the sciences of grammar and logic are inventecl, these 
 are applied to written documents, and the law of evidence 
 now treats the written as it treats the spoken testimonjr. It 
 is weighed and tested, and in fact cross-examined, to aiscer- 
 tain what it really does mean. From the ordinary legal text- 
 books it will be seen how difficult it has again beconae to 
 separate the substantive law from the law of evidence. Tjhese 
 actually coincide when writing is made essential to constitute 
 a contract, as distinguished from merely proving it, as in Vhe 
 case of land rights, bills, and cautionry (suretyship). \ 
 
 Evidence being now a matter of right and duty, aad 
 being subject to law,^ it may be noted further that there lis 
 an important analogy between the decision of a jury or L 
 judge on a disputed question of fact, and the decision of ij 
 judge or an arbiter on a question of law. The finding iJi 
 fact, or the verdict of the jury, is an assertion which is con- 
 sistent with those of all the witnesses, or of some of them, 
 but in the latter case the evidence is harmonised by means 
 of other general assertions as to human nature and the 
 ordinary course of events, and, if necessary, by categorical \ 
 assertions of the judge or jury that the witnesses are mis- 
 taken, prejudiced, or deliberately lying. Thus many trials 
 
 ^ Muirhead, Bmnan Law, pp. 419, ^ Of. p. 173, m,pra. 
 
 430. 
 
MEDICAL ''JURISPRUDENCE^' ETC. 233 
 
 are resolved into the solution of a dispute as to facts. There 
 may be no dispute as to the law, but as they are decided by 
 the same tribunal, popular philosophy draws no distinction 
 between the processes. The distinction of law and fact is a 
 technical one for practical purposes, because what the lawyer 
 calls laws are bodies of customs and facts to be proved in a 
 particular way by reference to statutes and written and other 
 authorities. In a question of fact the court inquires as to 
 matters of the past ; in a question of law it seeks to find a 
 principle or rule which will in future action harmonise both 
 with past experience and with the future so far as it can be 
 anticipated, or altered, if desired, in accordance with some 
 ideal. Titles are both matters of past fact and the grounds 
 of future action in the form of rights or of duties. 
 
 SECT. Vm. — MEDICAL " JUEISPKUDBNCE," ETC. 
 
 Medical "jurisprudence" is referred to here, for it illus- 
 trates the earlier development of evidence, and its relation to 
 substantive law. In its very name it is an example of the 
 tendency of natural obvious rules of thumb — common sense 
 — to become a technical art. A medical man who applies his 
 mind to medical evidence should be able to deduce the 
 correct inferences from the facts. If a child be killed or die 
 before birth, its lungs will not be inflated. If a left-handed 
 man cut his throat, he will most likely do it differently from 
 a right-handed man. The very conception of this so-called 
 science is a ready set of rules which enable judges, legal prac- 
 titioners, and medico-legal witnesses to judge of facts. The 
 people who first called it " jurisprudence " had an idea that 
 the rules were analogous to the common-sense maxims 
 which laid down presumptions from psychology and morals, 
 to the effect that men do not generally make donations with- 
 out reason, that men do not give up documents of debt to the 
 debtor without receiving payment, and that a man will not 
 marry a woman about to give birth to a child unless he is its 
 father. 
 
234 LA W. 
 
 In various codes, from the Twelve Tables downwards, 
 there have been inserted statements as to the period of 
 human gestation. These are merely a general finding of a 
 scientific fact, and may be erroneous if they proceed on 
 erroneous evidence. But if the fact has been established 
 once it saves trouble and expense to record the result and 
 hold it as fixed. The legislative finding is binding jurally 
 on judges. The legislature may have blundered, but so 
 would every judge, for they all rely on imperfect scientific 
 evidence. It might be thought that the French and the 
 German codes would in many cases work great injustice by 
 the enactment of fixed rules on such matters, but these can 
 only apply in exceptional cases, and the common sense of 
 parties, and the various limitations of the application of the 
 law, mitigate their apparent severity. — (Por the Eoman laws 
 see Dickson on Evidence, 2nd ed., sect. 314 : Savigny's Jural 
 Relations {System, Book ii.), Eattigan's translation, Appendis 
 iii., p. 284 : of. French Civil Code, Art. 312, &c. ; German 
 Civil Code, Art. 1591-1600, and notes in the French transla- 
 tion of M. Eaoul de la Grasserie, p. 341 : Glaister, Medioal 
 Jurisprudence, &c., p. 275.) 
 
 The Eoman and the French presumptions as to survivor- 
 ship (Dickson, sect. 310) are bodies of similar rules, enacted 
 for the purpose of obviating difference of opinion on the 
 bench. If a judicial determination of such problems is 
 necessary it is given once for all, after mature deliberation, 
 by legislation. Such rules save judicial time, and secure 
 uniformity of decision, which is at all events one aspect of 
 justice. 
 
 Our modern mode of procedure is to develop the practical 
 medical sciences, and with the help of witnesses skilled in 
 these sciences in all their branches to endeavour to ascer- 
 tain the facts of a case. The treatment of medical witnesses 
 by lawyers is sometimes thought unfair. Perhaps medical 
 witnesses themselves, instead of confining themselves to facts, 
 draw inferences and state these as the facts. All witnesses 
 
LEGAL FICTIONS. 235 
 
 necessarily do this, and are so far judges, but medical 
 witnesses might well be assessors of the court, because 
 the judicial aspect of their interference is more conspicuous. 
 And when we see an eminent physician rudely cross-examined 
 in the witness-box, we must remember that if a judge were 
 removed from the bench, placed in plain clothes in the 
 witness-box, and there requested to defend his legal opinions, 
 he might make even a worse appearance. — [Of. Stephen, 
 History, i. 574.) 
 
 Again, a skilled mariner will give similar help in de- 
 termining questions of responsibility for collision or for the 
 stranding of a ship. Thus we might have nautical, agricul- 
 tural, or architectural " jurisprudence " on the same analogy. 
 
 The adoption of the name " Forensic Medicine " ia place 
 of " Medical Jurisprudence " by the Scottish University Com- 
 missioners is merely a legislative recognition of the change in 
 the mode of regarding the subject which had recommended 
 itself to scientists and lawyers aUke. — (Holland, Jur. 4.). 
 
 SECT. IX. — LEGAL FICTIONS. 
 
 The period of early legal forms, and perhaps the force of 
 written law, give rise to legal fictions. This is an early, 
 almost a childish form of invention, though fictions must 
 have been unconscious before they were discovered and were 
 regularly employed. The acceptance of a charmed boundary 
 stone, as equivalent to a wall, may be regarded as an 
 example of this tendency.^ 
 
 If the party to a prehistoric litigation was met with a 
 technical objection which prejudiced his right, his reply 
 might well be — " Oh, I am within the rule in reality if you 
 interpret it properly." And when all parties and the court 
 agreed to wink at the evasion, the institution was established 
 in full working order. But it applied only to individual classes 
 of cases by way of exception. It was a rude form of invention, 
 
 1 Pp. 43 and 221, S'wpra. 
 
236 LAW. 
 
 and a clumsy way of repairing judicial machinery. It operated 
 in two ways. It satisfied the party making a claim, and the 
 court asserting its jurisdiction, partly from its originality and 
 its cleverness, and because it attained the end which they 
 wished to reach. And in an illogical age, or an age where 
 formal reasoning was supreme, even the other party would 
 acquiesce because he could not see a clear answer. The 
 unsuccessful case, too, might be an absurd claim of a 
 description which fell within the letter of a law, but not 
 within its spirit, a claim of which the party himself, as a 
 member of the community, must have disapproved. The 
 traditional trials which have become famous are chiefly 
 remarkable for their childish simplicity. The specimen of 
 the judicial penetration of Solomon, which made him the 
 sage of antiquity, is merely the skill of a man of the world.^ 
 The Daniel who distinguished himself in the case of Susannah 
 by cross-examining each of two scoundrels as to details in the 
 other's absence, handed down his name, as in a later age the 
 ability to sign one's name might establish a reputation for 
 scholarship. The plea of Portia in the Merchant of Venice is 
 a stupid quibble, matched only by the stupidity of the judges 
 in feeling themselves placed in a dilemma. But society felt 
 the essential injustice of the claim, and the crowd (including 
 the court) eagerly seized any means of evasion. In such a 
 soil legal fictions might grow rank and well fulfil their 
 purpose. 
 
 SECT. X. — SUBSTANTIVE LEGISLATION. 
 
 Although early codes, as we have seen, dealt with pro- 
 cedure, even the first legislation affected substantive rights. 
 It restrained natural rights or powers and put artificial ones 
 in their place. It created exclusive rights of jurisdiction in 
 courts ; it created or enforced obhgations which might have 
 been evaded. 
 
 1 The case aiven in the Qur'&n able amount of damage to be awarded 
 (Palmer II. 52) refers to the equit- for sheep straying in a iield. 
 
SUBSTANTIVE LEGISLATION. 237 
 
 Forms of procedure dealing with rights only indirectly 
 must have regulated them, very much in the way that laws, 
 in the form of commands addressed to judges as to th&ir con- 
 duct on the bench, regulated the rights of the disputants who 
 came before them with cases for decision. A man would 
 hesitate about making an unjust claim if he knew that he 
 would be called upon to handle red-hot iron or boiling lead. 
 Such an " ordeal " is the German " Urtheil " — judgment. The 
 canonical ordeal by oath might be efficacious so long as men 
 believed in supernatural sanctions, or so long as excommuni- 
 cation was a real and painful penalty. When men became 
 too humane to apply the legal ordeals, and too sceptical to 
 believe in the canonical, the modern law of evidence, separated 
 and distinguished from formal procedure, became a necessity. 
 
 The ordeals, natural and supernatural, operated in ancient 
 times as a distaste for the expense and anxiety of litigation 
 does in many modern cases. The threat of action — nay, the 
 very possibility of one — keeps some people within the law, 
 makes them hesitate to infringe their neighbour's rights and 
 ready to compromise perhaps unjust claims. 
 
 "We are perhaps prone to exaggerate the prevalence of 
 custom in primitive communities. No doubt it is in some 
 respects excessively rigid,^ but in other respects it may be 
 surprisingly unstable. In language, for example, this is the 
 case, where missionaries, after learning a savage dialect, 
 have found it so altered after a few years as to be quite 
 unintelligible. So with law. The forms were no doubt 
 rigid, but the substantive law would be less so. It might 
 indeed be the rough equity of the judge. Like religious 
 prophets, he might always get a new inspiration to carry him 
 over difficult points. As we have seen, codes were an 
 invention which might restrain caprice in this direction. 
 
 Now, the mere attempt to express a custom in words, or 
 to write it down, changed its character. While it was still a 
 floating tradition it might more easily be adapted to varying 
 ' Grierson, The Silent Trade, 66. 
 
238 LA W. 
 
 circumstances, but a rigid formula called for interpretation, and 
 cases might even occur to which it was entirely inapplicable. 
 
 Legal fictions and equity would partially meet the new 
 difficulty; but they involved judicial discretion, which was 
 not always to be trusted. Hence legislation in the modem 
 sense of altering the law. The Austinian theory, which 
 reduced all law to legislation, had to adopt a fiction by which 
 the sovereign reaUy enacted what appeared to be law laid 
 down by a judge. So strong a hold has this theory on 
 English writers that they have called the Philosophy of Law 
 the Theory of Legislation. But legislation is only a general- 
 ised form of judicial decision, in which the parties and the 
 cases are treated abstractly, and the decree of a legislator, 
 being only the generalised decree of a judge, implies, like 
 the latter, the collision of claims, and the assertion of compet- 
 ing rights. Now both the substance and the form of legis- 
 lative enactments present difficulties to the politician and 
 the political lawyer, but the greatest difficulties of the jurist 
 are with statutes after they are enacted. Jurisprudence 
 must deal with these, and must draw from the common law 
 legal principles, which no legislature ever thinks of touching, 
 and in fact cannot touch, because they are the fundamental 
 rules of reason. 
 
 We have seen (pp, 224, 226) how early codes leave 
 substantive family law to be dealt with by the heads of 
 families, and mercantile law to be settled by merchants or 
 trade guilds. But the State now deals with these, and has 
 often attempted to legislate on subjects apparently remote 
 from government, as when Justinian laid down laws on 
 points of theology (C. de Sum. Trin.), and when the French 
 and the German governments issue decrees on points of 
 grammar and spelling. The French decree of 26th February 
 1901 gives a right to spell certain words in a certain way, 
 and material rights flow therefrom. The examiners are the 
 judges, whose conduct is regulated by the decree. 
 
LEGISLATION AS TO EXTRAJUDICIAL ACTS. 239 
 
 SECT. XI. — LEGISLATION AS TO EXTRAJUDICIAL ACTS. 
 
 By establishing courts and legislating for the relations 
 between the judges and the litigants, and between the liti- 
 gants themselves as such, law was established. But it came 
 to be felt, in course of time, that the courts and the laws had 
 affected rights and perhaps prejudiced them. Further, there 
 might sometimes be an appeal to the legislative power of the 
 State when the legislative and judicial aspects were not fully 
 distinguished. The appeal to the Crown or the House of 
 Lords may be either judicial or legislative, or executive and 
 dispensing, as you choose to classify it. 
 
 But, still further, it must have been seen that when men's 
 relations became complicated, litigation — in itself an evil — 
 might be avoided by laying down rules, fixing boundary 
 stones, preserving evidence, and finally by compiling codes 
 and publishing them. This is a further use of the invention 
 of legislation. It may be a general decision on a question 
 often recurring — a hypothetical judgment waiting to be filled 
 with actual fact. 
 
 We may adopt a medical figure and say procedure is 
 remedy. Like early medical and surgical treatment, early 
 procedure is rough, and as likely to kill as cure. It is the 
 first department of law which calls for amendment and gives 
 rise to legislation. But excellent procedure is useless if the 
 rules administered in substantive rights are rude, uncouth, 
 and unjust. These in the next place come to be amended by 
 legislation. 
 
 But you can go further back, and as medicine becomes 
 prophylactic, law can anticipate disputes and prevent them 
 {first) by solemn ceremonies before witnesses, and after 
 the invention of writing, by the careful preparation of 
 deeds (scientific conveyancing); and (secondly) by having 
 rules so distinct, so easily ascertained, that people can 
 avoid litigation — they can discover by anticipation the 
 decision of the Court for themselves, or by the trifling 
 
24© LAW. 
 
 expense of a law adviser. And finally, they may carry 
 on their affairs so skilfully and manage disputes so reason- 
 ably, that law appears to vanish, just as medicine and 
 surgery would disappear if men were absolutely healthy and 
 not subject to accidents. As the modern physician attains 
 results by dieting and by allowing nature to work her own 
 cures, so our law shows a decided tendency to allow people to 
 manage their own affairs by making contracts, and by free power 
 of testing (at least in England and Ireland). And we may 
 even follow the parallel further, by pointing out that the 
 crowds who fill the pockets of vendors of quack remedies for 
 their own physical ills, crown with honour the brows of those 
 who supply similar remedies for the ills of the body politic. 
 
 There is a tendency to abuse legislation in much the same 
 way as medicine. The reliance on the power of State legis- 
 lation and the demand for State interference is like the drug- 
 habit ; it grows by what it feeds on. Legislation is useful to 
 establish a general rule, where one rule is necessary, or 
 at least expedient. Medicine itself supplies an example. 
 Instead of enacting that a person shall practise medicine 
 or surgery at his peril, and enforcing a strict law of repara- 
 tion, legislation has now defined the qualifications of medical 
 practitioners, veterinary surgeons, dentists, and chemists. It 
 has laid down a law of drugs in the Pharmacopoeia. This is 
 correct, not because Parliament enacted it, or even because 
 the Medical Council drew it up, but because experiment has 
 demonstrated its efficacy. A chemist's apprentice will accept 
 a compound as absolutely correct if it is in his book ; a 
 scientist may criticise the book, and question if the compound 
 does its work in all or any cases. To the chemist the Phar- 
 macopoeia is law, and he must obey its implied commands. 
 As a citizen and a scientist he may adopt constitutional 
 modes of having it amended. So the qualifications of a 
 medical practitioner are merely a necessary minimum of 
 study and experience. A skilled surgeon or physician stands 
 on quite a different platform from the general practitioner, 
 
PROFESSIONAL LAWYERS. 241 
 
 who may be Kttle better than an old lady who has reared a 
 large family with success, and whose theoretical knowledge 
 is purely traditional. All that an examination board can 
 demand is a legal minimum of attainment — a sort of average 
 established by custom. To look for genius would be absurd, 
 for they might not know it when found. 
 
 In all similar cases where the State examines the quali- 
 fications of public ofl&cials, and grants certificates which 
 confer on them exclusive rights, it is indirectly protecting 
 the rights of private individuals, and it thereby recognises 
 the fact that civil reparation and criminal punishment are 
 inadequate to repair wrongs. 
 
 SECT. XII, — PROFESSIONAL LAWYEES. 
 
 The establishment of courts and of rigid forms gives 
 rise to the employment of persons skilled in procedure to 
 present a case for a pursuer or defender. At first he may be a 
 patron or protector, a mere agent or representative of the party, 
 like the member of a family or a clerk in his employment, 
 who used to have the sole liberty of appearing for a party 
 in the Scottish Small Debt Courts. — (1 Vict. c. 41, sect. 15.) 
 In course of time law, in the form of legislation, deals with 
 these persons, indirectly restricts their numbers by prescrib- 
 ing their qualifications, and regulates their conduct. — (White 
 on Solicitors; Law- Agents Act, 1873 ; Begg on Law-Agents.) 
 The great corporations like the English Inns of Court and 
 the Scottish Faculty of Advocates being autonomous, prac- 
 tically legislate for themselves. 
 
 These persons are judicial in a certain sense. They are 
 third parties ; they can take a more unbiassed view of the case 
 than a party ; they know the law, practice, and precedents of the 
 courts ; and if they do not actually advise the party to desist 
 from his claim or succeed in getting their advice accepted, 
 they present the case to the court from a general standpoint, 
 and not from the merely individual position. They try to 
 
 Q 
 
242 LA W. 
 
 reconcile the claim with the general procedure of the court, 
 and show that they may obtain a decision in the client's 
 favour without breaking either the law of the land or the law 
 of the court. 
 
 The ordinary solicitor in modern practice may exercise a 
 judicial office in advising his client ; and if the client rejects 
 his advice he is merely appealing to another court when he 
 raises a formal action. But the public and judicial side of the 
 legal profession is shown in the extreme power of compromise 
 given by custom to the advocate or barrister in this country. 
 He cannot, like the solicitor, refuse to act for a person who duly 
 fees and instructs him, and accordingly in the conduct of a 
 cause he has a very wide discretion ; if he abandons or settles 
 a case, his act is final, and he himself is not responsible to the 
 client for the exercise of his discretion.^ The reason is, that it 
 is more for the public interest that unnecessary and oppres- 
 sive litigation should be stopped than that a particular 
 individual should have his full satisfaction of compensation 
 or revenge. It is not incongruous that a class of men, who 
 may occupy the very highest executive and judicial positions, 
 should be invested with such power and such responsibility. 
 If the power be used capriciously, the legal body to which the 
 member belongs may interfere and punish him severely. 
 The power is in practice sparingly used. Any gross abuse 
 would cause an immediate demand for its legislative 
 abolition. 
 
 Law having taken a physical form in the person of 
 officials, we may distinguish form and matter in the relation 
 of solicitor and barrister — agent and advocate — and in judge 
 and clerk of court. The solicitor or the clerk of court keeps 
 the forms of process in regular order ; but every now and then 
 the forms become material — e.g., when a decree in default is 
 demanded for failure to obtemper an order of court ; and 
 again it may be suggested that the solicitor collects the con- 
 
 ' Batehelor v. Pattison and Mao- 18 T.L.R. 791, appears to limit this 
 kersy, 1876, 3 E. 914; but Neale doctrine. 
 V. Gordon-Lennox, 1902, A.C. 465, 
 
INVENTION IN LA IV. 243 
 
 Crete facts — the matter of a case — while the counsel and 
 judge supply the legal form. So a jury deals with material 
 facts and the court with law, but with a perpetual tendency 
 to encroach on each other's domain, the explanation being 
 that law and fact are ultimately indistinguishable. 
 
 In modern times law is closely identified with the legal 
 profession. Thus the Kings of England cannot competently 
 sit in their own law courts, except ceremonially.^ The 
 majority of the House of Lords are laymen, and do not sit as 
 a court of appeal.^ Hereditary jurisdictions are abolished, 
 and there is a tendency to substitute stipendiary professional 
 magistrates for local justices and bailies. When these sit, 
 they have professional clerks or assessors to advise them; 
 their judgments are generally on trivial matters, and, if 
 serious injustice is done, are subject to review. 
 
 SECT. Xm. — INVENTION IN LAW. 
 
 We speak frequently of law as machinery. This is more 
 than a metaphor. When a king, who was too lazy or 
 ignorant to judge causes, appointed a judge for that purpose, 
 he not only set up law, in a new sense, independent of him- 
 self, but he invented a labour-saving machine. The judge 
 who drew up a code did the same. He invented a machine 
 which saved him the trouble of remembering the law or 
 reasoning it out, and perhaps, best of all, saved him trouble in 
 arguing with litigants. 
 
 When law becomes technical, a prudent man will adopt 
 the form of transaction or secure in advance the evidence 
 which in case of dispute mU. satisfy the courts. Indeed, in- 
 formality may suggest to the debtor a loophole of escape from 
 his debt. Hence primitive conveyancing. The conveyancer 
 is a man who knows the law and can advise as to the proper 
 form to be adopted to achieve a certain result. To make a 
 
 1 Bla. Oomm. iii. 41 ; L.R. 10 340 ; Appellate Jurisdiction Act, 
 
 Q.B.D. 1 (opening of the New Law 1876, sect. 5. Any exceptions are 
 
 Courts). irregularities. 
 
 " May's Pari. Practice, 10th ed. 
 
244 LA TV. 
 
 will you must adopt certain forms and use certain phrases ; 
 it must be attested in a certain way. If you wish to exclude 
 certain heirs, you may do it with ecclesiastical curses, or by 
 cutting them off with a shilling, or by putting them to their 
 election. This is a rudimentary form of invention. 
 
 The great historical conveyancers werei great inventors. 
 The Aquilian stipulation is a Eoman example. So, too, 
 the Fidei-Gomimssum was an important invention; and 
 when Justinian made it the same as a legacy, he was merely 
 doing what other inventors have done, viz., carrying out a 
 small improvement which perfected the machine. 
 
 The English doctrine of " uses " is another example. 
 Sir Edward Sugden (Lord St. Leonards) in his work on 
 Powers (p. 3) says : — 
 
 " The increasing commerce of the country and consequent necessity 
 of frequent and secret transfers of property ; the desire of evading for- 
 feitures for treason ; the frauds of the clergy to increase their posses- 
 sions ; the desire so natural to all men of disposing of their property hy 
 will — aU these circumstances concurred in sharpening men's wits to dis- 
 cover a mode of evading the strictness of the common law, and rendering 
 estates transferable by the secret delivery of a deed, subject to all the 
 capricious dispositions of the owner, as well hy act inter vivos, aa by will. 
 Uses were well adapted to answer all these various purposes. They evaded 
 without overturning the common law. The estate was regularly trans- 
 ferred by a common law conveyance to some person as a trustee, and he 
 was at law the absolute owner of the property, so much so that the real 
 owner would have been deemed a trespasser had he entered without the 
 authority, express or implied, of the legal tenant. But in equity the 
 legal tenant and his heirs were by degrees considered the mere nominees 
 of the person by whom the estate was conveyed, and were deemed 
 bound to execute all his directions in regard to the estate." 
 
 " After the relation of trustee and cestui que trust, or cestui que use, 
 as he was then called, was thus established, all the refinements which 
 we now meet with in settlements of real property soon became estab- 
 lished in equity. Shifting or secondary and springing uses arose." 
 
 Then came legislation to remedy defects, and 27 Henry 
 VIII. ch. 10 (the Statute of Uses) was passed. 
 
 The English bond is an example of how lawyers will con- 
 trive to evade a law by skilful contrivance. Usury was 
 forbidden, and the judges would not award interest, but the 
 
INVENTION IN LA W. 245 
 
 law said nothing about penalties, and so a sum was lent, 
 with a stipulation that, in certain circumstances, double 
 should be paid. The stipulation of a penalty was familiar 
 in ancient Babylonian, Greek, and Eoman bonds. So also 
 Eoss explains that in the law of Scotland a bond was — 
 
 " Sometimes qualified by a separate memorandum bearing that if 
 the debtor paid a sum certain at such a time he should be discharged ; 
 if not, the whole became due as damages. This was a sharp abuse of 
 the civil idea of damages and interest, but it answered the purpose. 
 The bond thus taken came to be called double, because [it was] taken for 
 double the sum. If the condition happened to be performed there was 
 an end ; if not, it was provided that the bond should stand firm and 
 good." — {Lectures, i. 19.) 
 
 This was an abuse which was remedied in England by 
 another device, viz., courts of equity. But it is a device 
 which still is used in Scotland, for our ordinary bonds 
 stipulate for a " fifth part further of liquidate penalty in case 
 of failure," which enables the creditor to recover expenses 
 incurred besides his interest. 
 
 But invention is always in progress, and generally for the 
 evasion of some inconvenient legal rule. There have been 
 devices by Scots lawyers to give creditors a security over a 
 lease by making the debtor hold and manage the farm for 
 them while he is sole tenant. — (1 Bell's Oom. 76.) We have 
 the numerous devices to give securities over moveables with- 
 out the possession demanded by law — sale by the owner and 
 re-hiring to him to account for his possession. — (Orr's Trustee 
 V. Tullis, 1870, 8 M. 936 ; Gloag and Irvine, Bights in Secu- 
 rity, chap. vii. ; Burwanson, 8 E. 563.) 
 
 Then legislation intervenes with such statutes as the 
 Scottish Eegistration of Long Leases Act, and the English 
 BUls of Sale Acts, which instituted registration. The interests 
 of numerous creditors are the interests of " the public." 
 
 But still older devices, like distress and hypothec, were 
 at one time inventions, whose origin is lost in antiquity. 
 They were used instinctively or discovered accidentally, like 
 the simple mechanical powers. The important mercantile 
 
246 LA W. 
 
 invention of crossed cheques may be regarded as an accidental 
 discovery. 
 
 It has recently been observed that juries have uncon- 
 sciously modified the law in England, e^., by giving exemplary 
 damages penalising adultery although it is not technically 
 a crime. 
 
 Even the practitioner in his daily practice must exer- 
 cise some inventive power, though on a small scale, to 
 adapt his forms to varying circumstances. There may be a 
 complicated tangle of business created by stupidity and 
 negligence, or a complicated fraud difficult to unraveL One 
 remedy may be better than another, in order to bring a 
 fraudulent opponent to his knees. 
 
 New laws suggest new inventions for their evasion. The 
 lowering of the political franchise caused the invention of 
 " faggot " votes by those who possessed property. The desire 
 to evade responsibility for maritime losses has led to the 
 invention of " one-ship companies." The shutting of lawful 
 public-houses on Sunday in Scotland has opened large 
 numbers of social clubs for the main purpose of drinking on 
 Sundays. — (14 Jur. JRev. p. 59). 
 
 It may be supposed that if laws are merely a mechanical 
 device it will matter little by whom the invention is intro- 
 duced. But this is not so. Legislators have discovered that 
 if a people imagines that it legislates for itself the laws will 
 be more readily obeyed and more easily enforced. A man 
 will put up with a machine or an ugly work of art if he 
 made it himself. This applies to laws as well as to paintings 
 or poems. If he knows that by certain means he can get it 
 altered he will endure it in the meantime, and may even 
 come to approve of it. When a man invents a new political 
 device he must publish and advertise it. If it is adopted it 
 may succeed, but the probability is that, like most mechanical 
 devices, it will be found unworkable ; another may discover 
 it or introduce it successfully and reap all the glory and any 
 profit which may accrue. 
 
INVENTION IN LA W. 247 
 
 Invention deals with rights and duties as well as laws. 
 We have natural rights and artificial rights, natural duties 
 and artificial duties, and natural laws and artificial laws. It 
 is the invention of the artificial that leads to the discovery of 
 the natural. Before scientific engineering raised road-making 
 to an art men preferred level to hilly roads, followed dry 
 ridges in preference to marshy hollows, and climbed hills by 
 way of water-courses. Some roads instinctively taken by 
 men and animals are as natural as the channels taken by the 
 streams. Modern roads differ in degree, not in kind. They 
 do a little more in making conditions rather than in accept- 
 ing and avoiding them. So the examples given above, the 
 Bond, the Fidei-Oommissvmi, the Use, the Ground-annual, are 
 examples of artificial rights and artificial obligations. We 
 cannot draw a rigid line between the natural and the 
 artificial. They are continuous. 
 
 The recognition by the State and society in law in its 
 natural form is unorganised sympathy, lynch law, mob law, 
 and such-like. A tribunal, a judge, is artificial. So are laws 
 as to witnesses, ordeals, and trials. Then comes legislation — 
 publication of rules in anticipation. 
 
 The acceptance of written evidence, bonds, and deeds is 
 natural or artificial as you choose to look at it, but it goes 
 further, when the State holds out a promise to recognise 
 transactions if registered, and then finally treats all others as 
 null. Patents, shipping registration, bills of sale, and in Scot- 
 land and partially in England registration of conveyances of 
 land, are all examples. The mechanical formality of special 
 forms of conveyance and of registration simplifies evidence and 
 relieves the law courts of tedious investigations as to titles. 
 At first there may be some injustice in refusing to recognise 
 natural equitable transactions, but the public convenience of 
 the new system is overwhelming, even before the forms be- 
 come natural, as they ultimately do. When we find the forms 
 cumbrous we simplify or abolish them, but this may cause 
 trouble in litigation by compelling parties to have recourse 
 
248 LA W. 
 
 to the law courts to determiae theii validity. For example, 
 the appearance of type-written deeds raised doubts as to 
 their validity in the minds of some conservative practitioners. 
 We may note also the extension of judicial forms to 
 extrajudicial acts. The Eoman forms of bequeathii^ a 
 legacy, the words being judicial, afford an ancient example. 
 The process in Scotland of registering a bond or the protest 
 of a bill of exchange, and so transforming it into a decree of 
 court, may be taken as a modern example. 
 
 SECT. XIV. — ^EXTBNSION OF LEGAL FOEMS BY ANAIOGT. 
 
 When the machinery of judicial investigation and legisla- 
 tion has once been invented its application to other purposes 
 follows almost as a matter of course. We shall see this here- 
 after in the use of the term " Justice " by the Greeks. 
 
 The chairman of a meeting, the Speaker of the House of 
 Commons, and all such persons, have g'lwm-judicial functions. 
 Their conduct is not approved if it is capricious or malicious. 
 They are criticised, and in most cases may be removed by the 
 meeting if their conduct is unsatisfactory, and in general are 
 expected and always hold themselves bound to follow a vague 
 general idea of the duty of a chairman.^ This may often 
 result in doing their best and keeping fair order. It will be 
 observed that the laws dealing with the duties of a chairman 
 have developed in the same manner as ordinary laws. First 
 they are temporary and judicial ; then they become legisla- 
 tive, and are codified in the form of " standing orders," the 
 rules being partly natural (common law) and partly artificial. 
 The chairman is a person with rights involved in his duties, 
 and in at least one case he has become absolutely autocratic 
 — that is, the chairman of a meeting of the General Council 
 of a Scottish University (Ordinance No. 59, Eeport 1900). 
 In other cases, where a chairman has or is supposed to have 
 autocratic power and authority, it is due to the fact that 
 
 ' Prof. W. R. Herkless in Scottish Meview, vol. 26, p. 321. 
 
EXTENSION OF LEGAL FORMS BY ANALOGY. 249 
 
 formal order is of more importance than substantive justice. 
 In small matters such a chairman is a court of final juris- 
 diction.— (Q/: pp. 315, 338, 361, &c., m/m.) 
 
 When an issue can be stated in words it becomes easy to 
 have a g'wasi-judicial investigation. The Private Bill Pro- 
 cedure of Parliament has now got its own laws — standing 
 orders ; it has judges, counsel, soKcitors, and witnesses like a 
 court. Its substantive law is not so rigid as that of private 
 right ; it must follow a looser equity, but still it has some 
 law or right which it ought to follow, which it is expected 
 to follow, and as a rule does follow. If the members 
 passed a bill because they were bribed, or to fill their own 
 pockets with profits, they would be condemned by public 
 opinion and expelled from public life, if they were not 
 impeached in Parliament itself. But even in their ordinary 
 work there is the idea of right. A large town may fairly 
 claim to be placed on the main line of a railway. A smaller 
 town on the straight line and direct route may claim to have 
 a right to the new railway against a larger town some distance 
 off. Then the termini may have claims and rights as against 
 these towns. The committee decides these claims of right, 
 and there is a true law as between the claimants, though it 
 is not and cannot be expressed in a formal code.^ 
 
 Board of Trade enquiries into the loss of ships deal with 
 the moral characters of masters and seamen, and now there 
 is a formal appeal allowed to the higher Courts.^ A manifestly 
 unjust decision might be revised by public opinion and 
 Parliament itself. A court-martial may be put into the form 
 of the trial of a person accused of a crime when the real 
 object is a formal inquiry into the whole circumstances of a 
 naval or military disaster. Many trials in Scotland for culp- 
 able homicide (manslaughter) are public inquiries put into 
 this form, since there are no coroners' inquests in this country. 
 
 The Parnell Commission and the South African Com- 
 
 ' Of, Orozier, Intellectual Devilop- sect. 490. A scientific referee has 
 ment, iii. 333. "the same powers as a judge of the 
 
 ' See Merchant Shipping Act, 1894, court of survey. " 
 
2SO LA W. 
 
 mittee are examples of an extension of the principle into the 
 sphere of pohtics. To a law-abiding people the form of a 
 fair trial by skilled and fair-minded men is sufficient. The 
 general body cannot weigh evidence, cannot in fact hear it 
 all, but if we give the accusers and the accused a fair hearing 
 by a jury, the pubhc will be satisfied with the verdict 
 vi sit finis litium. Disputes may be entertaining and excit- 
 ing for a httle ; after a while they grow tiresome, and though 
 at first we were disposed to listen and decide the point, it was 
 chiefly for the purpose of restoring peace. If we cannot do 
 this we drive the disputants in disgust and weariness from 
 the judgment seat. Antiquarians and philosophers may 
 carry on disputes through ages, for their methods are slow, 
 and as a general rule, when the question is answered, we find 
 there was really no question to answer. 
 
 The most interesting recent development of legal forms 
 and machinery is in the domain of economics. Labour flows 
 naturally to the best market, and if individuals were free 
 wages would adjust themselves and find their level as 
 certainly as water. But labour is not a perfect fluid, and it 
 takes a long time to adjust changes, or they may be sudden 
 and calamitous. Conscious art steps in as it does in agri- 
 culture to regulate wat-er supply either by drainage or irriga- 
 tion works. In the State these take aU the forms of judicial 
 decision and legislation. In early times we have arbitrary 
 decrees of kings or oligarchies regulating prices and wages. 
 At the present day we have an imitation of Parliament or 
 Congress consisting of representatives of the conflicting 
 parties attempting to make contracts or to legislate for the 
 whole body of employers and workmen. There are two 
 Houses, Lords and Commons, Employers and Workmen, and 
 they bargain as men once bargained with the King for 
 removal of grievances in consideration of a money grant. 
 And in some cases the Trade Unions come back finally to 
 votes of the whole bodies, as the people once did in England, 
 and still do in the small Swiss Cantons. Quasi-judicial pro- 
 
EXTENSION OF LEGAL FORMS BY ANALOGY. 251 
 
 cedure for the prevention as well as for the settlement of 
 disputes is contemplated by the Conciliation Act, 1896. In 
 New Zealand and Australia, by adopting the principle of 
 compulsory arbitration, the experiment is being tried of 
 making labour disputes entirely subject to law. Not only 
 are forms of procedure laid down, but a kind of substantive 
 law is indicated. This law is intended to be a practical 
 working rule. As Mr. Eeeves observes in his State Experi- 
 ments in Australia and New Zealand (ii. 169), " the business 
 of a labour arbitrator is not to please orthodox professors of 
 economy, but to find a reasonable modus vivendi for two 
 disputants who are unable to find it for themselves." — 
 (14 Jur. Eev. 394.) This system is condemned by some 
 authorities as impracticable. — (Eeeves, op. cit. ii. 69.) There 
 are subjects physically too large for law in artificial forms. 
 
 Another example may be added.^ Under the Acts for the 
 granting of licences for the sale of intoxicating liquors, " an 
 extensive power is confided to the justices, in their capacity as 
 justices, to be exercised judicially ; and " discretion " means, 
 when it is said that something is to be done within the 
 discretion of the authorities, that that something is to be 
 done according to the rules of reason and justice, not accord- 
 ing to private opinion ; according to law, not humour. It is 
 to be not arbitrary, vague, and fanciful, but legal and regular, 
 And it must be exercised within the limit to which an 
 honest man, competent to the discharge of his office, ought to 
 confine himself " (per Lord Halsbury, L.C., in SMrp v. Wake- 
 field, 1891, AC. at p. 179). The power or capacity of the 
 justices is a jurisdiction. — {Of. p. 112, supra.) The licence 
 granted is treated by the law as a right — a property within 
 certain limits and for certain purposes (p. 102, supra). 
 Death duties, for example, are exacted for goodwill, on the 
 assumption that the licence will be renewed. In licensing 
 procedure it is treated as a vested right. But in recent 
 times the justices in many districts have attempted, like the 
 
 ^ Cf. also the Court of Claims, — WoUaston, Coronation of King Ed/viard, VII. 
 
252 LA W. 
 
 Eoman prators, to legislate by announcing beforehand what 
 policy they intend to adopt. If their ideals are legal, as 
 explained in Sha/rf v. Wakefield, no harm will ensue. But 
 the ideal is generally absolute prohibition or rigid restriction 
 of the traffic, and might in other cases be free trade. This 
 usurpation of authority and abuse of jurisdiction were con- 
 demned by the Lord Chancellor in a speech in the House of 
 Lords on^ 16th March 1903. It may be asked in what 
 capacity did his Lordship deliver this speech — as a legislator, 
 a member of the Supreme Court of Appeal, or as a member 
 of the executive ? The procedure of the licensing authorities 
 and the speech of the Lord Chancellor illustrate (1) the 
 ultimate identity of jurisdiction and legislation ; (2) that 
 legislation is not in many cases conveniently represented as a 
 command ; and (3) the gradation of ideals, to which reference 
 will be made in the following chapter. 
 
 SECT. XV. — POLICE LAWS. 
 
 The first attempts at systematic law-making were the 
 regulation of natural relations — ^^judge and litigants — debtor 
 and creditor — master and slave — parent and child — husband 
 and wife ; but as society becomes more artificial, the rules 
 regulating rights and their collisions — the machinery to re- 
 duce friction between men — assume a still more artificial 
 aspect. The first rules were so obvious and simple that 
 they may be called laws of nature ; but when men are 
 crowded into mines and factories, and live in layers — in 
 storeys one above the other — and in densely packed build- 
 ings, it becomes difficult to know exactly what to do, even 
 with the most honest intentions ; it is difficult to know 
 what to expect from one's neighbours; and it is almost 
 impossible to judge between parties in such circumstances. 
 If A. keeps his rubbish in his own house it becomes a 
 nuisance ; if he puts it on B.'s ground it is a nuisance to B. ; 
 if he throws it on the street it is a nuisance to everybody. 
 
POLICE LAWS. 253 
 
 He can neither keep it nor get rid of it. Thus we reach 
 police laws for an artificial society — the hundreds of sections 
 of our modern police statutes. And we now abandon law in 
 the sense of compelling the citizens to perform these specific 
 duties, and adopt the plan of joint action for cleansing, 
 lighting, and water supply. Formerly the corporation com- 
 pelled individuals to undertake these duties. The corpora- 
 tion now undertakes the duty and commutes the duty of the 
 citizens into one of paying rates. If the duty is neglected, 
 the citizen now complains. The change is economic and 
 social, but legislation and judicial machinery naturally adjust 
 themselves to men's changed ideas. 
 
 Legislation is necessary when the knowledge which deter- 
 mines conduct is recondite. And as early legislation created 
 judges — special persons with exclusive rights of jurisdiction, 
 so our modern legislation creates police and inspectors — 
 special artificial persons to represent the community and 
 enforce special obligations. The obligations are specially 
 created, for they are not obvious — e,.g., to report infectious 
 diseases and remove the patient to some place where he will 
 not infect the community. 
 
 Many police rules — e.g., forbidding passengers to cross rail- 
 way lines — are rules of caution. Most might cross safely ; 
 but if the practice were general accidents would be frequent. 
 By absolutely forbidding the act and making the act itself a 
 (^Masi-crime, the safety of a few members of the public who 
 are neither prudent enough nor nimble enough to perform the 
 feat without running a serious risk, is practically insured 
 against their own negligence. 
 
 Furious driving in the street is another example, but the 
 right of driving motor cars at the speed of railway trains is 
 limited not so much for the safety of the drivers as for that 
 of the average slow-witted members of the public, who are 
 also entitled to use the roads. Eeparation for damages is an 
 imperfect remedy, and is too late. Prevention is better than 
 cure. 
 
254 LA W. 
 
 Another recent extension of police law will be found in 
 bye-laws of some corporations, where a limited summary 
 jurisdiction is conferred on the drivers and conductors of 
 tramway cars ; failure to enforce this jurisdiction is itself a 
 breach of the bye-laws. — {London Gazette, 27th March 1903.) ^ 
 
 All these rules are laws which make rights and obliga- 
 tions ; but it is absurd to assimilate all law to this type, when 
 even police regulations, if rational and tolerable, can be ex- 
 plained by the fact that man is a rational being, who 
 recognises rights in his neighbour or claims duties from him, 
 and who has made laws for the regulation of these. The 
 smallest police regulation is unintelligible but for the prior 
 existence of rights of person and property, and ethical aims 
 of society. 
 
 SECT. XVI. — PEOPHYLACTIC LAW. 
 
 It may be remarked here that the preventive character of 
 legal machinery is much wider than our police statutes. We 
 noticed it in the Conciliation Act, 1896 (p. 251). We have 
 seen it in the adoption of general findings as to fact, for the 
 purpose of saving the time of the courts and sparing expense 
 and trouble to the parties (pp. 231-234). It may be seen 
 in such regulations as section 5 of the Judicial Factors 
 Act (12 and 13 Vict., c. 51), which forbids a factor to keep 
 in his hands more than £50 for more than ten days. It 
 may be seen in the refusal to recognise speculative invest- 
 ments by trustees, and in their responsibility if they allow a 
 factor or an agent to take investments in his own name. In 
 ninety cases the investment may be safe and remunerative ; 
 but in the other ten it is disastrous, and the trustees there- 
 fore take it at their own risk. The factor may be an honour- 
 able man, and an honest man, but men as honourable and as 
 honest have succumbed to temptation, and it is the duty of 
 trustees to insist on rigid legality in working the machinery 
 of a trust. " Formalism is the twin-born sister of liberty." 
 
 1 P. 273, infra, Note. 
 
DISTURBING EFFECT OF lEGISLATION. 255 
 
 The lawyer or factor who feels aggrieved if he is reminded of 
 his duty in this respect has mistaken his profession. The law 
 is framed to prevent the discussion of questions of discretion. 
 
 But beyond this, what we have called " prophylactic law," 
 which anticipates infringement of right or breach of duty, we 
 have attempts to assist humanity or improve men's character 
 by creating artificial rights and duties. The poor law, public 
 health, education, and other laws are examples where rights 
 to sustenance, amusement, and instruction are conferred upon 
 the public at large, and where acts otherwise innocent are 
 sometimes punished as crimes. 
 
 We may also regard private deeds as anticipating and 
 preventing disputes not merely by preserving evidence of 
 facts, but by creating special rights and duties — artificial, like 
 the artificial crimes created by police statutes. Thus the 
 preamble of old wills ran that they were to prevent disputes 
 after the testator's death. Contracts, such as of copartnery, 
 are a private code of law to prevent disputes. The parties 
 have discussed their claims, and recorded the result in this 
 act or decree. In the schedules of the Conveyancing Acts, 
 the Companies Acts, and others. Parliament has drawn up 
 laws in the form of private deeds, which parties may adopt 
 or modify. And in the codes of rules drawn up by the 
 International Law Association as to general average and 
 insurance (p. 310, infra), we have a body of carefully con- 
 sidered decisions as to what ought to be the rights of parties 
 concerned in these transactions. They might refer disputes 
 to the decision of arbiters ; but, better still, they adopt the 
 rules of the Association and make them expressly a matter 
 of agreement. 
 
 SECT. XVII. — DISTURBING EFFECT OF LEGISLATION. 
 
 Many of the examples given show legislation to be a 
 disturbing element. It disturbs the general public as well as 
 the individuals directly interested. It may provoke a re- 
 
2s6 LA W. 
 
 action or oscillation of the moving body, or, again adopting a 
 medical figure, a general irritation and inflammation. Some 
 are opposed to the law in principle ; some have material 
 interests diametrically opposed to it ; these interpret the law 
 strictly, and try to make it if possible a dead letter, as with 
 usury and other laws (pp. 244, 246, supra). Others approve 
 of its provisions, and perhaps desired much wider legislation ; 
 these attempt to expand the law by interpretation (p. 251). 
 Judges are not mere logical machines ; they even display the 
 passions of the crowd, though in an attenuated form. Thus 
 there have always been Sabinians and Proculians among the 
 practitioners or administrators of the law. There must have 
 been radical as well as conservative praetors. 
 
 A good example of the disturbing effect of legislation is 
 the window tax, though in point of fact every tax has a 
 similar effect. This tax operated as a sanction on having too 
 many windows. People who preferred daylight and air to 
 darkness and evil smells were fined and punished. The 
 legislature had blundered in fixing on this criterion of wealth 
 and were compelled to abandon it, finding another in the rent 
 paid for the house. 
 
 Look at the revolutions in trade caused by changes in 
 tariffs. This is a well-recognised device adopted for political 
 ends, as in protective tariffs ; or for moral ends, in sumptuary 
 legislation, and taxes on alcohol, tobacco, and other luxuries. 
 
 Another example is the transformation of the Zemindars 
 in India, who merely collected a land tax and handed it to the 
 Government, into feudal proprietors of the land. To a care- 
 less observer the things are the same ; essentially they are 
 absolutely different. — (Baden Powell's Village Communities in 
 India} pp. 144-146.) 
 
 It was in the interests of agriculture that the teinds in 
 
 Scotland were made a tax rather than a property, when the 
 
 parson could demand in kind each tenth sheaf. — (Buchanan 
 
 on Teinds, p. 16.) 
 
 1 See a similar oaae in New Zealand — Journal of Oomp. Legislation, N.S. 
 1900, p. 451. 
 
DISTURBING EFFECT OF LEGISLATION. 257 
 
 This might be illustrated from every Act of Parliament, 
 so much so that Austin, Hearn, and others define rights 
 as springing only from laws, which, it must be remembered, 
 with them mean statutes, for they resolve all law into 
 statute. Eights, however, are both causes and effects of laws 
 in various senses — natural and artificial. 
 
 The blunders of the Legislature in dealing with the com- 
 petition in Scotland between the trustee in bankruptcy and 
 creditors attaching moveable goods by a "poinding of the 
 ground," are an excellent illustration. — (Goudy on Bank- 
 ruptcy, 3rd ed. p. 269.) By common law (custom) the poind- 
 ing creditors were preferred. In 1839 an Act was passed 
 restricting their rights, and this was re-enacted by the 118th 
 section of the Bankruptcy Act, 1856. This section was re- 
 pealed — it is thought inadvertently — by the Conveyancing 
 Act of 1874 ; and from that date heritable creditors enjoyed 
 the rights accorded to creditors before 1839. But in 1879 
 an Act was passed re-enacting the restriction introduced 
 in 1839. 
 
 In Ireland in the Land Courts, and in Scotland in the 
 Crofters Commission, we have a judicial analogy. The judges 
 try to decide what is a fair rent. In spite of themselves they 
 set up precedents and give rise to expectations. If they 
 reduce rents in one parish and not in another there is a 
 feeling of injustice in the breasts of the tenants; if they 
 reduce the rents of a landlord who spends all his income on 
 improvements to the same level as those of his neighbour, 
 who spends all his at Continental watering-places, there is a 
 feeling of injustice in the breast of the former. The mere 
 approach of the Commission, like a comet to a planet, disturbs 
 legal relations, and perhaps stops the very desire to fulfil 
 legal obligations. Perhaps the disease called for such a 
 remedy ; it may well be asked if life is worth living that 
 requires such treatment. It may be noticed again that 
 Parliament did not define " fair rent." They set up a court. 
 This is the primitive mode of dealing with substantive law, 
 
 R 
 
2S8 LA W. 
 
 and illustrates how rules for the regulation of rights may be 
 evolved prior to the era of legislation.^ 
 
 How truly a judicial decision in Great Britain is legis- 
 lative in its character is shown by the anxious deliberation 
 with which the decision is given and the consternation caused 
 by it in some quarters.^ 
 
 The danger of over-legislation, as we have already ob- 
 served, is like the danger of over-drugging. In attempting 
 to alleviate or cure a small evil, we may cause a greater. 
 Excessive interference with the laws of nature causes func- 
 tional disturbance. 
 
 SECT. XVm. — SANCTION. 
 
 We have applied the term law to the aspect of right 
 and duty looked at by society. In the case of law, as in 
 right and duty, there is an intellectual as well as a physical 
 side. The physical is an embodiment of the intellectual; 
 and the intellectual informs, creates, modifies and expands, 
 and changes the physical. The theory of sanctions is only 
 one side of their physical aspect. 
 
 The idea of sanction runs parallel with the development 
 of law. It is first suggested by the actual doom pronounced 
 by the priest or judge on the wrongdoer. He is sacer — 
 devoted to the gods below, an outlaw, an outcast — and any one 
 may kill him like Cain.* Then sanctity is extended to things 
 like the boundary stones (pp. 38, 153, supra). They are res 
 sacrw — res sanetm — property. Then, in the third place, the 
 abstract notion of sanction is associated with the threats of 
 such a doom, which accompany legislation. This is the 
 narrow meaning adopted by Austin, who failed to see that 
 
 1 An example of legislation by ^ ^_g,_^ Allen v. Flood, p. 137, 
 
 arbitration will be found in the pro- supra ; Taff Vale Railway Oo. v. The 
 
 eeedings between the Home Office Amalgamated Society of Railway 
 
 and the workers in the potteries, in Servants, 1901, A.O. 426. 
 
 which Lord James of Hereford was ' Cf. von Iheriug, Geist des r.E., 
 
 arbiter.— (yimcs, 19th Nov. 1901, 5th ed. i. 279 ; Meulenjere, 1. 280 ; 
 
 p. 12.) Muirhead, Eom. Law, 2nd ed. 17. 
 
SANCTION. 259 
 
 legislation, to which he reduced all law, was only, as Hobbes 
 held it to be, a generalised judgment. And lastly, from 
 being associated with prohibition, sanction comes to mean 
 authority and approval — a positive as opposed to a negative 
 idea, as when we apply to the Court to sanction some trans- 
 action, or when a private individual sanctions an act extra- 
 judicially. It is then applied to a right. Sanction is, in 
 short, generally and primarily the physical form of State 
 approval and interference (p. 124, supra). 
 
 It was shown at the outset that force is the necessary 
 physical foundation of rights and of law. But we never find 
 force, pure and simple, in human relations, for man is self- 
 conscious and rational. A man kiUs an animal that he may 
 take its skin for clothing or its flesh for food. Another 
 kills a man for food or to rob him. The civUised highway- 
 man gives the victim a chance of voluntarily surrendering his 
 purse and jewels. The victim may respond by killing his 
 assailant or by taking him prisoner. The natural right of 
 the victim creates a rudimentary natural duty in the robber. 
 In all these cases there are rational ends of some kind. 
 When society interferes it also is composed of rational beings 
 with a common end. They deal with physical forces — the 
 weather, storms, and earthquakes — by evasion or prevention. 
 Violent men are another kind of physical force, like wild 
 beasts ; and it is immaterial for many purposes that the acts 
 are wilful and have some purpose. Society may and in some 
 cases does actually exterminate savages and robbers. In 
 other cases it creates an artificial motive for respecting the 
 rights of others. This is what lawyers call a sanction — 
 artificial in the same sense as laws are artificial. But as 
 society progresses, the law-abiding class becomes a strong 
 majority, who for themselves adopt the common ends of 
 society. Sanctions then come to deal only with the criminal 
 classes on the margin between the organised State and 
 savagery. 
 
 When the accused is truly a member of the society, and 
 
26o LA W. 
 
 feels himself to be such, he may inflict a penalty on himself 
 or be allowed to do so by the law, as in Japan. On a small 
 scale, this is seen in the irregular practice which prevails in 
 some towns in Scotland, where the police allow an accused to 
 bail himself for an amount equal to the fine which the magis- 
 trate would probably impose. If the accused fail to appear, 
 his bail is forfeited, but it is only in serious cases that a new 
 warrant for his apprehension is issued. The sanction in such 
 cases works extrajudicially. 
 
 In its first wide aspect we may conceive the public 
 interest and sympathy to express itself in mob law, lynch 
 law, unorganised sympathy, or detestation expressed in 
 words, gestures, and rude acts of violence. The particular 
 form of violence is of less importance than the meaning it 
 conveys. But the sanctions of some systems, like the lan- 
 guage of some people, may be out of all proportion to the 
 subject dealt with. 
 
 With or after the genesis of the State we have the crea- 
 tion of judges — at first temporary for each case — arbiters, 
 then for classes of cases or for a period ; and lastly profes- 
 sional. The judge and the forum, the King's court, are a 
 physical embodiment and symbol of law. Hence the phrases 
 in jus vocare and go .to law have a double reference, and may 
 mean only to Ktigate in court, or to obtain justice. 
 
 The rise of a legal profession in and outside of the courts 
 is a further embodiment of law as we have already noticed. 
 We see the influence of law in the immense extension of the 
 extrajudicial practice of the legal profession. We see it in 
 every legal transaction. Thus if a man wishes to make a 
 will he may do so, and leave his relatives to fight before the 
 courts to reconcile his wishes with their claims, and with the 
 traditions and public policy of the society in which he lived. 
 If he goes to a Scots conveyancer, he is told he cannot dis- 
 inherit his children entirely ; he cannot leave his wife unpro- 
 vided for ; he cannot tie up his property indefinitely ; he 
 cannot endow certain corporations out of land ; he must pro- 
 
SANCTION. 261 
 
 vide for certain duties to the State. And if he indignantly 
 asks why a man cannot do as he likes with his own, our 
 conveyancer, if he knows, may give him some archaeological 
 information about ancestor-worship among the Eomans, the 
 history of Mr. Thellusson, Mortmain in England, decisions 
 on wills in England and elsewhere. In a word, the law, in 
 this physical form, is as real as the language, which he must 
 use if he is to be intelligible. He may call his feelings 
 rights, or he may regard them as duties ; an outsider might 
 well say that aU the powers and restrictions thereon which 
 we have just described are created and imposed by society 
 itself. 
 
 But, still further, society formulates and expresses its sym- 
 pathy and its interest in the relations of men in a physical 
 form. The State legislates, lays down rules for the regula- 
 tion of rights, for the settlement of disputes, and for the 
 creation of artificial relations to carry out human moral ideals. 
 It regulates and apportions revenge and calls it punishment, 
 it sees to its execution, so that some can now plausibly deny 
 that there is any idea of revenge ; and now we find punish- 
 ment, since criminals are comparatively few and harmless, 
 made or attempted to be made entirely reformatory. That is 
 to say in the criminal as in the civil law the State attempts 
 to deal extrajudicially with the illegal acts at an earlier 
 stage than that of revenge and punishment. 
 
 A sanction is an artificial form of the expression of the 
 approval or disapproval of the State as distinguished from 
 the natural and instinctive forms adopted by societies im- 
 perfectly organised. XJlpiau seems to have dealt with this 
 topic at the commencement of his Begulce. The passage, as 
 restored by Muirhead {Gaius, 359), runs : — 
 
 " A statute is either perfect, or imperfect, or short of perfect. It is 
 perfect when it forbids something to be done and if done rescinds it ; 
 . . . that is imperfect which forbids a thing, yet if it be done neither 
 rescinds it nor imposes a penalty on the contravener. . . Short of 
 perfect is that which forbids a thing, and if it be done does not rescind 
 it, but imposes a penalty on the contravener." 
 
262 LA W. 
 
 This distinction is like that of perfect and imperfect rights 
 and obligations (p. 191, supra). But in our law the imposi- 
 tion of a penalty implies prohibition, and, if possible, annul- 
 ment. — (Maxwell on Statutes, 3rd ed. p. 297.) 
 
 In the stage at which we have arrived in the 
 present day we find a reign of law. Society by mere 
 force of habit has again taken into its hands the enforce- 
 ment of rights and duties by force of public opinion. Men 
 fulfil their duties and obey the law by force of habit, or from 
 fear of losing the good opinion of their neighbours. The jail 
 and war are kept in the background, as behind them there is 
 a residuum of brute force which could fight out civilisation 
 again if required. To men whose only aim is to enjoy life in 
 its most animal form, in its very lowest terms, you cannot 
 appeal except by taking this life from them. The only value 
 of such a life to society is that it can be taken as a means of 
 terrifying by example others who are cowardly as well as 
 brutal. But the voluntary, though it may be sullen and un- 
 willing, submission to law begins again. It is the rationality 
 and the morality of human society that are behind the 
 captain's revolver when his crew get drunk and mutiny 
 during a shipwreck. In Galveston, after the great disaster 
 of September 1900, martial law was proclaimed. Large 
 numbers of negroes were shot for plundering and for refusing 
 to assist in clearing the city.^ The authorities represented 
 reason, law, and society. 
 
 This new force is natural and physical ; it finds an embodi- 
 ment in literature, the press, the pulpit, social clubs, and 
 general society. The minority, who do not read and belong 
 to no church and no club, are dealt with by the police, sub- 
 ject to the criticism and directions of the rest of society. 
 
 This physical embodiment of law is much wider than the 
 idea of sanction. When it is pointed out that as trade and 
 commerce increase litigation is decreasing ; that while judges 
 
 ' Of. a similar account of the 53. " Seuv Si ^6/Sos fl ivdpdiwuv 
 plague in Athens, — Thuoydides, ii. vdfw! oiSels Airelpye, k-t.X." 
 
SANCTION. 263 
 
 are becoming more lenient, serious crime is decreasing, the 
 usual answer is to give a new definition of sanction, or to 
 maintain that it is still in the background; but the truth 
 rather is that society is becoming educated, and what once 
 was done with pain and effort is now done instinctively — is 
 now naturaL A whip may be required for a dog at first, 
 while a word wiU suf&ce afterwards. 
 
 Sanction attracts attention early as a reaction against 
 wrong, as an early matter of regulation. But, prior to wrong, 
 there was the physical energy which created and claimed 
 rights — the rights that by excess became wrongs, and so 
 demanded regulation in the form of law. The original right 
 was met by the similar right in one's neighbour, by the right 
 to redress, to revenge, and, in the State and society, the right 
 to punish. Sanction could not have existed, unless men had 
 first felt and claimed rights, and had expressed these claims 
 in a physical form through their bodily energy, and other 
 men against whom these claims were made as obligations or 
 duties, had physically resisted the claims, and asserted incon- 
 sistent claims as rights in their own persons. Sanction is 
 the physical reaction of the State or society against the 
 physical assertion of power by the individual. 
 
 In one aspect law is the very antithesis of sanction. One 
 of the first subjects wfth which law deals by way of regula- 
 tion and moderation is this ruthless self-help and distress. 
 Constitutional law is the regulation of the prerogative and 
 power of taxation ; international law takes its rise in attempts 
 to regulate violence. The self-assertion of the individual, 
 the assertion of his rights, is the preliminary postulate of 
 law. The primitive political tyrant or domestic or private 
 bully attains an end, but law shows a more excellent way. 
 As Adam Smith proved how the wealth of nations sprang not 
 from excessive taxation and restrictive legislation on trade, 
 but from the freedom of the private trader, so modern legis- 
 lators have discovered that peace may be kept among men 
 by freedom, by removing disabilities, by extending means of 
 
264 LA W. 
 
 attaining health and comfort, by rapid -and just settlement of 
 disputes, and not by hanging and quartering or imprisonment. 
 Physical force is still in the background. Society may lapse 
 from civilisation back to savagery. Eude laws, with rude 
 sanctions, will deal with the assertion of rude rights, and 
 enforce rude obligations. But if man is more than a mere 
 animal he may be led by fellow-men to raise himself to a 
 higher level of civilisation. And the same conscious 
 legislation which regulated this violence makes legislative 
 rules which keep the peace more efficaciously with 
 rational self-conscious beings, who can re-enact the rules 
 for themselves in their own consciousness, than all the hired 
 ruffians clothed in livery that a king can afford to pay. 
 
 SECT. XIX. — LAW AND THE STATE. 
 
 To define law as a command is a fallacy refuted by the facts 
 of history, for, as we have seen, it practically defines all law as 
 legislation. But legislation, like the social contract, implies a 
 common law behind it, and ideas of justice whereby we may 
 interpret the statutes of the legislator. This definition 
 implied that law begins with the State, and was a natural 
 mistake for lawyers to make, who, with their predecessors 
 for centuries, had belonged to a highly developed and cen- 
 tralised government, organised on a military model.^ 
 
 But we might as well define a railway as a Government 
 road and means of communication, if railways happened to 
 be owned by the State. There were roads before the king's 
 highway. If we deny the existence of law before the State, 
 we must also deny the existence of the State before the law. 
 "We have here the old egg-and-hen puzzle over again. In 
 early times you have germs of both. You have the oppres- 
 sion of people called serfs or vassals by a man called a chief. 
 The vassals rise in rebellion and limit his power ; they issue, 
 
 ^ Professor Holland's chapter on JurisprudcTice is merely a logical 
 "the Application of Law," in his result of this definition of law. 
 
LAW AND THE STATE. 265 
 
 if you choose to put it so, a command with a sanction, and 
 make an embryo state. Law may well begin with the king, 
 for he first has rights which are claimed by him, submitted 
 to, sanctioned, and so far approved by his subjects. And the 
 fear of assassination and rebellion must have brought home to 
 many tyrants the fact that the performance of something like 
 duties was incumbent on them. The doctrine of the divine 
 right of kings confused Government and private property, but 
 the rights of kings are truly divine as against anarchy. 
 
 The identification of law with the State is like the identi- 
 fication of Church and State, or religion and the State ; but 
 law has become so thoroughly " Erastianised," that most 
 people cannot separate them, and many deny that they can 
 be separated. But this separation was an actual fact in 
 Eoman law in the days when the jurisconsults flourished,^ 
 as it is at the present day wherever freedom of contract 
 is recognised, and where legislation is carried on upon 
 purely democratic lines. The people (the State) use the 
 Government (the State) as a machine for their own 
 purposes. But law and the State were also distinguished 
 in the Middle Ages when the Glossators expounded the 
 law for courts. And on the Continent at the present 
 hour, through the influence of "jurisprudence," great jurists 
 may profoundly affect the law in the same way as great 
 chancellors or great presidents in our own country.^ The 
 legislature must take for granted the whole body of 
 national feelings, prejudices, and customs, just as it adopts 
 the popular language. Law, like language, springs from the 
 society itself, and one of its first works is the creation of the 
 State — the greatest of corporations — for the enforcement of 
 rights and duties in accordance with law. The State makes 
 laws but does not create law, just as it may manufacture gun- 
 powder, but does not create chemical relations. 
 
 1 See article on Papinian by Pro- » See Ilbert, Zegislatwe Methods, 
 
 fessor E. C. Clark, in the JowrruiX of p. 208. 
 Comparat/me LegisIaMon, N.S. 1902, 
 at pp. 23 and foil. 
 
266 LA W. 
 
 SECT. XX. — VALIDITY. 
 
 Validity, like sanction, refers to force, and that originally 
 in a physical form. It might have been noticed appropri- 
 ately along with " competency '' (p. 55) as an aspect of right. 
 We have discussed power and faculty as aspects of right, 
 and also the double aspect of force in connection with obli- 
 gation (pp. 139-157). Validity is not mere force, it is legal, 
 just force. Vis is used for illegal force, though the plural 
 vires is applied to faculties, powers, &c., as in the phrase 
 ultra vires. — (Brissonius, Calvinus, s.v.) Vis and validus are 
 associated in the line of Vergil — 
 
 " Neu patrise validas in viscera vertite vires." 
 
 {^neid, vi 833.) 
 
 We speak of a plea prevailing — valet. The usage is 
 Roman.— (LI. 4 pr.; 7, §§ 13, 15; 46 D. de Factis (2, 14).) 
 The first idea is that the Court makes a claim valid by inter- 
 posing its authority. A valid decree is one which the superior 
 courts will not set aside or suspend. But we then apply the 
 term to the claim or the obligation by anticipation. They 
 are valid because the Court will give them force. The style 
 of the Scots summons of reduction runs that the pretended 
 deed or writing should be declared to be " null and void, and 
 of no avail, force, strength, or effect in judgment or outwith 
 the same in time coming." And so we speak of valid rights 
 (such as patents), valid deeds, vaHd obligations, and of a 
 person being valens agere (Ersk. Inst. iii. 7, 37) when, from 
 age, being under no legal disability, or from position, as being 
 in this country and enjoying freedom, he is able to act in 
 the defence of his rights. — {Cf. " Capacity," p. 71, supra.) 
 
 But when it was seen that the force of the State must not 
 be arbitrarily put at the disposal of individuals, it was found 
 that justice demanded that there should be some intrinsic 
 force or virtue in the persons or things dealt with. The 
 usages are popular rather than legal. Valour is force — a 
 virtue which resides in persons. Value is a goodness for 
 
THE CRIMINAL LA W. 267 
 
 some purpose which is supposed to inhere in things. It is 
 the fact of things having a value (in an economic sense) that 
 gives rise to interest (in a legal sense). If things have no 
 value law will ignore them. 
 
 Value is thus a special case of validity. It is validity 
 for a certain purpose — a special kind of interest. Here 
 jurisprudence touches economics, which is in one aspect the 
 science of value for purposes of exchange and market. This 
 is well illustrated by the use of the word " good," which may 
 apply to men, or to the swnmum lonv/m, or to merchandise — 
 things.^ 
 
 SECT. XXI. — THE CRIMINAL LAW. 
 
 In modern practice the State keeps in its own hands the 
 department of the criminal law, and it is commonly said that 
 crime is distinguished from civil injury, in so far as the former 
 is an offence against the State as well as against an individual, 
 while the latter concerns chiefly the private individual. But 
 this distinction must give way to criticism. The refusal to 
 pay a private debt may be a greater wrong to society than 
 many a petty theft, which in point of fact may only affect an 
 individual, and that sMghtly. The fraudulent company pro- 
 moter may not be technically a criminal, but may injure the 
 public more than a burglar. But the history of procedure and 
 of government explains the present distinctions of the law. 
 We may represent a criminal process as a collision between a 
 person asking revenge — the right to punish, and another 
 demanding his right to liberty. The criminal may be so 
 popular or so useful to society that his pardon may be de- 
 manded, or he may be so detested that society in the form 
 of a mob may take him out of the hands of the prosecutor 
 and the law, and lynch him. In early times the prosecutor 
 demanded both reparation and revenge, or was allowed his 
 
 1 Of. von Ihering, Gdst des r. B, Wieser, NaMwal Value ; Smart's 
 
 iii. p. 339 (Meulensere, iv. 328), where Theory of Vahia ; Bohm-Bawerk, 
 
 the order of ideas given is utility, CofpUal. 
 good, value, enjoyment, interest; von 
 
268 LA W. 
 
 choice. But as the State grew stronger it took revenge into 
 its own hands, and when the prosecutor established his case 
 inflicted punishment in its own way, and for public purposes 
 only. In actions of damages revenge is latent, but exem- 
 plary damages against a co-respondent in a divorce case 
 partake of this nature. The State regards the criminal and 
 the civil law as two different machines for the regulation of 
 human relations. Many persons may escape from the meshes 
 of the criminal code, and yet be undesirable members of society. 
 For the actual criminals the State sets up artificial persons 
 with rights of prosecution and punishment, and creates 
 artificial obligations of penalty. The remote end is the pro- 
 tection of person and property, and incidentally the re- 
 formation of the culprits. For the classes of society 
 higher on the scale the law courts are open, which wiU 
 award damages, heavy or light, according to the character 
 of the act complained of. It may border on crime, or it 
 may be all but innocent — almost an accident. The civil 
 courts in many cases arbitrate on true disputes of right. 
 It is desirable to remove these, for if unsettled they might 
 lead to breaches of the peace. 
 
 In dealing with these higher classes, it is possible for the 
 individual to protect himself by refusing to deal with or have 
 intercourse with the objectionable person. This is a 
 powerful sanction, and is made operative indirectly through 
 the criminal or civil remedies. 
 
 To determine what classes of acts require punishment, 
 and the kind of punishment to be inflicted, belongs to practical 
 politics and ethics. It depends on the spirit of the people 
 to be called criminals, and on the state of public opinion. 
 To put some acts among crimes might raise them for the 
 moment to the rank of virtues. Perhaps the criminal 
 machine is too coarse and rough in operation, when mere 
 ridicule might sufiice to put down the conduct complained of. 
 Where the line is to be drawn between crimes and other 
 acts is therefore a question of practical experience and 
 
THE CRIMINAL LA W. 269 
 
 mature judgment as to the effect of laying down a rigid rule. 
 Why the line is drawn at a particular point is ultimately 
 a question of expediency, and perhaps of metaphysics, as 
 when we discuss the distinction of Tnalum in se and malum, 
 prohibitum. 
 
 " Force is no remedy." When you have to appeal to a 
 person's reason with shells at a range of five miles, there is 
 something seriously wrong with it. Law appears afterwards, 
 when the parties have come to see the futility of mere force, 
 and set themselves to find a more rational way of reconcil- 
 ing their differences. They translate the result into an 
 intellectual form, as when the man to whom life is all-in-all 
 accepts slavery rather than death. 
 
 The subject of sanctions has already been dealt with, 
 because it has been maintained that a sanction is an essential 
 element of law, but it must be borne in mind that it really 
 belongs to politics and not to jurisprudence proper ; it 
 determines the mode by which people shall be driven into 
 the courts to have their disputes decided. 
 
 Much popular misapprehension as to the nature of law is 
 due to the fact that a crime and a criminal trial are regarded 
 as types. A criminal trial is more interesting and more 
 easily followed than the ordinary legal dispute. The State 
 has taken over the matter so completely that the ordinary 
 citizen stays away or looks on to sympathise with the poor 
 prisoner against the tyrannical police ! On the other hand, 
 one of the most striking phenomena of law is that most cases 
 of dispute are decided extrajudicially or apart from the 
 Legislature. This is by no means a modern phenomenon; 
 The laws of Moses take outside customs for granted, as do 
 the laws of Mann and the Qu'rtn. In the family group 
 rights are decided as to inheritance without going to the 
 courts; contracts and bargains are fulfilled every day. In 
 modem systems we have the Conseil de Famille of the French 
 law (Code Giv. art. 407), which has important administrative 
 or semi-judicial functions, and the Familienrat of the 
 
270 LAW. 
 
 German code (§ 1858) which has important duties of guar- 
 dianship. In England we have the extensive application of 
 arbitration, private trust-deeds in bankruptcy, and in general 
 the universal freedom of contract. It is thought by English 
 critics that in Scotland the extrajudicial administration 
 of testamentary and family trusts is carried too far. And 
 even when parties reach the courts the natural tendency 
 encouraged by the judges is to compromise. In short, if at 
 every turn we had to go to the courts to settle disputes, 
 commerce, even ordinary social life as now understood, would 
 be impossible. And so far is it from being true that what 
 the law deals with is crimes and criminals, the very opposite 
 is the fact. Criminals are an insignificant minority of the 
 population, either survivals of an earlier civilisation, or the 
 waste products of modern society. And so far from the 
 criminal law being a type of all law, it rather appears that 
 the only statement with regard thereto which we can make 
 with confidence is that our system of punishment is a failure. 
 — (13 Jur. Rev. 133 ; Sir E. Anderson in The Nineteenth 
 Century, Oct. 1902, p. 562.) 
 
 SECT. XXII. — PUBLIC AUD CONSTITUTIONAL LAW. 
 
 In public and constitutional law we see law and right 
 coincide in the ideas of sovereignty aud jurisdiction. We see 
 also an extension of the working of sanctions. The ruler and 
 the judge are individuals vested with ofBcial rights, assumed 
 or granted. These rights come into conflict with the rights 
 and liberties of their subjects, and the collision is resolved by 
 custom, compromise, or contract as in ordinary rights. The 
 contract often takes the shape of legislation. 
 
 A good example of the difficulty of differentiating public 
 and private deeds, rights, and laws, is the Great Charter of 
 King John. It was in form a grant of liberties — a donation 
 to be held by the donees and their heirs of the king and his 
 heirs, for ever, and yet it was in substance a code of laws, a 
 
PUBLIC AND CONSTITUTIONAL LAW. 271 
 
 concession of rights, the undertaking of obligations by the 
 king.i In form it may be said to be a treaty between the 
 king and the nobles, as representing his subjects, the nation. 
 It is suggested that there is no sanction to enforce such laws. 
 If it is a material physical embodiment of force which is 
 demanded, we have something actually amounting to this 
 in the Pope, and his spiritual-physical sanctions of excom- 
 munication, dispensation, and such jurisdiction generally. 
 If an external force is wanted it may be found in the 
 ultimate right of rebellion of the subjects (pp. 131, 200, 
 swpra). It is however in reality the spirit of law which 
 animates the British constitution. As Sir John Seeley re- 
 marks, " We have reduced revolution to a system and given 
 it legal forms. We have always a revolution, and therefore, 
 in a certain sense, we never have a revolution." — {Political 
 Science, p. 195.) 
 
 But in the case of the Crown or a ruler sanctions may 
 be dispensed with even theoretically. Noblesse oblige. As 
 we suggested before that with the sovereign claim and right 
 were identical, so now it appears that duty and fulfilment 
 coincide. An appeal to the honour of the sovereign is more 
 powerful than the pillory to a churl. The kiag's conscience 
 may be a powerful sanction. Even the unjust judge satisfied 
 the importunate widow to get rid of her. Fasting was enjoined 
 by the Irish laws on chieftains and persons of distinction 
 (p. 58). But in all these cases the interest of the ruler or 
 judge is to grant the prayer of the petition. 
 
 In early English practice the appeal to the king for 
 justice in his own court would cause no difficulty, for similar 
 appeals were made to lords of manors and inferior judica- 
 tories. These had adverse personal interests to serve, and 
 hence we see appeals from them and procedure directed to the 
 correction of abuses. The king reformed these, and pro- 
 tected his subjects against the nobles. It required a civil war 
 and a revolution to do the same for the king himself. 
 
 ' Pollock and Maitland, i. 507. Many similar examples are given by 
 Prof. Sigel in Slavorm Law. 
 
272 LAW. 
 
 In modem practice provision has been made for suing the 
 servants of the Crown and public departments as if they were 
 private individuals, and costs may be awarded to or against 
 the Crown. — (20 and 21 Vict., cap. 44; Clode, Petition of 
 Bight.) Parliament is now sovereign, and by these enact- 
 ments it has in effect declared that wherever the judges in 
 the ordinary law courts consider the Government to be bound 
 as a private citizen would be bound, it will acknowledge and 
 fulfil its obligations. 
 
 In the end of 1896 a lawsuit was brought against the 
 Egyptian Government in the Egyptian law courts in order 
 to prevent the appropriation of money from the general 
 reserve fund to the expenses of the then recent Dongola 
 expedition. The judgment of the courts was shown to be 
 wrong by the legal adviser of the Egyptian Government. 
 It had no foundation in law, and less in equity, and yet 
 Great Britain set the example to the world of acquiesciag 
 in and enforcing an unjust and illegal decree, in order to 
 show respect to law. The example was an object lesson in 
 constitutional law (State Papers, Egypt, No. 1, 1897). 
 
 If any one suggests that such transactions do not fall 
 within law properly so called, he merely proves that his 
 definition of law requires revision. This is an unfortunate 
 legacy which jurisprudence owes to philosophy that history 
 and patent facts are twisted to suit a priori theories, instead 
 of, as in every other science, the theory being altered as 
 knowledge of facts and experience grow.^ 
 
 But the coincidence of law, right, and duty may be seen 
 in the case of inferior judges. The Judicial Factors (Scot- 
 land) Act, 1880, sect. 4 (7) provides : — 
 
 " It shall be the duty of the Accountant [of the Court of Session], 
 when it appears to him that there is a diversity of judgment or practice 
 in proceedings in judicial factories in the sheriff courts which it would 
 be important to put an end to, to report the same to the First Division 
 of the Court of Session, specifying the proceedings in which such 
 
 ' Even geography was once treated what ought to be (Arnold's Ttmcy- 
 as a science not of what is but of dides, vol. iii. p. 2 ; pp. 2-3, supra). 
 
PUBLIC AND CONSTITUTIONAL LAW. 273 
 
 diversity appeared, and asking for a rule to be laid down to secure 
 uniformity of judgment or practice in such proceedings, and the Court 
 shall consider such report, and if they shall see fit, shall lay down such 
 a rule accordingly, which rule the several sheriffs and their substitutes 
 shall be hmmdj to observe." 
 
 The Court here is to legislate in a judicial fashion by 
 laying down a rule. How is the duty of the Accountant to 
 be enforced ? How the obligation or duty of the sheriffs and 
 their substitutes ? This is a law for the benefit of the lieges, 
 but it is enacted as a piece of machinery dealing with the 
 duties (obligations) of officials, and rights or jurisdiction of 
 the judges. These are proximate ends, the more remote ends 
 are the rights of the lieges. The power of enforcement is 
 only indirect, for the law relies in practice on the rectitude 
 of the officials. 
 
 So in B.C. 67 a Lex Cornelia made it illegal for a 
 praetor to act contrary to his edict. — (Smith, Diet. Antiq. s.v, 
 " Edictum.") And in the Canon law we find rules laid 
 down for judges, with the sanction of removal, or some other 
 penalty.^ The same device occurs more recently in British 
 Taxing Acts, e.g., Taxes Management Act, 1880, sect. 121, &c. 
 The appointment of the judge or of the tax collector is 
 the setting up of the legal machine. He may be regarded as 
 a sanction to the rights of the Crown or of subjects and the 
 corresponding obligations. But he has official rights and 
 official duties, both to the Crown and to the subjects with 
 whom he comes in contact. These are sanctioned expressly 
 in the laws quoted. 
 
 But as the extrajudicial application of law far exceeds in 
 amount the judicial ; and as even among private individuals 
 the spirit of law, the voluntary obedience to law, prevails, so 
 the higher we rise in the social scale, we ought to find less 
 appearance of constraint and force in the submission to law. 
 
 ' Examples will be found in the cretal. Gregorii IX. v. 7, 9). Of. 
 
 titles, De Treuga et Pace (Decretal. Code of Khammurabi, sect. 5 ; Johns, 
 
 Gregorii IX. i. 34, 1 ; Extravag. op. eit. p. 2. 
 Commun. i. 9) ; De Scereticis (De- 
 
274 I-AW. 
 
 In practice this is encouraged by removing possibly con- 
 flicting interests. The liberal salaries paid to judges and 
 other officials save the pockets of the public in the end. But 
 if the habit of extortion and of taking bribes has once been 
 established, the mere payment of adequate salaries will be 
 insufficient to eradicate it. 
 
 The obedience to a tyrant or a corrupt tribunal is an 
 apparent obedience to law. The relation is a parody or a 
 caricature of a legal relation. The legal machine is perverted 
 to another end than that for which it was invented. 
 
 SECT. XXIII. — UBI SOCIETAS, IBI JUS. 
 
 We have spoken of society, the state, and the world. But 
 there are many societies, many states, many worlds. Each 
 of these gives rise to different claims, different feelings, and 
 different sympathies, and hence different laws. The diffe- 
 rences may be local, as in laws of different countries or in 
 local customs ; or they may belong to different professions or 
 associations for different purposes, as in ecclesiastical laws, 
 military laws, maritime laws, commercial laws, political laws, 
 family and domestic laws, municipal and police laws, laws 
 of clubs, laws of games. In each of these cases we have 
 claims of members and corresponding duties on others, 
 general or particular (i.e., in rem or in personam), and we 
 have the recognition and enforcement of these claims and 
 duties, and if necessary the enactment of general rules by 
 the society itself, even though the society consist of only 
 two members. It may be unwritten and traditional, as 
 when a group of school-boys superintend a fight to see 
 " fair play." 
 
 Such law is sometimes recognised by the State courts, as 
 when it was suggested that the Kennel Club should legislate 
 as to the practice of weighting with lead lozenges the ears of 
 collie dogs so as to make them droop. — (Gordon v. Watson and 
 Montgomery, 10th Jan. 1899, 6 S.L.T. 274.) The Pree Church 
 
UBI SOCIETAS, IBI JUS. 275 
 
 of Scotland affords an example of a society which made laws 
 for itself by forms of legislation. The Barrier Act and 
 Declaratory and other Acts were recognised by the Court in 
 the litigation between the United Free Church and the dis- 
 senting minority. — (1902, 4 Fraser, 1083 ; Innes on Greeds, 2nd 
 ed. Appendix.) In a slander case you might have to prove the 
 laws of whist, as in another case you would prove the customs 
 of a trade, or the laws of France, or the rules of an Indian 
 caste. 
 
 Even the chance group of individuals who come first into 
 a railway carriage associate themselves instinctively into a 
 community to keep out new-comers. The case of Thorogood 
 V, Bryan, in which it was decided that when two coaches 
 race, and a passenger in one is injured, he has no action 
 against the driver of the other coach or his employer, has 
 been commented on in subsequent cases.^ But the old 
 decision becomes more intelligible if we imagine each man 
 of a group of passengers in fact identifying himself with his 
 coach, cheering on his own driver, and betting on the 
 result. Each passenger feels that the defeat of " his " coach 
 is the defeat of himself. This is probably one of the simplest 
 and most instructive cases in which a person identifies his 
 rights with those of a group. 
 
 Gambling and duelling are spoken of as vices ; and they 
 are so from certain standpoints, but duelling may be com- 
 pulsory — a duty — as it is in certain armies. If we regard 
 these institutions as permitted, we have a new region of law ^ 
 and morals. There are laws of games and of the duel. There 
 may be unfair players and duellists. A gambler may be an 
 honest gentleman, play fair, and pay his debts ; a duellist 
 may violate the laws of honour, and seriously wrong his 
 adversary. This may be seen from M. Croabbon's book. La 
 Science du Point d'Honneur, Paris, 1894, where the laws of 
 duelling in various countries, the relations of these laws to 
 the municipal laws, civil and criminal, are seriously and 
 ^ Smith, L.C., 10th ed. i. 277. ^ Pothier, Gonirai dm Jm. 
 
276 LAW. 
 
 learnedly discussed. We have " society " represented there 
 by witnesses and seconds, who come into conflict with the 
 wider society represented by the police and the law courts. 
 
 This explains the Irish Home Eule movement in some of 
 its aspects. We have a body of men who have no sympathy 
 with the colonial and mercantile enterprise of Great Britain ; 
 who wish merely comfortable idleness and to follow small 
 agricultural pursuits. The two worlds come into collision. 
 Both sides use force to compel individuals to associate them- 
 selves with the wider or the narrower sphere. If an act 
 granting pohtical independence were passed, it would merely 
 crystallise the social into a political state. The energetic 
 mercantile portion of the population of Ireland would either 
 emigrate to make their fortunes in the neighbouring mercan- 
 tile states, or through commerce make themselves an organic 
 part of the mercantile world-state. The agriculturist would 
 continue to live in his agricultural world, and to him it may 
 be thought a question of expediency which government is 
 best, and whether it would not be wiser to take peaceful 
 advantage of the large market afforded by the commercial 
 population. For a small retrograde agricultural community 
 to take a place among the nations of the world is a con- 
 tradiction in terms. The government that keeps best order 
 with the least cost is probably what he prefers. Hir crops 
 may be destroyed by storms, or insects, or armies, or hostile 
 tariffs. He meets these enemies in different ways ; but a 
 large and well-organised state may assist to meet the first 
 as well as the last. 
 
 This fact that each world has a moral and legal atmo- 
 sphere of its own may help us to understand one of the diffi- 
 culties of dealing with the criminal population. The thief 
 caught, one of a gang who suffers imprisonment for the whole, 
 is a hero and a martyr. The applause from his own circle — 
 his own world — outweighs the opprobrium of the society 
 represented by the judge and his court. If his friends in the 
 gallery applaud and sympathise, he in his heart laughs at the 
 
INTERNATIONAL LAW. 277 
 
 court and its seatence. There is a conflict of laws, or of law 
 and morality, or of moralities, but the State laws and the 
 State morality are far from being always victorious. 
 
 The Mafia in Sicily illustrates this on a gigantic scale. 
 Here we have a government set up in opposition to and 
 defying the legal and ostensible Italian government. Its 
 sanctions are real — murder and terror. The regular govern- 
 ment has only recently put forward its power. If it cannot 
 crush such a conspiracy, there is no reason for its existence.^ 
 
 SECT. XXIV. — INTERNATIONAL LAW. 
 
 We have seen how international rights and international 
 duties come into existence. International law emerges as soon 
 as such rights and such duties find expression and embodi- 
 ment in State persons, acts, and things — kings, ambassadors, 
 war, armies, and navies. It is a device to enable States and 
 their subjects so to adjust their intercourse as to prevent 
 friction; and where there is collision in trade or war the 
 governments adopt rules to lessen the force of the impact. 
 These are enforced, sanctioned, and obeyed in exactly the same 
 way as the municipal law, because the rules are ultimately 
 enforced by individuals against individuals. They are the 
 same invention applied to a difierent purpose, just as a steam 
 engine wUl propel a merchant ship as well as a cruiser, and 
 gunpowder will blast coal as well as project shells. The 
 immediate purpose may be different, but even the remoter 
 one may be identical — promotion of trade and making of 
 money, the keeping of order, the promotion of science and 
 art, philanthropic intervention for the suppression of slavery 
 and cruelty, or for the spread of civilisation and religion. 
 The Bang's peace is represented by the peace of God or of 
 the Church. And the supreme embodiment of law is found 
 
 ' Crawford, EuUrs of the Smith; example will be found in an article by 
 
 The Times, 22nd December 1899 and Mr. Ambrose Pratt on " Push," Lar- 
 
 18th October 1901. {?akam's Index.) rikinism in Australia, hi Blackwood' s 
 
 Another interesting and instructive Magazine (vol. 170, p. 27). 
 
2 78 LAW. 
 
 in the Emperor, the Pope, or congresses of statesmen, and 
 ultimately in the armies and navies really at their disposal 
 — real because the spirit of the age, public opinion, is behind 
 all. 
 
 In international affairs we sometimes find the feeling of 
 right unduly and excessively developed. This tends to make 
 the claimant of certain objects aggressive and forgetful of the 
 interests of others. Again, we find the feeling of duty 
 exaggerated. With some people their own State is always 
 in the wrong. They are friends of every country but their 
 own. Lastly, the idea of law may be caricatured by those who 
 think that they can write in a book the limits of national 
 collision and aggression, that human judges can settle these 
 and armies and navies enforce them. 
 
 These ideas work satisfactorily so long as the men com- 
 posing the worlds are not very different. Europe and 
 America are homogeneous, and therefore international law is 
 possible. Turkey and the East are different and hostile, and 
 the law is of a different class, on a lower platform. China is 
 a new world by itself, large and self-contained, and aU but 
 able to keep the Western world out. Their civilisations are so 
 different that intercourse becomes merely mutual toleration, 
 and law is reduced to exhibitions of force sufficient to extort 
 such toleration. The law depends on physical characteristics 
 which men cannot alter and to which they must adapt 
 legislation. 
 
 SECT. XXV. — CONFLICTS OF LAWS. 
 
 We have already met with collisions of rights (p. 123), 
 and collisions of duties or obligations (p. 174), and collisions 
 of systems which assume the form of law (pp. 274 and foil.). 
 Many of these collisions are solved by force — by denying 
 to rivals the name of law.^ If, however, we have true and 
 vahd laws, i.e., recognised not only by particular societies 
 
 ^ See Dioey, Law of Consiitution, p. 442, on the meaning of the word 
 " imconstitutional." 
 
CONFLICTS OF LAWS. 279 
 
 but by a wider circle such as the family of nations, these laws 
 may appear to conflict. Public international law deals with 
 some such cases as by laying down a rule of non-interference 
 with the internal affairs of foreign states. That is to say 
 each state regards the jurisdiction of its neighbours as 
 exclusive and final. — (Cf. p. 361, infra.) Then within the 
 state general laws may conflict with particular laws, posterior 
 may contradict prior laws. There the general will prevail 
 over the particular, or vice versa, according to the view adopted 
 by the state itself. Posterior abrogate prior laws as a general 
 rule, saving vested interests (rights). — (Guthrie, Savigny, pp. 
 66, 334, &c.) But the phrase " conflict of laws " is applied 
 specially to a common case of the collision of rights, where 
 a right in one person which has associations derived from a 
 particular system of local law is met by a right in another 
 person, the interpretation of which and the associations of 
 which, being derived from a different system of local law, are 
 different. 
 
 This in earlier law was a casus improvisus. The rules 
 framed by courts and legislators for the purpose of settling 
 or preventing disputes did not justly and properly apply, and 
 so gave rise to a new dispute. One plan was to fall back on 
 general equity, or the law of nature. This was unjust, for it 
 generally would result in every judge treating his own law 
 as equity, justice, and the embodiment of common sense. 
 But we have now a developed system of doctrines which 
 determine which law is to be applied. This is a logical 
 system as well as political and ethical, but, like procedure 
 and evidence, it affects rights indii'ectly. It is, so to speak, 
 one degree removed from substantive positive law. When 
 once a decision has been given it not only makes law in the 
 particular case, but, especially in British courts, creates a 
 precedent. It is then true law, for parties will contract and 
 enter into legal transactions in reliance on the same decision 
 being given again. A German will feel wronged if he does 
 not receive the same treatment as a Frenchman. ' The subject 
 
28o LA W. 
 
 is therefore true law, and as such is dealt with by the legis- 
 latures as in the Bills of Exchange Acts, British, Indian, 
 and Colonial, and by the German, Japanese, and other codes. 
 The law is international, (1) because an ideal system would be 
 identical in all civilised States — a true jus gentiwm ; and (2) 
 because it is one of the most important parts of the legal 
 machinery to prevent friction between the members of inde- 
 pendent States. If it were abolished commerce would dis- 
 appear and pre-historic barter would take its place. Even 
 if the refusal to do justice to foreigners were not a casus belli, 
 it would provoke universal reprisals. The recent treaties of 
 the Hague on procedure, bankruptcy, marriage, &c. show that 
 the subject is truly international. These treaties approach 
 nearly to simultaneous legislation.^ 
 
 SECT. XXVI. — THE PROFESSIONAL BIAS. 
 
 The worlds to which we have referred are those of 
 ordinary men, but the lawyer lives in a world of ideas 
 and abstractions peculiar to himself, in which he looks 
 for symmetry and arrangement — logical coherency. If he 
 misses this it gives him pain. A decision may be 
 law but it is bad law. It may have legal attributes but 
 be wanting in elegantia. The common man looks for a more 
 immediate harmony of his feelings of justice in actual things 
 — ^justice in a narrower world of his own present surroundings, 
 with less reference either to the past or the future — more 
 abstract than the lawyer's world or more concrete. 
 
 Even the lawyer may show in his own conduct the 
 different worlds to which he belongs. Thus Browning de- 
 scribes Dominus Hyacinthus de Archangelis. This old 
 pedant does not live in the world of the accused and his 
 friends, nor properly in the ideal world of the law. These to 
 him are accidents. The world he knows is the narrow one of 
 professional emulation — the Court and Dr. Juris Bottini and 
 
 1 Miller, Law of Mature, &c., p. 68. 
 
ELEGANTIA. 281 
 
 a few spectators, a literary world which admires Horace, 
 Vergil, and elegant Latin ; and finally and really the world of 
 his family circle, his wife and son, or perhaps more truly his 
 own selfish person. 
 
 The professional bias has an important effect on the 
 modern law, as was exemplified in the strenuous professional 
 opposition to the reform of the land laws in South Australia 
 by the Torrens Act (p. 451, infra). 
 
 SECT. XXVII. — ELEGANTIA. 
 
 .When an art has progressed to a certain stage, it tends to 
 assume ornament. Tools, weapons, garments, houses, temples, 
 everything made by man, besides subserving practical ends, 
 tend to gratify a taste for ornament. The military art has 
 an ornamental side in uniforms and evolutions — both utili- 
 tarian in their conception but dangerous when they defeat 
 the primary end, as when uniforms attract the enemy's fire, 
 or bookish evolutions expose men to unnecessary danger. 
 Eeligious worship has given birth to all the fine arts — ^the 
 drama, architecture, sculpture, painting, and music, oratory, 
 philosophy, and science. So with law, royal magnificence is 
 designed to strike awe into the beholder. The scarlet robes 
 of the Doctor of Laws — now borrowed by the other Faculties 
 of the Universities — are derived from the Imperial purple. 
 The justiciary robes worn in Scotland were enacted by 
 statute (1672, c. 16) for the purpose of impressing the 
 spectators. The dress and ceremony of courts have the same 
 result, and a witness has been known to confess to perjury 
 because a case was tried without ceremonial. The eloquence 
 of the bar and the elegance of delivered judgments are stUI 
 further examples of the same tendency. The care lavished 
 on the beautifying of charters, and the careful writing of 
 law deeds, which removes one cause of difficulty of interpre- 
 tation, are due to the same cause. And so, finally, are the 
 attempts to make law symmetrical and logical. Neat epi- 
 
282 LA W. 
 
 grainmatic maxims and even long wordy deeds, which do not 
 allow the slightest mesh of the legal net to be broken, may 
 appear as examples of elegantia. It has produced logical 
 arrangements, and at intervals codification — not merely lists 
 of rules, but rules arranged on a logical basis. Law reports 
 which give every word uttered by the bench are clumsy ; 
 head notes repeating the facts given in the report are 
 condemned ; what we now aim at is neatness and simplicity. 
 Our Digests must be scientific, though we may sneer at 
 jurisprudence and philosophy ; mere dictionaries in alpha- 
 betical order are insufficient. Under each word we attempt 
 an organic and reasoned arrangement. And in our pleading 
 we repress irrelevancy. The Scottish Procedure Acts enjoin 
 pleaders to make their written statements short and avoid 
 unnecessary quotation.^ Military and Indian indictments are 
 made brief, clear, and intelligible, but some complain that 
 Scottish indictments are now so short that they are hardly 
 fair to the accused. Deeds of conveyance have been so 
 shortened that the old-fashioned art of the conveyancer has 
 practically disappeared. But there is still much room for im- 
 provement in the elegantia of Acts of Parliament as well as 
 of private deeds.^ And lastly, we admire the elegantia of the 
 skilful practitioner, who has neat and ready remedies for 
 wrongs or neat replies to unjust demands. We cannot help 
 admiring clever dodges, even when they evade the law, in 
 terms of the game. 
 
 In the Eoman law elegantia did not refer to mere forms, 
 but was applied to internal coherence and symmetry in the 
 substance of the law (Bryce, Studies, ii. 198). 
 
 SECT. XXVIII. — THE SPIRIT OF LAW. 
 
 We have spoken of law sometimes as an art, and some- 
 times as a contrivance — a machine. This is not inconsistent, 
 
 1 39 and 40 Viot. u. 70, sect. 6. '-^ Sir C. Ilbert, Legislative Methods 
 
 The Act of 1672 restricted the elo- and Forms. 
 quenoe of Scottish counsel to half 
 an hoiu'. 
 
THE SPIRIT OF LA W. 283 
 
 for the human body is a machine, and the whole of life is an 
 art. Walking, speaking, manner of eating, are all learned in 
 childhood ; and if we try a new mode of progression, skating, 
 cycling, or dancing, we go through the same process from 
 conscious adjustments to subconscious habits. Morality is 
 an art, and it is only in very recent speculation that ethics 
 has been regarded as a science. The body may be described 
 as the instrument of the soul ; but we know nothing of souls 
 except through bodies. 
 
 In lilie manner law is a process of adjustment. Eights and 
 duties would probably adjust themselves somehow ; but what is 
 specially law is the element of force in the wide sense already 
 explained, ^1%$ advice contributed by society. In childhood 
 and youth education helps to smooth over collisions; the 
 energy and vigour of youth make men self-assertive and 
 selfish ; the person is taught to adjust and reconcile himself 
 to his environment of men like himself. In later life law 
 does this by giving him rules and hints how he may do it for 
 himself, threatening and expostulating if he fail so to do; 
 and increasing the pressure of force till in despair it gives up 
 the problem by locking the individual up, banishing him, or 
 hanging him. Many good and innocent people have been 
 hanged, beheaded, or burned simply because a rude society 
 could not assimilate them to itself, or they could not adjust 
 themselves to their environment. A sea rover who in one 
 age would found a noble family might in another be hanged 
 as a pirate. 
 
 In another view law is a plan or scheme of life to which 
 individuals are required and expected by their neighbours to 
 conform. Like the published order of a procession, it may 
 settle disputes in advance. If a dispute does arise, it enables 
 the master of ceremonies (the judge) to settle it. If a whole 
 society sets itself to defy a rule enacted by a political superior 
 the rule will necessarily be abortive. The Austinian theory 
 of commands and sanctions appears plausible, because the 
 society de facto obeys and the law has to deal with an insig- 
 
284 LA W. 
 
 nificant fractional percentage of a minority. It may be said 
 that the law has coerced a few and frightened the majority. 
 Such a statement cannot be supported historically. It might 
 as well be argued that the figurehead draws the ship because 
 it goes first.' We no longer regard this as the presiding 
 genius that guides the ship. The Austinian theory hardly 
 explains a conquest of slaves ; and it certainly does not 
 explain the rise of law in a society of freemen, for it ignores 
 the fact that even the slave is a rational human being, and 
 even in surrendering and obeying, in order to save his Ufe, is 
 legislating in a sense for himself and his own interests. A 
 society of men is not like a troupe of performing dogs. If 
 the master of the dogs leaves them, they die or revert to 
 a state of nature. Whoever heard of dogs deposing their 
 trainer and continuing to perform on their own account, as 
 did the founders of the Eoman, the American, and the 
 French Eepublics, and the Spanish armies in the Nether- 
 lands ? Not only do rulers take advantage of the spirit of 
 law, but, as we have already observed, the common man who 
 calls his claims rights does so in an unconscious attempt to 
 justify them. 
 
 " Validity " originally means physical force ; but in 
 modern society it refers to the subconscious spirit of the age 
 Even to the most primitive savage this spirit is subcon- 
 scious. Law thus appears first in the physical form of judges, 
 gallows-trees, and execution stakes, but later it means the 
 spirit which dominates all human society. And, in a second 
 physical form, it is applied to the decrees and statutes, and 
 the various concrete forms which are adopted by the State 
 for the definition of rights and obligations. 
 
 SECT. XXIX. — ANALYSIS AND CLASSIFICATION OF LAWS. 
 
 In our examination of right we saw the idea pushed back 
 from action to title — dominion, possession, &c. — and 
 interest — material, sentimental, public, &c. So also the idea 
 
ANALYSIS AND CLASSIFICATION OF LAWS. 285 
 
 of obligation was pushed back from the actual binding of the 
 slave or debtor to the ideal binding of a legal tie — contract, 
 &c. — or to the spiritual bond of duty. We now see a parallel 
 development of law. 
 
 Here, too, we begin with rude execution — action. Law 
 regulates this if only to see that the creditor takes only his 
 pound of flesh and no more. We still in modern times have 
 the law of execution and diligence ; but it is a mere appen- 
 dage, no longer the whole law. 
 
 But mistakes may be made, and inquiry preliminary to 
 execution is generally expedient. Here we have evolved a 
 law of procedure. It may be by putting the accused to 
 torture. If he confesses it is his own fault ; but we have at 
 least some evidence to go on (p. 216, supra)} 
 
 The third stage gives us the law of evidence. It may be 
 said that in many aspects this is quite modem — later than 
 Bentham. The oath was an early attempt to get over in- 
 justice on the part of the witnesses.^ 
 
 A fourth stage is that of codes and statute law, to protect 
 litigants against judges. Codes and statutes are — (1) de- 
 claratory ; (2) amending ; and (3) prophylactic (anticipatory — 
 preventive). As to misconduct of judges, Parliament and 
 the Crown can protect individuals to a certain extent. 
 
 But who is to judge statutes? The American Consti- 
 tution goes further and lays down certain fundamental laws, 
 which the Courts must observe.^ The sovereign people are 
 final in matters of legislation between classes ; but they are 
 open to all the influences of the pulpit, the press, and public 
 opinion generally. 
 
 The classification of laws as public and private, civil and 
 criminal, ecclesiastical, military, commercial, land, &c., de- 
 pends on interests. 
 
 As we have contingent and conditional rights, and con- 
 tingent and conditional obligations, so we may regard statutes, 
 
 1 Stephen, Bist. i. 298. ' Bryce, Americam Oom/momeealth, 
 
 3 Ibid. i. 360, 358. chap, xxiii. 
 
286 LA W. 
 
 and in their secondary use leading decisions and precedents, 
 as contingent and conditional laws, depending on the ex- 
 istence or non-existence of a person claiming the right and a 
 person against whom the duty may be enforced, and on 
 other external facts and circumstances, including material 
 objects, giving rise to the rights. 
 
 If we examine the various words which have been used 
 for law from time to time, we shall find ample historical con- 
 firmation of the views which have been advanced in the fore- 
 going sections, and a brief examination of some of these 
 words wUl profitably complete this chapter. 
 
 SECT. XXX. — THEMIS — QeaiXOi. 
 
 We may tahe the word 0e/uj? as a type of the earliest law. 
 It is commonly derived from the root of TiOrifii (I place), 
 and may be connected with the orderly placing to which 
 reference has been made (p. 206, supra). Qe/j.ii is the 
 Homeric official who calls meetings of the gods and keeps 
 order at their banquets. This idea is physical. 
 
 The following order of association may be suggested 
 among the various meanings in which the word is used. 
 Examples will be found in Liddell and Scott's Lexicon (8th 
 ed.) and Clark's Jurisprudence, p. 42 : — (1) The meaning of a 
 decision, a sentence, a doom occurs in Homer, the word being 
 used in the plural for the general sense ; (2) it also means 
 "claims" — to be judged by kings and judges ; (3) then it means 
 the rights or prerogative of the judges ; and hence (4) the dues 
 of the king or lord. Parallel with these usages there is a super- 
 natural application in (5) the decrees of the gods — oracles 
 — and this takes a general form in (6) old sacred law, the 
 basis of Oe/jLia-Teg. Taking the contrary view, it is applied to 
 (7) mere custom, or to (8) ordinary law. It is materialised 
 in the object of some laws — (9) punishment, and is personi- 
 fied in (10) the goddess of Justice. The order of mean- 
 ings here given differs from that given by_ Liddell and 
 
THEMIS. 287 
 
 Scott, The order given by Professor Clark (op. cii.) is 
 open to criticism, because the meaning he puts first is too 
 abstract. If 0e/xty comes from the root 0E, to set or 
 appoint, it must have been some thing or person that was 
 set or appointed — the boundary stone, the pillar with the 
 law thereon, or the judge himself. If the word 0eo?, as the 
 professor suggests, is referable to the same root, God is the 
 appointor and the setter of all things, like /uLoipa — the pro- 
 vidence that keeps all things in their place in order, the seas 
 and rivers within their bounds. JSTor does the learned pro- 
 fessor give sufficient weight to the fact that the Homeric 
 Greeks did not draw a sharp line between politics and law. 
 One person ruled and decided cases, and the word Oefjucrreveiv, 
 as he shows, applied to both. 
 
 The transition to the divine was easy, for with early 
 peoples a little intellectual skill counts for much. The 
 Hebrews came to Moses " to inquire of God " ; the Shades 
 came to Minos, though what they had to quarrel about it is 
 hard to suggest — 
 
 ol S4 luv ifupl Sf/cas elpovro FdvaKTa- 
 
 {Odyssey, xi. 5T0.) 
 
 It helped royal and judicial authority to pretend inspira- 
 tion. Perhaps, like witches in modern times, the judges 
 deceived themselves as to their divine right and powers. 
 The natural and the supernatural develop simultaneously, 
 and the word difxi?, however we arrange the meanings in 
 order, gives us an example of the process of unconscious 
 analysis already pointed out. The name is applied to each 
 new element which is noticed. Its novelty makes the new 
 element appear as if it were the essence of the relation. 
 
 The use of Oifin as custom and beyond strictly legal 
 applications, is similar to the use of A'kj?, to be hereafter 
 noticed (p. 368, infra). 
 
 Oea-fios from the same root may mean a statute — some- 
 thing set up, — and hence an ordinance or law. This was 
 applied particularly to the kws of Draco, as opposed to 
 
288 LA W. 
 
 Solon's laws which were vofxoi (Liddell and Scott, s.r. ; Clark, 
 p. 48). But in the fifth century B.C. the word w/^o? was 
 applied to the law of Draco on murder, then freshly copied 
 and set up in Athens on a marble tablet.^ 
 
 SECT. XXXI. — Nojuoy — Noyuoy. 
 
 The derivation of the Greek voixo^ in the double sense of 
 law and allotment of land illustrates the early idea of law as 
 a means of keeping order. If geometry, as we have seen, took 
 its rise from the practical art of measuring out fields in Baby- 
 lonia and Egypt after boundaries had been obliterated by the 
 rise of the great rivers, so we may imagine that private law 
 took its rise in a similar way.^ The mode of settling disputes 
 and fixing boundaries between claimants and the allotment 
 itself might well receive the same name. — (P. 38, supra), 
 
 SECT. XXXII. — JUS-DROIT—RECET — EIGHT. 
 
 Eeference may be made to our previous examination of 
 these terms (pp. 33-50). 
 
 Jus starts with the rude procedure of an action at law, 
 and ultimately becomes the most general word in the legal 
 vocabulary. 
 
 Droit in French, and still more Recht in German, suggest 
 moral uprightness and perfection, and in addition they now 
 translate the Latin word and mean all law. But they are 
 sometimes applied to particular laws, or to laws of particular 
 subjects — Seerecht (droit maritime), Kirchenrecht (droit cano- 
 nique), &c. ; or to legal philosophy in Naturrecht (droit 
 naturel). {Gf. p. 129.) 
 
 Jus is derived from formal right ; the other words from 
 substantive right.^ 
 
 1 Of. Olark, p. 65, with Dareste, There wore similar problems in our 
 
 &o., Meeueil des inscriptions jwridiques own island : Seebohm, The £}nglish 
 
 grecques (2nd ser.), p. 2; Aristotle, Village Community. 
 
 Const, of Athens, 7, 53, 55. " A similar parallel may be noted 
 
 ^ See Haxthaasen's Russian Em- in other oases ; cf. p. 74, supra ; 
 
 pi/re, i. 119, as to division of land Yzquierdo v. Clydebank Engineering 
 
 in the Russian village communes. Co., 1902, A.C. 524. 
 
LEX. 289 
 
 SECT. XXXIII.— z^ex. 
 
 The Latin lex has originally a physical reference. If it 
 comes from legere, (to read), it points to definition by writing 
 and publication, — ^in fact, legislation. The Twelve Tables 
 were cut on tablets of bronze ; other laws were cut on tablets 
 of oak, and set up publicly.^ The laws of Gortyn were carved 
 on the walls of the court-room or forum {Law Quarterly 
 Review, ii. 135). 
 
 If lex is connected with ligo (I bind), it may be 
 suggested that the binding effect of law on the persons to 
 whom it is addressed, or those whom it affects indirectly, 
 is meant (p. 203, supra). But it may well be connected 
 with lego (I collect, I gather), the same word which was 
 applied by the Greeks to articulate speech, and by the 
 Eomans to the art of grouping written letters into words 
 — the art of reading. It may have referred to the collection 
 of the people in the legislative assembly which voted the law, 
 or the collection of the votes by pebbles or marking-points 
 on tablets and reading and counting them after. Lex might 
 thus mean the vote and then what was voted.^ 
 
 In support of such an etymology, the early use of lex may 
 be quoted. It is defined by Ateius Capito, who was, accord- 
 ing to Aulus Gellius, highly skilled in law both public and 
 private, as "Generale jussum populi aut plebis, rogante 
 magistratu." And a plebiscitum, according to the same 
 authority, was a " Lex, quam plebes non populus accipit." — 
 (Huschke, Jwr. Antejust. 5th ed. 121.) It is an enactment 
 solemnly made in a certain form. 
 
 Then it is commonly applied to the Twelve Tables, which 
 are spoken of as leges. It is questioned if the word " lex " is 
 applied to single enactments, but this seems to occur in 
 passages of Livy, Cicero, and Festus — e.g., this last writer 
 says, " In secunda tabula, secunda lege." — (Huschke, 121.) 
 
 ^ Olark, Jw. 31 ; Smith, Dwt. assembly of people or an agreement or 
 Antiq. s.v. Lex. treaty. 
 
 ^ Of. Convention, meaning an 
 
290 LA W. 
 
 Livy says "in XII. Tabulis legem esse/' &c.; and Cicero 
 speaks of the original Ten Tables as containing Itges, and 
 denounces the last two as containing the " inhumanissima 
 lex," forbidding marriages between patricians and plebeians. 
 
 Then lex, is applied to private contracts by both Varro 
 and Cicero. — (Lewis and Short, s.v. ; Bruns, 388.) Examples 
 both of this and the following usage will be found in the 
 title of the Digest, Be Lege Gommissoria (18, 3). (Voet, 
 Comm., Berwick's Trans., p. 45.) 
 
 It is commonly applied by G-aius and Justinian to the 
 conditions or terms of a contract. — Zex venditionis — Zex con- 
 ductionis (Gains, iii. 145, 146 ; Inst. iii. 24, 5). 
 
 The phrases ex lege and ex legibus suggest at least the 
 possibility of the modern abstract use of law, as meaning the 
 spirit — the idea, which is the foundation of all particular 
 enactments. So also does the Lex Dei — the Lex Divina — of 
 the Gollatio. — (Huschke, 645.) Similar phrases of a still 
 earlier date will be found in the Latin Vulgate. 
 
 It is unnecessary to refer to the metaphorical uses, which 
 were already common in classical times. 
 
 Papinian has defined " lex" very widely in a text put at 
 the head of the title D. de Legibus, &c. (1, 3) : " Lex est com- 
 mune praeceptum, virorum prudentium consultum, delictorum 
 quae sponte vel ignorantia contrahuntur coercitio, communis 
 rei publicae sponsio." In his Insiitutes Gaius had said (i. 2) 
 that the jus civile of the Eomans consisted of leges, plebiscita, 
 senatusconsulta, constitutiones principum, edicta magistra- 
 tuum, and responsa prudentium. Tribonian in revising the 
 Institutes fell back on the narrower technical definition of 
 Capito quoted on the preceding page. Where Gaius said, 
 " Lex est quod populus jubet atque constituit," he put {Imt. 
 i. 2, 4) '' Lex est quod populus Romanus, senatorio magistratu 
 interrogante, veluti consule, eonstituebat." But this very 
 section shows that plebiscites, senatusconsults, constitu- 
 tions of the Emperors had the force of leges, and so it 
 was a very short step to call them laws. — (Gf. Moyle, Inst. 
 
LEX. 291 
 
 104.) In the Latin version of the 131st Novel (Const, cxx.) 
 Justinian says " prsesentem proferimus legem." Every one 
 of these enactments might furnish examples of this usage. 
 
 This imperial usage prepared the way for the definition of 
 Isidore of Seville, the first clause of which is given in the 
 Decretum of Gratian (i. 1, 3 ; Bruns, 407) : " Lex est con- 
 stitutio scripta ; mos est vetustate probata consuetude, sive 
 lex non scripta." Julian (L. 32, § 1, D. de Leg. (1, 3)) had 
 indeed said "inveterata consuetudo pro lege non immerito 
 cnstoditur," and in the following text Ulpian had expressed 
 himself to the same effect, but using both jus and lex. In 
 the Decretum of Gratian the idea of law is extended to the 
 Papal legislation — canons of Councils, decrees of the Popes, 
 and writings of the Fathers. 
 
 The identification of jus and lex, which may be noticed 
 in the Oxford Degree of D.C.L. instead of LCD. is mediaeval. 
 The step, however, was a small one when we read in Ulpian 
 (L. 24 D. de statu hominum, (1, 5) ), " Lex naturce haec est ut 
 qui nascitur sine legitime matrimonio matrem sequatur, nisi 
 lex specialis aliud inducit." Cicero's treatise " De Legibus " 
 might be referred to for many references to lex, as " summa 
 ratio," and such-like. The change was immediately brought 
 about by the fact that the jus civile of Eome was embodied in 
 the Corpus Juris. This was a written code — a unity — treated 
 as a single coherent enactment — assumed to be self-suf&cient. 
 It was truly a Im — the Lex JRommia — like the Twelve Tables 
 in a former age. In mediaeval charters we find the phrase 
 lex Bomana frequently used for jus civile.^ 
 
 The mediaeval meanings of " lex " given by Ducange {s.v.) 
 may be sufficiently illustrated from our ordinary English 
 usages. 
 
 The French " loi " is still used in the sense of a statute, 
 " droit " being the general word for law. 
 
 1 Savigny, Qesch. rom. Bechts. i. 105, 111 ; Dear. Gratian. i. 10, 13. See 
 the Charters of the Abbey of Oluny, passim. 
 
292 LA W. 
 
 SECT. XXXIV. — EARLY ENGLISH WORDS FOR LAW. 
 
 Professor Clark {Jur. 62) has discussed these words very 
 fully, and we may refer to his pages, but we must notice 
 " dom," from which we take " doom " in a particular sense. 
 The " domas " referred to by him were no doubt concrete 
 eases of what was regarded in the abstract as riht — justice. 
 — (Thorpe, p. 1 and foil.) Professor Clark's conclusion is 
 that domas " rightly understood come very near to Oifxta-res." 
 — (Op. cit. p. 66.) Chaucer thus describes the legal attain- 
 ments of the Sergeant of the Lawe : — 
 
 " No-wher so bisy a man as he tlier nas, 
 And yet he semed bisier than he was. 
 In termes hadde he caas and domes alle, 
 That from the tyme of king William were falle, 
 
 And every statut coude he pleyn by rote." 
 
 {The Canterbury Tales: The Prologue, 321-324, 327.) 
 
 And in The Faerie Queene we read : — 
 
 " For Artegall in justice was upbrought, 
 Even from the cradle of his infancie ; 
 And all the depth of rightfull doome was taught, 
 By faire Astraea," &c. — (Book v.. Canto 1.) 
 
 The word " Doom " is still used in Scots legal procedure in 
 the death sentence, " which is pronounced for doom." — 
 (Macdonald, Grim. Law, 3rd ed. 513 ; Hume On Crimes, ii. 6, 
 527 ; Green's Encycl., s.v.) 
 
 In the English Bible the word " judgments " is often used 
 in a sense approaching " law." — (Of. p. 399, infra.) 
 
 The English word " law " is immediately of Scandinavian 
 origin — lagu,'^ lage, and in Icelandic log in the plural. Pro- 
 fessor Clark {Op. cit. 68) says " lagu is that which lies or rests, 
 not that which has been laid or set." Might they not be the 
 march-stones set up or laid down, and which have perhaps 
 lain or rested for years between the lands of conterminous 
 proprietors, and were so sacred that they could not be dis- 
 turbed ? 
 
 ' Pollock and Maitland, i. 60. 
 
DECREE, EDICT, ARRET. 293 
 
 The lagu, like the i/Oy«o?, would be a title ; even a plain 
 stone would be significant. But later a mark of ownership, 
 a mark by the judge, would make it a real title, and this 
 would be definition — delineation of boundaries. 
 
 SECT. XXXV. — DECREE, EDICT, ARRET. 
 
 (1.) The word " decree " carries us back to definition of what 
 is doubtful. Gernere and decernere suggest the seeing through 
 a complicated case — separating it from the tangled mass, and 
 so deciding it. 
 
 (2.) "Decretum was a decision given by the Emperor 
 on a question brought before him judicially," and is law (Gaius, 
 i. 5, note, Muirhead's edition). It was also a particular 
 form of interdict (Gaius, iv. 140). 
 
 (3.) The Decretum Oratiani is the first part of the Corpus 
 Juris Canonici — a body of law. 
 
 (4.) Modern usage applies "decree" to single legal de- 
 cisions as well as to legislative enactments.^ This word ^ 
 is used in Scotland for the formal and final judgment in 
 all civil courts. The Court of Session summons, as given in 
 the schedule of the statute of 1850, bears that " the defender 
 ought and should be decerned and ordained by decree, &c." to 
 make payment, or produce an account, or otherwise, according 
 to the remedy claimed by the pursuer. The Small Debt Act 
 of 1837 gives a similar form, omitting the word "should." 
 The Sheriff Court Act of 1853 gave the form—" The defender 
 ought to be decerned to pay," and the Act of 1876 (schedule 
 A) causes the pursuer to pray the Court " to grant a decree 
 against the defender, ordaining him to pay to the pursuer 
 the sum of ." It is the solemn word " decerns " which 
 
 converts an interlocutor into an extractable or enforceable 
 judgment or decree (Mackay, Practice, i. 597). 
 
 (5.) The extract decree is the written document setting 
 
 forth the judgment of the Court, and on it execution proceeds 
 
 ' See Merlin, s.v. Loi, § 1. occasionally, e.g., in the Judgments 
 
 ' The older form "decreet " occurs Extension Act, 1868. 
 
294 i^A W. 
 
 (Personal Diligence Act, 1838 ; Act of Sederunt 8th Jan. 
 1881 ; 55 and 56 Vict., c. 17, which defines " decree" as in- 
 cludiEg " any judgment, deliverance, interlocutor, act, order, 
 finding, or authority which may he extracted "). Stair and 
 Bankton use decree or decreet for what is now styled the 
 extract (Mackay, Practice, L 581). The Scots extract decree 
 is equivalent to a certificate of judgment in the common law 
 procedure in England (Judgments Extension Acts, 1868 and 
 1882). The decree or judgment is the unit of law (pp. 
 28, 158, supra). It is a right in a person, and is assignable 
 (Digest of Scots Cases, 1885-1895, col. 290). 
 
 (6.) In England the word " decree " was used in equity pro- 
 cedure ^ down to the passing of the Judicature Acts ; but it 
 is now used principally in divorce procedure (Sweet, Diet. s.v.). 
 " In the Court of Arches a suit is commenced by a process 
 called a decree, which is the same thing as a citation." — 
 (iZ>.) AIL these usages, English as well as Scottish, may be 
 traced to the Eoman or the Canon Law.^ 
 
 (7.) " Edict " has a similar history. It implies publication. 
 It may apply to any public notice (Smith, Diet. Antiq., s.v.), 
 but it is best known as apphed to the bodies of law promul- 
 gated by the Roman magistrates, including the Emperors. 
 — (Muirhead, Gains, 3, Note.) 
 
 (8.) Edicts stUl survive in the procedure of the Church of 
 Scotland in notices as to ordination, and nominally in the 
 process of " edictal " citation of foreigners in Scotland. 
 
 (9.) The French " Arret" may be noticed here (ilerhn, Bep. 
 de Jur., Littre, &c.) It is the word " arrest " — to stop, to seize 
 — and has therefore originally a physical reference. It comes 
 to mean a decree of a supreme court, against which there is 
 no appeal. It may be so called because it is a legal warrant 
 for seizing the person or goods. The Low Latin " arrestum " 
 is the manus injectio, and " arretare " is explaiued by Ducange 
 by " accusare," " statuere," and " definire." Certain legislative 
 
 ^ Seton's JadgmeiUs and Orders, same root is associated with "judg- 
 6th ed., i. 186, 482. ment" (Sharp v. "Wakefield, p. 251, 
 
 ^ The word "discretion " from the su/rrn) ; Coke, 2 Inst. 56. 
 
PLEA. 29s 
 
 regulations (like our Eules of Court) or general decisions have 
 been called " arrets." 
 
 SECT. XXXVI. — PLEA. 
 
 This word is a corruption of the Latin placitum, from 
 placere (to please), and comes to us through the Norman- 
 French, like droit from directwm. We might have appro- 
 priately discussed its meaning along with " claim," " com- 
 petency," &c. in the chapter dealing with Eight, but the 
 association with private right is later than that connecting it 
 with law. 
 
 The classical Latin placituvi signifies an opinion, and it is 
 common to find such a phrase as Trebatio placuit (used by 
 Gains, L. 5, § 1 D. de acq. rer. dom. (41, 1) ) in quoting the 
 opinion of any jurist : — 
 
 " Victrix causa deis placuit, sed viota Catoni." 
 
 (Lucan, Pharsalia, i. 128.) 
 
 Placitum is also used for a private agreement. This is 
 common, as when Ulpian defines padio as diwrum pluri- 
 umve in idem placitum consensus (L. 1, | 2 D. de pactis (2, 
 14) ). Examples are given by Brissonius (s.v.). 
 
 In the Institutes of Justinian (i. 2, 3) the phrase princi- 
 pum placita is used for constitutiones — the word which occurs 
 in the original text of Gains. The word here means laws. It 
 does not imply capricious pleasure, but the public, of course, 
 receive imperial decisions with extreme deference, as Gains 
 relies on what " pleased " Trebatius. 
 
 The word is then applied to the mediaeval conventions 
 for administrative and judicial business — the germs of modern 
 parliaments. It means a meeting, a court, a decision, or a 
 case brought up for judgment.^ The derivation of plea from 
 platea, platz, place, because the Court met in an open space 
 or the street, seems far fetched. This is given by 
 
 ' Examples will be found in Bris- /rawfaise, s.D. " Plait" and Larouasse, 
 sonius, Calvinus, and Duoange, s.v. ; Diet. Unwerselle, s.v. "Plaid,' &c. 
 see also Godefroy, Diet, de I'cmcienne 
 
296 LAW. 
 
 Tomlin and by Bouvier (s.u), the latter of whom erroneously 
 refers to Cowel. The derivation receives some support 
 from Hotomann's Commentary, Be Verbis Fevdalihus (s.v.), 
 printed at the end of Brissonius, De Verhorum Signi- 
 ficatione (p. 1133). If there is any connection between 
 the words, which may well be doubted, it is more likely 
 that the open space takes its name from the nature of 
 the meeting therein, as " church," " university," and " college " 
 are properly spiritual corporations, and popularly conglomera- 
 tions of brick and mortar. 
 
 The phrase " metre en plet lo senyor de la nau " — to raise 
 an action against the managing owner — occurs in Les costumes 
 de la mar. — (Twiss, Black Book of the Admiralty, iii. 208.) 
 
 The word in the short form of " plaid " has disappeared 
 from modern French.^ It occurs in the popular forms 
 plaider, plaidoyer, like the English plead, &c. 
 
 A plea is an action and is so used in the first chapter of 
 Skene's Begiam Majestatem? This is an ancient use in 
 England. We stiU speak of " the pleas of the Crown." These 
 are rights — jura regia (p. 118, supra). The Court of " Common 
 Pleas " dealt with disputes between subject and subject.^ 
 
 Placitum we have just seen means a right — at least in the 
 pleas of the Crown, and in like manner it becomes an obliga- 
 tion — a penalty, a fine. — (TomUn, s.v.) Then in the phrase 
 placitum spatm — the power of the sword — we have the 
 general meaning of " law." Ducange explains it by " merum 
 imperium, justitia major, Haute justice, quse jus gladii 
 habet."* 
 
 In English and American law a plea is " the defendant's 
 answer by matter of fact to the plaintiffs declaration, as 
 distinguished from a demurrer, which is an answer by matter 
 of law." ^ It was this answer which brought the question in 
 
 ^ Littra, «.■!). Plaid ; cf. Placites de Britton, passim; Dr. Cowel's Law 
 
 Normandie ; Merlin, lUp, de Jur. s.v. Diet. s.v. ; Black. Comm. iii. 40. 
 
 2 See Skene, De V. S. <■ Cf. Oowel, s.v. Pleas of the 
 
 ^ Examples of the word in various Sword, 
 
 senses will be found in the laws of ^ Bouvier, Diet. s.v. Plea ; Stephen, 
 
 Edward the Confessor and Henry I. Comm. iii. 546. 
 Thorpe, pp. 191, 222, &c.), and in 
 
CONSTITUTION. 29^ 
 
 a legal form before the Court and made it a plea in the older 
 sense. It was the essential part of a plea. In civil 
 procedure in Scotland the analysis is carried further. A 
 plea is a legal proposition put forward by any party to a 
 cause and deduced from the facts which he avers.^ It is 
 not a general legal statement, but a distinct proposition pur- 
 porting to dispose of the specific matter in dispute in 
 whole or in part. If the Court sustain the plea it becomes 
 law — a decree — in the senses already explained. The Scots 
 plea in law is therefore a legal unit laid before the Court for 
 adoption (c/. p. 294). It is the proposed foundation of a 
 decree, as an interlocutor is originally an interim order, and 
 then a proposed judgment, but is now applied to all judg- 
 ments, including final ones. 
 
 In Scots criminal procedure the correct usage is similar 
 to the English, but the word is loosely applied to preliminary 
 pleas, " that the panel (accused) cannot be caUed on to plead." 
 —(Alison, ii. 358 ; Hume, ii. 278.) 
 
 SECT. XXXVII. — CONSTITUTION. 
 
 The Latin " constitutum " refers to fixing or determining, 
 whether in public ordinance or private affairs. It suggests 
 " statute," but may be a metaphorical fixing of doubtful or 
 disputed matter. It means a law or decree (Ducange). 
 
 The term " constitutio " means " a definition," and was 
 applied particularly to the imperial legislation. Whether 
 in the form of edicts or mandates, laying down general 
 rules for the future, or decrees and rescripts deciding 
 particular cases and so creating precedents, constitutions 
 were ordinary forms which law assumes, and so were laws.^ 
 Skene's Begiam Majesiatem bears on its title-page "The 
 auld Laws and Constitutions of Scotland." This was merely 
 the adoption of the Imperial Eoman title for statutes. 
 
 ' Maekay, Practice, i, 391 ; Dove ^ Smith, Diet. Avi. s.v. 
 
 Wilson, Practice, 106. 
 
29S LA W. 
 
 We may also refer to the "Constitutions of Clarendon," 
 which was a statute. 
 
 " The Constitution " now commonly means the funda- 
 mental law of a State (c/. Blackstone, i. 233, &c.). We find 
 the French Code preceded by " Dispositions Constitutionelles " 
 and " Lois Constitutionelles." The Belgian Code has simply 
 " Constitution de la Belgique," which was made law by a 
 decree. The Italian has " Statuto Fondamentale." All these 
 and also the American Constitution are written. " The British 
 Constitution " is part of the common law (Bouvier's Bict. s.v. ; 
 Dicey, Law of Constitution). 
 
 The name is also applied to the fundamental law of other 
 bodies, such as conciliation boards (59 and 60 Vict. c. 30, 
 sect. 1 (2), " Constitution, byelaws, and regulations "). The 
 application of the word to the written document containing 
 the laws of the Constitution is similar to the other cases 
 already noticed of a similar usage. 
 
 SECT. XXXVm. — STATUTE. 
 
 The word " statute " is not used in this sense in classical 
 Latin, nor does it occur even in the Latin Vulgate. But it 
 is found in Diocletian's celebrated Edict on Prices, published 
 in A.D. 301 {Corp. Inscr. Lat. iii. 805), andintheZ^i^res^, in the 
 title " Quod quisque juris in alterum statuerit, ut ipse eodem 
 jure utatur " (2, 2), there is a quotation from the Edict in 
 which the words occur, "si quid in aliquem novi juris 
 statuerit,'' and the word in question is commented on by 
 Ulpian. It has here a judicial reference (L. 46 D. de V. S. 
 (50, 16)). We know that the Twelve Tables and the Edict 
 were set up in the forum, and the transition would be easy 
 from the physical setting up of the tablet containing the pro- 
 vision to the enactment of the provision itself The oldest 
 code known, that of Khammurabi, is engraved on a block of 
 stone about 8 feet high, now in the Louvre (Johns, The Oldest 
 Code, p. ix.). In the usages of the verb " statuo " we may 
 trace the transition from physical to ideal and back again. 
 
STATUTE. 299 
 
 In mediaeval usage the word " statutum " itself is not 
 explained as a statute in our sense, but as a local custom. 
 This is the meaning of the word in the early treatises on 
 private international law — Be, Statiutis. — (Paul Voet, &c. 
 Story, Confliet of Laws, § 12.) So Ducange gives " statu- 
 tarius '' as a magistrate who pronounces edicts or statuta or 
 maintains the law. 
 
 In 1267, in the preamble of the statute of Marlborough, 
 52 Hen. III., the word " statuta " occurs along with " pro- 
 visiones, ordinationes." In this preamble we have the phrase 
 " provided, agreed, and ordained," showing a point of contact 
 between public and private right. It is said that what 
 appears as the Statutum Hihemice (14 Hen. III.) in the Statutes 
 at Large is in the old abridgment declared not to be a statute. 
 Statute is here used for an Act of Parliament. 
 
 Paul Voet, in his treatise Be Statutis eorumque concfu/rsu, 
 published at Amsterdam in 1661, defines " statutum " as 
 " Jus particulare ab alio legislatore quam imperatore consti- 
 tutum."^ He distinguishes it from law proper, but comes 
 to the conclusion that it is part of the jus scriptum and true 
 law within the limited territory to which it applies. 
 
 In everyday use "The Statutes at Large" are Acts of 
 Parliament — laws. Several statutes upon one subject are 
 read as one statute (WWilliam v. Adams, 1852, 1 Macq., p. 
 141), and the whole body of statutes is "statute law." 
 In some universities the rules, regulations, ordinances as 
 to graduation and other matters are called statutes. 
 
 The Dutch word placaat is a modern word with a similar 
 origiu. It is a placard, a bill, and hence an edict, an ordi- 
 nance of the government — a law. — (Thurhurn v. Steward, 
 L.E. 3 P.O. 478; cf. Cowel, Tomlin, s.v. " Placard ").2 In 
 English usage the word "placard" occurs as meaning a 
 licence — a title. 
 
 ^ iv. 1, 2. ioek der Nederlandsche taal, 4tli ed. 
 
 ^ Through the kindness of Pro- 1898, and Auguste Scheler, Le 
 
 fessor Nys of Brussels I am enabled didionnairc d'ityinologic fra7U}aise, 
 
 to refer to Van Dale, Groot Woorden- s.w. 
 
366 LA W. 
 
 SECT. XXXIX. — ACT. 
 
 (1.) An act is something done, or the doing of something, 
 by a self-conscious being. The word is also applied to events, 
 as in the English legal phrase, "the act of God," for vis 
 major in the Eoman law. These associations are physical. 
 
 (2.) An act being the deed of a self-conscious person, 
 takes its character in part from the intention {mens) of the 
 person. And if it affects society at large, the State and the 
 law will characterise it from the point of view of the public 
 interest. Thus in England we have " an act of bankruptcy." 
 Throughout the Criminal Procedure (Scotland) Act, 1887, 
 the word " act " is constantly used, referring sometimes to 
 the completed crime, or to a particular element thereof {e.g., 
 sect. 6.) The crime as an act is thus analysed into several 
 acts. 
 
 (3.) All the technical usages are traceable to the Eoman 
 law. By etymology the word is connected with agere, actio 
 (p. 51, swpra), actor (an agent or commissioner). Agere re- 
 ferred both to judicial and extrajudicial transactions. The 
 words of Gaius, in L. 4 D. de fde instrumentorum, &c. (22, 4), 
 show the transition from the one to the other. In Eoman 
 usage actum meant a public transaction in the Senate, before 
 the people, or a single magistrate (Lewis and Short, s.v. 
 " Agere "). " Acta " occurs frequently referring to public 
 records or judicial proceedings. — {Hid. ib.; Moyle's Jvs- 
 tinian, 2nd ed. 143.) Many examples will be found in 
 L. 45 D. de jure Jisci (49, 14). Paul says : — " Mandari 
 potest procuratio prsesenti et nudis verbis et per litteras et 
 per nuntium et apud acta prcesidis et magistratus." — {Sent. 
 i. 3, 1. Cf. Calvinus and Brissonius, s.v. "Agere"). A 
 legislative reference will be found in the " Acta de pace Con- 
 stantiae," dated 1183 A.D., and sometimes printed at the end 
 of the Corpus Juris Givilis ; the clause at the end " acta sunt 
 haec," explains this (Ducange, s.v. " Actum.") This usage 
 survives in English, French, and German in International 
 
ACT. 301 
 
 Law, as when we speak of the "Acts of the Congress 
 of Vienna." "The Final Act of the Congress of the 
 Hague," &c. 
 
 (4.) The word " acta " was adopted by the Canon law in 
 the sense of judicial proceedings. Thus in the Decretals of 
 Gregory IX. (ii. 19, 11), directions are given that the judge is 
 to employ some public person to keep a record of judicial 
 proceedings — 
 
 " Aut duos viros idoneos, qui fideliter universa judicii acta coa- 
 scribant, videlicet, citationes et dUationes, recusationes et exceptiones, 
 petitiones et responsiones, interrogationes et confessionea, testium de- 
 positiones et instrumentorum productiones, interlocutiones et appel- 
 lationes, renunciationes, conclusiones et cetera, quae occurrerint," &c. 
 
 Mr. Eeichel devotes a chapter to " acts in judgment." — 
 (Canon Law, ii. 262). English ecclesiastical procedure still 
 speaks of an " Act on Petition," which is a summary mode of 
 proceeding for adjudication of incidental matters. — (PhUli- 
 more, Eccl. Law, 2nd ed. ii. 965. Of. Bouvier's Law Diet., s.v. ; 
 Select Pleas in the Court of Admiralty (Selden Society), I. p. 
 Ixii., " Act Books.") Even Scottish Presbyterians speak of 
 " citation ajpud acta." — {Practice of the Free Church of Scotland, 
 2nd ed. pp. 104, 110). The best known use of the word 
 in ecclesiastical history is the auto da fe of the Spanish 
 Inquisition. 
 
 (5.) In French law " Acte " is a writing, which is 
 evidence of something being said, done, or agreed, corre- 
 sponding to the Latin instrumentum (Merlin, B4p. de Jur., s.v.) 
 This usage runs through all the French Codes. We have 
 actes de I'eiat civil ; I'acte authentique; I' acte sous seing privd ; 
 actes d' instruction, and many others. This refers to a 
 solemn act generally by an ofi&cial. In Germany the docu- 
 ments filed with reference to registered titles to land are 
 called " Acten " (Eeport as to Eegistration of Titles to Land, 
 1896 [c. 8139], pp. 27, 28). The notarial "instrument" 
 in daily use in Scots conveyancing carries us back to the 
 Roman law, as in the title quoted above, but the Scottish 
 
302 LA W. 
 
 notary down to 1845 described himself in his docquet as an 
 ecclesiastical officer. 
 
 (6.) Scots law retains all the foregoing usages, though 
 some are less common than they were at the beginning of last 
 century. — {Jnr. Styles, 3rd ed., Index). Popular usage is 
 illustrated in the criminal statute already quoted. The 
 Stamp Act, 1891, which is a British statute, imposes duties on 
 " Notarial Acts," including protests and instruments, e.g., " an 
 act of honour " in the law of bills of exchange. This is the 
 French usage. In early Scots procedure which was largely 
 modelled on the Canon law, the judgment dealing with 
 proof was called an "act" (Mackay, Practice, ii. 17; 
 Stair, iv. 39, 5). In some Sheriff Courts the book in which 
 interlocutors and orders are noted for publication is called 
 « The Act Book." The Sheriff Courts (Scotland) Extracts 
 Act, 1892, sect. 3, defines " decree " as including " any judg- 
 ment, deliverance, interlocutor, act, order, finding, or authority 
 which may be extracted." The schedules give several ex- 
 amples of acts. — (Of. Sheriff Courts Act, 1876, sect. 51 : 
 " acts, orders, judgments;" Act of Sederunt 8th Jan. 1881, 
 sect. 1 — " Acts of the Court of Session, &c.") The document 
 evidencing the decree is in certain cases called " an Act," the 
 most common example being the Act and Warrant of confir- 
 mation in favour of a trustee in bankruptcy (Bankruptcy 
 (Scotland) Act, 1856, sect. 102 ; Titles to Land Consolidation 
 (Scotland) Act, 1868, sect. 25, and Sch. (0) ; Minute-Book of 
 Court of ^eaaion, passim; cf. "Act of Warding," Green's Encycl., 
 s.v.) Another usage, which appears to be a Scotticism, is the 
 offer in notes of suspension " to find caution acted in your 
 Lordships' books " (Act of Sederunt 24th Dec. 1838). In the 
 bond of caution the surety " cTiacts, binds, and obliges himself." 
 And in the minute of preference at a voluntary sale of lands 
 the purchaser " enacts himself " as such. — (Juridical Styles, 
 5th ed. i. 83 : but cf. iii. 471, and 3rd ed. i. p. 96 ; Neill's Mari- 
 time Forms, pp. 95 and 96), The idea which runs through 
 all these meanings is the solemnity of the act or deed. 
 
DEFINITIONS. 303 
 
 To this it may be added that in English law in the phrase 
 "act and deed" the words are synonymous (Sweet, s.«.). 
 Scots law uses the word " deed " for a private act in writing. 
 
 (7.) Statutes are called Acts of Parliament. This 
 usage in England appears to correspond with the change in 
 parliamentary practice from procedure by petition to the 
 King to amend the law to procedure by bill by the Lords or 
 Commons. — (Hearn, Government of England, p. 58 ; Statutes at 
 Large, preface; Anson, Zaw and Custom, of the Constitution, 
 2nd ed., part i., p. 9). An " act " is now commonly used in 
 this sense. We classify statutes according to the interests 
 involved, as " Public Acts," " Private Acts," " Local Acts," and 
 speak of "Printed Acts," and copies thereof. — {Gf. Ilbert's 
 Methods of Legislation, p. 26, &c.) We also classify them 
 according to the legislative body which enacts them — 
 American Acts of Congress : Acts of Sederunt of the Scottish 
 Court of Session, which formerly dealt occasionally with 
 substantive law, but are now merely laws like the English 
 Eules of Court; Acts of Adjournal, similar laws enacted by the 
 High Court of Justiciary in Scotland ; and Acts of the 
 General Assembly of the Church of Scotland. 
 
 (8.) The word is also applied to acts of the Sovereign in 
 administration, in the phrase " Act of State " {Poll v. Lord 
 Advocate, 1897, 1 Eraser, 823). 
 
 SECT. XL. — DEFINITIONS. 
 
 The words for law which we have hitherto examined take 
 their origin generally in judicial process or forms of legislation. 
 We now come to words which refer rather to the matter of the 
 law.'^ The Pandects, and in imitation of them the Decretals of 
 Gregory IX. and of Boniface VIII., conclude with two long 
 miscellaneous titles, which are still of value to the practising 
 lawyer, and are familiar to the student, the first. Be Ver- 
 iorwin Signifieatione, and the second. Be Biversis Begulis Juris 
 
 ' See note 3, p. 288. 
 
304 LAW. 
 
 Antiqui — all of which are collections of laws, and merit 
 special attention. Definition and Eule were treated as 
 synonymous in the Eoman law. Papinian wrote a book of 
 Eules under the name of Definitions. — (Pothier, Pandects, 
 Lib. 50, t. 17, Eeg. Gen. ii.) The title of the Code (vi. 38) 
 corresponding to that already referred to in the Digest is 
 " De Verborum et Eerum Significatione." ^ 
 
 The definition of special words, though said to be danger- 
 ous (L. 202, D. de B.J.) is a special form of setting up the 
 landmark. Language is the vehicle of legal as well as of 
 everyday thought, must be used intelligently, and must be 
 intelligible to the hearer. Usage — custom — is the very 
 foundation of language, but when words come to be used in 
 legal transactions and proceedings they necessarily take a 
 peculiar meaning. Definition is necessary and useful, for it 
 prevents disputes or solves them when they arise — is in 
 fact law ; ^ and the only dangers are loose or hasty definition, 
 and the pressing of definitions, like maxims, into uses for 
 which they were not originally intended. A court in apply- 
 ing a definition will keep this in view, and do as was done in 
 the Scots case M'Kinlay, 14 D. at p. 164, where " merchants," 
 was applied to the small retail dealers intended by the Legis- 
 lature, who are still in Scotland known by that title.* 
 
 Under the English system of precedents a word once 
 interpreted by the courts tends to take the judicial meaning 
 ever afterwards. Such twisting of words is seen in the Scots 
 decisions as to the meaning of the words, " To A. in liferent 
 and his children in fee," where the fee is held to be in A. We 
 have now collections of judicial decisions in our Digests* 
 under the title " words." The practising lawyer knows 
 how to use the words " child," " family," " issue," and such- 
 
 1 The exposition of AlberiooGentili 'See the words "house" and 
 
 in his commentary on this title of "tenement" in Grant v. Langston, 
 
 the Pandects (Hanovi», 1614) may 1900, 2F. (H.L.)49. 
 
 be referred to, * Stroud's Jvdidal Dictionary. 
 
 ^ See Bills of Exchange Act, sees. 
 3, 17, &o. 
 
RULE. 30S 
 
 like.i If the interpretation is inconvenient or unjust, the 
 Legislature must interfere. 
 
 In recent practice it has been found a convenient way of 
 simplifying Acts of Parliament and similar statutes to give 
 interpretation clauses — many of great length ; and the Legis- 
 lature has passed a general Act containing a great number 
 of definitions, the Interpretation Act, 1889 (52 and 53 
 Vict. c. 63), which is often forgotten by Parliament itself. 
 These definitions are truly laws. — (See Green's Encycl., s.v. 
 " Statute Law.") They may be regarded as artificial, as 
 opposed to natural and customary definitions. 
 
 The Orders of the Commissioners under the Local Govern- 
 ment (Scotland) Act, 1889, fixing the boundaries of counties 
 and parishes in Scotland are " definitions " both in the 
 original and in the derivative sense. The later physical 
 application of the term may be seen in its application to the 
 proposition itself, which embodies the legal definition. 
 
 SECT. XLI. — EULE. 
 
 The second title to which reference was made in last 
 section is Be Diver sis Begulis Juris Antigui. The Greek 
 word Kovwv probably gives us the key to the legal associa- 
 tions of the word " Eule." 'Kavdov was the reed used in the 
 measuring of land. The associations are the same as vofj-oi, 
 allotment of land, definition, terminus, boundary stone. In 
 Babylonian documents, as we have already seen, there are 
 careful measurements in descriptions of lands, and in the 
 Michaux Stone we find mention of a person, " the measurer 
 of the field." — {Records of the Past, ix. 98 ; cf. p. 152, supra.) 
 
 It was therefore the measuring rod — the rule — which 
 enabled men to define their lands and their rights. As we 
 have seen, the land measurer was a sort of judge, whose office 
 demanded practical skill and high integrity. An enumera- 
 tion of his qualifications is given in the treatise ascribed to 
 
 ^ The remarks of Lord Eutherfm-d 1893, 20 E. 986, are unfair to the 
 Clark in Bryaon v. Mimro's Trs., uonveyancer. 
 
 U 
 
3o6 LA W. 
 
 Frontinus/ who enumerates fifteen causes of dispute as to 
 land. What must they have been in Babylonia and Egypt, 
 when agriculture was the chief national industry ! 
 
 Regula suggests a machine — a ruler to draw straight lines 
 — which was perhaps used by judges to keep themselves as 
 well as litigants straight. So it has been said " ' Canon law ' 
 is neither more nor less than a rule, because it is intended ' to 
 keep a man straight ' (in faith as well as practice) ' drawing 
 him neither on one side or the other, but rather that which 
 correcteth that which is out of level or line.' " The last 
 words are quoted from Sir Thomas Eidley (Dodd, Canon Law, 
 56). 
 
 In the first text of the title now under consideration, 
 Paul defines " Eegula " thus, — " Eegula est quae rem quae est 
 breviter enarrat. Non ex regula jus sumatur, sed ex jure 
 quod est regula fiat. Per regulam igitur brevis rerum narratio 
 traditur, et, ut ait Sabinus, quasi causae conjectio est, quae 
 simul cum in aliquo vitiata est, perdit of&cium suum." As 
 the preceding title dealt with words and names, this attempts 
 to deal with things and facts. The rule is npt law of itself, 
 but a short pithy statement of some result of law. But when 
 Tribonian collected the 211 texts which form this title and 
 put them into Justinian's Pandects, they became law, and 
 have ever since been so treated by civilians.^ 
 
 All the great Eoman jurists composed books of " Eegulte." 
 We find an example of how a regula was treated in Celsus' 
 exposition of the Regula Gatoniana (D. 34, 7) — the rule 
 that if a legacy would have been useless if the testator had 
 died the moment after executing the testament, it could not 
 subsequently be cured by change of circumstances. This rule 
 is there modified and explained. But in the Pandects, as 
 observed already, Begulce are made law. 
 
 Gains in his Institutes (i. 83, 84, 85; ii. 68, 78, &c.) 
 
 applies the word to laws of nations and of nature. Such 
 
 1 P. 41, supra. See also the refer- '' Bankton (Iiwt. iii. pp. 45, 108) 
 
 ences to arhitri and mensor in LI. 7 says that Paul's warning still applies 
 et 8, D. Mil. reg. (10, 1). to maxims or rules. 
 
RULE. 307 
 
 a rule was a concrete application of some general equitable 
 and reasonable principle. Cicero (Be leg., i. 6, 19) identifies 
 law {Lex) with abstract rule — "juris atque injurite regula." 
 —{Cf. Horace, Sat. i, 3, 118.) 
 
 The Greek word for Eegula — Kavu>v — was applied to the 
 rules laid down by the Church Councils for the regulation of 
 their affairs and the faith of the Church. Justinian in his 
 lolst Novel {Tvepi toov eKKKrjo-iaiTTiKwv Kavovwv, k.t.A.) dealt 
 with these and enacted that the Canons of the Councils of 
 Nicsea, Constantinople, Ephesus, and Chalcedon should have 
 the force of Laws (vicem legum obtinere sanctas ecclesi- 
 asticas regulas, &c. — tol^lv vofxMv eirexeiv tow ay/on? 
 eKKXrjcriao'riKovi Kavovas, k.t.X.) This Novel may be taken as 
 the first chapter in the history of " the Canon law." 
 
 Isidore of Seville repeats the fact " Canon Graece, Latine 
 regula nuncupatur," and defines " Eegula " thus : " Eegula 
 dicta est eo quod recte ducit, nee aliquando aliorsum trahit. 
 Alii dixerunt regulam dictam, vel quod regat, vel normam 
 recte vivendi preheat, vel quod distortum pravumque est 
 corrigat." — (Deer. drat. I. iii. 1 and 2.) Whereas the Civil law 
 treats Begula as a form, the Canon law looks at it as embody- 
 ing the matter of the law. The former is purely legal and 
 formal, the latter is moral and substantive. Gratian quotes 
 Isidore in the Decretum (I.e.), and adds that some canons are 
 decrees of the Pontiffs and some statutes of Councils. 
 " Canon " and " Eegula " are now true statute law of the 
 Church. This was embodied in the Corpus Juris Canonici ; 
 and might be divided like the municipal law into civil and 
 criminal law, procedure, &c. The phrase " Canon law " is 
 like "Statute law'' and others. It is a body of law com- 
 posed of Canons. This is the later physical application of 
 the term. It is also applied outside of law to collections of 
 books — the sacred canon ; and to a member of a cathedral 
 chapter — a person with certain rights. 
 
 In modern usage in England the phrase " Canon law '' is 
 applied in a narrower sense to the ecclesiastical as distin- 
 
3o8 LA W. 
 
 guished from the municipal law. It applies only to 
 Christians in their spiritual affairs. — (Dodd, cyp. cit. 56 ; 
 " The Canon Law and Scottish Presbyterianism," 32 Journal 
 of Jurisprudence, 113.) 
 
 Our modern law is often spoken of as a body of rules ; 
 e.g., G. J. Bell (Prin. sect. 1.) " The civil jurisprudence of 
 Scotland comprehends, first, a knowledge of the rules and 
 exceptions relative to civil rights," &c. Particular laws are 
 spoken of as rules, e.g., " the rule of the road " ; " the rule 
 of ex parte Waring " — a decision of Lord Eldon as to ranking 
 of creditors, which has been followed and applied in England, 
 but does not hold as law in Scotland.^ 
 
 Merlin, in his R4pertoi7'e de jurisprudence (s.v, Eegle) says 
 " on entend par rfegles de droit des principes g^neraux, qui 
 sont, a peu prfes, dans la jurisprudence ce que sont les 
 axiomes dans la geometrie." This shows the change of view 
 from the time of Paul. Merlin gives a translation of all the 
 regulce juris in the Pandects and the Decretals, and concludes 
 by saying that in his day there were true rules of law con- 
 tained in the French Codes — in a word the general laws of 
 France. 
 
 And in recent statutes, as we have noticed before, enact- 
 ments are made in the form of rules either to guide the 
 parties in their conduct, so as to protect their rights, or 
 determine their duties (Bills of Exchange Act, 1882, sect. 
 41) ; or to enable the judges to decide points when they 
 arise, and so indirectly to enable the parties to regulate 
 their conduct accordingly (Partnership Act, sect. 2 ; Sale of 
 Goods Act, sects. 18 and 29.) In these Acts rules are laws. 
 
 The English laws of procedure are mainly contained in 
 Rules of Court made by the Lord Chancellor and certain other 
 persons under the Appellate Jurisdiction Act, 1876. These 
 also are true laws, and are due to legislation of the same 
 kind as Scottish Acts of Sederunt. But in the Ballot Act, 
 
 1 Royal Bank v. Commeroial Bank of Scotland, 1882, 7 App. Ca. at p. 
 383 (LordSelbc- o, L.C.) 
 
RULE. 309 
 
 1872, a large portion of the law is contained in " Eules " in 
 schedules appended to the Act and incorporated with it. It 
 has been held that these rules are merely directory ; that is 
 to say, slight deviations are immaterial.^ 
 
 In the Elementary School Teachers' (Superannuation) 
 Act, 1898, the Treasury and the Education Department are 
 empowered to make "Eules," which must be laid before 
 Parliament. The " Eules " enacted are precisely in the form 
 of a statute. — (Nelson's Annotated Scotch Code, Appendices.) 
 All such legislation is regulated by the " Act for the publica- 
 tion of Statutory Eules " (56 and 57 Vict. c. 66). 
 
 " A Eule of Court " is also applied in English practice to 
 a single Order, e.g., in the fictitious action of trespass in 
 ejectment.^ The following quotation is from Coke's Com- 
 mentary on the Statute of Marlborough : — 
 
 " In open court, where the parties, counsel, and attorneys attend, 
 ought orders, rvles, awards, and judgments to be made and given . . . 
 Nay, that judge that ruleth or ordereth a cause in his chamber, though 
 his order or rule be just, yet offendeth he the law, . . . because he 
 doth it not in court." — (2nd Inst, p. 103.) 
 
 In Scottish procedure it occurs in applications for new 
 trials in jury procedure. " When the party against whom 
 the verdict has been found intends, without lodging a bill of 
 exceptions, to apply for a new trial, . . . such party 
 shall give notice of a motion for a rule to show cause why 
 the verdict should not be set aside," &c. — (A. S. 16th Feb. 
 1841, sect. 36 : " [Eules] as to applying for a new trial.") 
 The Court after hearing may discharge the rule; or they 
 may " make it absolute," by setting aside the verdict and 
 granting a new trial. 
 
 The word " Eule " is also applied to propositions which 
 are not judicial or legislative, but partake of the nature and 
 form of law {cf. Merlin, Eip. de Jur., s.v. Efegle, ArrSt, &c.) 
 So it is applied to the extrajudicial stipulations and con- 
 
 1 Phillips, 17 Q.B.D. at p. 812. = Blaokstone, iii. 203, xi, ; Stephen, 
 
 iii. 629, 
 
310 LAW. 
 
 ditions for average in the " York- Antwerp rules'' of the 
 International Law Association ; and the " Glasgow Marine 
 Insurance Eules, 1901." The individuals who contract make 
 these law for their special contracts. If they are univer- 
 sally adopted, they may not be technically, but they will be 
 really law.^ 
 
 Eule is still used in the general sense of law, but rather 
 with the political reference to government, as in the word 
 " Euler." The phrase " bear rule " illustrates this : — 
 
 " Ought, then, the respectable classes to enjoy rule and supreme 
 power ?" — (Weldon's Politics of Aristotle, 128.) 
 
 SECT. XLII. — REGULATION. 
 
 " Eegulation " is a later derivative from the Latin regula. 
 It frequently occurs in the sense of rules made for future 
 guidance, but it is often impossible to distinguish regulations 
 from rules. Thus in the Trusts (Scotland) Act, 1867, sect. 16, 
 the powers of the Court are said to be subject to certain 
 " rules and regulations," and when we turn to the preamble 
 of the Act of Sederunt referred to in this section (15th July 
 1865), we find provisions called " Eegulations," which in 
 England are called " Eules of Court." ^ The Ordinances of 
 the Scottish Universities Commissioners (which are law) are 
 generally described as enibodying " Eegulations " for par- 
 ticular subjects (pp. 313-314, infra). 
 
 The Army Act uses both terms in different connections. 
 Section 70 gives Her Majesty power to make " rules of 
 procedure," which are to be laid before Parliament. Section 
 71 declares that she may make " regulations " as to the 
 persons to be invested as officers with command. By sect. 
 93 a Secretary of State may make " regulations " as to 
 enlistment. And by the Eegimental Debts Act, 1893, sect. 
 13, the Queen may by Eoyal Warrant make " regulations," 
 which are to be published and laid before Parliament. There 
 
 1 Report of Twentieth Conference, 1892, sect. 6 (Regulations), sect. 7 
 p. 213. (Rules by County Council.) 
 
 2 Cf. The Small Holdings Act, 
 
REGULATION. 311 
 
 is a well-known volume " The King's Eegulations and 
 Orders for the Army," which contains a code of law for the 
 use of the Army. It is law, for it deals with rights and duties 
 in all their aspects. On opening any of these military 
 volumes at random, we are struck by the fact that the laws 
 are not expressed as commands in the imperative mood. It 
 is not " shall " or " must," but " will " :— 
 
 " 2077. — Demands and requisitions will be made out in ink, and 
 signed by the officer who is responsible for them." 
 
 The use of the indicative mood, present or future, is ex- 
 plained by the fact that the regulations are addressed to 
 persons who wish to obey the law. The rules are their own, 
 and they follow them willingly. — (Gf. p. 171, swpra). The 
 law imperative with sanctions is behind and concealed, 
 and behind this is the force of the opinion and good- 
 will of the society to which the soldier belongs, who 
 would regard retiral or expulsion as disgrace. In the 
 construction of the legal machine, sufficient motive power 
 is found in the sense of discipline of the soldier. He 
 asks what is to be done, and accepts the directions in the 
 regulations. So in the Ballot Act of 1872 the directions for 
 voters are in the indicative mood. In the body of the Act 
 they are imperative, but for the guidance of the law-abiding 
 citizen the other way is simpler and not offensive to his 
 d^nity. The same remark applies to conveyancing law and 
 law of procedure. These are true law, but they are as it 
 were one remove from the rights which they are designed to 
 protect. They are for the most part conventional and 
 arbitrary, but must be followed in the interests of justice and 
 order. A popular example may be found in the Post-Office 
 Quarterly Guide. The law is embodied in Acts of Parlia- 
 ment and Orders in Council, but the guide gives regulations, 
 directions, and advice to persons who wish letters to arrive 
 without delay at their destination. This is an art of con- 
 veyancing founded on post-office law, like the land convey- 
 ancing which is founded on the land laws. 
 
312 LAW. 
 
 SECT. XLIII. — ORDER. 
 
 We frequently meet the word " order " in connection with 
 rule. This chapter commenced by accepting the etymology 
 from " orior," with the explanation that it described the seats 
 in rows of a theatre, rising up gradually. We may now notice 
 the legal usages. In classical Latin it was applied to military 
 ranks, and Caesar uses " ordines " for commanding officers. The 
 ordo equester was a similar usage which still survives in " holy 
 orders," " monastic orders," &c., and the word " ordain." ^ 
 Ducange explains " ordo " by " regula," " canon," &c. 
 
 Orders ^ in Council are a familiar form of British legis- 
 lation and are now published by authority in the same 
 form as the statutes. It is generally a delegation of 
 legislative power by Parliament to a special department. 
 Such are '' Provisional Orders " obtained from a Govern- 
 ment Department to be confirmed by Parliament, and this is 
 now the form adopted to supersede Private Bill legislation in 
 Scotland.— (62 and 63 Vict. c. 47, sect. 15.) 
 
 An Order may be a temporary law laid down by a local 
 authority.— (^atyfcie, 1901, 3 F. (Just.) 54.) 
 
 The House of Lords in its appellate jurisdiction may issue 
 " Orders " appointing sittings, and the Court of Appeal may 
 do so also as to the conduct of business. These " Orders " 
 deal with administration and are distinct from the " Rules," 
 but they too affect rights and are really laws. — (Appellate 
 Jurisdiction Act, 1876, sects. 8 and 16.) 
 
 Army Orders may be His Majesty's regulations, general, or 
 garrison orders (Army Act, sect. 11), whereas the word " com- 
 mand " is applied to specific Orders (sect. 9). Army Orders 
 are evidence of the matters and things therein directed to be 
 stated by the Act (sect. 163 (e) ; Manual of Military Law 
 (1894), p. 350). 
 
 " Order " is applied to the decree of a Court in England, 
 a usage which has been partially adopted in Scotland, e.g., a 
 
 ' Note p. 314, infra. » Cf. Medical Act, 1886, sect. 22 (2). 
 
ORDER. 313 
 
 winding-up order under the Companies Acts.^ Sweet {Did. 
 S.V.) explains that " as a general rule ' order ' is opposed to 
 'judgment,' and therefore denotes (1) orders made in summary 
 proceedings . . . , and (2) orders made in actions or 
 interlocutory applications." Such orders are commands of 
 general or particular application. An order of Court may be 
 a title or may impose liability. So also may an ' order ' in 
 trade. This has wandered far from the original etymology, 
 though the transition of ideas is sufficiently obvious. Again, 
 the abstract order to pay a sum of money, when issued 
 by the post-office in a certain legal form becomes identified 
 with a document in the phrase "money order." This is 
 a title, a right, a thing, a chose in action. 
 
 In the phrase " the order and disposition " of a bankrupt 
 the word comes nearly to meaning power or right. — (Bell, Com. 
 i. 270 ; Stephen, Com. 12th ed. ii. 160). 
 
 The laws which regulate Parliamentary procedure are 
 called " standing orders," and " a point of order " in Parlia- 
 ment is simply a point of law in procedure. — (House of 
 Commons debate. Times, 20th February 1901.) A point of 
 " order " differs from a question of privilege. 
 
 Derived from " ordo " comes " ordinance." Several collec- 
 tions of law are known by this name — the laws of the 
 Hanseatic Towns and the Ordonnance de la marine of Louis , 
 XrV. — (BeU., Com. i. 548). Coke distinguishes a statute and 
 an ordinance in that the latter has not had the assent of the 
 King, Lords, and Commons, but is made merely by two of 
 these authorities.^ 
 
 The legislation of some British colonies (e.g., Hong Kong, 
 Malta) ^ is published as ordinances, which ordinances are in 
 the form of British statutes. 
 
 The legislation as to the Scottish universities already 
 mentioned is a volume of ordinances, the legal character of 
 
 ^ Buokle, passim; Mackay, Prac- ^ i Inst. 25; Bouvier, s.i). ; Merlin, 
 
 tice, ii. 398 ; Crofters Holdings (Scot- Mp. de Jur. s.v. 
 land) Act, 1886, sects. 12, 28, &c. » Of. 50 and 51 Vict, o, 54, sect. 
 
 7(«). 
 
314 LAW. 
 
 wMch is discussed by the House of Lords in Metcalfe v. Cox, 
 1895, A.C. 328. These are framed and construed as 
 statutes. — {Johnston v. The University of Glasgow, 7 S.L.T., 
 p. 407.) 
 
 In French procedure ordonnance is applied to the orders of 
 single judges in certain cases. — (Merlin,) 
 
 Again, the word " ordain " is used in the ordinary Scots 
 summons as synonymous with " decern " in the conclusion 
 that the defender '' ought and should be decerned and 
 ordained " to pay, &c. — (P. 293, supra)} 
 
 SECT. XLIV. — ETIQUETTE. 
 
 The world of fashion and some other small worlds are 
 ruled by a special law, which is etiquette. This word means 
 the ticket which determines the order of precedence. It may 
 either be the ticket placed on the seat or the ticket given as 
 a title to the privileged person. — (Littre, Skeat, s.v.). In the 
 legal and the medical professions it may operate as true law. 
 We may have points of etiquette as to accepting or refusing 
 fees, or doing or refusing to do particular work, like points of 
 law decided by a dean or by a committee as a tribunal and 
 enforced by the public opinion of the body to which the 
 individual belongs, with the ultimate sanction of expulsion 
 and ruin. There is a small code of etiquette, expressed ia 
 ordinary legal language, deahng with the rights and duties of 
 counsel with regard to fees and retainers, and the duties of 
 senior and junior counsel. As the relations become compli- 
 cated, so do the laws. — (Snow's Annual Practice, 1903, ii. 
 631 ; Parliament-Hoiise Book, G. 23.) The " gentleman " — 
 the ordinary man — obeys the rules naturally and feels no 
 constraint. He anticipates as the good citizen in the state 
 the decision of the tribunal, and may even be more punctilious 
 than the average member. His code of etiquette may, like 
 his moral code, be higher than that of some of his fellows, 
 
 ' This imjiorts an obligation ; when it imports in the general view a right 
 a licentiate is "ordained to preach," as well as a duty. 
 
SUMMARY. 31S 
 
 while not so high as that of others. We may see etiquette 
 merging into law in the case of the General Medical Council 
 sitting judicially on questions of " infamous conduct in any 
 professional respect." — (21 and 22 Vict. c. 90, sect. 29.) 
 This is similar to the relation between church law and 
 municipal law. The same relation is also illustrated in naval 
 and military courts.^ All these are courts with a special 
 jurisdiction of their own. 
 
 SECT. XLV. — SUMMARY. 
 
 We have seen right appearing in the double form of right 
 in general and '' a right " in particular, determined in space 
 and time. We have seen also " an obligation " widened and 
 transmuted into " obligation " in general. So also a 
 duty — a single actual prestation defined in space and time 
 becomes " duty," the generalised idea of what man ought to 
 live for. So with law. It may be that it starts from the 
 particular — " a law " defined in space and time — an actual 
 decree engraved on a pillar, which may require also physical 
 reading and proclamation, but operating only within a 
 special limited territory, or applying only to a definitely 
 related group of men ; it inevitably ends with the general 
 idea of law — the something which underlies all laws — the 
 true essence of law, and not mere accidents — true justice 
 and wisdom, and not merely caprice of a ruler — the idea to 
 which the ruler appeals when he legislates, like the ideas to 
 which he appeals when he paints pictures or writes verses. 
 The general development is from some rude physical or 
 material form, through an abstract intellectual idea into 
 another physical embodiment, in many cases the written 
 document which sets forth the law, or the persons or the 
 institution which administer it. 
 
 But assume that it starts from the general idea, law 
 means that general restraining force which keeps society 
 
 ' See pp. 224, 226, 269 as to Hindu and Mohammedan law and others in 
 relation to commercial and family law. 
 
3i6 LA W. 
 
 together. This can only be seen and felt in a physical 
 embodiment ; and so each statute becomes a " law," divided 
 and defined in space and time, like separate rights and 
 separate duties. Our word " law " has adopted, in addition 
 to its own meanings, the meanings of the Latin jus, with the 
 exception of right in the so-called subjective sense. If, again, 
 the word law starts from legislation, the meanings develop 
 in two directions. It goes back to the authority who gives 
 power to legislate, till we reach legislation " before the 
 foundation of the world." It follows the result of legislation 
 into the decisions of the courts or the acts of private indivi- 
 duals in the most minute details. As we formerly traced 
 back a right through an infinite series of rights (p. 121, stt^a), 
 and an obligation through general obligations to an original 
 duty (p. 199, supra), so now we find a series of ever-widening 
 circles of law, starting from the centre of the concrete decision, 
 and losing themselves in infinity. So 
 
 " Each unit in the series that begins 
 With God's Throne ends with the tribunal here." 
 
 (Browning, The Ring and, the Book, v. 1769.) 
 
 Hence the English word " law " has been used and still is 
 used in almost all the following senses : ^ — 
 
 (1.) A rule, or a body of rules, formerly traditional, 
 definitely expressed and published, in order to guide judges 
 in the administration of justice : The Laws of Moses ; The 
 Laws of King William the Conqueror; "Instruction for 
 Judges " (Sigel, Slavonic Law, 18). 
 
 (2.) An enactment, edict, decree, constitution, or statute 
 altering, amending, or improving such rules. — (Blue-Book, 
 South Africa, July 1901 (Cd. 714), pp. 39, 46, &c.) The use 
 of writing is originally designed merely to afford evidence of 
 the law, now it constitutes the law. A similar distinction 
 prevails as to private deeds. 
 
 (3.) Any enactment of a legislative body, whatever its 
 
 ^ Gf, Murray's Dictionary, t.v. 
 
SUMMARY. 317 
 
 purpose, if written : " Expiring Laws Continuance Act, 1902." 
 " Laws " here means " Acts of Parliament." 
 
 (4.) Any section or distinct proposition from such an 
 enactment. — {Cf. Article 2 of the Einfuhrungsgesdz zwm 
 Bv/rgerlichen Gesetzlmche filr das Deutsche Beich, " Gesetz im 
 Sinne des Biirgerlichen Gesetzbuchs und dieses Gesetzes ist 
 jede Eechtsnorm.") 
 
 (5.) A similar proposition which may be expressed in 
 words though not written : Common Law. 
 
 (6.) A group of such rules applicable to a special country 
 or a special subject : The Law of Scotland ; Law of Heritable 
 Property ; Law of Agency ; Law of Husband and Wife. 
 
 (7.) Similar rules for private citizens : Conveyancing Laws ; 
 Bills of Exchange Act ; Sale of Goods Act ; Laws of Whist 
 (Cavendish) ; Laws of Chess, &c. 
 
 (8.) Eights or a right resulting from law : amittcre legem 
 terrce (Glanvill, ii. 3). Beames translates, " He shall lose his 
 law," i.e., the loser in the combat is outlawed, or loses certain 
 rights of law. So Blackstone (iv. 136) says that conspirators 
 " were by the ancient common law to receive what is called 
 the villenous judgment, viz., to lose their liberam legem, 
 whereby they are discredited and disabled as jurors or wit- 
 nesses," &c. ; and hence 
 
 (9.) The remedy or procedure given by law. — Wager of 
 Law (Pollock and Maitland, ii. 600.) In the Assize of Claren- 
 don, sects. 3 and 4, " facere suam legem " means to pass his 
 ordeal — his legal trial. So in the Bialogus de Scaccario, ii. 
 7, we find " judicia vero, leges candentis ferri vel aquse." — 
 (Stubbs, Select Charters, 8th ed. 221.) "He was to put in 
 sureties or vadios that at such a day he will make his law ; 
 that is, take the benefit which the law has allowed him." — 
 (Blackstone, iii. 341.) 
 
 (10.) The decision of a particular case by a court : — 
 
 " That decision stands perfect and complete law." — (Per Cairns, L.C., 
 in Phosphate Sewage Go., 4 App. Ca. 810 ; cf. Hobbes, p. 399, infra.) 
 
3i8 LAW. 
 
 (11.) The terms of a private contract, deed of conveyance, 
 
 or trust-deed : — 
 
 " Law of the Tenement."— (Bell's Prin. lOth ed., 1086.) 
 " The purposes, if clearly expressed either in the trust-deed or in 
 a separate lawful deed, give the law of the trust."— (I6id 1997.) 
 
 In this usage and the last, law may coincide with title, 
 though in a very wide sense all laws are titles (p. Ill, supra). 
 
 (12.) The fundamental principle underlying all particular 
 laws : — Rule ; Order ; The Law of God ; The Moral Law. — 
 (Westminster Confession, Chap, xix.) In the EngKsh liturgy 
 each of the Ten Commandments is called a law. 
 
 (13.) The State — the Court — representing the physical 
 
 force behind the principle : — 
 
 " You my judges and last hope ! 
 You are the law : 'tis to the law I look," 
 (Browning, The Ring and the Booh, v. 1748, and pobsdm.) 
 
 (14.) A thing — a commodity, supplied by rulers in an 
 
 economic sense — Cheap lavj ; speedy justice : — 
 
 " We shall neither sell right nor justice." — {Magna Gharta.) 
 " By defending property, by diminishing the price of law,'' &c. — 
 (Macaulajf's Essays, Southey, ad fin.) 
 
 Here law is regarded as an interest of the public, or of 
 private persons. 
 
 The various meanings of the word law may also be classi- 
 fied as rights and obligations have already been arranged. — 
 (Of. pp. 50 and 157) :— 
 
 1. From the point of view of the judge. — Decrees ; dooms ; 
 
 judgments ; orders {interlocutory or firuxV), Acts of 
 Court, &c. 
 
 2. From the point of view of the legislature, anticipating 
 
 (a) the decision of disputes ; and (&) their absolute 
 prevention so far as possible. — Statutes; Acts; 
 rules; regulations; orders; ordinances. 
 
 3. As evidence of law. — Written statutes, &c. ; precedents, 
 
 &c. ; titles ; ohligations. 
 
 4. As the object of judgment. — Eights, &c. ; debt ; obliga- 
 
 tions; liabilities; order. 
 
SUMMARY. 319 
 
 5. As special laws. — Constitutional ; parliamentary ; eccle- 
 
 siastical ; military, &c. 
 
 6. As negative laws. — Interdicts; Prohibitory orders. 
 
 7. From the point of view of the claimant in litigation 
 
 law is (a) a system of rights ; and (&) the means of 
 enforcing the same. 
 
 8. From the point of view of the debtor or respondent 
 
 law is (a) a system of duties, burdens, and liabili- 
 ties ; and (b) the burden and liability to endure 
 enforcement. 
 
 9. From the point of view of society and the state. — 
 
 Law ; order ; justice ; reasonaMeness, &c. 
 
 What, then, is the central idea running through all the 
 meanings of law ? 
 
 A rule ? This is merely a protest against caprice, a de- 
 finition for a purpose, like some of the theological proposi- 
 tions in the creeds. Mere rule is often the refuge of craft or 
 stupidity, for the definition is adapted to facts by making 
 the same rule apply, if all the circumstances are identical. 
 But circumstances are never identical, and so our rule of 
 law must always be different if it is to be just. When rules 
 become too general, like maxims, they become useless. 
 
 A command or a sanction ? The command and the 
 sanction may both be resolved into some final physical fact 
 of nature — a law of nature which we cannot disobey if we 
 tried, such as the necessity of living on the earth and not 
 in the water, of taking food to sustain life, and so forth. We 
 have seen that in modern law criminals are fewer, and even 
 litigation is disappearing. On the West Coast of Africa 
 litigation is popular as a substitute for fighting. The 
 command " don't fight " merely forces the nervous energy of 
 men to find another outlet. — (Jur. Bev. i. 272.) Command 
 and sanction are only one aspect of physical embodiment, 
 they presuppose a material on which they act. 
 
 If it is necessary to have a single definition of a law 
 
326 LA W. 
 
 in the jural sense, the following may be suggested : — " A 
 law is an assertion ^ which expresses from the standpoint of 
 society or the State the right of one person, or a group or 
 class of persons, and the corresponding duty of another 
 person, group, or class in harmony with the interests of the 
 society or the State itself." This is otherwise expressed : ^ — 
 " Positive laws are the contingent expression of the material 
 rights and mutual limitations of individuals, arising neces- 
 sarily from the reciprocal relations of human beings in 
 society." This is a formal definition adopting the categories 
 of formal logic. It does not touch except by implication the 
 substance of law, or explain what are in point of fact the 
 interests of society. These differ according to the nature of 
 the society — churches, states, confederations of churches or 
 states, families, armies, trade guilds, merchants, cricket or 
 football teams, even two persons playing cards — any group of 
 self-conscious human beings. 
 
 These interests all have a physical embodiment in persons 
 and all that these imply. When one of the individuals or 
 the State itself attempts to change the arrangement, and 
 since life itself is continual change, these rights, duties, and 
 interests call for perpetual readjustment. The machinery 
 by which the change is attempted or the readjustment 
 made is also called law. Law is a mechanical device, in 
 the first place, to prevent friction among men, so as to 
 allow them to devote their energies to ethical, political, 
 economical, scientific, artistic, or religious ends. And in the 
 second place, it may afford positively a material basis or 
 
 1 It is of course in general a pro- gisms ? Again, is jurisprudence a 
 
 position also. (See A. Sidgwick, T}ie science of rights or of forms of rights ? 
 
 Use of Wcn-ds in Seasoning, p. 17.) It will be noticed that the deiinition 
 
 Popular usage identifies legal forms of a law here suggested can be readily 
 
 with the documents in which the adapted to the metaphorical laws of 
 
 rights, duties, or laws are set forth. science — i.e., general propositions, 
 
 This usage suggests the dispute which reconcile apparent contra- 
 
 whether logic is a science of reason- dictions. — {Cf. K. Pearson, Graimnar 
 
 ing or of the forms of thought. o^&ifincs, 2nd ed. p. 86.) 
 
 Should we speak of simple appre- ^ JliUer, Philosophy of Law, p. 
 
 hension, judgment and reasoning, or 314. 
 of words, propositions, and syUo- 
 
SUMMAHl. 321 
 
 material means, which to a certain extent promote these 
 ends directly. What we generally call law is a section cut 
 out of human interests, with which the State considers it 
 expedient to deal, and which it regards as rights and duties. 
 
 Laws may, if necessary, be expressed as commands in 
 the imperative mood, because, as we have seen, a legal pro- 
 position in defining rights or duties may regard the future 
 and not merely the past. Modern laws in point of fact are 
 generally expressed in the indicative or subjunctive mood. 
 It depends on the historical development of societies 
 whether the laws are addressed to individuals, or groups, or 
 classes. The machinery may include a sanction or artificial 
 motive, but in all societies the laws imposed or recognised 
 are enforced and obeyed without an artificial sanction, 
 because, if men are to live, they must act in some way, and 
 in society it is generally found that the path of law is the 
 path of least resistance. 
 
 Ulpian summed up the whole law in three jprceeepta juris,^ 
 which we may now in conclusion compare with the three 
 elements of right, duty, and law. 
 
 HoTieste vivere. — Obey the law of the land, whatever shape 
 it may assume — statutes of the legislature, decrees of those 
 in authority, judgments of the Courts, the moral precepts of 
 society, the etiquette of your own world, the solemn 
 contracts into which you have entered. This life of the 
 good citizen (honestas) has a twofold legal aspect, negative 
 and positive, in duties, obligations, and bonds ; the negative 
 aspect is — 
 
 Alterum non lasdere. — Abstain from injuring others, high 
 or low, native or foreign, in person or property, in good 
 name or honour. Do not exaggerate your rights till they 
 become wrongs to others — Swmmmm. jus, summa injuria. 
 And the positive aspect is — 
 
 Surnn cuique tribuere. — Eespect the rights of your indi- 
 
 ' Of. Hastie, Kant, p. 54 ; Demangeat, Inst. i. 13 ; Leibniz, Erdmann, 
 i. 119. 
 
322 LAW. 
 
 vidual neighbour, of society, and the State. Fulfil all their 
 just claims, whether arising from the relations in which you 
 are placed, or from special undertakings into which you have 
 voluntarily entered. This precept covers obligations ex 
 contractu, and similar ones, while alterum non Icedere refers 
 to obligations ex delicto and such-Uke, but by anticipation 
 in the form of moral duties before the wrong is done and the 
 tie has become a legal obligation. 
 
 But underneath all these precepts there is the funda- 
 mental assumption of physical Hfe. Vivere is a condition of 
 vivere honeste. Eights are implied and assumed in the pre- 
 cepts of the law. Life implies an active struggle for rights.^ 
 And although the Pandects set out with these precepts 
 imposing duties, the scheme of the compilation is the vindi- 
 cation of rights in the form of legal actions and processes. 
 The good citizen must not forget that he, too, has rights, for 
 which he must stand up in the public interest. He is en- 
 titled to what law and the State call his own. He is another 
 person whom no one should unjustly injure. If he cowardly 
 abandon his just rights, if he tamely submit to wanton 
 injury, he is disobeying aU three precepts at once with 
 regard to his neighbours, is in fact betraying the interests 
 of the State, and hastening the dissolution of society. 
 
 ' Von Ihering, Der Kampf vms Secht. 
 
CHAPTER V. 
 
 CUSTOM. 
 
 SECT. I. — A SOUKCE OF LAW. 
 
 In our previous discussion we have taken " law " as prima- 
 rily representing the physical side in particular of the institu- 
 tion which we know as law in general, a distinction which 
 is hard to draw in English, but appears in French between 
 Loi and Droit, and in German between Gesetz and Becht. 
 
 " Law " may spring from the written table set up in the 
 Forum, or the march stone set down between boundaries. 
 Why do men set up " statutes " ? Why do men respect their 
 neighbours' landmarks ? 
 
 There are many answers to be found in the nature of man, 
 but one of the most important is custom. This deserves special 
 examination as an attempt to place law on a purely physical 
 basis. Custom rules the universe. The planets keep their 
 accustomed spheres ; man, civilised and uncivilised, appeals 
 to custom ; the highest idea of God is that he cannot change. 
 Custom thus stands midway between the physical and the 
 intellectual side of law. Habit may be taken as one limit, 
 and morality as the other. 
 
 SECT. II. — NEWTON'S FIEST LAW OF MOTION. 
 
 Not only does the common man assume that the world 
 has always been and will continue indefinitely to be very 
 much what it is now ; but the scientist has found it neces- 
 sary to assume a similar continuity of nature in material 
 things. Such a statement may be found in Newton's first law 
 of motion : — " Every body continues in its state of rest or of 
 
324 CUSTOM. 
 
 uniform motion in a straight line, except in so far as it is com- 
 pelled by impressed forces to change this state." This law, 
 though applied by Newton only to the material universe, may 
 be traced through all nature, conscious as well as unconscious, 
 and may be regarded as the physical basis of what appears 
 in law as custom. " Every body " may then mean " every- 
 body." "We must assume the " continuity of nature," and 
 here we are at once plunged into metaphysics, for we 
 may ask whether the universe is really persistent, continuous, 
 and eternal ; or whether it is not rather changeable, arbitrary, 
 and temporary; and whether the ideas of order and continuity 
 are not added by man in his struggle to comprehend and 
 understand things? Are not these ideas projected into the 
 chaos ? Can any individual man understand the universe 
 before he pronounces the arbitrary fiat, " Let there be light " ? 
 As we shall see hereafter in our discussion of justice, the 
 Greeks treated the whole universe under legal or political 
 categories (p. 367, infra). The very phrase " Law of Nature " 
 implied an idea of continuity. So in more modern times 
 Hooker found a continuity in nature which his assumptions 
 had already put there by implication (p. 440, infra). For our 
 present purpose, whether the reality is in mind or in the ap- 
 parently external universe, we may assume Newton's first law 
 as universally applicable to the world of things, and we now 
 proceed to trace the law as it is developed within conscious- 
 ness. — (Pearson, Grammar of Science, 2nd. ed. p. 322.) 
 
 SECT. m. — HABIT. 
 
 Habit in its most elementary form is common to man 
 with the lower animals. Professor Lloyd Morgan in his 
 interesting work on Animal Behaviour (p. 279), says that 
 " routine in many animals, so often creatures of habit, begets 
 a customary sequence, the breach of which is at once felt." 
 He tells a story of a trainer, who remarked in regard to a coUie 
 bitch, " If I put her through her tricks in the usual order she 
 
HABIT. 325 
 
 does them like an angel, but if I try and make her alter the 
 order she snaps and sulks like the devil." We must reject 
 with the learned professor the explanation of outraged justice, 
 which belongs to the world of ideas and conscious ends, and 
 we may accept his explanation that such behaviour is due 
 " to breach of customary routine." The professor gives many 
 examples of instiuctive habits in insects and animals, 
 sometimes so strong that they cannot be overcome or modi- 
 fied (c/. op. dt. p.77). 
 
 Man belongs to the world of things through his body. 
 His body is a complex of habits which are as much a part of 
 him as is his skin. We learn to walk and to speak, and along 
 with these habits we acquire a gait or trick of speech, 
 depending on the shape and strength of our limbs and organs. 
 We learn to use our fingers, and to our ordinary habits we 
 may add skill in some handiwork or in playing a musical 
 instrument. Let any one try in so doing to change his mode 
 of playing and he will find what habit is ; at a certain stage 
 change becomes impossible. But habit goes further and 
 affects the mind, our intellectual pursuits, and our moral 
 being. Lazy habits, the drink habit, are merely conspicuous 
 examples. In intellectual habits, the person tends to con- 
 tinue in this " state of rest or of motion in a straight line." 
 At one stage it is hard to break with such habit ; at a later 
 stage it may be impossible. It matters not where we draw the 
 line between physiology and psychology. The physiological 
 fact that our fingers grow stiff, that our nervous cenatres 
 respond to some impulses and resist others, are facts of 
 nature. To outer appearance they are facts as to mind 
 or will, and so, whatever the physical basis of mind may be, 
 we may say with Aristotle — " Virtue is habit." We train our- 
 selves, we train the young, we deal with criminals or savages, 
 so that when a special occasion arises we or they may act at 
 once in a manner of which we approve. ^ We endeavour to 
 supplant rude and lower instincts by introducing social and 
 ' Bacon's Essays, No. 39 ; Montesquieu, Esprit des lois, xix. 14. 
 
326 CUSTOM. 
 
 higher instincts. "We do this physically by self-mortification, 
 or by discipline and punishment in other persons, so that, 
 even assuming the basis of habit to be purely physical, the 
 substituted habits involve an element of conscious reason. 
 
 SECT. IV. — THE TYRANNY OF FASHION. 
 
 We may regard habit as primarily unconscious in the 
 subject of it, but in many cases it ceases to be instinctive 
 and automatic. The tyranny of custom among children 
 and savages is often remarked. These will perform 
 an act in a certain way, and refuse to alter their 
 mode of action because it has been their custom or the 
 custom of their fathers, or the custom of their neighbours so 
 to do. If the ploughing, or the fishing, or the weaving known 
 for generations has produced fairly satisfactory results, why 
 change it ? If a change were made and failure were to result 
 it would be a natural punishment; And this applies not 
 only to what we regard as secular employments, but also to 
 religious observances. In many cases their performance does 
 no harm, their omission might result in unutterable evil. 
 Nor is it confined to persons regulating their own conduct. 
 The neighbours of the individual savage will not allow him 
 to innovate, for in some matters, social and religious, innova- 
 tion might imperil the existence of the community. And 
 so here there is a double force of custom. It attracts the 
 individual to regulate his conduct and his particular acts in 
 a special way, and it at the same time presses him from the 
 outside in the same direction. The worshipper of strange 
 gods, the inventor of a new loom, or the author of a new 
 form of metrical or musical composition, is sure to find 
 himself face to face with an angry mob, which is composed 
 of individuals who feel themselves personally and individu- 
 ally wronged. Each individual feels that the innovation is an 
 infringement of his rights. It is a small step from the 
 rights of the individuals to the right of the society, if the 
 
PARALLEL IN ART. 327 
 
 individuals are sufficiently numerous or powerful to influence 
 the conduct and opinions of the whole body. 
 
 But these feelings and ideas are not confined to savages 
 or children. In what we call civilisation we find capricious 
 fashion and etiquette as supreme and as tyrannical. Indi- 
 viduals may cling to the fashions of their youth — high collars, 
 f riUed shirts — and derive a satisfaction from the fact that they 
 and their fashions grow old together. This is an iadividual 
 custom, but it is the simultaneous change of fashion, in 
 obedience to a general impulse — custom spread over an area 
 — which here strikes the observer. Why do we wear tall, 
 narrow hats to-day, and next year absolutely refuse to be 
 seen on the street with anything but a low, curled one ? We 
 would feel that everybody in the street was staring at us, 
 and our friends who met us, still schoolboys in spirit, would 
 make jests at our appearance. Here is the working of con- 
 science — a consciousness of doing something strange — 'plus a 
 social sanction. A man of strong character will defy this 
 phase of public opinion, and feel justified in defying fashion. 
 And women, who are more susceptible to feeling, are more 
 deeply affected than men by this phase of custom and 
 fashion, and by the sanctions referred to. A middle-aged 
 lady will hold out for a long time against a new and absurd 
 fashion, and at last give way to social prejudice, merely that 
 she may pass unobserved in the crowd. We see here suc- 
 cessive custom in the individual coming into collision with 
 simultaneous custom in the society. 
 
 SECT. V. — PARALLEL IN ABT. 
 
 We have spoken of ornament in law, and the leeiing 01 
 
 beauty. This is also connected with custom, which appears 
 
 in the aesthetic forms of rhythm and symmetry.^ Ornament 
 
 is symmetry — regular marks or strokes on weapons or 
 
 garments — a law of ornament. Dancing, music, poetry, are all 
 
 ' Of. Plato's identification of the good and the heautiful, in Bepublic, 
 iii. 401.— (Jowett, iii. 276.) 
 
328 CUSTOM. 
 
 varieties of rhythm, pleasing to the performer, spectator, 
 or hearer. The regular beat of the step in the dance or 
 march corresponds to the rhythm, which is perhaps more 
 rapid, of the drum, or the rhythm still more rapid which 
 becomes a sound — subconscious rhythm. So music evokes 
 rhythmical stamping with a vulgar audience, or a slightly 
 higher form of appreciative vulgarity displayed in humming 
 a " pedal bass " along with the performance. But at the 
 bottom of the highest musical satisfaction there is a 
 nervous response to rhythm, or contrasts of rhythm. 
 
 In all forms of art what pleases people is the thing that 
 they are accustomed to. People will listen to the same tune 
 over and over again, read the same book, or admire the same 
 picture, and the best way of catching the modern market is 
 to produce the old article in a slightly altered form, so that 
 the love of the old and the love of the new may actually co- 
 exist without apparent conflict, but for this purpose there 
 must not be much of the new. 
 
 A background of custom may lead men to appreciate 
 change, which they may regard as improvement. Custom 
 may become a wearisome burden, and any change will be 
 welcomed. And thus a legal fiction, obeying the custom, and 
 at the same time evading it, may be regarded as truly a 
 divine inspiration. There are sure to be rebellious spirits 
 in a community who wish for change, and wish to be 
 different from the rabble. They may be suppressed or 
 expelled, or, on the other hand, they may be admired and 
 envied, and may thus set fashions. Every world has its 
 rulers — the world of religion, law, politics, or fashion. The 
 justification of all rebellion is success. 
 
 SECT. VL^COMMERCIAL CUSTOMS. 
 
 In ordinary matters of commerce custom gives rise to 
 implied contracts or implied terms of contracts. So it is the 
 law that the custom of trade is an implied term of every 
 
COMMERCIAL CUSTOMS. 329 
 
 mercantile contract. In some lines of business it is the 
 custom to deliver goods for certain work to be done thereon, 
 and to allow the accounts therefor to be settled periodically, 
 the workman having a claim to retain for his account any 
 goods which happen to be in his hands. The parties have 
 been dealing on this basis ; the whole trade do so, because 
 it is convenient ; some would say it was " natural." The law 
 recognises the custom and calls it " a general lien." There are 
 such customs recognised in the Bills of Exchange Act — times 
 for presentation — hours of business — hours of posting notices 
 — usances, which are merely special customs. Customs are 
 recognised in the Partnership Act, and are referred to in the 
 Agricultural Holdings and the Crofters Acts ; parties regulate 
 their conduct by such customs, and cannot as a rule be made 
 liable for following custom ; they may as a rule be made 
 liable for unnecessarily or arbitrarily departing from custom. 
 The law is " follow custom." " The person who infringes 
 custom will do so at his peril." When you employ a trades- 
 man, you expect him to do the work in the usual manner, 
 take the usual time, and charge the usual price. If he fail in any 
 of these respects, you feel wronged, and a claim against him — 
 a right — emerges. When you make a charter-party, you may 
 not know the custom of the ports which the ship may visit, but 
 you are satisfied if you are dealt with according to the custom 
 of the port, for you are satisfied that it will be convenient, or 
 at all events you are treated in the same way as others, and no 
 favour is shown to any one. You may indeed make the im- 
 plied contract express by stipulating for such treatment. You 
 claim the observance of custom as your right. 
 
 And so customs, either confined to a district, such as a 
 parish or county, or a harbour, or to a class of persons exer- 
 cising a trade, as the stock exchange, regulate on the one hand 
 the conduct of persons, and determine what they have a right 
 to do, or what the other party has a right to expect. When 
 custom has been violated, if damage has ensued, it raises a 
 feeling of wrong in the party injured. He connects his 
 
33° CUSTOM. 
 
 injury with the departure from custom, and claims reparation 
 and a right to indemnity. 
 
 The law merchant ^ is the best known example of this. 
 It is practically a body of customs and customary law obtain- 
 ing between mercantile men, and its nature is illustrated by 
 bills of exchange. Nor is this confined to law. Mercantile 
 men follow fashions in correspondence ; and in some quarters 
 a book of mercantile correspondence may come to be regarded 
 as binding with a force comparable to that of a volume of 
 Conveyancing styles or Company precedents. The customary 
 forms are adopted because they are valid and efficacious for 
 some proposed end. A mercantile tribunal has no diffi- 
 culty in explaining the meaning usually attached to the 
 documents. 
 
 Language is merely a phase of this custom. In using 
 it a contracting party follows the usual speech of the 
 country, modified it may be by his own special habits. The 
 other party is entitled to rely on his words having their usual 
 meaning ; but this is not determined by the understanding of 
 the person addressed, but by that of any reasonable person. 
 Even language is not a process between only two individuals. 
 
 One of the most striking examples of the effect of custom 
 in prescribing forms is the policy of marine insurance. Every 
 writer and every court condemn the phraseology as stupid, 
 antiquated, ambiguous, unintelligible ; but the law of insur- 
 ance has been worked out by the courts in decided cases, and 
 common law decides the rights of parties, while the timid 
 insurance broker follows the sacred formula of the policy with 
 the conditions and memoranda, because he is following 
 fashion, and in so doing he is safe. If he strikes out a new 
 path he may go wrong, he may incur ridicule among his 
 fellows, and be liable in damages to liis constituents. 
 
 This again illustrates the double effect of a custom. The 
 average insurance broker is not tempted to depart from the 
 usual form. He gets a print, and fills up the blanks : why 
 ' Bell, Oomm., Pref. p. xi. 
 
COMMERCIAL CUSTOMS. 331 
 
 should he run unnecessary risks ? The client would prefer 
 this form. If it were altered, the client would undoubtedly 
 blame the broker for any loss. His fellows in trade would 
 laugh at his attempts to set himself up as a reformer, better 
 than his contemporaries and predecessors. They would laugh 
 louder when he fell into trouble. Whereas, if he were sued 
 on the common form, he would have the unanimous sympathy 
 of the whole trade ; his interest would be their interest, and 
 they would do all in their power to defend him : on the con- 
 trary, if he made a new precedent for himself, they would 
 sympathise with his assailant, and give their conceited brother 
 enmity and opposition. And then, to reinforce all this, we 
 have the law courts, bound strictly by precedent, naturally 
 and consciously, internally and externally, prepared to 
 enforce the custom of trade, and the traditional and well- 
 known form of policy, with its well understood results. 
 
 But in commerce custom is not the final judge of right 
 or even of expediency. The courts demand that customs 
 shall be lawful and reasonable. Sometimes the persons 
 affected rebel against custom, but find it impossible to 
 change it. In practice what is required is a statute with 
 a force irresistible to overcome the inertia of custom. If 
 this set up a statutory form, the courts wiU recognise it, and 
 our difficulties disappear. The fashion is changed by imperial 
 decree. 
 
 The difficulties of legislation in this country are now so 
 great, and are still more so if several legislatures of different 
 countries are to be consulted, that attempts have recently 
 been made to draw up rules as to general average, insurance, 
 and other matters by private congresses of lawyers and 
 mercantile men.^ It is to be hoped that the views of the 
 International Law Congress expressed in the Glasgow Eules 
 of 1901 will afford sufficient force to originate a new body 
 of customs on the subject of marine insurance (p. 310, supra). 
 
 1 In Kendriclc v. Burnett, 1897, 25 R. 82, the Scottish Coiu-t expressly 
 followed one of the Antwerp Rules, 1885. 
 
332 CUSTOM. 
 
 SECT. Vn. — FAMILY CUSTOM IN INDIA. 
 
 In India there is no lex loci, at least so far as regards the 
 Hindu law, and persons are governed by the law of their 
 personal status. This results in a different application of 
 custom from that prevailing in Europe. Here custom is local,i 
 but there a family may acquire a special custom of succession 
 and carry this with itself to another province, where we should 
 say it acquired a domicile. So it has been settled that — 
 
 " A particular family [can] have a usage differing from tte law of 
 the surrounding district applicable to similar persons. There is nothing 
 to prevent proof of such a family usage. But in the case of a single 
 family, and especially a family of no great importance, there will, of 
 course, be very great difficulty in proving that the usage possesses the 
 antiquity and continuousness, and arises from the sense of legal neces- 
 sity as distinguished from conventional arrangement, that is required to 
 make out a binding usage. Where the family is a very great one, whose 
 records are capable of being verified for a number of generations, the 
 difficulty disappears." — (Mayne, Hindu Law and Usage, 4th ed. 45-50.) 
 
 We must consider again the proposition that customs 
 immoral or contrary to public policy vyill not be enforced. 
 When English judges are applying this mle in the case of 
 Indian litigants, the question they have to consider is what 
 morality is to be the criterion — English or Indian ? 
 
 It will be noticed that, whether in agricultural India or in 
 mercantile England, the effect of custom is the same. The 
 feeling is the same ; the application depends on the physical 
 and social surroundings. 
 
 SECT. Vin. — CUSTOM IN ECONOMICS. 
 
 The influence of custom in fixing wages is well known. 
 A master will go on paying higher or lower wages because he 
 has always done so. A workman will accept low wages or 
 expect high wages because he has been accustomed to them. 
 A strike is an emphatic protest against change, though even 
 here workmen or masters may criticise their customs, demand 
 a change, and try to enforce it by a strike. 
 
 ^ As to personal customs in England, see p. 340, infra, note 3. 
 
COURSE OF DEALING IN TRADE. 333 
 
 A fair rent or price means usually the market rent or 
 market price ; but recent events show that even here custom 
 is an insufficient and unsatisfactory standard. Hence the 
 interference of the legislature by estabUshing the Irish Land 
 Courts and the Crofters Commission — so as to determine 
 fairness judicially. This idea is as old at least as Aristotle, 
 who discusses economic questions, particularly price, under 
 the head of corrective justice in a section of the fifth book 
 of the Ethics. This discussion is the germ of a similar one 
 in Pufendorf, de. Jv/re Natwrce et Gentium, and is the reason 
 why the Professor of Ethics in Glasgow taught economics, 
 and Adam Smith came to study the subject. 
 
 SECT. IX. — COUKSB OF DEALING IN TRADE. 
 
 But custom further operates as between individuals. 
 There may be a course of dealing which the law prevents a 
 person from suddenly abandoning to the injury or disadvantage 
 of the other contracting party without due notice. A person 
 may hold himself out as a partner in a firm, but he cannot plead 
 against any persons who knew him in that capacity that he 
 really is not. He has led them to believe that he is a 
 partner, and they are entitled to go on treating him as a 
 partner until he pays the debts incurred prior to notice. 
 The custom may be regarded here as either that of the debtor 
 or that of the creditor. A striking example of the nature of 
 the right so raised is given in the case of Ritchie v. The 
 Clydesdale Bank, Idnvited, 1886, 13 E. 866, where a person 
 sued a bank for dishonouring his cheques when his account 
 was overdrawn. He in effect pleaded custom; they had 
 done it before ; he expected them to do it again ; they had 
 failed ; he felt injured, and claimed damages. But the Court 
 decided that he had no valid ground for his expectation. 
 Between bankers and their customers express contract rules, 
 and if the complaisance or laxness of the bank had accommo- 
 dated him before, it was mere foolishness to expect it to con- 
 
334 CUSTOM. 
 
 tinue. This case shows that custom is subject to interpretation 
 and regulation by the law ; or that it is only one element 
 in determining and resolving the conflicts between the rights 
 of individuals. 
 
 Custom creates apparent rights simply because it is 
 custom. It also creates duties; and finally it makes laws 
 which solve the conflicts between these. But as law criti- 
 cises and judges of customs, so the legislator tries to find a 
 higher principle which will enable him to judge of the 
 customs called laws. 
 
 SECT. X. — PKECBDENTS — PRACTICE.^ 
 
 Precedents of courts are sometimes spoken of as a par- 
 ticular form of custom. The judge is bound by them as he 
 is bound by fashion. He went carefully into the question 
 yesterday, and there is no need of discussing it further to-day. 
 Thus to individual judges their own judgments, if carefully 
 considered, or even from personal vanity, become binding for 
 ever afterwards. So in the older law of Scotland, " a long 
 tract of decisions " of the Supreme Court proved the common 
 law. Courts of co-ordinate jurisdiction set a fashion. From 
 deference to great authority, from laziness, or expediency, 
 other judges follow ; custom becomes law. The judgment of 
 a superior court must also be binding on an inferior judge, 
 for a differing judgment by him would merely put the 
 parties to the trouble of appealing ; and the judges in the 
 appeal court might pass remarks on his ignorance, stupidity, 
 or obstinacy. Thus, apart from legal theory, precedents 
 become binding. In Scotland the courts have now adopted 
 the Enghsh rule, whereby one well-considered judgment 
 may become a precedent.^ But in this use of precedent the 
 
 1 Salmond's JurispnideTiee, Chaps. his Jurisprudence (Chap, vi.), and 
 vii. and viii., gives an instructive examples of how House of Lords 
 outline of the history of Custom, cases are treated in Scotland will be 
 Precedent, &c. found in Virtue v. Cominrs. of Police 
 
 2 As to the English practice refer- of Alloa, 1873, 1 R. 285 ; and Prim- 
 ence may be made to the admirable rose -v. Waterston, 1902, 4F. 783. 
 exposition of Sir Frederick Pollock in 
 
PRECEDENTS— PRACTICE. 335 
 
 courts have entirely abandoned the idea of custom. It is 
 reason which is the basis of the decision, as it is of statutes. 
 The supreme courts deliberately look to the future as well 
 as to the special case before them. If they are not setting up 
 a new custom they are at least making it definite. This is why 
 the principle of res jvdicata, which properly applies only to 
 individual disputes (Bankton, iii. 107) has been extended to 
 the decision of a general principle of law by the courts. The 
 case of Glarhe v. The Gar fin Goal Go. (p. 52, supra) illustrates 
 the procedure of the courts. The House of Lords laid much 
 stress on the point that such actions were unknown in the Scot- 
 tish courts — i.e., they appealed to the custom of the Scottish 
 people and Scottish lawyers ; but Glarhe's case was a precedent 
 — the leading authority, which finally settled the law, unless 
 the legislature shall interfere. — (Gf. M' William v. Adams, 
 1852, 1 Macq. p. 136.) Moreover, parties litigating look 
 to precedent. If a group of cases involves the same point, 
 the parties expect the same decision. It would be a gross 
 injustice to decide alternate cases on opposite principles. 
 If a case was decided against me yesterday when I was 
 defendant, I shall look for the same judgment to-day if I am 
 plaintifi'. To decide differently would raise a feeling of 
 resentment and wrong in my breast ; it would be an infringe- 
 ment, material and moral, of my rights. In other words, a 
 prior decision raises expectation, which creates a claim, which 
 in turn ultimately founds a right. 
 
 But custom, as precedent, appears really to be a form of 
 solving collisions of rights. Between two competing claims, 
 both prima facie just, the judge appeals to " usus, quern 
 penes arbitrium est et norma." If the parties indeed had 
 been sure of the custom, they might not have troubled the 
 judge. The dispute was rather one of historical fact than of 
 pure law. The law is, " foUow custom.'' This is natural and 
 instinctive, and so the laws deduced from this rule are also 
 sometimes called " natural laws." And, if we ever speak of 
 the single precedent as a custom, it is on the same principle 
 
336 CUSTOM. 
 
 as some older writers speak of statutes as custom. Both 
 statute and precedent may be the starting-point of a new 
 custom. 
 
 So strong is the effect of custom in law, we have actually 
 gone so far as to say Communis error facit jus. For this 
 purpose the error must be indifferent. It must be in a case 
 where an arbitrary rule is more important than a theoretically 
 fair one, and to disregard the rule would cause more injustice 
 than the following of it would entail. The person boimd 
 may be so bound on the principle of bar from negligence or 
 implied contract. 
 
 Another result of custom may be referred to which can 
 be traced in the Law Eeports. In small points of practice, 
 and even in important points of substantive law, a conflicting 
 series of decisions has sometimes been given in courts of 
 co-ordinate jurisdiction. Each court has followed its own 
 precedents — its own custom — not so much perhaps from the 
 fact of the existence of the decisions as from the natural bias 
 of the judicial mind, to which a certain line of argument or 
 a particular decision appeals. Many of these differences have 
 been removed by a reference to a superior court, but it is 
 unfortunate that any difference even in trifling details of 
 practice should exist. The forms in the Common Law courts, 
 in Chancery, and in Admiralty in England illustrate the point. 
 "'Practice,' in the modern usage of the legal profession, 
 signifies a particular kind of custom, namely, that by which 
 a court of justice regulates the course of its own proceedings." 
 — (Pollock, Jurisprudence, p. 12.) 
 
 Precedent is primarily applied to styles or forms, as 
 when we speak of precedents of conveyancing. But it is also 
 applied to rules of substantive law — cases. We may apply 
 to precedents the explanation of Paul as to the meaning of 
 a rule (p. 306, supra). The law is not taken from the pre- 
 cedent, but the precedent is derived from the principle of 
 the law. As in teaching or remembering grammatical rales, 
 it is easier to carry examples in the mind, so actual cases 
 
PRECEDENTS— PRA CTICE. 33 7 
 
 precedent, with their decisions, making legal precedents, 
 bring the law more vividly before the mind, but they are not 
 the law itself ; or to take a concrete example, the illustra- 
 tions of the enactments in the Indian Codes enable us to 
 understand and remember the law, but they are not the law. 
 
 The importance of precedent in English law practice and 
 procedure is shown in the definition of law proposed by 
 Professor Salmond in his recent work on Jurisprudence 
 (p. 11). He defines it as " the body of principles recognised and 
 applied by the State in the administration of justice, or, more 
 shortly, the law consists of the rules recognised and acted on 
 in courts of justice." It is satisfactory to find in an English 
 book that the Austinian superstition is giving way to 
 historical criticism. But the learned Professor's proposed 
 definition is also open to criticism. There was undoubtedly 
 law — dooms, judgments, and precedents — before legislation 
 was dreamt of, but there were also claims, pretensions, and 
 conflicts, prior at least in thought and fact to the establish- 
 ment of law courts. It is far from a scientific answer to the 
 question. What is law ? to say that law is what judges admini- 
 ster in law courts or what you find in law books. What we 
 wish to know is why certain subjects are dealt with in 
 particular institutions called law courts, and why law books 
 are written, i.e., first, what is justice ? and then, secondly, 
 what principle underlies the distribution of various material 
 interests among various jurisdictions ? 
 
 Law is a body of rules and principles invented, accepted, 
 or adopted by men for the securing of order in human rela- 
 tions. The relations of men and beasts are not jural, 
 because the servient animal does not find an end of its own 
 in the relation. A slave may be all but a beast, or a man 
 whom liberation would still leave bound to his former master 
 by ties of gratitude. Men naturally divide themselves into 
 leaders and followers, and the stability of a group or a state 
 depends on the discipline of the members. So striking is 
 the reciprocity between rulers and ruled, between judge and 
 
338 CUSTOM. 
 
 litigant, that it sometimes appears as if rulers obeyed their 
 subjects ; and judges, as in the case of the unjust judge, obeyed 
 the litigants. The rules of law are adopted and accepted by 
 men as resolving their conflicts of rights and duties. The 
 external test of justice is order, and the internal is content- 
 ment and satisfaction. Discontent and dissatisfaction give 
 rise to claims which men soon call rights. If men invent a 
 new game, they make new words, but they find the roots and 
 the grammar in the common tongue of the country. They 
 make new laws and rules for new relations, but they are all 
 derived from the old laws and principles, consent, personal 
 bar, interpretation, &c. This is one element of law — the 
 principles, ethical, historical, grammatical and other, which 
 enter into the idea of justice. And then on grounds of 
 expediency men have consciously or unconsciously distri- 
 buted their interests among various courts, civil and criminal, 
 probate, matrimonial, military, ecclesiastical, commercial, 
 superior and inferior, arbiters, committees of clubs, and so 
 forth. It is now the fashion to communicate the law on all 
 these subjects by means of reports of precedents. There is 
 hardly an English tribunal which has not now a set of 
 Eeports. Even Cavendish on whist gives statutes and pre- 
 cedents, with rules of etiquette which lie beyond the sphere of 
 " whist law." Courts of justice, specially so-called, deal with 
 person and property, or what can be resolved into rights of 
 person and property. As we are a commercial people we 
 allow men to put a pecuniary value on their outraged feel- 
 ings, and women to do the same for their wounded affections, 
 and to sue in the civil courts. Continental critics ^ think that 
 the duel or a horsewhip is more appropriate, but that would 
 with us merely bring the case within the jurisdiction of the 
 criminal or the police courts. 
 
 But the law is above precedent. As Sir William 
 Harcourt^ observed in the House of Commons on 4th 
 
 ' Gf. Oroabbon, Point d'hoTimw, '^ Times, 5th Nov. 1902, p. 6. 
 
 p. 399. 
 
PRECEDENTS— PRACTICE. 339 
 
 November 1902, when it was proposed to go back 150 years 
 for a precedent — 
 
 " I do not say that we liave not as much right to make precedents 
 as our predecessors, . . . but it is very useful and very necessary 
 that the House of Commons should have respect for the practice which 
 it has followed for generations and even for centuries." 
 
 This gives one reason why we follow precedent. It is 
 the same principle as we saw applied to rules of evidence 
 (p. 231, supra). If you wish to go to a certain place you 
 may take a short cut across a moor, but the man who keeps 
 to the beaten track, though much longer, arrives long before 
 you. It is a waste of time to discuss means every time you 
 wish to accomplish some end, because after all there are 
 objections to any mode adopted, and they all come to the 
 same result. Then for the bulk of mankind who are ignorant, 
 and for persons whose experience is limited or judgment 
 immature, to follow precedent is the safest and wisest 
 course. Thus, to a student learning a language his grammar 
 book and dictionary are final authorities, as we saw the 
 pharmacopoeia was to the apothecary's apprentice. But the 
 philologist or scientist will criticise the precedentsj and per- 
 haps deliberately set up new ones. Diodorus Siculus tells 
 us that even this was not permitted in Ancient Egypt : — 
 
 " The physicians," he says, " have a public stipend, and make use 
 of receipts prescribed by the law, made up by the ancient physicians, 
 and if they cannot cure the patient by them they are never blamed ; 
 but if they use other medicines, they are to suflfer death, inasmuch as 
 the law maker appointed such receipts for cure as were approved by the 
 most learned doctors, such as by long experience had been found 
 effectual."— (I. 6, Booth's Trans., p. 43.) 
 
 Even at the present day public opinion is hostile to the 
 use of hospitals as experimental laboratories; few medical 
 men have the courage to try experiments, and stiU fewer 
 patients the courage to submit. The true medical scientist 
 experiments on himself, and in the meantime treats his 
 patients in accordance with the custom of the profession. 
 Precedents, therefore, are an external form of laws ; they 
 
340 CUSTOM. 
 
 are part of the data of Jurisprudence, but they do not explain 
 law, for (1) they spring from the administration of law, and 
 the respect of men therefor ; and (2) they may be criticised 
 and set aside. This takes place even in inferior courts, such 
 as the small debt courts in Scotland, and in arbitrations and 
 jury trials, where the judge, arbiter, or jury within the limits 
 allowed by law exercises a wider equity than he would do 
 if his judgment had to be supported by written and published 
 reasons, and were subject to review by a higher court. It is 
 a subject of legal jest to direct a judge to dispose of a case 
 " sitting as a jury." ^ 
 
 SECT. XI. — MORA — PRESCRIPTION,^ ETC. 
 
 There are other legal institutions which may profitably 
 be regarded from the point of view of custom. The doctrines 
 of rtiora and prescription appear thus to be custom on the 
 part of the person against whom the plea is taken, setting up 
 a customary mode of thinking or acting on the part of his 
 adversary. The person stating the plea has been so long 
 accustomed to regard himself as free that the law declares 
 him to be free indeed.* 
 
 A right of way may be regarded as a custom — a customary 
 use on the part of the persons using the road — a customary 
 grant on the part of the owner of the ground. 
 
 When a question arises as to river pollution, as between 
 so-called primary and so-called secondary uses, it is resolved 
 by an appeal to the custom of the district. — (Bell, Prin. 
 1106.) Prescription and the rule as to trifles both apply, 
 but when public interests intervene the legislature may find 
 that the past custom is bad and must be changed. 
 
 The interpretation of a will may depend on the usage 
 
 1 TinMi. 25th Nov. 1902, p. 7. (c/. Muirhead, Gains, p. 571, and 
 
 2 The etymology of this word pp. 32, 303, swpra) 
 
 affords an example of the transference ^ See Comyn'a Digest, s.v. Presorip- 
 
 of a legal idea from a form to the tion ; Encyclopedia of Laws of 
 sub.stantive right expressed thereby England, s.v. Custom ; Salmond, 
 
 Jurisprudence, 155. 
 
THE DIVINE RIGHT OF KINGS. 341 
 
 and custom of a testator. — (J. Voet, Ad, Pandectas, 34, 5, 4.) 
 A deed signed with initials will be valid if it was the 
 custom of the granter so to sign. — (Speirs, 1879, 6 E. 1359.) 
 
 SECT. XII. — THE DIVINE RIGHT OF KINGS. 
 
 What is the divine right of kings but custom ? The son 
 has grown into a line of habits ; he has come to regard his 
 family and himself as rulers, just as the son of a lawyer, or a 
 soldier, or a draper thinks it natural that he should follow 
 his father's profession. He is partly trained for it, and his 
 training is almost always infinitely better and more thorough 
 than that of a new man — an upstart, unless such an one has 
 genius bordering on the divine. The subjects of the king 
 have the same ideas — habits of obedience and subjection. 
 They look as naturally to a hereditary king as they do to a 
 hereditary farmer or baker or butcher. It is natural and 
 expedient, for it facilitates the adjustment of function between 
 the individuals. It may be pardonable in a British subject to 
 suggest that the operation of this hereditary idea, a physical 
 counterpart so to speak of the rule of law, to which we shall 
 refer presently, is one of the grounds of stability of the British 
 Constitution. The political machine works more smoothly 
 than it does in America with the periodical turmoil of a 
 presidential election. — (Of. Seeley's Political Science, p. 221.) 
 We also elect our kings, but we are unconsciously so biassed 
 by the hereditary principle that the area of election becomes 
 extremely small. In the age of faith this natural doctrine 
 assumed a theological form. The king's title was a grant 
 from God himself, for God not only enacted laws and re- 
 vealed them, but gave titles (implied charters) to rulers. 
 The answer to this was the " Eights of Man," which were 
 also divine, and agreeable to reason. At all events the 
 '' Eights of Man " was the criticism of the divine right of 
 kings. — (Seeley, op. cit. 178.) 
 
 Eoman history affords an example of perverted application 
 
342 CUSTOM. 
 
 of custom in the murder of emperors, the right of election 
 claimed by the Praetorian guards, and the largesses paid to 
 them by the persons elected. Some of the parties immedi- 
 ately interested no doubt spoke of these payments as rights 
 and obligations. 
 
 But all rights are hedged with a sort of divinity. The 
 Ulster tenant, the Scottish crofter, both claim rights, if not 
 divine or natural, yet arising from possession and customs of 
 long standing. Old servants never contemplate change. 
 The housekeeper who is dismissed because her master is 
 going to marry regards the new wife as an usurper who is 
 infringing her vested rights. The reluctance to change 
 makes men endure tyranny not only of rulers but of old 
 servants ; custom makes them all tolerable. 
 
 SECT. XIII. — THE RULE OF LAW. 
 
 The spirit of legality which pervades the United Kingdom 
 has been remarked by many Continental writers, and has 
 been learnedly and philosophically expounded by Professor 
 Dicey in his Law of the Constitution, in the division on " The 
 Eule of Law." This, too, may be regarded as custom showing 
 itself in the action of the people and their rulers. 
 
 But the force of habit in the obedience to law and in its 
 enforcement may be illustrated by everyday experience. 
 There is a parish minister in Scotland who owes his election 
 to the single vote of a girl whose name was allowed to remain 
 on the roll by mistake, and whose vote was actually given 
 after the votes of the congregation had been properly taken 
 and had resulted in a tie. Those who accepted the vote 
 expected it to be given the other way and felt themselves 
 barred from objecting. To the congregation a vote was a 
 vote, and a majority of one was a majority. The church 
 courts asked no questions, and so a majority of one was 
 accepted as if it had been an unanimous call. Acquiescence 
 for the moment was the beginning of custom with the parties 
 
THE RULE OF LA W. 343 
 
 interested. When the critical moment passed legal custom 
 began to act with a continually increasing force. 
 
 Among some peoples and in some ages we may find 
 priests and nobles, accustomed to command, ruling men who 
 are naturally slaves, accustomed to obey. Between indi- 
 viduals at the present day we may find some influencing and 
 controlling others, and these so subordinated that personal 
 will is all but lost — a sort of moral hypnotism. But where 
 there is freedom of discussion, and a capacity for taking 
 advantage of it, then the rule of law must prevail. It is 
 habitual deference to an idea instead of to a person or a 
 class of persons. Sometimes we find attempts made to utilise 
 this tendency for private ends. Sometimes the law is violated 
 in substance while it is observed in form. The judicial trials 
 of Charles I. of England and of Louis XVI. of France were 
 intended to meet legal scruples of form. As at various 
 epochs the Church has captxired the machinery of the State 
 and used it for spiritual-temporal purposes, so have oligarchies 
 appealed to the divine right of the fittest to rule ; capitalists, 
 engineering gigantic trusts and monopolies, brazenly appeal 
 to the sacredness of property and contract ; and trade-union 
 socialists struggle to set up a new slavery in the name of 
 personal freedom. Many who demand compulsory arbitration 
 in trade disputes wish a biassed tribunal with the formal 
 prestige of a court of justice. What makes these legal aber- 
 rations possible is the habit of rational legal obedience — the 
 rule of law.^ 
 
 It is now customary to respect and obey the law, pro- 
 vided it is known. A great part of modern international 
 law relies on this habit. By calling certain acts rights or 
 duties, and certain rules laws, statements secure deference, 
 when perhaps force would provoke resistance. 
 
 ' Of. Reeves, State Hxperime^Us, ii. custom, and the rule of law in labour 
 pp. 102, 107, 111, as to precedent, disputes ; p. 282, supra. 
 
344 CUSTOM. 
 
 SECT. Xrv. — EARLY LEGISLATION — A COLLECTION OF CUSTOMS. 
 
 In the preamble of the laws of Edward the Confessor, 
 drawn up by William the Conqueror (Thorpe, 190), the twelve 
 commissioners swore — " Ut quod possent, recto tramite ince- 
 dentes, legum suarum ac consuetudinum sancita edicerent, 
 nil pretermittentes, nil addentes, nil prevaricando mutantes." 
 There is no idea of change by legislation — the very reverse. 
 And the laws of William (p. 201) commence — " Cez sunt les 
 leis e les custumes que li reis Will grantad al pople de 
 Engleterre apres le cunquest de la terre ; iceles meimes que 
 li reis Edward, sun cusin, tint devant lui." " Iste sunt leges 
 et consuetudines " is the Latin version. 
 
 Magna Charta is an appeal to custom. It was a custom 
 to renew it from time to time. The relief of heirs is " accord- 
 ing to the old custom of the fees." Cities, boroughs, towns, 
 are to have " all their liberties and free customs." The 
 making of bridges, the defending of river banks, are to be 
 regulated by custom. Innovations such as weirs are to be 
 put down on the Thames and Medway and throughout 
 England, except on the sea coasts. 
 
 At a still later date (fifteenth century) the Consulate of the 
 Sea begins with the words — '•' These are the good constitutions 
 and the good customs {les hones costumes) which regard matters 
 of the sea." — (Twiss, Black Book of Admiralty, iii. 50.) 
 
 In this connection we may notice the tendency of lawyers 
 to identify custom with formulated " written custom.^' This 
 is parallel to the movement which made rights title-deeds 
 and obligations written bonds. There is a latent ambiguity 
 lurking in all legal discussions as to the relation of Lex and 
 Mos. If Zex is an enactment by the people, and if you can 
 at once prove a custom to exist, then you may say that the 
 formulated and proved custom is an implied Lex — or, as 
 Isidore of Seville calls it. Lex non scripta} From this 
 
 ' P. 291, supra. The phrase as quoted is similar to " a st^l pen,' 
 iron mileatone." 
 
EARL Y LEGISLA TION. 345 
 
 point of view the formulation of customs is an imitation of 
 legislation. But now-a-days the relation is reversed, and so 
 Professor Holland points out " that it would be more correct 
 to say that written law was an imitation of custom." ^ We 
 find an ordinance by Charles VII. of France, dated 1454, 
 directing all local customs to be reduced to writing, and 
 forbidding advocates in pleading to propone any others 
 " que ceux qui ainsi seront escrits " (Les edicts et ordonnances 
 des Toys de France, Lyons, 1571, L. iv. t. 30). 
 
 It then becomes usual to treat " coutume " as a body of 
 law opposed to Eoman law or statute, as in the phrase — 
 " Coutume de Normandie," &c.^ Coke (Inst, 2nd part, i. 58) 
 gives among the meanings of consuetudo, statute law. This is 
 custom set up by Parliament. ' 
 
 We may also notice here the usage of " customs " as 
 applied to the duties or tolls exacted on goods imported or 
 exported. — (Stephen, Comm. u. 556.) These are royal rights 
 — part of the hereditary revenue of the Crown : they are also 
 duties, burdens, and obligations on the subject. They are 
 the actual prestations in money, and may also be rights in a 
 subject (Coke Lit. 58b). 
 
 Before customs are judicially or legislatively recognised, 
 they may be regarded as a kind of law, popularly enacted, 
 as Julian argues in the text quoted in the note, which 
 may be easily amended and easily repealed in the same way 
 by contrary custom. The case of Bruce v. Smith, 1890, 17 E. 
 1000, is an example of refusal to recognise a custom. Here 
 the proprietor of lands in Shetland claimed a share of the 
 proceeds of a school of small whales which had been stranded 
 and captured ex adverso of his lands. The authorities relied 
 on, and others which might have been quoted, such as the 
 great Icelandic Law Book, Grdgds (sect. ix. tit. 70), seem to 
 establish beyond doubt that the custom is valid in Scandinavian 
 
 ' Jwr. 55 ; c/. L. 32, D. de Leg. die. tume " ; Montesquieu, Esprit des loia, 
 
 (1, 3), anA Deer. Orat., P. i., Dist. i. xxviii. 12 and 46; Littrd ; and the 
 
 capp. 4 et 5. oollentions of customs by Basnage 
 
 ^ Merlin, lUp. de Jwr. t.v. " Oou- and Bourdot. 
 
346 CUSTOM. 
 
 law, which is understood to preTail in these islands ; but the 
 Court (Lord Lee dissenting) held that the custom was unjust 
 and unreasonable, and refused the claim. It is to be regretted 
 that the landowners interested did not carry the case further 
 by appeal, for the arguments of Lord Lee were not met by 
 those of the majority. Custom had certainly not repealed 
 the law, assuming it once to have existed. And if it were 
 now to be considered unjust and unreasonable, it should have 
 been dealt with by the Legislature and not by the Courts, 
 whose function it is/zis dicere and not jus dare. 
 
 SECT. XV. CUSTOM AS A STA^^)AED OF CO^^DUCT. 
 
 Custom may also be viewed as a standard of conduct 
 This is seen in the usage of the words "moral, InoraKty" 
 (Latin, mos; Greek, ^Oon and Gterman, Sifte). The innate 
 natural conservatism of humanity, savage and civilised, 
 resents innovation. The innovator is wrong and commits 
 wrongs ; the follower of custom is right, and is entitled to 
 vindicate his rights. Between two competing courses of 
 conduct, the customary one is the right. Yirme is the habit 
 of the community as well as the habit of the individual 
 " Common sense " is the standard to which we appeal ; 
 but even this becomes shifting. It may at first be in point 
 of fact the average sense of the conmiunity, but it freq^uently 
 comes to be the sense of the indi\-idual speaker, judging from 
 his own standpoint what all reasonable men should feel 
 
 Having become conscious, men find conflicting customs. 
 Some are better adapted to their end than others. Men 
 criticise their customs and find some good and some bad. 
 The community may then do for weaker members what 
 strong members do for themselves — try to break with what 
 they think bad habits, and create what they think good 
 ones. They have some other criterion than mere custom, 
 and for our purposes here it does not matter whether it is 
 revelation, or admiration of a new civilisation or theory, or 
 
CUSTOM AS A STANDARD OF CONDUCT. 347 
 
 utilitarian consideration of some supposed end. The fact 
 remains that new habits and customs can be established 
 until they become as natural as the former — a second 
 nature. 
 
 The formulation, and still more the writing and publica- 
 tion of customs, necessarily alter their character. Third 
 parties may criticise the form of expression, and indirectly 
 the matter of the customs themselves. The attempt to formu- 
 late a custom may lead to a denial of its existence. And if 
 the custom is not the conduct but the formula, the possi- 
 bilities of the mechanism of legislation appear infinite. 
 
 SECT. XVI. — THE COMMON LAW. 
 
 " The common law," as this phrase is used in England 
 and America, sums up all these aspects of custom. This 
 phrase regards custom sometimes from one aspect, and 
 sometimes from another.^ Custom affects all the elements 
 of right. It creates the expectation and consequent claim 
 of the creditor or plaintiff; it creates the sense of obliga- 
 tion or responsibility of the debtor or respondent. The 
 prisoner may be so accustomed to his chains and the slave 
 so inured to servitude that they refuse the proffered gift 
 of freedom. Custom affects the sympathetic view taken 
 by third parties, either as regards the parties disputing, or 
 the material interests of third parties, or the State. It affects 
 the views of the courts and of the legislature. In the midst 
 of all our legislative activity we might still truly say, " Leges 
 Anglise nolumus mutare." What strikes the observer most 
 is the conservatism of the most radical and democratic 
 parliaments. The common law may be regarded as a body 
 of local customs, but the locality is the whole kingdom. 
 When the Eoman law is spoken of as the common law it is 
 regarded as a /ms commune — a law common to several inde- 
 pendent states. According to Erskine {Inst. i. 1, 28) when 
 
 ' Browne on Custom. 
 
348 CUSTOM. 
 
 mention is made of the common law in Scots statutes " the 
 Eoman law is understood either by itself or in conjunction 
 with the Canon law. When the expression is fuller, the 
 common laws of the realm, our ancient usages are meant, 
 whether derived from the Eoman law, the feudal customs, or 
 whatever other source." The common law is often spoken 
 of as " the law of the land," a phrase which occurs in Magna 
 Gharta, and is explained by Coke.^ These laws may be 
 legal rules for the regulation of rights, springing either 
 from fundamental facts of man's rational nature or from 
 prejudices which have become so engrained as to make 
 a second nature. The common law is said to be embodied 
 in the decisions of the Law Courts, and these decisions involve 
 (first) the fundamental laws, such as "follow custom," and 
 (secondly) the particular customs which they hold to be 
 proved and established. But the courts criticise customs. 
 Their rule is " follow good customs," and " good " customs 
 mean such as further the ends of the State. And so it is 
 said in our law books customs must be reasonable and lawful. 
 Eeasonable sometimes means purely customary, but in 
 speaking of customs as reasonable there is necessarily a 
 reference to another and independent standard, ethical, 
 political, religious, or utilitarian. And finally customs 
 become subject to artificial treatment in legislation. An 
 arbitrary ruler may try to make arbitrary exactions of taxa- 
 tion endurable by calling them " customs." The taxpayer 
 is willing to pay "customs" if they are truly customary. 
 This is now settled by legislation, and customs refer not to 
 a preceding tract of time, but to equality of incidence. 
 In modern usage the common law means often the 
 general principles on which the Courts decide when there 
 is no statute or precedent. Here again custom is supplanted 
 by reason. 
 
 ' 2nd Inst. 50. In an address of the United States. This is not 
 
 published in 1887 on The Law of the Coke's view, which refers to legal 
 
 Land, Mr. E. J. Phelps tried to forms, and not expressly to substan- 
 
 identify this law with certain tive rights, 
 principles in the written Constitution 
 
RELATION OF LA W AND CUSTOM. 349 
 
 Thus throughout all society and the State custom becomes 
 the servant of justice. It is in one aspect the force that 
 sanctions all law. The legislature, the judicatories, superior 
 and inferior, the executive in all its branches, are ruled by 
 rigid customs and precedents, while the subjects of the State 
 — the individual atoms of which the State is composed — 
 take their places and do their work as in a mighty army, 
 drilled and disciplined. The " rule of law " is the binding 
 force of the great modern societies. Men instinctively, and 
 by force of second nature, have come to do right, to observe 
 the rights of others, and to stand up for their own rights. 
 The sanction is not in police and armies, but in the bosoms 
 of the individual citizens. Over all there is a veneer of 
 politeness and of good manners of similar origin, which help 
 also to facilitate human intercourse. Both in the individual 
 and in the State we may now say " virtue is habit." But in 
 both the habits have been purified and refined in self-con- 
 sciousness. " Virtue is knowledge " — knowledge of some 
 end or aim of man and society. To the outsider the 
 knowledge may appear hazy and inaccurate, but to the con- 
 scious subject it is his own, and for him it is the spring of 
 aU his actions. 
 
 SECT. XVII. — EELATION OF LAW AND CUSTOM. 
 
 What, then, is the relation of law and custom ? They 
 may be regarded as related in several ways. If we 
 take law as general, custom is particular. The first 
 law is "follow custom." All the legislation which we 
 know, the code of Khammurabi, the Pentateuch, the Indian 
 Codes, the Twelve Tables, the Qu'rein, all imply or refer to 
 a body of customs long prior in date, which they recognise 
 and do not attempt to alter, for they cannot. But they do 
 not wish to alter custom ; they often try to reinforce it, for 
 early codes are conservative, and not radical attempts to 
 amend the law. Codes attempt further to regulate custom 
 
3SO CUSTOM. 
 
 or conflicting customs, and ultimately try to amend 
 them by setting up other customs on theories of divine in- 
 spiration, or fictions of customs earlier than those of which 
 the legislator disapproves. 
 
 In some stages of human history the tendency is to deify 
 abstract ideas or to make them the result of a divine revela- 
 tion. The present tendency is to make the concrete abstract. 
 Thus we have an innumerable number of customs. We 
 generalise these and speak of custom as an abstract whole. 
 A lawyer may know that he should follow custom, just as he 
 knows that he should enforce contracts, or abide by decisions. 
 These are general maxims of law, to be filled up with a content. 
 A man may be a good lawyer and yet not know any of the 
 private Acts of Parliament obtained by railway and other 
 companies, nor the terms of private contracts, wills, and 
 settlements, which are laws for certain parties, nor local 
 customs, nor customs of particular trades ; but it is recognised 
 that a lawyer must know some branch of customs in detail, 
 or he is not a practical lawyer. Conveyancing, mercantile 
 law, company law, patents, railway law, criminal law — each 
 of these represents for some men the whole of law — a sym- 
 metrical group of customs and statutes, embodying the whole 
 law, for each is a type of the whole. And in like manner 
 laymen famiHar with a particular branch of trade, or the 
 minute details of certain human relations, wiU often solve 
 legal questions correctly and satisfactorily, common sense 
 supplying the forms of legal logic. It is such considerations 
 which justify the reference of mercantile cases to juries, and 
 the extensive employment of arbitration in mercantile and 
 other contracts. 
 
 Custom, as we have seen, gives rise to claims which we 
 call rights, also to duties and obligations. These may come 
 into conflict either i%te,r se, between difierent localities or 
 trades, or with other ethical ideals. Law then must interfere ; 
 it is a higher principle which strives to solve these colhsions. 
 It must classify and criticise customs, and determine if they are 
 
RELATION OF LA W AND CUSTOM. 351 
 
 moral (i.e., good customs for a certain end) or reasonable {is., 
 not in conflict with other definite ends). The relation of the 
 two ideas varies at different epochs of man's history. Early 
 customs make law ; they are natural facts and make natural 
 laws, but consciousness and the inventive faculty deal with 
 them as with all natural phenomena, and law then deals 
 with customs as with ordinary historical facts, criticises 
 them, approves or disapproves of them, and utilises them for 
 its own ends and the ends of the State. And finally, the 
 legal habit — the rule of law — makes men instinctively obey 
 laws if they are clearly laid down. 
 
CHAPTER VI. 
 THE AIM OF LAW.i 
 
 SECT. I. — THE PROBLEM. 
 
 When we ask what is the aim of law, we do not merely seek 
 to ascertain what is the end which rulers and statesmen have 
 in view, when they set up law courts and legal institutions 
 and draw up elaborate codes ; we wish to know also what 
 men meant when they claimed rights, or when they doubted 
 if they were bound ; what impelled men to inquire of God, 
 through " inspired " rulers like Moses, and why the litigious 
 shades resorted to the tribunal of Minos (p. 287, sujpra). 
 There is some end in each claim of right, some reason for 
 resisting it, and some purpose in adjudicating in the dispute. 
 No doubt this aim or purpose, whether conscious or uncon- 
 scious, is an idea present to the minds of the parties involved, 
 and is thus an element of the physical basis of law in the 
 sense already indicated (p. 5, supra). As we have seen the 
 
 1 Reference may be made to Kant's has been translated into French by 
 
 Metaphysic of Ethics (Semple's trans. M. de Meulenaere, under the title of 
 
 3rd ed.), p. 197 ; Hegel'a Philosophy L'Evolution du droit, Paris, 1901 ; 
 
 of Eight (trans, by S. W. Dyde) ; Boistel, PhilosopMe du droit, ii., 
 
 Fichte, Science of Ethics, and Science Appendice, " Metaphysique " ; Bosan- 
 
 of Rights (English trans. ) ; T. H. quet, The Philosophical Theory of the 
 
 Green, Lectures on Political Ohli- State ; M 'Keohnie, Tlie State and the 
 
 gation ; Bluntsohli, TJieory of the Individual, chap. iii. ; Sir J. F. 
 
 State (English trans. 2nd ed.), p. Stephen, Liberty, Equality, Frajter- 
 
 305 ; H. Sidgwiok, Elements of nity, 2nd ed. ; Mill, On Liberty ; 
 
 Politics; Seeley, Political Science, p. William von Humboldt, The Sphere 
 
 128; Lotze, Miarocosmos (English aridDuties of Government {trsaaslated); 
 
 trans. 4th ed.), ii. 495 ; Lorimer, Le Comte de Vareilles-Sonuniferes, 
 
 Institutes of Law, book iv. ; Von Les priiicipes fondamerdaux du droit, 
 
 Ihering, Geist das rdmischen Kechts, Paris, 1889 ; E. Pioard, Le droit pwr, 
 
 book ii. sect. 60, Meulenaere's Bruxelles, 1899 ; Alfred Fouillfe, 
 
 ti-ans. vol. iv. p. 317, and particu- L'id^e moderne du droit (4me ed.), 
 
 larly the same author's Der Zweck Paris, 1897. 
 m Recht, of which the first volume 
 
THE PROBLEM. 353 
 
 idea of right expanding from the petty claims of individuals 
 into the wide political rights of jurisdiction and sovereignty, 
 so the aim will change its character, as the State differs from 
 the individual. The State is composed of individuals, and 
 yet is more than the mere sum of the men composing it at 
 any moment. Even if this proposition is denied, it cannot 
 be questioned that men set before themselves ideals, which 
 are intimately related to their preceding experiences and yet 
 in some sense transcend them. These ideals are not merely 
 peculiar to individuals, but in many cases have a social 
 character. If men deceive themselves, and are misled by 
 hallucinations of transcendental ideals, these are physical 
 facts, which give rise to legal phenomena, and so demand 
 scientific investigation. 
 
 One other point as to the teleology of law may be 
 noted here. In all our previous discussion of legal rela- 
 tions we have in general dealt with proximate ends or 
 aims of the subjects of rights and duties, or of legis- 
 lators and judges, in the form of interests — ^person, pro- 
 perty, freedom, authority, jurisdiction, &c. — but this chapter 
 proposes to deal with more remote ideal aims. Each of 
 the terms, which we shall examine here, seems to show 
 that men have found their previous ideas to be superficial, 
 and that their continual purpose was to dig more deeply into 
 the reality of things and of social relations. The distinction 
 of form and matter is a question of logic or metaphysic ; but 
 it constantly meets us in legal discussion, and will be 
 referred to again. What we must note, however, is that the 
 ordinary man regards justice, equity, natural rights, all as 
 substantial material interests. They are the matter which 
 took the form of claims, powers, obligations, and liabilities. 
 The statesman and the lawyer may take the converse view, 
 and regard them when put forward by individual subjects as 
 forms taken by rights, obligations, and laws. We see it 
 clearly in religion. To each devotee his own creed is the 
 religion — orthodoxy ; to the statesman and philosopher they 
 
 z 
 
354 THE AIM OF LA W. 
 
 are in general forms assumed by the spiritual aspirations 
 of men. And while the subject of rights and duties aim^ at 
 justice and other ideals in concrete fact, translates his ideals 
 into material interests, or transforms gross material interests 
 into ideals, the legislator often aims at the same nominal 
 ideals as perfection in formal rules. The formalism of the 
 professional lawyer is proverbial, and not difficult to explain. 
 — (Bryce, Studies, i. 340). His interest is different from that 
 of the parties. It is either to settle the point in dispute 
 somehow, or to treat the legal process as a work of art. But 
 the reverence for form is as characteristic of the ancient 
 legislator as of the judge or practitioner. The ordinary 
 lawyer is helpless without his statutes and style-book — com- 
 pilations of precedents. It was ever thus. The earliest 
 reformers sought a revelation. The Eomans of the infant 
 Eepublic sent commissioners to Greece. The prsetors copied 
 the edicts of their predecessors, and perhaps saw in their 
 minds' eye a transcendental Edict. The canonists and the 
 English Chancellors borrowed from the Eoman law. Some 
 early English laws were borrowed wholesale from the Bible. 
 Older Scots law is a mere copy of English, and, later, of 
 French and Dutch models. The Code Civil has furnished a 
 model to other legislating codifiers. And so the lawyer 
 is apt, as the Eoman jurists did, or pretended to do, to set 
 up an organised formal system of law, to which his own 
 positive rules should approximate. When he is sure of the 
 revelation, or of the antiquity, or of the reasonableness of the 
 law, he will tell the discontented claimant that he ought to 
 be satisfied, and that he is doing wrong by demanding any 
 other thing, as when the painter of a portrait resents criti- 
 cism by the subject. 
 
 We have hitherto confined our attention as far as possible 
 to the physical and material side of law. Eights, duties, and 
 laws are physically embodied in persons, things, and acts. 
 
 Eights are associated with the warrior and hunter of men 
 and beasts ; and, later, with the shepherd, the agriculturist, 
 
THE PROBLEM. 355 
 
 the manufacturer, and the trader. It is the dominm, the 
 paterfamilias, the husband, the father, who have rights. — (Cf. 
 p. 265, supra.) 
 
 Duties spring originally from the position of the slave, 
 the serf, the servant, the wife, the child. 
 
 Laws take form in the third party, the ruler, the judge, 
 the arbiter, the bonus paterfamilias, the jurist, the expert. 
 
 Things, slaves, beasts are the objects of all these relations 
 — the centre of the interests with which they deal. 
 
 The phenomena in which persons are known are acts, 
 while things are seen in events. 
 
 The problem presented to the judge and ruler, and 
 finally to the social philosopher, is, how is regularity and 
 order to be maintained in a world of living and struggling 
 men ? It might be done by destroying men and things — 
 by making the world a wilderness, when there would be 
 nothing to fight about or nobody to fight. The problem 
 really is, how is order to be maintained consistently with life ? 
 Can every human being be a man and exercise to the utmost 
 his bodily powers and intellectual faculties ? Can every 
 human being enjoy rights ? How can men compromise ? 
 Must some give up all their humanity, that others — many or 
 few — may enjoy the claims and rights of their human nature ? 
 Are there human beings, by nature slaves, who have only 
 duties, or only such rights as enable them to perform duties ? 
 Or is it always necessary that one man at least should die 
 for the people ? This is the problem with which statesmen, 
 jurists, and philosophers have dealt under the name of justice. 
 
 In our discussion of law we saw that the idea of the 
 single concrete decree or statute ultimately culminated in 
 the all-embracing law which was the foundation of particular 
 laws. And so with order. It is not merely lifeless regular 
 arrangement, but the symmetrical conscious regularity of life, 
 that is heaven's first law. 
 
 And, conversely, if we start from the general idea of law 
 or order, we must develop it into the most minute particulars. 
 
356 THE AIM OF LA W. 
 
 for the idea can only exist in concrete realisation. In this 
 chapter we shall therefore reverse the process of the pre- 
 ceding ones, and shall find that when men start with abstract 
 legal ideas they always become concrete in the ' objects and 
 interests of practical life. 
 
 SECT. II. — JUSTICE.! 
 
 It has been said that jurisprudence has nothing to do with 
 justice. This is not the view of the common sense man, which 
 alone concerns us for the present. It is merely an unwar- 
 ranted generalisation of the undoubted fact, pointed out by 
 St. Augustine among others, that a judge must administer 
 the law and not criticise it. These two attitudes towards 
 law are well distinguished by Gratian in his Decretum (p. i. 
 dist. 4, capp. 2 and 3), where, after stating the purpose of 
 laws to be the restraint of wickedness through fear, and the 
 protection of innocence, he cites Isidore as saying — 
 
 " Erit autem lex honesta, justa, possibilis, secundum naturam, 
 secundum consuetudinem patriae, loco temporique conveniens, neces- 
 saria, utilis, manifesta quoque, ne aliquid per obscuritatem incon- 
 veniens contineat, nuUo private commodo, sed pro communi utilitate 
 civium oonscripta." 
 
 This implies the exclusion by the legislator of arbitrary 
 enactments and some test for the criticism of laws which 
 the legislator proposes to enact. But Gratian goes on to 
 quote St. Augustine to the effect that criticism must stop 
 when the law is once enacted. The judge administers posi- 
 tive law and does not criticise it : — 
 
 " In istis temporalibus legibus, quanquam de his homines judicent, 
 cum eas instituunt, tamen cum fuerint institutse et firmatse, non licebit 
 judici de ipsis judicare, sed secundum ipsas." 
 
 ■■ In addition to the authorities translation of 4th edition, p. 599 : 
 
 referred to, the following may be H. Sidgwiok, Methods of Ethies, bk. 
 
 consulted : — Montesquieu, Esprit des iii. chaps. 5 and 6 : Political Economy, 
 
 lois : Lettres Persanes : Herbert Spen- bk. iii. chaps. 6, 7, and 9 : Mill, 
 
 oer, Justice (Part iv. of Principles of Political EcmiomyjUk. v. chaps. 8-11 : 
 
 Ethics; cf. Principles of Sociology) : Adam. Smith, Lectures on Justice, (dc, 
 
 Lorimer, Institutes of Law : Paulsen, London, 1896 : Hume's Essays (Green 
 
 Ethik (5th ed.), ii. 127 : EngUsh and Grose's ed.), ii. 179. 
 
JUSTICE. 357 
 
 The point is one of general interest. As in theology a 
 man may say " Credo, quia impossibUe," so in law a judge 
 may go the length of saying "Judico, quamvis unjustum." 
 "No law can be unjust" (Hobbes, iii. 335).^ The same 
 spirit of exaggeration impels moralists to regard duties as 
 binding in proportion to their disagreeableness ; economists 
 are said to have nothing to do with philanthropy, as the 
 scientific moralist is not shocked by cannibalism, poly- 
 gamy, or brigandage. Pure literature may embody impure 
 doctrines, or perhaps reaches perfection in absolutely non- 
 sense verses. It is the same question which is raised 
 in logic as to whether it deals only with words or with 
 thoughts. But the common sense man brushes all this 
 aside. If he attains " justice," he is often careless as to the 
 means. Nothing gives him more satisfaction than to criticise 
 and expose the absurd contradictions of valid legal decisions 
 and sentences. The hangman in general executes his warrant 
 and thinks no more of the matter, but we have no difficulty 
 in conceiving of a conscientious hangman who might resign 
 or refuse to carry out the sentence and so compel the autho- 
 rities to hang him as well as the culprit. Notwithstanding 
 St. Augustine, judges on the bench have protested in our day 
 against criminal laws and against the law of divorce, and 
 judges who dislike capital punishment sometimes persuade 
 juries to deal leniently with murderers. The point of interest 
 for us, therefore, is not the unsoundness of the view that 
 jurisprudence is not a science of justice, but rather how it 
 came to be maintained. It appears to be another example of 
 the lawyer's fallacy, in which " form " is exaggerated till 
 " matter " disappears. At the same time the logical develop- 
 ment of a body of laws as a positive coherent system of tradi- 
 tions and rules and their interpretation may be an ideal aim 
 for the lawyer or judge. When law is fully developed, as it is 
 in modern times, this may be so, and is not inconsistent with 
 lawyers and judges having other ideals as citizens or as men.^ 
 1 P. 400, infra. ^ Pollock's Jv/ris'prvdence, 30. 
 
35S THE AIM OF LA W. 
 
 Law seems always to divide into two sections, one of 
 which is absolutely or relatively unchangeable, and the other 
 changeable and so far arbitrary. Thus we have — 
 
 1. 
 
 Justice . . . contrasted with Law. 
 
 2. 
 
 Law of Nature 
 
 » 
 
 Positive law.' 
 
 3. 
 
 Jurisprudence (in the"! 
 
 
 
 
 French sense), inter- >■ 
 
 )» 
 
 Statutes, Ws, md,r^, &c. 
 
 
 pretation, &c. . ) 
 
 
 
 4. 
 
 Constitution of State 
 
 )j 
 
 Ordinary laws. 
 /"Ordinary ecclesiastical 
 
 5. 
 
 Standards of a Church 
 
 5> 
 
 •! laws and matters of 
 I opinion. 
 
 6. 
 
 Memorandum of Asso- ' 
 ciation of a Company , 
 
 
 
 
 )) 
 
 Articles of Association. 
 
 7. 
 
 Charter of a Corporation 
 
 » 
 
 Bye-laws. 
 
 8. 
 
 Privilege of Parliament 
 
 » 
 
 Order. 
 
 (See debate in House of Commons, 6th March 1901). 
 
 Behind the relatively unchangeable men seek for an 
 absolutely unchangeable idea, which many find in the idea of 
 justice in God, but this again touches metaphysics. 
 
 The etymology of the Latin word shows that the idea 
 of justice, like that of law, begins with actions and law 
 courts. All other usages are metaphorical, and are derived 
 from this. If we can express a relation in the form of a 
 claim by one side, a response by another, and a decision 
 or reconciliation by a third, then the basis of the meta- 
 phor is complete. The universe can be presented under 
 the figure of justice, as poets have treated "loves of the 
 plants " or " loves of the triangles." The parallelogram of 
 forces gives an example of physical justice where the diagonal 
 embodies both of the forces in action. The motions of the 
 planets resolve with perfect justice the centrifugal and centri- 
 petal forces. We see sub-human justice in the animal world. 
 But in all these cases we have first analysed a single pheno- 
 menon into two contradictory ones, and then find difficulty 
 in reconciling our own abstractions. This appears to be the 
 fallacy which runs through Mr. Herbert Spencer's interesting 
 
 1 Insl. i. 2, 11 ; Hobbes ; iii. 264, p. 398, infra; Hooker,' Wm-ks, i, 272. 
 
JUSTICE. 359 
 
 and instructive volume on Justice. What he calls the egoistic 
 sentiment of justice must be reconcilable with the altruistic 
 sentiment of justice, or one or both of them are mistaken. 
 The ordinary man, when he acts as judge in other men's 
 aifairs, regards justice as some "reasonable" concrete com- 
 promise, if not the ideal which comprehends and reconciles 
 both of the contradictory sentiments. The egoistic senti- 
 ment of justice is what we generally call the right or claim 
 of an individual. 
 
 But in human relations there is less difficulty in extending 
 the idea of justice beyond the case of two persons litigating 
 or putting forward competing claims. We speak of a 
 duellist, a gambler, or a drunkard as being unjust to his 
 family or his friends, or to himself. We have no difficulty in 
 splitting the person into various selves, and saying that this 
 orator or this student does not do justice to himself. The 
 person has set up a reputation or a former standard of 
 himself, and now when the spectator, or the person who has 
 wagered on his success, or the person himself, acts in reliance 
 on this reputation, he fails to satisfy the expectations he has 
 set up. He may be judge himself, or any third party may 
 act in that capacity. The standard may be set by society, 
 i.e., law or custom. If a duellist or a gambler is not unjust in 
 some sense, then laws which attempt to discourage duelling 
 or gambling may be denounced by the person interfered with 
 as arbitrary and unjust, as depriving him of powers which he 
 claims to exercise, and in which he finds satisfaction. If 
 society regards betting as a harmless amusement, or duelling 
 as necessary for the maintenance of honour, we may still 
 have unjust players and unjust duellists (p. 275, supra), per- 
 sons who violate the laws of the particular institution.^ But 
 society may, by way of precaution, forbid gambling, because 
 it leads in some cases to moral ruin and suicide, and duelling 
 because it may easily become veiled murder (c/. p. 254, mpra). 
 
 ^ Report of Select Committee of 161, &o. See debate in same House, 
 House of Lords on Betting, 1902, p. 18th May 1903. 
 
36o THE AIM OF LA W. 
 
 It is precisely because such persons are unjust to themselves, 
 their creditors and their friends, that the common sense of 
 society interferes. Law in other cases is familiar with the 
 idea of injustice to one's self. It is because they are unjust 
 to themselves that Scots law, following the Eoman law, 
 interdicts prodigals.^ So also, while it is true that " there is 
 a part of just conduct which lies outside the sphere even of 
 law, as it ought to be," as in the case of a father in regard to 
 his children — (Sidgwick, Methods of Ethics, 6th ed. p. 265) — 
 we see that the law not only does interfere with and regulate 
 the patria potestas under the form of equity, but one of the 
 most striking developments of recent law has been the 
 Education Acts, Vaccination Acts, Factory Acts, and many 
 others, which the persons aimed at often resent as encroach- 
 ments on their just rights. Society had in view the just rights 
 of the children and the State. The phenomena of justice are 
 continuous, but as law is a rough remedy a wide equitable 
 jurisdiction must be left to officials, and even in some cases 
 to private individuals. And again, since law may do greater 
 harm by the protraction of litigation than it would do by 
 letting things alone — summum jus sumnia injuria — it is 
 assumed that certain decisions are just. They are so in 
 general, and the exceptions may be neglected. Examples 
 of such cases are the restriction of appeals, the holding of 
 decisions by arbiters, by juries, by judges of first instance, 
 to be correct,^ the privilege of masters and officials, the 
 f atria potestas over children, the power of testing ; the final 
 
 1 Bell, Prim. 2123-2128 ; Moyle's place wilfully, or have prevented 
 Institutes, p. 171 ; Muirhead, Gains, substantial justice from having been 
 577. The same principle is adopted done,"&c. As to " ooi-ruption of an 
 by the French and the German Codes, arbiter, see Bell on Arbitration, 2nd 
 — God. Giv. Alt. 613 ; Biirgerliches ed. 34, and Irons and Melville on .kr6i- 
 Gesetzbuch, 6 (2), 114, 2229. ' tration, 377. This is largely formal 
 
 2 Gf. Small Debt Act, 1837, sect. but not entirely so. See opinion of 
 31, which provides, "Appeal shall Lord 'S eaves m Cameron y. Menzies, 
 be competent only when founded on 1868, 6 M. p. 280. As to eoolesi- 
 the ground of corruption or malice astical jurisdiction c/. Dodd, Canon 
 and oppression on the part of the Law, pp. 221, 234 note ; The Queen 
 sheriff, or on such deviations in point v. Archbishop of York, 1888, 20 
 of form from the statutory enact- Q.B.D. 740. 
 
 ments as the court shall think took 
 
JUSTICE. 361 
 
 responsibility being placed on individuals subject to the force 
 of public opinion on the merits, and to the review of the 
 Court in serious matters of form, secures an approximation 
 to ideal justice. 
 
 The application of the term justice to such cases im- 
 plies that a relation has been established between two 
 persons (real or supposed), and that there is a claim on 
 the one side and a prestation on the other. Where the 
 prestation (interest) is material, there is always a struggle 
 to bring it within the scope of law and definite rule, because 
 it is generally assumed that a material object may be 
 measured or weighed. If the prestation is spiritual — good 
 feelings, kind words, &c. — the relation is ethical. But 
 breaches of morals and good manners may lead to material 
 injury. Law deals even with these in such cases as libel 
 and slander ; but an unjust critique of a book, in the very 
 best faith, a jest at the expense of a person, meant to be 
 good-natured, may entail to him most serious damage ; these 
 cases are left to the jurisdiction of private judgment. The 
 law courts would make blunders in attempting to do material 
 justice ; and so the law regards the private judgment of the 
 individual as final, as it makes verdicts of juries, awards of 
 arbiters, decisions of referees in games, judgments in ecclesi- 
 astical courts and judgments of sheriffs, all final within their 
 proper jurisdiction. The State justice of the law courts 
 (commonly so called) is a great fly-wheel or regulator, which 
 keeps the rest of the social machine working regularly, but 
 it does not supply the motive power. Law, strictly so called, 
 emerges under two conditions — (1) the interests dealt with 
 must be material, and (2) they must be capable of definition. 
 If either of these two conditions fail, the question becomes 
 one of ethics, or equity, but the analogies of justice still 
 apply. So if a prelate with an income of £15,000 a year, 
 which he is expected and intended to spend in certain ways, 
 were to refuse charity, were to allow his palace to fall into 
 disrepair, and hoard up as much as possible of his income. 
 
362 THE AIM OF LA W. 
 
 people would soon speak of him "robbing" the poor and 
 " cheating " his successor. The law treats him so far as an 
 absolute proprietor, and leaves his discretion to be regulated 
 by equity and morality, for rigid rules might defeat the 
 purpose of the institution. He is a judge with a certain 
 limited jurisdiction, and within the limits of this his judg- 
 ment is final. 
 
 Again we may thus explain rules of constitutional prac- 
 tice, which are generally observed, but which no court of 
 law can enforce. These Professor Dicey has termed " con- 
 ventions of the constitution," as being " a body not of laws, 
 but of constitutional or political ethics." — {Law of the Gon- 
 stitution, 6th ed., pp. 24, 361.) Now popular usage has no 
 difficulty in speaking of such rules as laws, and in apply- 
 ing to the conduct regulated by them the terms " just " or 
 " unjust." The common man regards the King, when sum- 
 moning or dismissing ministers, as a court of final jurisdic- 
 tion; and the Prime Minister and the Cabinet as a high 
 court of equity, whose decisions are subject to appeal to the 
 King, and in the last resort to the judgment of the sovereign 
 people. A rigid rule would be disastrous, but the decision is 
 momentous, and involves material interests. To regard these 
 rules as rules of law and justice emphasises the view that 
 their decisions cannot be purely arbitrary, and that the 
 sanctions are not mere expressions of opinion or a reference 
 to a future world, but may be material and imposed here and 
 now, as in expulsion from office or from Parliament, or may 
 take the form of attacks from the more respectable part of 
 the press, whose support is necessary to political life. When 
 a case of unconstitutional conduct or political jobbery occurs, 
 the public express their opinion in legal terms, just as they 
 speak of the injustice of a sentence on a criminal, although 
 no court and no Home Secretary could find any ground for 
 setting it aside. The wideness and the finality of the judge's 
 discretion do not affect the question. Thus a judge may 
 dismiss with an admonition a person convicted of culpable 
 
JUSTICE. 363 
 
 homicide, or may sentence him to penal servitude for life. 
 This would be legal, and technically there is no appeal. 
 But his own common sense and good feeling, and the influ- 
 ence of public opinion, make sentences generally reasonable, 
 just as the same forces tend to make the conduct of states- 
 men orderly, reasonable, and in fact legal. 
 
 In practice a Secretary of State often exercises an 
 equitable jurisdiction really judicial, for example, in refusing 
 or granting naturalization under the 1870 Act. Again, in ex- 
 tradition procedure we have the magistrate at Bow Street and 
 the High Court dealing with the applications, and above them 
 the Secretary of State, who may finally and in his discretion 
 liberate the prisoner. But his conduct is not arbitrary. He 
 recognises legal and equitable circumstances; but he dare 
 not act from mere caprice for the reasons above stated. 
 
 Finally, we personify States, and speak of international 
 justice ; we personify Capital and Labour, and speak of 
 their just shares of their joint product; we personify the, 
 Eich and the Poor, and speak of the claims and duties of each. 
 — (Menger, The Right to the whole p'oduce of Labour (trans.), 
 London, 1899.) And in these cases also the adjustment of 
 claims is left to governments, bodies of employers and work- 
 men, or contracting parties — all analogous to courts with 
 limited and well-defined jurisdictions, and guided by a law or 
 equity of their own. — {Cf. p. 279, supra.) 
 
 Justice has a threefold aspect corresponding to right, 
 obUgation, and law. The pursuer or claimant demands justice 
 and nothing else; the debtor pays or does justice and nothing 
 more ; the judge in adjusting their differences acts justly in 
 his own person, but he recognises and enforces justice in the 
 person of the litigants. This fact gives us a key to the under- 
 standing of the discussion of justice in the abstract by various 
 writers ; they are unconsciously analysing right or law. 
 Looking at it from one standpoint, they identify justice some- 
 times with the subjective feeling of one person or another 
 involved in the relation, or with the prestation — the object — 
 
364 THE AIM OF LA W. 
 
 which ought to satisfy all claims of justice, or with the ob- 
 jective idea in society, organised in the State or its courts 
 and officials. This explains the various attempts to dis- 
 tinguish and classify different kinds of justice. These are 
 always directed to particular ends, as in Aristotle's familiar 
 division — (1) Distributive, applying to the allotment of 
 honours and burdens ; (2) corrective, to restore a balance of 
 right which has been disturbed ; (3) commutative, applying 
 to mercantile transactions, &c. 
 
 Early law and justice may be taken as identical, the 
 former being an attempt to realise the latter, or the latter 
 being an idealisation of the former. As opposed to injustice 
 the rudest remedy will appear perfect justice. But as the 
 State grows powerful, and as the standard of obedience to the 
 law rises, the standard of justice rises in proportion. Justice, 
 like law, begins with actions, the decisions of actual concrete 
 cases by the king or judge. It then becomes extrajudicial, 
 for it must have been in the facts, in the conduct of the 
 parties, before it was made exphcit by the judge or ruler. 
 We have seen (p. 34) that the judicial combat superseded a 
 real combat, and also (p. 54) that the English suit was origi- 
 nally an actual pursuit. Judicial proceedings are originally 
 intended to "do justice," to enforce undoubted rights, but 
 when courts come to investigate competing claims, when it 
 is seen that defenders have rights as well as pursuers, the 
 judges analyse the claims and give a new meaning to justice, 
 by recognising, creating, and classifying the multifarious 
 rights now known to law ; justice becomes specially "judicial 
 justice." And when we reach historical times justice has 
 again come to deal so much with extrajudicial conduct, as 
 we have seen it does at the present day, that justice may 
 fairly be used as it was by Aristotle and the Schoolmen, to 
 cover the whole area of virtuous conduct — righteousness, 
 the spirit which shows itself in just acts, and which is indis- 
 tinguishable from the higher forms of religion. 
 
ROMAN JUSTITIA. 365 
 
 SECT. III. — EOMAN JUSTITIA. 
 
 With the Eomans justice represented the ideal abstract side 
 of what once had been a concrete physical relation. " Jnstitia 
 est constans et perpetua voluntas suum jus cuique tribuendi." 
 As we have observed, it may be justice displayed by a 
 claimant who would not claim anything not his own ; it may 
 be justice in a respondent who gladly gives up another's 
 right when the wrong is pointed out ; or it may be judicial 
 justice, which judges between the parties and gives to each 
 his own right. 
 
 Ulpian's definition of justice, which has just been quoted, 
 was as old at least as Cicero, who in an eloquent passage 
 (De Fin. v. 65) described the association of men as springing 
 from marriage and the family, and spreading gradually to 
 cognates, to relatives by affinity, to friends, to neighbours, to 
 fellow-citizens, to state allies and friends, until it embraced 
 the whole human race, and concluded thus — " which disposi- 
 tion of the mind, giving every one his own (suvm cuique 
 trihuens), and liberally and equitably guarding this partner- 
 ship of human relation, as I call it, is called justice, to which 
 are added piety, goodness, liberality, benignity, comity, and 
 whatsoever else is of the same kind." We have a hint of the. 
 double nature of justice, the physical basis as well as the 
 disposition of mind, in the statement (66) that "justice 
 cannot be observed except by a strong man and a wise 
 man." 
 
 Justitia in Cicero is a translation of the Greek SiKaioa-wi], 
 which we shall examine presently, and comes into existence 
 as an abstract noun. Its physical associations are earher, 
 and are found in the word/ws (p. 33, supra). Justitia comes 
 from Justus, which we may take to be " full of " or " con- 
 nected with " jus, as " honestus " comes from " honor," and 
 " fastus " from " fas." Justitia is the abstract remedy given 
 by the ruler when he administers jus in the concrete. 
 
 This would reverse the order of meanings given by Lewis 
 
366 THE AIM OF LA W. 
 
 and Short (s.u). In the Twelve Tables we find " XXX. 
 
 jnsti." This may mean " lawful " days, in some sense 
 
 analogous to the " dies fasti " spoken of by Ovid : — 
 
 " Ille nefastus erit, per quern tria verba silentur ; 
 Fastus erit per quem, lege licebit agi." 
 
 {Fasti, i. 47.) 
 
 If dies fastus is a court-day, dies Justus may be wider and 
 mean a day on which any legal proceeding is competent. 
 
 Then such phrases as justum matrimonitmi (Ulpian, v. 2), 
 justa uxor, Justus filius (Gaius, i. 77), justum bellum, may 
 refer to merely legal relations, with a tendency to shift into 
 an ethical signification. It becomes purely ethical with Cicero, 
 as when he speaks of a man " bonus et Justus." 
 
 It has a metaphorical reference to things, and may mean 
 either customary or adapted to some end or conforming to an 
 idea, e.g., the height of a wall, a day's march, an army 
 (complete ?), a trunk (full ?), — (Lewis and Short, s.v.) 
 
 Lastly justa means due prestations, looked at sometimes 
 as rights or privileges, and sometimes as duties or obligations, 
 or it may be lawful ceremonies, e.g., funeral rites. 
 
 Although justitia is the abstract idea corresponding to 
 the concrete jus, it becomes concrete in the end itself : justitia 
 is a goddess — the physical embodiment of right. 
 
 Justitim is used in the Latin Vulgate as equivalent to 
 " judgments," " precepts," " ordinances." We may now go back 
 to the Greek words of which /lisfoWa was a translation. 
 
 SECT. rV. — GKEEK TERMS FOE " JUSTICE." 
 
 At'it*; is the first of these. The etymology of this word 
 has already been discussed (pp. 36, 38, supra). Sir Alex- 
 ander Grant {Aristotle, ii. 114) observes, " The earlier notion 
 connected with SUri seems not to have been one of .decision, 
 arbitration, or justice, but rather of ' showing,' ' instruction,' 
 ' rule,' ' manner.' The word is derived from a root Sik-, which 
 appears in SeiKw/ni and the Latin indico, index, judex (the law- 
 shower), &c." Meissner {Altbabylon. PrivatrecM, 125) points 
 
GREEK TERMS FOR ''JUSTICE:' 367 
 
 out that the old Babylonian word for judging had the 
 meaning of " instructing," " showing." According to this, 
 ^lKr\ would mean the direction given by the judge to the 
 persons who came to inquire of him. It would soon mean a 
 decision, and the other meanings of case, custom, and justice 
 would follow. That is to say, " a decision " would mean a 
 true, real, sound decision — good law, as " morals " means 
 good morals. But as with Oriental nations, the ruler was 
 the early judge (p. 59), so with the Greeks, the ordinary 
 citizen took a share of judicial as of political duties, and 
 accordingly they did not draw the same distinction between 
 law and politics as the Eomans. "With the latter legal ideas 
 were supreme, with the former law was merely a branch of 
 politics. The Greeks discussed the state or the life of the 
 individual as a unity — a work of art. The Eomans were 
 individualistic, discussed cases, and particular acts of par- 
 ticular individuals in particular relations. The first meaning 
 of UKr\ being judicial, the tendency to personify things and 
 the powers which were supposed to rule them, applied the 
 simile of a judge dealing with litigants to the spirits who 
 actually kept the elements generally in order. The winds, 
 waves, lightnings, and the sun were ruled Kara &iKr\v. And 
 here, as in human society, no distinction was drawn between 
 law and politics, as we may gather from Vergil's description 
 of the empire of jEoIus {JEneid, i. 52 ; p. 287, supra). 
 
 But the other explanation already given of the meaning 
 of S'lKti ( p. 38) is closely connected with the foregoing. On 
 its active side SIkti would often mean an incantation, when 
 the wizard with outstretched fingers made the boundary 
 stone sacred. There were also Prosperos, who could rule 
 the elements, as well as the spirits who controlled them. 
 Orpheus, the first of lyrists, had this power, but in his turn 
 fell under the spell of love — the wide-enchantress — Eury- 
 dike, whose power was still greater. To the early Greeks 
 such ideas were familiar, while the later technical legal 
 associations would have been strange. 
 
368 THE AIM OF LA W. 
 
 The word for justice used by Heraclitus is ^t/c»?, and it 
 has always a physical reference. Thus — " The sun will not 
 exceed his measures ; if he does, the Erinyes, the avenging 
 handmaids of justice, will find him out " (Burnet, Early 
 Greek Philosophy, p. 135 ; cf. pp. 51, 73, 147.) ^ So aSiKia—a. 
 wrong — is applied to such events as a drought or a flood. 
 
 Homer applies it to the usual course of events ; and the 
 adverbial use SIkyiv is quite classical — Slkviv vSaros — after the 
 manner of water. 
 
 Then it comes to mean human customs and good customs, 
 and then abstract right as opposed to /3/a — might. 
 
 And finally it becomes personified as a goddess in 
 Hesiod : — 
 
 " 7] di re irapd^vos iarl AUtj Aids ^Kyeyavla.'' 
 
 ( Works and Days, 254.) 
 
 Homer applies the plural to righteous judgments. 
 Perhaps this suggests the abstract idea. 
 
 The post-Homeric usage is legal, and now the word 
 probably means a legal sentence. It means the process by 
 which this is reached — any lawsuit, and particularly a private 
 one ; a trial of the case ; the court by which it was tried ; 
 and the result — penalty, punishment. The reference here 
 again is physical, like ttoiv^ (P- 164). 
 
 We have already noticed (p. '45, supra) that when SIkt] 
 became technical the poets added the epithet " straight " to 
 distinguish it as true justice. Similarly, Hesiod says : — 
 
 "Zeis ■ . SIkj) S' (Swe BijMUTTas.'' 
 
 ( Works and Days, 9.) 
 
 The same poet, in his pessimistic view of the society of 
 his day, draws a distinction between the rude law of nature 
 (vo'/xo?) which was common to man and the beasts, and the 
 higher justice, which was given to man alone : — 
 
 ' In a similar reference the Septua- is familiar in this sense (Hooker, 
 gint uses \6yos (Psalms, 148, 8, cf. /Forfe (Keble's ed.) i. 206-208). 
 p. 387, infra). " The Law of Nature " 
 
GREEK TERMS FOR "JUSTICE." 369 
 
 r6vSe yip avBpibroiffi vb/iov Siira^e Kpovluy, 
 
 IxSin liiv Kol $rip(rl Kai oloivoTs TreTe-qvols, 
 
 (ffdeiv dXXiJXous, iird oi> SUri ivrlv iv oiirois- 
 
 AvOptlnroun S' ISuKe Slxriv, ^ ttoXXAv ipliTTri 
 
 ylyverai." ( Works a?id Days, 273-278.) 
 
 AiKrj being physical and technical, Sucaios G^^st) partook 
 of the same meanings. Thus Solon called the calm sea 
 6iKaiog — i.e. exhibiting §Ik)}. It therefore became necessary 
 to invent a new word for the abstract virtue of the man who 
 was (StVato?. This was SiKaioa-vvr), which is the familiar term 
 used by Plato and his successors, to SiKaiov being the principle 
 of justice (Stewart's Notes on the Mcomachean Ethics, i. 374). 
 
 In the Laws ^ (Jowett, v. p. 194) we have a clear state- 
 ment of the bellum omnium contra omnes put in the mouth of 
 Cleinias, the Cretan : — 
 
 " In reality every city is in. a natural state of war with every other, 
 not, indeed, proclaimed by heralds, but everlasting." 
 
 " All men are the enemies of all other men, both in public and 
 private, and every individual of himself." — (P. 195.) 
 
 Justice is the virtue which produces harmony in the indi- 
 vidual soul as well as in the State, and makes order and 
 society possible. The Greek order of ideas involves a com- 
 parison between external nature on the one hand and the soul 
 of man and the State on the other. The regular order of 
 Nature — the revolution of the seasons, seedtime and harvest 
 — exemplifies Sik>]. Earthquakes, storms, droughts, famiaes, 
 plagues, are all examples of aSiKia. The world generally 
 is presented to us as Kosmos — regular order. Shakspere has 
 well expressed these ideas of justice : — 
 
 " The heavens themselves, the planets and this centre. 
 Observe degree, priority, and place, 
 Insisture, course, proportion, season, form, 
 Oifice and custom, in all line of order : 
 
 ' Plato deals with justice in the old physicists. The discussion in 
 
 the Cratylus (Jowett, ii. 235) and in the Republic reminds us of the theo- 
 
 the RepubUc. The passage in the logical distinction of faith and works 
 
 former is an echo of the theories of (Jowett, iii. 198). 
 
 2a 
 
370 THE AIM OF LA W. 
 
 Take but degree away, untune that string, 
 
 And, hark, what discord follows ! each thing meets 
 
 In mere oppugnancy ; the bounded waters 
 
 Should lift their bosoms higher than the shores. 
 
 And make a sop of all this solid globe : 
 
 Strength should be lord of imbecility, 
 
 And the rude son should strike his father dead : 
 
 Force should be right ; or, rather, right and wrong. 
 
 Between whose endless jar justice resides, 
 
 Should lose their names, and so should justice too." 
 
 (Troihis and Gressida, i. 3, 85-88 : 109-118.)' 
 
 The soul of man is swayed by passions strong and turbu- 
 lent. If these are restrained and kept in order the man is 
 acting like the gods who keep the winds and other elements 
 in check. He shows SUt] — ^justice in his soul. In the State 
 turbulent men break the peace, like rivers rising over their 
 banks. The restraining force which keeps them in order is 
 justice. If this justice is not some impalpable essence — fire 
 or heat — which keeps the streams melted and makes the green 
 things grow, it shows itself in external orderly appearances. 
 It seems as if the anthropomorphism of early Greek religion 
 still clings to the philosophers, and appears even in Plato. 
 
 Plato in effect asks : — What is the rule of justice ? 
 External conduct ? Paying debts ? Giving every man his 
 own ? Obeying the laws ? Custom ? Fashion ? Doing good 
 to friends and evil to enemies ? Can a man be a just citizen 
 and a bad man ? May you not have justice between citizens 
 and enmity as regards strangers ? On the other hand, does 
 it not reside in the soul ? May a man not be just by habit 
 and sometimes slip ? Is it not the constans et perpetua 
 voluntas — apart from the accidental realisation ? 
 
 In the Platonic idea of justice the philosopher contem- 
 plates the usual common order of things as the standard, 
 the deviation from which is wrong. The physical world is 
 generally regular and orderly; the social order is fairly 
 satisfactory, though it might be improved in details; the 
 soul of man is generally sound and right in its judgments. 
 ' Of. Note, p. 368, sii/pra, and Max Miiller, Last Essays, ii. 291. 
 
GREEK TERMS FOR "JUSTICE." 371 
 
 In a word, life is worth living in ancient Greece. Justice is 
 the ruling principle. 
 
 Aristotle in the Ethics, book V. — though it appears to 
 be doubtful how far we have his own exposition of the sub- 
 ject, and some of the difficulties of interpretation are 
 insuperable — discusses justice, but treats it as a virtue of 
 the individual, and in one sense as comprehending all 
 virtues : — 
 
 " Justice is a habit such that those who possess it are disposed to 
 do just acts and act justly, and desire that which is just." 
 
 " Justice is a mean state, not in the same way as are other virtues, 
 but in that it aims at producing that which is in the mean : whereas 
 injustice aims at producing one or other of two extremes. Moreover, 
 justice is a habit in wrtue of which the just man is said to be disposed 
 to do deliberately and of free purpose that which is just, and to make 
 a distribution, whether between himself and another, or between two 
 others, not such that he himself secures the larger share of advantage 
 and his neighbour the less, and of disadvantage the exactly contrary : 
 but rather such that he only secures for himself that which is his equal 
 share, according to a fair proportion, and observes a similar rule in his 
 decision as arbiter between two claimants. Injustice on the other hand 
 aims at producing that which is unjust, and which consists in such an 
 excess or defect, as the case may be, either of the advantages or of the 
 disadvantages, as to violate these rules of proportion. And hence in- 
 justice is both an excess and a defect, in that it aims at producing both 
 an excess and a defect — in one's own case that is to say an excess of 
 that which is in the abstract advantageous, and a deficiency of that 
 which is disadvantageous : while when the unjust man acts as arbiter be- 
 tween two claimants, the character of his act as a whole obeys the same 
 rule, but the particular violation of proportion that takes place may be 
 to the interest of either of the two parties to the suit. In fine, in an 
 unjust act, to get less than one's share is to be wronged, and to get more 
 than one's share is to commit a wrong." — Chapters i. v. and vi. 
 (WUliams' translation.) 
 
 In this and other passages Aristotle defines justice by 
 reference to the external object which satisfies just claims. 
 The just man is one who does just acts. Just acts are defined 
 by reference to a standard of equality or proportion accord- 
 ing to circumstances : — 
 
 " The mean between the two is that which is equal, or, as we call it, 
 just. Hence that which is correctively just will aim at tne mean be- 
 
372 THE AIM OF LA W. 
 
 tween loss and gain. And so after a dispute men betake themselves to 
 a juror or justice, and to betake one's self to a justice is to betake one's 
 self to that wMcb is just — a justice being abstract justice, embodied in 
 a concrete person (oXov SLkmov ijxij/vxov), and thus they seek for a justice as 
 an impersonifioation of the mean " (chap. iv.). 
 
 " Since the justice is the impersonification of the mean, that which 
 is just will be in the mean [fUa-ov &pa « t6 Ukmov eivep rai 6 SiKao-r^s). 
 And so, too, a justice produces equality in the same way, as if a line 
 being divided into two unequal segments, one were to take the excess 
 of the greater segment over and above the exact half of the line so 
 divided, and were to out it off from the greater segment and to add it 
 to the less. For when the whole has been divided into two equal parts, 
 and the parties have each received an equal sha,re, then men say that 
 they have that which is their own {rdn <paa-lv Ix^iy rk airdv). That then 
 which is equal after this wise is the arithmetical mean between that 
 which is too much and that which is too little " (i6.). 
 
 In chapter V. of the same book we have an economic dis- 
 cussion of proportion and price. If a house is worth five 
 pairs of shoes, and these are exchanged, then the parties 
 again are equal :— ;- 
 
 " When the result of the contract has been such that each party 
 has got that which is fairly his, then they are equalised, and fairly re- 
 presented in the contract, in that there can result between them the 
 following relation of equality, A:B: :0:D, orAxD = BxC. in which 
 A. being the husbandman, 0. so much provision, and B. the cobbler, D. 
 represents an amount of the produce of the cobbler equal in value to 0. 
 And unless reciprocation were to take place after this wise, there would 
 be no transactions between man and man." — {lb. p. 130.) 
 
 Besides this economic discussion he treats in some detail the 
 classes of relations and the classes of acts in which justice 
 and injustice are shown. This is to a certain extent techni- 
 cally legal. Particular justice is divided by Aristotle into 
 two classes — dianemetic^ — distributive — concerned with the 
 distribution of honour or money, or of such things as are shared 
 in common by the body politic ; and diorthotic — corrective — 
 which has its place in transactions and contracts, whether 
 voluntary or involuntary. These two classes seem to corre- 
 spond to the two functions which we saw were fulfilled by the 
 ancient king who distributed land to his followers and de- 
 
 ^ As to the translation of these terms, see Burnet, Aristotle's Ethics, p. 
 213. Grant, ii. 108, notes, 
 
GREEK T^RMS POR "jt/STlCM.'^ ^75 
 
 cided their disputes as to boundaries (p. 42). The two classes 
 were archaic in the days of Aristotle, and his exposition is an 
 attempt to adapt them to the state of politics in his own 
 day, when many more things than land had to be distributed 
 and legal disputes were much more multifarious. Trende- 
 lenburg {Hist. Beitr. iii. 399) attempts to identify the two 
 classes with public and private law. Lorimer (Iifhst. p. 409) 
 takes exception to this identification, but it may be observed 
 that the distinction of public and private law is not the same 
 now as in ancient Athens. — (Zeller, Aristotle, Engl, trans., ii. 
 171.) 
 
 We may notice here in passing that Aristotle's division of 
 corrective justice into two kinds — one dealing with volun- 
 tary transactions or contracts, and the other with involuntary 
 transactions or delicts — is open to the same criticism as we 
 have passed on the Eoman division (p. 168, supra). His 
 classification seems to be — 
 
 (1.) Contracts for the transfer of things in property — 
 
 buying (vr/jao-tj), and selling {oovri) ; for, of course, 
 
 the rights and duties and the justice of buyers and 
 
 sellers are different : 
 (2.) Contracts for the temporary transfer of money in 
 
 loan (Saveia-fjLos) ; and temporary transfer of things 
 
 — pledge in security (iyyvrj) : 
 (3.) Contracts for the temporary use, hire of things 
 
 (x/>?trt?)> OJ^ for tt^6 deposit of things {irapaKaTaQriKti), 
 
 and the corresponding contract of letting (/uladooais)- 
 
 But when he deals with involuntary transactions he 
 gives two classes : — 
 
 (1.) Delicts committed by fraud — theft, adultery, admini- 
 stration of drugs, procuring for defilement, entice- 
 ment of slaves from their master, murder by 
 treachery, perjury : 
 
 (2.) Delicts committed by force — assault and battery, 
 violent detention, murder, rape, assault with intent 
 to maim, abuse, insult. — (Bk. V. ch. 2.) 
 
5'74 THE AIM OF LA W. 
 
 The voluntary transactions are divided according to ends 
 or purposes in relation to things ; the involuntary according 
 to the means used by the delinquent. — {Gf. Grant's Aristotle, 
 ii. 108, note ; Holland, Jwr. 271.) The discussion in the 
 Rhetoric (i. 13) deals entirely with law from the point of 
 view of wrong-doing. The subject dealt with is forensic 
 prosecution. — {Gf. Cope and Sandys, i. 245.) 
 
 Justice with Plato is sometimes physical and sometimes 
 metaphysical. He has not shaken off the associations of the 
 Pythagoreans and the older physicists ; but he has a clear 
 view of a divine idea which resides in the individual soul, as 
 well as in the State and the physical universe. The old 
 doctrine of the mean — fxtiSev ayav — appealed to ordinary 
 things — ordinary life and ordinary experience, for its 
 standard. The standard of justice is therefore really custom 
 — the tradition of Greek society. 
 
 With Aristotle, on the other hand, an attempt is made to 
 make the idea precise and scientific. Justice is mathemati- 
 cal. It is equality — an arithmetical mean — measured in 
 number by means of money.^ But men are evidently 
 different in their attainments. Being unequal as persons, 
 how can we give them equal shares of external things ? His 
 answer is. We can have proportional equality. If the 
 husbandman is to the cobbler as grain is to shoes, then we 
 can measure the value of their work, and inferentiaUy the 
 value of the men themselves. In proportion the product of 
 the extremes is equal to the product of the means — absolutely 
 physically equal ; and so Aristotle triumphantly points to 
 this result as saving both his doctrine of equality and his 
 idea of proportion. But the attempt to measure men in this 
 way must end in absurdity. If men are mere machines, we 
 may of course compare their respective products, or the 
 number of foot-pounds of work they do. But men are not 
 mere machines. The moral, intellectual, or religious char- 
 
 1 Aristotle pressed etymology into his service by deriving StKawv from 
 dixa — twain. See Grant, ii. 114. 
 
GREEK TERMS FOR ''JUSTICE.''' 375 
 
 acter even of a slave adds to his value. Among freemen, a 
 scholar, an artist, or a merchant, might be useless as a soldier 
 or field labourer. Before we apply the ratio, we must make 
 sure that all the terms belong to the same class. This is an 
 important problem which is not solved by proportion. Any 
 mathematical and rigid proportion is quite as useless as 
 equality, except in very simple commercial transactions, and 
 even there we find a reduction of the rate of price may be 
 made in wholesale transactions. 
 
 In real life we cannot distribute offices by proportion. 
 One man must get the place, and ninety-nine candidates will 
 be disappointed. Two men may be nearly equal in the 
 special acquirements necessary for the post. The unsuccess- 
 ful one may have many relevant accomplishments, and yet 
 he gets nothing. It often happens that such decisions are 
 given for arbitrary reasons or accidental circumstances. 
 It may be said these are injustices. Perhaps : they are 
 honest and bare-faced compared with those which pro- 
 portion (if it is to be really acted on) would entail with its 
 pretence of measurement and its arbitrary treatment of 
 spiritual qualities under the categories of number and 
 quantity. How could we divide the offices of King, Arch- 
 bishop, Premier, Lord Chancellor, Commander-in-Chief, 
 among five men by any rule of proportion ? Are we to 
 estimate their qualities by their salaries ? In short, pro- 
 portion as expounded in the fifth book of The Ethics is a very 
 rough metaphor. The science is pseudo-science. Is it not a 
 play on the meanings of Xo'yos — reason and mathematical 
 ratio ? The discussion in the Politics (iii. 9) supplies an 
 excellent criticism of the theory in question. The good life 
 (to e3 ^rjv) which Aristotle regarded as the end of the State 
 was life like the Athenian. Thus again the principle of 
 justice, custom, and the practical " insight " of the good man 
 are assumed. — (Zeller, Aristotle, &c. Engl, trans., ii. 170-177.) 
 
 The late Professor Lorimer attempted to revive the 
 doctrine of proportion and apply it to modern politics ; but 
 
376 THk AIM OF lA W. 
 
 the modifications which he was constrained to make show 
 that it is impossible to measure the spiritual forces of men 
 and states by means of material things. 
 
 AiKoioa-vv^ is an individual virtue, though exercised for 
 the benefit of society and the State. Like courage, it resides 
 in the individual heart, and society reaps the advantage. If 
 the duty of deciding legal points may devolve on the indi- 
 vidual citizen, then he must have this virtue in a particular 
 form — the SiKaioawt] SiKuariKij. But this justice and the 
 justice which ought to guide the claimants or litigants will 
 meet in the objective principle of justice — to SIkqiov. 
 
 In the New Testament the word reaches the highest 
 development in this direction. It occurs nearly one hundred 
 times, and is translated in the English version " righteous- 
 ness." In the Old Testament the same word has always a 
 concrete connotation. The Hebrew words translated in the 
 Septuagint by SiKaiocrvv^ are those which we previously dis- 
 cussed under the head of Eight. In the Vulgate New Testa- 
 ment Justitia is used, and it is just possible that the legal 
 associations which cling so much more closely to the familiar 
 Latin word have had a large share in causing the theological 
 differences in the various branches of the Latin Church as to 
 faith and works. But we must leave the Greek word here, 
 for the New Testament usage shows us law vanishing into 
 religion.^ 
 
 In like manner, as will be observed presently, the School- 
 men, who carried on the traditions of the ancient world in 
 philosophy, politics, and law, treated justice both on its 
 practical and its ideal side ; but as they strove to subordinate 
 the State to the Church, so they included jurisprudence 
 within the scope of theology. 
 
 ' Dr. James Drammond in the Hihbert Jowriml, i. 83, on "The Eighteoua- 
 Eeas of God." 
 
MEJCilMVAL USAGE. ^11 
 
 SECT. V. — MBDLEVAL USAGE. 
 
 In the Middle Ages we find justice treated in many modes 
 which still prevail in modern usage. The idea is materialised 
 and identified with the actual positive legal and political 
 institutions of the State. Thus we have Courts of Justice ; 
 the College of Justice in Scotland ; Justices of the High 
 Court; Justices of the Peace; Ministers of Justice on the 
 Continent. This materialisation of justice in persons, things, 
 or acts runs parallel with the struggle to centralise the State 
 in the king. Justice may be (1) persons — Justices; (2) 
 a thing, which English kings undertook not to sell ; and (3) 
 acts — execution of criminals, legal process, &c. This is noted 
 in the following extract from old French law prior to the 
 Eevolution : — 
 
 "Justice est une vertu de droict qui faict en I'liomme ce parquoy il 
 est diet juste. 
 
 " Aulcuneafois appelle len justice, une destresse qui descend de droict 
 qui est faite sur aulcun : Si comme len diet de aulcun qui justifie bien 
 ses hommes. Telle justice est faicte par prendre meubles, ou fieu, ou 
 corps. 
 
 " Aulcunesfoia appelle len justice le Bailly ou aultre Justicier quel- 
 conque, qui a povoir de justicier ses hommes : si comme len diet, la 
 Justice du Boy tient ses assises en ceste Ville. 
 
 " Aulcunesf ois appelle len Justice, la peine qui est enjoincte \ 
 aulcun par sa desserte ; si comme len diet, Je vy faire la Justice du 
 Roy, d'un larron, que je vy pendre. De toutes sea manieres de Justice 
 use len souvent en Court laye." — Le Grand Coustunuer du pays et Duchi 
 de Normamdie, chap. iii. (Bourdot, iv. p. 2). 
 
 In Early English "Eiht" is Justice, as in the laws of 
 -iEthelstan (Thorpe, p. 85). In addition to what we have said 
 with regard to Eight (p. 45, supra), we may again observe here 
 that the Eoman notion of Justice springs from legal procedure 
 {Jus), while Eight owes its origin to substantive law; but 
 these have become identified. Eight, with all that -it involves 
 of straightness and measuring, implies the appeal to an expert 
 who can measure fields. Although the multiplication table 
 is no longer a mystery, it is not everybody at the present 
 day who would attempt to calculate the area of a triangular 
 
378 THE AIM OF LA W. 
 
 piece of ground. As we have already seen (p. 36, supra), the 
 Babylonian and the Egyptian priests acted as judges in 
 disputes as to boundaries. The earliest demand for right 
 (straight measurement) meant, therefore, judicial right — 
 justice ; and justice would afterwards come to mean right, 
 although in particular cases there might happen to be acci- 
 dental variations from the ideal standard (p. 288, supra). 
 
 The later Norman-English usage is the same as in the 
 passage quoted above from the Grand Coustumier. 
 
 The phrases, " Do right," " Do justice," and " Do duty " 
 are all similar in meaning; the words "Eight," "Justice," 
 and " Duty " having more or less of a concrete character. 
 
 In the laws of Edward the Confessor on murder (chapter 
 
 XV., Thorpe, 193) we read — 
 
 " si inveniri poterat (tte homicide) justioie regis infra viii. dies inter- 
 feotionis tradebatur." If lie could be found within a year, " fieret de eo 
 justicia." 
 
 The former justitia may be the man who holds office as 
 justice ; for in section 3 we read — 
 
 " ubicunque justitia regis vel aUa quelibet justitia, cujuscumque sit, 
 tenuerit placita vel justioiam, si minister episcopi fuerit, et ostenderit 
 causam sancte ecelesie, ipsa prius ad finem dediicatur, ad quern iinem 
 poterit racionabilius eo die. Justum est etiam ut Dominus ubique per 
 servos suos bonoretur." 
 
 In the Laws of Wilham the Conqueror (Thorpe, p. 201) 
 the Latin " Justiciarius " corresponds to the French " Justise." 
 We have here in fact what Aristotle pointed out — Justice 
 embodied in flesh. 
 
 In the Laws of Henry I. (lliorpe, p. 237), " Justicia Eegis " 
 is the man who represents the " Royal Justice." From this 
 time onwards in the year-books the modern usage is common. 
 
 In the Statute of Marlborough already mentioned (1267) 
 the " ministration of justice '' is said to " belong to the office 
 of a king " ; and chapter I. provides that all persons shall 
 " receive justice in the King's Court." The persons who used 
 these phrases had no doubt concrete practical associations with 
 
MODERN DEVELOPMENT. 379 
 
 them, as we may gather from Coke's Commentary thereon in 
 his Second Institute, where he says — 
 
 " 1. That all men, higt and low, must be justified, — that is, have and 
 receive justice in the King's Courts of Justice." 
 
 " 3. That all the subjects of the realm ought to be justified, that is 
 submit themselves to the King's officers of Justice, according to law " 
 (6th ed., pp. 101-103, " Statutum de Marlebridge "). 
 
 So in the Great Charter King John undertakes to sell to 
 no man, nor to deny or defer to any, Eight or Justice. — 
 B&ctwm vel Justiciam (chap, xxxix.). 
 
 Justitia is explained by Ducange as jurisdictio, cognitio 
 judicis. Isidore {Deer. Greg. IX., v. 40, 10) distinguishes 
 cwma, judicium, and jxistitia. The first is a case when put 
 forward, the second is the same under discussion, and the 
 third is when it is decided.^ 
 
 Alta justitia is high justice — thp jus gladii, as opposed to 
 justitia simplex — inferior, depending on the royal justice. 
 
 Facere justitias is to hold courts,^ and is so used by Egin- 
 hard ; or it means to pay a debt. 
 
 Justitia is also applied to a district of jurisdiction or 
 power ; to a decree of a judge ; and to a place of execution 
 (c/. p. 160, supra). 
 
 It is applied to a right — jus ; to a prestation — a tax ; and 
 a judicial fine. 
 
 This brings us to the point where Justitia is taken up by 
 the modem languages. 
 
 SECT. VI. — MODERN DEVELOPMENT. 
 
 In modern times justice has developed in two directions 
 — negative and positive. Arithmetical equality is an im- 
 possibility. Proportional equality is an hallucination. The 
 next idea is to give aU men " an equal chance " — les carrihres 
 ouvertes. This is an aspect of freedom. Strong free men, 
 under a system of competition, will adjust themselves and 
 
 1 Cf. the derivation of causa, from ^ Law of Edward the Confessor, 
 
 casus with p. 57, supra ; Ayliffe, p. 378, supra. 
 Parergon, 147. 
 
-go THM. AIM OF LA W. 
 
 get into their proper places. If the game is fairly played, 
 the losers may be content to take a second place and find 
 it as good; as the first — may even persuade themselves that 
 it is better. Society gets the benefit of the strongest — the 
 survival of the fittest. 
 
 But it happens as often as not that anti-social vices bring 
 a man to the surface as effectually as social virtues. The 
 survivor is fittest because he has survived. Society comes 
 to see sometimes gross injustice in the ordinary economic 
 processes of nature. To nature man is simply a product, and 
 he may be waste Hke chemical refuse, or street sweepings. 
 The conscience of individuals is hurt, and hence an attempt 
 by conscious legislation to bring back justice to earth. 
 Justice is not merely obeying any laws, however bad; it 
 demands that laws should conform to a higher ideal in their 
 substance. It struggles to save everything in human shape. 
 It draws no artificial line even at the brutes, for it attempts 
 to protect them from cruelty and injustice. It knows no 
 boundaries of nations and states except to facilitate adminis- 
 tration and jurisdiction. There is a justice to foreigners. 
 
 Hence all the activity of our modern social legislation — 
 churches, schools, museums, libraries, art galleries — pubHc 
 health, lighting, water supply, conveyance, poor laws, and 
 lunatic asylums. The poor could not get these for them- 
 selves. It is recognised that they have a claim to the good 
 life (to eS ^rpS) ; it is said to be a just claim, and so it is made 
 a legal right. 
 
 But what is the criterion of justice ? Custom ? Should 
 men learn to be content with the sphere in which they are 
 born ? Should we make natural divisions of men into rigid 
 castes ? Are we not educating men beyond their station in 
 life and making them discontented with their lot ? But, on 
 the other hand, is there not a divine discontent ? Have men 
 not ideals that they must realise ? If those ideals are 
 human, does justice not demand that they should be realised ? 
 But here we seem to go in a circle, for the question is now 
 
EQUITY. 381 
 
 asked if our ideals are just ? Hence the attempt to find 
 some criterion outside of custom or tradition on the one 
 hand, and the mere existence of the ideal on the other. 
 
 SECT. Vn. — EQUITY. 
 
 Where a society has reached the stage of true law — a 
 conscious adjustment of rights and duties — and particularly 
 if it has anything like a code, the inadequacy of the law to 
 meet all the varied affairs of actual experience ultimately 
 forces itself on men's attention. Hence the idea of equity 
 to correct or supplement justice. "When justice has become 
 identified with the material details of law, equity is applied 
 to the spirit which ought to animate these. 
 
 The word used by Aristotle in this connection is eirieiKeia, 
 fairness, reasonableness. The adjective extetK-jy? is used by 
 Homer in a physical sense — " fitting — not huge," as applied 
 to a tomb {Iliad, 23, 246). In the Odyssey (12, 382) it is 
 appKed to a penalty — as fair. The later usage was " equitable," 
 as opposed to merely "just" {SiKaioi). The account given by 
 Aristotle {Ethics, v. 14) is still classical : — 
 
 " Whenever the terms of the law are general, but the particular case 
 is an exception to the general law, it is right, where the legislator's rule 
 is inadequate, or erroneous in virtue of its generality, to rectify the 
 defect which the legislator himself, if he were present, would admit, 
 and, had he known it, would have rectified in legislating. 
 
 "That which is equitable, then, is just and better than one kind of 
 justice ; not, indeed, better than absolute justice, but better than the 
 error of justice which arises from legal generality. This is in fact the 
 nature of the equitable ; it is a rectification of law where it fails 
 through generality. For the reason why things are not all deter- 
 mined by law is that there are some things about which it is im- 
 possible to lay down a law, and for which a special decree is therefore 
 necessary. For where the thing to be measured is indefinite, the rule 
 must be indefinite, like the leaden rule that is used in Lesbian archi- 
 tecture ; for as the rule is not rigid, but adapts itself to the shape of 
 the stone, so does the decree to the circumstances of the case. We see, 
 then, what is the nature of equity, and that it is just, and what is the 
 justice to which it is superior. 
 
 " From this it is easy to see the nature of the equitable man ; for 
 one who in his moral purpose and action aims at doing what is equit- 
 
382 THE AIM OF LA W. 
 
 able, who does not insist upon his rights to the damage of his neigh- 
 bours, but is content to take less than his due, although he has the law 
 on his side, is equitable, and his moral state is equity, which is a kind 
 of justice, and not a different moral state." — (Welldon's Trans., p. 172.) 
 
 The Latin ceqyms has also a physical reference, meaning 
 level or equal (Clark, Jurisprudence, p. 364). The latter con- 
 nects the idea with Aristotle's justice. So Cicero (Topics, 4, 23) 
 says, " Valeat sequifcas quae paribus in causis paria jura desi- 
 derat." This may be merely an echo of Greek philosophy and 
 bad etymology ; but the usage is constant that cegwitas was a 
 following of the meaning or spirit as opposed to the letter of 
 the law. Thus in the Institutes (iii. 1, 9) we are told that 
 the praetor introduced honorum possessio for children, natwraU 
 cequitate, in opposition to the Twelve Tables. Even the Edict 
 — itself written law — was administered by the praetor subject 
 to a spirit of cequitas. As Ulpian says (L. 14, § 13, de relig. &e. 
 (11, 7)), "Et generaliter puto judicem justum non meram 
 negotiorum gestorum actionem imitari sed solutius cequitatem 
 sequi." In the discussion of tradition (Inst. ii. 1, 40) natwrale 
 jus and natwralis cequdtas are evidently identified. But so 
 far back as the time of Cicero (De of. iii. 16) we find a rule 
 of law (jus) pleaded on one side, a rule of equity (ceqmtas) on 
 the other. The subsequent chapter (17) seems to identify 
 equity with a lex naturce. 
 
 In the following text of Scaevola we come near the 
 modern Scottish idea of equity, as covering a region of law 
 where rigid rules are inapplicable : — 
 
 " De accessionibus possessionum nihil in perpetuum neque general- 
 iter definire poasumus : consistunt enim in sola asquitate." 
 
 (L. 14, pr. D. de,Omenis temp, prastcr., &c. (44, 3).) 
 
 The Schoolmen borrowed the Greek word, arid St. Thomas 
 
 Aquinas deals with it in his Summa (2, 2, q. 120). JUpicheia 
 
 is a subjective element of jixstice : — 
 
 " Legalis justitia dirigitur secundum epicheiam unde epicheia est 
 quasi superior regula hiunanorum actuum." 
 
 The Greek word still survives in Roman Catholic theology 
 
EQUITY. 383 
 
 as a synonym of ccquitas, as we see from Pietro Scavini's 
 Theologia Moralis Universa, tho 15th edition of which was 
 jmblished at Milan in 1 896 (L. 1, § 231, Epikeja). St, Thomas 
 (I.e.) is the solo authority quoted there. 
 
 Suaroz, tho last of tho Schoolmen, in liis great work, De 
 LegibiiK nc Deo Lcgidahm; (i. '1, 9), distinguishes aquitaa 
 natural'i.f from wqnitas Ictialh. Tlio forniuv ia identical with 
 natural justico, a position for which he quotes L. 90, D. tie 
 B. J. : " In omnibus quidem, niaxime tamen in jure a>quitas 
 spectanda est," The latter is a niodo of luuoiuliiig or luodera- 
 tiujj; tho rij;ouv of tho law. — {Cf. Epiilia, vi. 6, 5.) It is an 
 attempt to f^ot from inovo oxternal form to the matter of law. 
 We may see from Suarez that equity aftor all is only law. 
 It is an attempt to fit law more oxactly to uiou's afl'airs ; just 
 as comity {i.e., benignity, favour) was an attempt to fit native 
 law to the cases of foreigners.^ In one chapter (ii. 16) he 
 uses " epiikia " as synonymous with hdrrprdatw — i.e., juris- 
 pi'udence, in the modern French sense. 
 
 So Astrroa taught Artegall — 
 
 " To woigli both right aiid wrong 
 In iKiuiill balliuu'o willi duo recouvponco, 
 And oiiiiitio. to nu'fisuro out iilong, 
 Aoconliug to tho lino of oonsoionoe, 
 Wlien so it needs witli rigour to disiioiicc." 
 
 {Fan-if Quciii, v. i.) 
 
 In the .French Code Civil, &a justico is applied to law (Arts. 
 4, 30), ^qvUif is used for justice in a wider sense : — 
 
 " Ijosi conventions obligent non-amiUMuonl <i co qui y est expvimt\ 
 niais oncoro i\ loules los suites que I'l'qiiid'', l'u.sage ou la loi donuout li 
 I'obligatiou d'api'i's sa natuio." — (Art. li;5r>.) 
 
 This connects -the idea with natural law. 
 
 As the lionians borrowed equity from the Greeks, so have 
 the Englisli borrowed it from the Eomans. — (Clai-k, Jim.sjyi'u- 
 (Inice, p. 373.) (.vlanvill appears to use the word as equiva- 
 lent to indulgence — benign ilti.'i. Bracton carries us back to 
 Cicero : — 
 
 ' Miliar, I.air of Xainrf ami Nntiots, p. 121. 
 
384 THE AIM OF LA W. 
 
 " iEquicas autem est rerum convenientia, quae in paribus causis 
 paria desiderat jura, et omnia bene coeequiparat ; et dicitur sequitaa 
 quasi sequalitas, et vertitur in rebus in dictis et faotis hominum. 
 Justitia in mentibus justorum quiescit : inde est quod, si velimus loqui 
 proprie, dicemus judicium aequum non justum, et bominem justum non 
 sequum." — (i. 4, 5.) 
 
 Thus Bracton would admit with Aristotle that absolute 
 justice was equity ; but as the intention, however good — the 
 oonstans et ferpetua voluntas — might result in acts and deeds 
 that were felt to be unjust, the notion of equity came to be 
 associated with the external act or prestation rather than the 
 internal state of the actor. The Greek usage, howeyer, 
 included both. 
 
 When eqmty in English law became hard and crystallised, 
 it was a mere department of law — the difference being that 
 the judges wore different robes and had a different mode of 
 procedure as well as different substantive rules. We then 
 find an appeal to morality — the law of God — religion — the 
 law of the Church. As Snell explains, the development of 
 English equity is a matter of history and not of principle 
 {Princvples of Equity, 2), and yet it was enacted by the 
 Judicature Act of 1873 (36 and 87 Vict., cap. 66, §§ 24 and 
 25) that when the rules of equity and of common law differed, 
 the rules of equity should prevail. This evidently assumed 
 that they were, at least in general, more just. In fact, if we 
 may be allowed to speak disrespectfully of so great and so 
 beneficent an institution, English equity, like the early Eoman 
 equity, was a clumsy mechanical mode of amending a rigid 
 mechanical law. — (Blackstone, i. 61 ; Hobbes, Worlcs, vi. 3.) 
 
 In the earlier days of the East India Company, and when 
 there was danger of injustice arising from the application of 
 rigid law, the judges were instructed to foUow the dictates of 
 "justice, equity, and good conscience." This tended to 
 operate another injustice by importing technical rules of 
 English equity into cases where they were utterly inappli- 
 cable. — (Stokes, Anglo-Indian Codes, I. xvi. xxi. ; Guthrie's 
 
EQUITY. 38s 
 
 Savigny, 2nd ed., p. 61.) What the words no doubt meant 
 was the moral common sense of an honest layman.^ 
 
 When equity becomes law or right, then particular rights 
 or particular obligations are called " equities," — e.g., " an 
 equity of redemption " is a right to redeem : " an equity 
 to a settlement " is a right of wife in certain circumstances. 
 The " equity attaching to an overdue bill " may sometimes 
 result in a burden or obligation. This phrase is translated 
 into " defect of title '' for the benefit of Scottish lawyers 
 (Chalmers on Bills, 5th ed. 117). So it is enacted in the 
 Indian Code of Civil Procedure (sect. 233) : — 
 
 " Every transferee of a decree shall hold the same subject to the 
 equities (if any) which the judgment-debtor might have enforced 
 against the original decree-holder." 
 
 That is to say, assignatus utitur jure audoris. Equity mean- 
 ing merely right, we may have competing equities, and so the 
 Lord Chancellor (Selborne) may say (11 A.C. 30) — " I think 
 the respondents have the better equity." At all events this 
 sentence throws light on what may once have been meant 
 by " the better right " (p. 123, supra). 
 
 In Scotland we have never had the separation of law and 
 equity which prevailed in England. For us they were com- 
 bined by Justinian. There is one well-known treatise on the 
 subject — Karnes on Hguity — but it is useful only as a treatise 
 on the mode of administering the law. The law has abso- 
 lutely absorbed equity except to the extent after noted. — 
 (G-reen, Encyclopedia, s.v.; Wilton and Go. v. Oshorn, 1901, 
 2 K.B. 115.) 
 
 Scottish law borrowed much from France and Holland 
 when they all regarded the Civil law as their common law, 
 and latterly from England and America, so that the law is 
 found sufficiently elastic of itself. In the law of trusts and 
 some other branches, English equity cases are freely used in 
 Scotland, and thus we reap the full benefit of English equi- 
 
 ' Of. New Zealand Arbitration Act, — Eeeves, State Experiments, ii. 102. 
 
 2b 
 
386 THE AIM OF LA W. 
 
 table doctrines; but it must be borne in mind that these 
 were largely borrowed from the Eoman law. 
 
 But in certain cases, e.g., deciding as to the custody of 
 children, the Court is a court of equity, and the House of 
 Lords has restrained any tendency to lay down rigid rules 
 {Symington, L.E. 2 Sc. App. 415 : Beedie, 16 E. 648 : Steven- 
 son, 1894, 21 E. (H.L.) 96). 
 
 So in matters of discretion — applications for special 
 powers by trustees and such-like, the jurisdiction is wide and 
 equitable. Again in exceptional cases of hardship the Court 
 of Session, for cogent reasons, may withhold from a litigant a 
 remedy which in other circumstances might have been 
 allowed as a matter of course. — {Grahame v. Swan, 1882, L.E. 
 7 App. Ca. 547.) But we may go further and say that in 
 the administration of all law equity must be kept in view — 
 "jEquitas spectanda est." It is impossible to use a code 
 like a book of interest tables. A layman relying only on a 
 code would produce legal judgments comparable to the 
 English literary compositions of some Indian authors. The 
 grammar and the individual words used are correct ; but the 
 result is ludicrous. All interpretation assumes that the law 
 in substance is equitable and just. And particularly in the 
 apportionment of punishment judicial discretion must be 
 tempered with equity. 
 
 In Pirie v. Pirie, 1873, 11 M. 941, the Court of Session, 
 while regretting that the Civil law was not quoted so often 
 in the Scottish Court as formerly, appealed to this law as 
 deciding the case, and to equity, not in the English sense, but 
 meaning plain justice, as a test of the justice of the result. 
 
 SECT. VIII. — KEASON — REASONABLENESS.^ 
 
 The word " reasonable " is extremely common in British 
 statutes, and indeed in the whole of our legal literature. 
 
 ^ See on the subject of this and the tlu Society of Comparative Legislaiion, 
 foUowmg section two articles by Sir 1900, p. 418 ; 1901, p. 204. 
 "Frederick Pollock in the Journal of 
 
REASON— REASONABLENESS. 387 
 
 Natural equity and reason are associated by older writers 
 (Maxwell on Statutes, 3rd ed., p. 364). It is an appeal some- 
 times to an objective standard, and sometimes to judicial 
 determination. 
 
 It may mean (1) customary or natural in a wide sense ; 
 (2) adapted to an end ; (8) moral, implying that the actor 
 does not unduly interfere with the rights of others; (4) 
 purely legal or rather equitable when a rule has come to be 
 interpreted by the Law Courts. " Eeasonable notice " under 
 the Bills of Exchange Act or the Agricultural Holdings Act 
 is ultimately customary notice, modified it may be by all the 
 circumstances of the case, as estimated by " a reasonable 
 man." — (Stroud, Diet, s.v.) But in the case of bills the ele- 
 ment of usage is more important, as it is in all mercantile 
 affairs (Act, sect. 86).^ " Eeasonable aliment " to a person 
 may be what is usual in his station of life, or what is adequate 
 for his maintenance — physiologically natural. " Eeasonable 
 facilities " to be afforded by a railway company implies legal 
 conduct. — Deas (Ferguson) on Railways, 564 et seq., 616. In 
 the Judicial Factors Act (12 and 13 Vict. c. 51) we find 
 " reasonable diligence " in sect. 3, and in sect. 13 " good ordi- 
 nary management." The conduct of a reasonable person 
 approaches " moral " conduct. — (Sidgwick, Methods of Ethics, 
 passim.) " I beseech you that ye present your bodies a living 
 sacrifice unto God, which is your reasonable service," — rriv 
 \oyiKrjv Xarpelav, — accordant with an idea — or perhaps 
 moderate, not excessive — in accordance with Xo'yo? — ratio. 
 
 The word Xoyos carries us back to the Greek philosophers 
 as in the definition of Chrysippus (quoted by Holland, Jur. 
 20). " 6 i/o'/wo? 6 Koivog, ocnrep ecmv 6 opdos Xoyoy Sia 
 vdvTwv epxdf-evos," /c.t.X. The phrase there has theological 
 associations, and refers to the reason which rules the universe 
 and makes it Kosmos — the Nous of Anaxagoras. It was the 
 precursor of the Christian logos, the second person of the 
 
 1 See Ryan v. Ridley, 19 T.L.R. 46. 
 
388 THE AIM OF LA W. 
 
 Trinity, who created the world.^ Both Plato and Aristotle 
 
 speak of " riglit reason " — opQo<s Xo'yoy — (-g-, to Se fieaov ea-riv 
 
 to? 6 Xo'yo? o 6p66s \eyei. — (Aristotle, Mh. iV". vi. 1.) 
 
 In our discussion of justice we have anticipated much 
 
 that might be said of reasonableness. The Greek reason — 
 
 Xoyos — proportion — was the ordinary cusiomary routine of 
 
 nature — firjSev ayav — not too much of anything. As Terence 
 
 puts it in the mouth of one of his characters — 
 
 "id arbitror 
 Adprime in vita esse utile, ut Ne Quid Ni/mis." 
 
 {Andria, i. 1, 34.) 
 
 Even too much virtue might become a wrong. It might 
 become unreasonable. As the preacher said — "Be not 
 righteous overmuch ; neither make thyself overwise : why 
 shouldest thou destroy thyself ? " (Ecclesiastes, vii. 16-17). 
 
 G-aius identifies Naturalis ratio with the Jus gentiwm 
 {Inst. i. 1 ; ii. 66-69 seg.) He opposes civilis ratio to the 
 naturalis (i. 158), and uses civilis ratio for the civil law 
 (ii. 110); Ulpian (xxiv. 16) speaks of the ratio juris civilis, 
 the spirit of the civil law. Comparing Gaius ii. 66 with 
 Inst. ii. 1, 40, we see that Gaius uses Naturalis ratio where 
 Tribonian uses Jus naturale and Naturalis cequitas. 
 
 Cicero in De officiis (iii. 23) speaks of " ipsa naturae ratio 
 quae est lex divina et humana," and in the theory which he 
 propounds in the De legihus (i. 18) he defines lex as " ratio 
 summa, insita in natura, quae jubet ea, quae facienda sunt, pro- 
 hibetque contraria." This was an adoption of the Greek idea 
 of Kosmos— " deorum immortalium vi, natura, ratione, potes- 
 tate, mente, numine, sive quod est aliud verbum, quo plenius 
 significem quod volo, naturam omnem regi " (i. 21.) This 
 sentence combines all the ideas of natural law, reason, and 
 divine power, and prepares us for the substitution of the 
 Christian idea of God^ by St. Thomas Aquinas who says, 
 '' Lex Eeterna nihil aliud est quam summa ratio divinse 
 
 ^ Hobbea' TForJcs, iii. 409 ; iv. 112 ; ' See note, p. 394, infra. 
 
 Max Miiller, Lotst Eisays, 2iid ser., 
 pp. 288, 343, &o. 
 
REASON—REASONABLENESS. 389 
 
 sapientiae, secundum quod est directiva omnium actuum et 
 motionum " (1, 2, q^. 93, 1). Suarez {Be, Leg. i. 3, 6) explains 
 that this eternal law of the Schoolmen is the Lex Bivina of 
 Plato, the " ratio gubernatrix mundi " ; he probably refers 
 to the passage in the Laws (iv. 716). 
 
 Eeason has thus developed in two directions in its appli- 
 cation to law. On the one hand it is the foundation of law, 
 and carries us back to the divine idea of the Greek philosophers 
 and of the theological schoolmen, and such modern usage as 
 in the title of Professor Dahn's reply to Von Ihering, " Die 
 Vernunft im Eecht." On the other hand, it became positive 
 law in Gains, and has been identified with the details of 
 custom and the ordinary nature of things in the ordinary 
 English and Scottish legal use of the word " reasonable " 
 already noted. 
 
 An example of a purely legal usage is found in the early 
 English use of pars rationabilis, applied to the dowry of a wife 
 and the legitim of children. Magna Charta (cap. 26), in deal- 
 ing with freedom of bequest, excepts these rights, — " Salvis 
 uxori ipsius et pueris rationabilibus partibus suis." Black- 
 stone (ii. 133, 493) says that " Bracton lays down the doctrine 
 of the reasonable part to be common law," and refers to Glanvill, 
 Pleta, the Year-Books, and other authorities, to whom we may 
 add Britton, on the writ de rationabili parte (iii. 9, 1, where 
 the phrase is " Sa renable partie del heritage." — Of. Ducange, 
 s.v. " rationabile," and Year-Book 20 Edward I. p. 20.) The 
 same phrases "a reasonable terce or third," "reasonable 
 dowrie " occur in the older Scots law books {Reg. Maj. i. 3, 2 ; 
 ii. 16, 1, and 37 ; Stair, iv. 3, ll).i 
 
 The word is applied to taxation in the Statute of West- 
 minster (sect. 36) passed in the third year of Edward I. of 
 England. The Petition of Eight in its preamble quotes a 
 statute of 25 Edward III. of England, which spoke of loans, 
 
 ^ Of. the Satio legis Falddix {Insti- connection in the Decretal of Boni- 
 tutes, ii. 22, 1 ; Brissonius, s.v.) and face VIII., given in Sexti Seeretales 
 the use of Jus nahi/rce in the same (iii. 11) ; p. 396, iufra. 
 
39° THE AIM OF LA W. 
 
 which were " against reason and the franchise of the land." ^ 
 The preamble of the Bill of Eights (1 Will, and Mary, session 
 2, chap. 2) speaks of similar acts as being " contrary to the 
 known laws and statutes and freedom of this realm." 
 
 In some cases we find " reason " applied to law in general, 
 or justice. The phraseology of the Statute of Westminster 
 (20 Edward III.) is interesting in this connection. Chapter 
 I. speaks of judges doing " law and right " {/aire ley et droit), 
 while chapter II. uses the phrase do "right and reason" 
 (facent droit et reason). But as applied to particular legal pro- 
 positions the usage does not differ from the ordinary popular 
 one. The " reasons '' given by judges for their decisions are 
 purely legal statements, and may be bad as well as good. Ac • 
 cording to Ducange " ratio " means " jus, causa, lis, judicium ; 
 res, dominium, bona, facultates," &c. 
 
 The maxim " Cessante ratione cessat ipsa lex " is sometimes 
 quoted as if it were universally binding in judicial procedure ; 
 but it rather applies to legislation, and implies that when 
 certain conditions are not present the law is not applicable.— 
 (Of. Roby's Intr. to Digest, p. 103 ; Broom's Maxims, 7th ed. 
 126 ; Maxwell on Statutes, 3rd ed. p. ~63, and chap, viii.) 
 The danger of appealing to reason when the law was clear 
 was repeatedly emphasised by the Eoman lawyers : — 
 
 "Non omnium, quae a majoribus oonstituta sunt, ratio reddi 
 potest."— (Julianus, L. 20, D. de Leg. &c. (1, 3).) 
 
 " Et ideo rationes eorum, quae constituuntur, inquiri non oportet : 
 alioquin multa ex liis quae certa sunt, subvertuntur." — (Neratius, L. 21 
 D. Eod.) 
 
 This is the doctrine laid down by the Lord Chancellor 
 (Westbury) in Balston v. Hamilton (p. 228, supra). The 
 clearness and certitude of the law are for a judge sufficient 
 reason. To discuss other reasons would introduce confusion 
 and injustice.^ — (Of. pp. 356, 357, supra.) 
 
 1 Cf. the use of " resonablement " prietio rationabili," Statute of La- 
 and the English translation in 18 bourers, 23 Edw. III. cap. 6. 
 Edw. III. cap. 2; "reliable eid," 25 ^ Cf. Theoplirastus, 'A-rrdnTuv f-q- 
 
 Edw. III. stat. 5, caj). 11 ; and "pro TodvTei\lriovavaipov(ri.\6yov.—(^uo\ei 
 
 by Hooker, JVorlcs, i. 228. 
 
NATURAL LAW. 391 
 
 Once more the indefiniteness of the substantive law of 
 nations, so often identified with natural law, presently to be 
 noticed, is shown by the combination of " reason, justice, 
 the principles of international law, and the equities of the 
 case," in Eule (c) Article iv. of the Treaty of Washington, 
 1897, between Great Britain and Venezuela. 
 
 When a soldier or sailor gets a legally defined and 
 reasonable allowance of food it is called " a ration." This 
 usage is mediaeval (see Ducange, s.v) and brings us to purely 
 physical associations. — {Gf. Competency, p. 56, supra.) 
 
 Another modern physical application may be found in 
 the word '' Eates " and the Law of Eating. These are money 
 payments. — (Balfour Browne, 2nd ed., p. 24, &c.) 
 
 SECT. IX. — NATURAL LAW.^ 
 
 This phrase is used as synonymous with justice, equity, 
 religion. 
 
 In our discussion of the G-reek idea of justice {Slkyi) we 
 have seen that it was applied to inanimate and animate 
 nature as well as to men and states. To the early G-reek, 
 nature (<pvcns) was not dead matter but living spirit. The 
 philosophers substituted hylozoism for the popular animism. 
 The world was not inhabited by gods and spirits, but was 
 itself a living entity. It was easy to transfer to the physical 
 universe ideas of rule, politics, and law.^ It is really a 
 survival of this idea which we meet in the famous definition 
 of jus natwrale given by Ulpian — the Kosmos — the rational 
 universe. 
 
 In the Mhics of Aristotle (v. 7) we have the distinction 
 
 of natural and conventional applied to human justice. The 
 
 former is in all places equally valid, and whether accepted 
 
 or rejected of men is equally just. In the Rhetoric (i. 10, 13, 
 
 and 15) he divides law into " particular " and " universal," 
 
 and by universal he means the " law of Nature " {koivov Se 
 
 ^ See note, p. 386, supra. ' Burnet, Early Greek Philosophy, 
 
 p. 13. 
 
392 THE AIM OF LA W. 
 
 Tov Kara (pva-iv), which is always equitable and never changes; 
 
 and in the first passage referred to (10) he appears to identify 
 
 this with unwritten law as opposed to the written law of 
 
 the State. We shall see presently that in this sense the 
 
 phrase still survives. 
 
 Passing over later writers, to be noticed presently, we 
 
 find Locke (On Government, ii. 2, 6) affirming that " The state 
 
 of nature has a law of nature to govern it." The unhistorical 
 
 assumption of this law corresponds to the unhistorical state 
 
 in which it prevails. This is illustrated in the following 
 
 passage, where Spenser describes the degeneration of his time 
 
 owing to the wandering of the stars, but does not speak of 
 
 nature : — 
 
 " For during Saturnes ancient raigne it's sayd 
 That all the world with goodnesse did abound : 
 An loved vertue, no man was aflrayd 
 Of force, ne fraud in wight was to be found : 
 No warre was knowne, no dreadful trompets sound : 
 Peace universal rayn'd mongst men and beasts : 
 And all things freely grew out of the ground. 
 Justice sate high ador'd with solemne feasts, 
 And to all people did divide her dred beheasts." 
 
 {The Faerie Queene, bk. v. Int.) 
 
 But it is also applied to an ideal system either existing 
 
 in the future or in the minds of men. So Shelley criticises 
 
 the society with which he was acquainted by an appeal to 
 
 nature, but in a modern sense : — 
 
 " Nature !— No ! 
 Kings, priests, and statesmen blast the human flower 
 Even in its tender bud. 
 
 force 
 And falsehood hang even o'er the cradled babe, 
 Stifling with rudest grasp all natural good : 
 
 How withered all the buds of natural good ! 
 No shade, no shelter from the sweeping storms 
 Of pitiless power I On its wretched frame. 
 Poisoned, perchance, by the disease and woe 
 Heaped on the wretched parent whence it sprung 
 By morals, law, and custom, the pure winds 
 Of heaven, that renovate the insect tribes, 
 May breathe not." {Queen Mob, iv.) 
 
NATURAL LAW. 393 
 
 The comfortable person pleased with the present thinks 
 that any change would be for the worse, a feeling which 
 
 " Makes us rather bear those ills we have, 
 Than fly to others that we know not of." 
 
 To this person the law of nature is qvAeta non movere. What- 
 ever is, is right ; it must be natural because it is. 
 
 The truth is that the idea is negative. Natural law 
 is something not positive law — a little different — perhaps 
 better. The standard may be past, present, or future. The 
 state of nature in the past was a figment of the imagination 
 like the miUenium of the Christian, or the ideal system of 
 the philosopher. It should be noted that, as with the phrase 
 " natural rights, ' to be noticed presently, the phrases " natural 
 law" and "natural laws" are ambiguous. They may be 
 analogous to " statute law," " canon law," &c. (p. 307), or to 
 " land laws," " sea laws," &c., as in the passage just quoted 
 from Locke. 
 
 The Jus naturale of the Eomans, which is the starting- 
 point of all the modern theories, was a gigantic legal 
 fiction. Authority was wanted for legal doctrines similar to 
 the rules of the Twelve Tables. It was found in an earlier 
 code from which the prsetor drew his inspiration. 
 
 Cicero (De Leg. i. 7, 23) regards both gods and men as 
 united in society, and hence there is a law common to them 
 (both yws and lex)} If God created man the law is involved 
 in man's nature, and God may be regarded as the creator or 
 legislator, and one obvious mode of discovering this law is by 
 the study of psychology (ih. 23) — the nature of man. Grotius 
 adopted this view (De J. B. et P., Proleg. 7 and 9). 
 
 Having the idea of society in which all rational beings 
 participate, gods as well as men, law {jus) is an essential 
 notion springing from this relation. All other legal ideas 
 follow, without much straining of the imagination. Paul, 
 L. 11, D. de jure et just. (1, 1), identifies jus naturale and 
 
 1 Of. Hooker, Works, i. 231, 273. 
 
394 THE AIM OF LA W. 
 
 morality — " Quod semper sequum ac bonum est." Cicero, in 
 the chapter where he contrasts the jus civile and the lex 
 natwrw {Be, Off- iii- 17), speaks of the latter as the jus 
 gentium, a wider system of law and right than that which 
 prevails in the narrow state, and maintains that when they 
 differ the jus civile should follow the jus gentium. 
 
 " Itaqiie majores aliiid jus gentium, aliud jus civile esse vohierunt : 
 q^uod civile non idem continuo gentium, quod autem gentium, idem 
 civile esse debet." 
 
 Gains (i. 82, &c.) speaks indifferently of jus gentium and 
 naturalis ratio {cf. i. 78 and 89). The two ideas are com- 
 bined in his definition (i. 1) of jus gentium, for it was enacted 
 by naturalis ratio ; and again (i. 84-85), he contrasts the rule 
 of the jus gentium with the " iniquitas rei et inelegantia 
 juris '' — i.e. injustice in substance and illogicalness in form. 
 
 The persons who have rights under this system, which 
 may differ from the positive civil law, are naturales, as e.g. 
 children. In like manner we find " natural " obligations recog- 
 nised by Gaius, and the quasi-statutory embodiment of the 
 jus naturale in a lex naturce. Gaius speaks repeatedly of a 
 rule of the law of nations (i. 83). Cicero indeed argues 
 (Be Leg. i. 6, 18) that this supernatural lex 'iiaturm was prior 
 to the jus naturcB. It was an unwritten lex prior to all 
 written laws, prior to the very State itself. 
 
 The views of Cicero powerfully affected those of the 
 Fathers, and subsequent speculators. If Nature were per- 
 sonified it might cover all the various forms in which God 
 was conceived, from Pantheism to Monotheism. As St. 
 Chrysostom says, " When I speak of Nature I mean God, for 
 he is the author of Nature." "orav Se eiVft) rr/v (pva-iv, Oeov 
 Xeyto, 6 yap t>]v (pvcrtv SrnxLovpyriaa? avTO'; ecTTiv." — (Quoted 
 by Barbeyrac in note to Grotius, De J. B. et P., Proleg. 11.)^ 
 
 St. Thomas {Summa, 1, 2, q. 91, 2) maintains that there is 
 a lex naturalis, that is, a code of rules for the guidance of men 
 as rational beings in so far as they participate in a higher, 
 
 ^ Of, Gloss on the word " Natura " in Dig. I. i. 3. 
 
NATURAL LAW. 395 
 
 absolute, eternal law. But the views of St. Thomas, as we 
 observed before, will be discussed more appropriately under 
 religion. In modern Catholic treatises (Scavini, i. § 155) 
 Ux naturalis is defined as by St. Thomas, and the rules are 
 said to be given articulately in the Decalogue, which is 
 defined as " lex naturalis et divina, in decern precepta distri- 
 buta," &c. The law of nature is now statute. 
 
 In the second sentence of the Decretum, Gratian says 
 that the law of nature is contained in the Law and the Gospel 
 — i.e. what the Westminster Confession calls "The Moral 
 Law " (p. 414, infra). But in the Decretales Greg. IX. (iii. 
 26, 16 and 18), the legitima portio of one-third is said to be 
 awardedywre naturce {cf. " Portion-natural," 4 Paton's Appeals, 
 609). 
 
 And finally we get " natural rights " (jura naturalia) in 
 the American Declaration of Independence and the French 
 Declarations of Eights (D. G. Eitchie, Natural Bights). This 
 is a logical development of the idea into details similar to 
 the Eoman one already noticed, but of a more abstract 
 character. " Natural " rights are analogous to " statutory " 
 rights or "contractual" rights (p. 125, supra). The natural 
 rights are defined and sanctioned by the law of nature ; 
 whatever is meant by the one is meant by the other, and that 
 is merely an ideal somewhat different from what we find in 
 experience. — {Cf. Menger, The Right to the Whole Prodrwe of 
 Labour.) Most of the Continental systems of natural law 
 were substantive systems, which the authors wished to see 
 realised. Jurisprudence with them means positive law 
 (possible, if not actual) and not mere philosophical theory or 
 a system of forms. A striking proof of this fact will be 
 found in the anonymous volume, formerly attributed to 
 Diderot and now to Morelly, published in 1755 under the 
 title, Code de la nature, on le viritable esprit de ses loix de 
 tout terns n^glig^ ou miconnu. Partout, Chez le vrai sage. — 
 (Menger, op. cit. 63.) Part IV. gives in articulate sections a 
 model of legislation conform to the intentions of nature (pp. 
 
396 THE AIM OF LA W. 
 
 189-236). There are here set forth laws fundamental, dis- 
 tributive or economic, and laws dealing with government, 
 police, marriage, education, &c. Moral philosophy and meta- 
 physics are, so to speak, expressly repealed (p. 227). There 
 is also proposed a highly artificial civil service, comprehend- 
 ing all members of the state. 
 
 A profitable discussion of the theory of Spinoza on this 
 subject would be more appropriate to the metaphysical aspect 
 of jurisprudence. He deals with natural law in the Ethica 
 (iv. 18, 31, 35, &c.); Tradatus Politicus (cap. 2, 3); and 
 Tractatus Theologico-Politicua (cap. 16). One important point 
 may be noticed. Although Spinoza identifies the right of an 
 individual with his power, and every individual acts accord- 
 ing to the rules of his nature — e.g. big fish eat little ones, yet 
 reason is part of the nature of man, and thereby man judges 
 what is useful for his own preservation and happiness. This 
 is a frank recognition of utilitarianism, and anticipates more 
 modern ideas (c/. Eth., iv. 35, cor. 2 : Tr. Theo.-Pol. 16, 9). 
 
 Thomas Hobbes is more interesting to the English reader, 
 
 for we find in his works all the main theories associated with 
 
 the name of Austin and in a much more readable form. 
 
 Hobbes' purpose was political rather than jural. In his 
 
 preface (II. xxii. Molesworth's ed.) he says his purpose 
 
 was — 
 
 " Not to define auglit wliicli concerns the justice of single actions, 
 but leave them to be determined by the laws. Next, not to dispute the 
 laws of any government in special, that is, not to point which are the 
 laws of any country, but to declare what the laws of all countries are." 
 
 Hobbes may also be classed as a utilitarian, as when he 
 
 says (iii. 146) — 
 
 " The science of virtue and vice is moral philosophy ; and therefore 
 the true doctrine of the laws of nature is the true moral philosophy. 
 But the writers of moral philosophy, though they acknowledge the 
 same virtues and vices, yet not seeing wherein consisted their goodness, 
 nor that they come to be praised as the means of peaceable, sociable, and 
 comfortable living, place them in a mediocrity of passions." 
 
 As Hobbes' political theory is cast in a legal mould, his 
 
NATURAL LA W. 397 
 
 definitions are instructive. He points out that^MS and lex — 
 right and law — ought to be distinguished : — 
 
 " The Bight of Natdrb, which writers commonly call jus natwrak, 
 is the liberty each man hath to use his own power, as he will himself, 
 for the preservation of his own nature, that is to say, of his own life, 
 and consequently of doing anything which in his own judgment and 
 reason he shall conceive to be the aptest means thereunto." 
 
 " By Liberty is understood . . the absence of external impedi- 
 ments " (c/. p. 96, supra). 
 
 " A Law op Natueb, lex naturalis, is a precept or general rule, 
 found out by reason, by which a man is forbidden to do that which is 
 destructive of his life, or taketh away the means of preserving the same ; 
 and to omit that by which he thinketh it may be best preserved. For 
 though they that speak of this subject use to confound jws and lex, right 
 and Iww, yet they ought to be distinguished : because Eight consisteth 
 in liberty to do or to forbear : whereas Law determineth and bindeth 
 to one of them : so that law and right differ as much as obligation and 
 liberty, which in one and the same matter are inconsistent" (iii. 116 : 
 cf. 276). 
 
 " As the right of possession is called dominion, so the right of 
 doing any action is called Authobitt " (iii. 148 ; cf. pp. 92, 115, supra). 
 
 " Our lawyers account no customs law but such as are reasonable, 
 and that evil customs are to be abolished. But 'the judgment of what 
 is reasonable and of what is to be abolished, belongeth to him that 
 maketh the law, which is the sovereign assembly, or monarch" (iii. 
 253). 
 
 " The law of nature and the civil law contain each other, and are 
 of equal extent. For the laws of nature, which consist in equity, 
 justice, gratitude, and other moral virtues on these depending, in the 
 condition of mere nature . . . are not properly laws, but qualities that 
 dispose men to peace and obedience. When a commonwealth is once 
 settled, then aTe they actually laws, and not before, as being then the 
 commands of the commonwealth, and therefore also civil laws, for it is the 
 sovereign power that obliges men to obey them. For in the differences 
 of private men to declare what is equity, what is justice, and what is 
 moral virtue, and to make them binding, there is need of the ordinances 
 of sovereign power and punishments to be ordained for such as shall 
 break them, which ordinances are therefore part of the civil law. 
 The law of nature, therefore, is a part of the civil law in all common- 
 wealths of the world. Reciprocally also the civil law is a part of the 
 dictates of nature. For justice — that is to say, performance of covenant 
 and giving to every man his own — is a dictate of the law of nature. 
 But every subject in a commonwealth hath covenanted to obey the 
 civil law, either one with another, as when they assemble to make a 
 common representative, or with the representative itself one by one, 
 when subdued by the sword they promise obedience, that they may 
 receive life ; and therefore obedience to the civil law is part also of 
 
398 THE AIM OF LA W. 
 
 the law of nature. Civil and natural law are not different kinds, but 
 different parts of law, whereof one part being written is called civil, 
 the other unwritten, natural. But the right of nature — that is, the 
 natural liberty of man— may by the civil law be abridged and restrained ; 
 nay, the end of making laws is no other but such restraint, without 
 the which there cannot possibly be any peace. And law was brought 
 into the world for nothing else, but to limit the natural liberty of 
 particular men in such manner as they might not hurt, but assist one 
 another and join together against a common enemy." — {Ibid, 253-254).' 
 
 To this we may add his account of natural obligation : — 
 
 " Now if God have the right of sovereignty from his power, it is 
 manifest that the obligation of yielding him obedience lies on men by 
 reason of their weakness. . . . There are two species of natural obliga- 
 tion. One when liberty is taken away by corporal impediments, 
 according to which we say that heaven and earth and all creatures do 
 obey the common laws of their creation. The other, when it is taken 
 away by hope or fear, according to which the weaker, despairing of his 
 own power to resist, cannot but yield to the stronger. From this last 
 kind of obligation — that is to say, from fear or conscience of our own 
 weakness in respect of the divine power — it comes to pass that we are 
 obliged to obey God in his natural kingdom, reason dictating to all, 
 acknowledging the divine power and providence, tlMt there is no kicking 
 against the pricks " (ii. 209). 
 
 Elsewhere rejecting the doctrine referred to above (p. 119, 
 
 supra), he says : — 
 
 " The right of nature whereby God reigneth over men and 
 punisheth those that break His laws is to be derived not from His 
 creating them, as if He required obedience, as of gratitude for His 
 benefits, but from His irresistible power " (iii. .345 ; cf. ii. 206). 
 
 If we ask what are the laws of nature, he gives a detailed 
 
 account of justice, equity, and the precepts of the Decalogue, 
 
 summing them up in the precept, " Do not that to another 
 
 which thou wouldst not have done to thyself " (iii. 144). 
 
 " The laws of nature are immutable and eternal, for injustice, in- 
 gratitude, arrogance, pride, iniquity, aoception of persons, and the rest, 
 can never be made lawful " (iii. 145). 
 
 ' Cf. the lines of Lucretius, v. 1141 et seq. : — 
 
 ' ' Res itaque ad summam faecem turbasque redibat, 
 Imperium sibi cum ac summatum quisque petebat. 
 Inde magistratum partim docuere oreare 
 Juraque constituere, ut vellent legibus uti. 
 Nam genus humanum, defessum vi oolere aevom, 
 Ex inimicitiis languebat ; quo magis ipsuni 
 Sponte sua ceoidit sub leges artaque jura. " 
 
NATURAL LAW. 399 
 
 What is meant by lawful? Hobbes harps on reason, 
 which is what recommends itself to him, and appeals for 
 support to Christian revelation as accepted by the Church of 
 England. — (iii. 367.) For the individual subject to the law 
 the rules laid down by the sovereign and his representative, 
 the judge, are final. Even the interpretation of the law of 
 nature is authentic, " not because it is [the judge's] private 
 sentence, but because he giveth it by authority of the sove- 
 reign, whereby it becomes the sovereign's sentence, which is 
 law for that time to the parties' pleading." — (iii. 263.) This 
 is a rule of expediency, and may in some cases be justified 
 by saying that the parties are barred (estopped) by submitting 
 their dispute to the judge. It is a rule of law, enforced in 
 many forms, but gives no assistance to the decision of the 
 question — What is justice ? As to the judge, he must accept 
 the laws as final, except where there is no express law, when 
 he falls back on the law of nature : — 
 
 " In all courts of justice the sovereign, which is the person of the 
 commonwealth, is he that judgeth ; the subordinate judge ought to have 
 regard to the reason which moved his sovereign to make such law, that 
 his sentence may be according thereunto, which then is his sovereign's 
 sentence, otherwise it is his own, and an unjust one ? " — (iii. 257.) 
 
 It is proper to notice in passing that penal laws, accord- 
 ing to Hobbes, are commands addressed to — 
 
 " the ministers and officers ordained for execution. For though every 
 one ought to be informed of the punishments ordained beforehand 
 for their transgression, nevertheless the command is not addressed 
 to the delinquent, who cannot be supposed will faithfully punish him- 
 self, but to public ministers appointed to see the penalty executed. 
 And these penal laws ... are sometimes called judgments. For 
 all laws are general judgments or sentences of. the legislator, as also 
 every particular judgment is a law to him whose case is judged." — 
 (iii. 272.) 
 
 Hobbes' view of the duty of a judge is the ordinary one 
 of the law, to some extent amended. Thus — 
 
 "Princes succeed one another, and one judge passeth, another 
 cometh ; nay, heaven and earth shall pass, but not one tittle of the law 
 of nature shall pass, for it is the eternal law of God. Therefore all the 
 
400 THE AIM OF LA W. 
 
 sentences of precedent judges that have ever been cannot altogether 
 make a law contrary to natural equity, nor any examples of former 
 judges can warrant an unreasonable sentence or discharge the present 
 judge of the trouble of studying what is equity in the case he is to 
 judge from the principles of his own natural reason." — (iii. 264.) 
 
 This is judicial individualism pure and simple, and points 
 to an abuse of precedent, of which Hobbes elsewhere com- 
 plains, and so a few pages further on he says — 
 
 " The intention of the legislator is always supposed to be equity, 
 for it were a great contumely for a judge to think otherwise of the 
 sovereign. He ought therefore, if the word of the law do not fully 
 authorise a reasonable sentence, to supply it with the law of nature, or, 
 if the case be difficult, to respite judgment till he have received more 
 ample authority. — (P. 267.) 
 
 " The incommodity that follows the bare words of a written law 
 may lead him to the intention of the law, whereby to interpret the 
 same the better, though no incommodity can warrant a sentence against 
 the law. For every judge of right and wrong is not judge of what is 
 commodious or incommodious to the commonwealth."— (P. 268.) 
 
 These doctrines are very much what we find in our law- 
 books. The judge must administer the law, and not criticise 
 it. He must presume, if it is clear, that it is just (pp. 356, 
 390, supra). 
 
 What, then, is justice with the sovereign ? This is 
 answered by Hobbes in the following passage : — 
 
 " To the care of the sovereign belongeth the making of good laws. 
 But what is a good law 1 By a good law I mean not a just law, for no 
 law can be unjust. The law is made by the sovereign power, and all 
 that is done by such power is warranted and owned by every one of the 
 people, and that which every man will have so, no man can say is 
 unjust. It is in the laws of a commonwealth, as in the laws of gaming, 
 whatsoever the gamesters all agree on is injustice to none of them. A 
 good law is that which is needful for the good of the people, and withal 
 'perspicuous.'^ — (iii. 335.J 
 
 His subsequent exposition denounces unnecessary laws, 
 and dwells at some length on perspicuity of laws, but what 
 he means by "the good of the people" is not clear. Is it 
 their material interests, or their spiritual interest also ? It 
 may be taken that it is laws which promote social ends, and 
 protect the subjects from their enemies, for he has told us 
 
NATURAL LAW. 401 
 
 (iii. 208) that " the obligation of subjects to the sovereign is 
 understood to last as long, and no longer, than the power 
 lasteth by which he is able to protect them." But we get 
 answers to our questions elsewhere. In his chapter '' Of the 
 Passions " he distinguishes good and evil — 
 
 "there being nothing simply and absolutely so, nor any common 
 rule of good and evil, to be taken from the nature of the objects them- 
 selves ; but from the person of the man, where there is no common- 
 wealth ; or in a commonwealth, from the person that representeth it : 
 or from an arbitrator or judge, whom men disagreeing shall by consent 
 set up, and make his sentence the rule thereof " (iii. 41). 
 
 And in his chapter on Dominion, ■' concerning the duties of 
 them who bear rule," he answers the question very explicitly, 
 but it must be remembered that the ruler is not subject to 
 the civil laws, but only to natural laws (iii. 252) : — 
 
 " Now all the duties of rulers are contained in this one sentence — 
 the safety of the people is the supreme law. For although they who among 
 men obtain the chief est dominion cannot be subject to laws properly so 
 called, that is to say, to the will of men, because to be chief and subject 
 are contradictories, yet it is their duty in all things as much as possibly 
 they can, to yield obedience unto right reason, which is the natural, 
 moral, and divine law " (ii. 166). 
 
 " But by safety must be understood not the sole preservation of life 
 in what condition soever, but in order to its happiness. For to this end 
 did men freely assemble themselves and institute a government, that 
 they might, as much as their human condition would afford, live delight- 
 fully "(ii. 167). 
 
 He goes on to say that rulers " would sin against the law 
 of nature (because against their trust, who had committed 
 that power unto them) if they should not study, as much as 
 by good laws could be effected, to furnish their subjects abun- 
 dantly, not only with the good things belonging to life, but 
 also with those which advance to delectation" (p. 168). 
 
 In the next section he raises the question whether princes 
 ought to provide for the eternal salvation of their subjects 
 according to the prince's belief and conscience, when they 
 " believe [their subjects] to be in a damnable state." But he 
 "leaves this difficulty in suspense." Hobbes' theory had 
 broken down. We may leave it here for the present. Al- 
 
 2c 
 
402 THE AIM OF LA IF. 
 
 though he rejects au external criteriou of good, his appeal to 
 reason is merely an appeal to custom and tradition. Hobbes 
 gives his own prejudices, and those of the society to which he 
 belongs, as ultimately rational. He does appeal to an 
 external test in his criterion of "safety" or "happiness." 
 But these are all msufficient, and hence he supports the 
 whole by falling back on Divine law and a Divine revelation. 
 
 The ordinary and obvious criticism of Hobbes' theory is 
 that the social contract implies law logically if not historically. 
 The social contract is a statute of an extremely early pai'ha- 
 ment, and the common law is behind it, both to interpret it 
 and supply its deficiencies. It is a fundamental law — a con- 
 stitutional law — but even these men are compelled sometimes 
 to revise. However short and vague you make the social 
 compact, it is a mere compact, and nothing apart from law. 
 {Cf. p. 124, sitpra.) But where does Hobbes find his principle 
 that we must keep our bargains ? Is this a term of the com- 
 pact, a law, or his interpretation of it ? Where does he find 
 warrant for holding mc bound because Adam and Eve made 
 an agreement in the Gai'den of Eden ? Where does he find 
 the principle that I " acceded " to the social contract by not 
 protesting as soon as I could speak ? Where does he find the 
 doctrine of personal bar, which prevents me from now open- 
 ing up this transaction if I think it unduly onerous ? If 
 there is no court of equity to give me relief, I am bound not 
 by contract, but by the law which is behind contract. We 
 see that the relations which we have regarded as series of 
 rights, duties, or laws (pp. 121, 199, and 316, supra), Hobbes 
 presented as a series of contracts. It was a desperate 
 attempt to reconcile order and freedom in a mercantile age 
 and to a mercantile people. 
 
 Montesquieu, at the beginning of his Esprit ih's his, gives 
 as his definition of law, ridiculed by Austin, that they are the 
 necessary relations which spring from tlie nature of thimjA} 
 
 ^ Of. Didai'ot, Principtv dc Pliilom- thing's, coiubiiuid with the natnrr of 
 pliic ■morale, where ho defines laws as the lii'intjs to whom tlicy have rela- 
 fowuded on llie nature of jiartiouhir tious. 
 
NATURAL LAW. 403 
 
 Laws of nature Qois) spring solely from the constitution of 
 our being (chap. 2). It was perhaps these sentences that sug- 
 gested to Professor Lorimer the de facto principle as a test of 
 the justice of laws in substance. The natural laws mentioned 
 by Montesquieu are not precepts of conduct, but statements 
 of supposed facts as to man's nature (i. 2). Then, at a later 
 stage (xxvi. 1), he discusses the various kinds of laws (lois) 
 by which men are governed — natural law {droit), divine law 
 {droit), the law of religion, canon or ecclesiastical law {droit), 
 the law of nations, general poUtical law, particular political 
 law, the right of conquest, the civil law of each society, and 
 domestic law. The height of human reason consists in 
 knowing to which of these orders of laws the subject calling 
 for legislation should be referred. In the following chapters 
 he discusses a number of cases in which those orders of laws 
 come into conflict. Montesquieu in enacting laws would con- 
 sider the nature, history, institutions, geographical situation, 
 and climate of the territory of a people. He would also 
 consider the end, proximate as well as remote, of the legislative 
 act (i. 3). He has enormously widened the meaning of the 
 word "Nature." He accepts autocracy, tyranny, slavery, 
 and polygamy as facts, and discusses what laws apply to each. 
 We may infer from his discussion that the end of legislation 
 is the maintenance of existing institutions. He appears also 
 to extend the meaning of " reasonable " by recognising a mean 
 — a moderate government — though not ideally perfect — " que 
 I'excbs m^me de la raison n'est pas toujours d&irable, et 
 que les hommes s'accommodent presque toujours mieux des 
 milieux que des extr^mitds (xi. 6 ; cf. xi. 4, 5 ; xxiv. 7 ; v. 8 ; 
 xxviii. 38). 
 
 Still another view of the scope of natural law has been 
 taken in more recent times. The following sentences repre- 
 sent fairly the doctrines so eloquently maintained by Pro- 
 fessor Lorimer : — 
 
 "[The law of nature] is the law which determines the conditions of 
 perfect human co-existence, or of progress towards the realisation of such 
 co-existence." — {Institutes of Law, 2nd ed. p. 2.) 
 
404 THE AIM OF LA W. 
 
 " Irf. The laws of nature are logical, and as such necessary infer- 
 ences, whicli it belongs to the scientific jurist to make from the facts 
 which consciousness or internal observation, and experience or ex- 
 ternal observation, reveal to him as the necessary conditions of human 
 life. 
 
 " 2(i. The laws of the nation, public and private, and the laws of 
 nations, public and private, are similar inferences, which it belongs to 
 the legislator or practical jurist to make ; (a) from the laws of nature, 
 which he accepts as facts ; and (5) from the local and temporal facts or 
 circumstances of the nation, or of the nations, which it is his business 
 to ascertain. 
 
 " 3(£. Judicial sentences or judgments — i.e., the laws of the indivi- 
 dual case — are inferences equally necessary, which it belongs to the 
 judge to make ; (a) from the laws of the nation, or of the nations, which 
 he accepts as facts in themselves, and consequently as decisive of the 
 law of nature ; and (6) from the facts — i.e., the characteristics and cir- 
 cumstances of the individual — which it is his duty to ascertain." — 
 (Op. dt. 250, 251.) 
 
 These statements bristle with difficulties. Is perfect 
 human co-existence not a contradiction in terms, unless it 
 includes all human imperfections ? ^ What is progress 
 towards perfection, and how far back may it commence ? 
 Then, apart from the inversion of the historical relation of 
 the judge to the philosopher, we may ask what facts can the 
 jurist, as distinguished from the historian, sociologist, or 
 psychologist, discover, except the forms of legislation and 
 judgment ? Is the practical legislator bound always to obey 
 the laws of nature ? May he never allow exceptions " for 
 the hardness of men's hearts " 1 If you say yes, you redefine 
 the law of nature. Has the ordinary judge anything to do 
 with the law of nature if he has a statute ? Does he bring 
 absolutely nothing to the judicial act ? Is a judge so much 
 of a machine that no consideration need be paid to anything 
 but his legal qualifications ? 
 
 But the special interest for us of these statements is that 
 the law of nature is here defined as purely and absolutely 
 formal. With the previous definitions which we have 
 examined, it was a code of substantive law for actual life. 
 Professor Lorimer's protest was mainly against haphazard 
 ^ Of. James, Varieties of Beligiou,^ Expe.riance., 3.55. 
 
NATURAL LAW. 405 
 
 sporadic legislation, and judicial decisions given from mere 
 common sense. He would have had legislative specialists 
 in Parliament, and judicial specialists on the bench, who 
 had devoted special attention to law as a science, instead of 
 picking up experience as apprentices and in the course of 
 professional routine. This explains why he refuses to 
 expound the law of nature through the details of positive 
 law, as had been done by all Continental writers on this 
 subject. — (Lorimer, Inst, 2nd ed. 526.) If the de facto prin- 
 ciple reduced all law to fact, and all rights were in some 
 sense analogous to the " natural rights " in Scots law referred 
 to below, then all that the lawyer had to do was to cultivate 
 accuracy of observation and clearness of insight. When he 
 was sure of his facts, the law followed " naturally." 
 
 We may now notice in conclusion the application of the 
 term " natural " to what is really in effect positive law. As 
 we have seen, equity was appealed to in British India in the 
 last resort. The following article from the Austrian (German) 
 Code affords an example of an appeal to natural right in the 
 same circumstances. This law suggests three stages of 
 difficulty in dealing with a particular case : — 
 
 " If a case cannot be decided either from tlie words or from tlie 
 natural construction (natwrlichen Sinne) of a law, similar cases wMcli 
 are distinctly decided in the laws, and the motives of other laws allied 
 to them, must be taken into consideration. Should the case still re- 
 main doubtful, it must be decided with regard to the carefully collected 
 and well-considered circumstances, according to the natural principles 
 of right {nach den natilrlichen Bechtsgrundscltzen.)" — (General Civil Code 
 for all the German hereditary provinces of the Austrian monarchy. 
 Introduction. Of the Civil Laws in General, § 7.) 
 
 In Scots law the word " natural " is applied to rights such 
 as servitudes, which suggest themselves by intuition to any 
 ordinary man, or which are so intimately connected with the 
 nature of things, that they cannot be conceived to be other- 
 wise : (Ersk. Inst. ii. 9, 2 ; ef. Bell, Frin. 980, and Eankine on 
 Zand Ownership, 3rd ed. p. 340). Again it is applied to rights 
 which follow logically from some legal institution, — e.g., a 
 
4o5 THE AIM OF LA W. 
 
 feudal grant (Ersk. Iix&t. ii. 3, 11 ; Bell, Prin. 861). In both 
 of these cases " natural " is opposed to " conventional." 
 Again in criminal text-books and judicial statistics we find 
 " unnatural offences," and " cruel and unnatural treatment of 
 children.." These phrases suggest the idea of malimi in se as 
 opposed to malum prohibitum (Holland, Jur. 35 ; p. 269, supra). 
 This was the type of rights and laws to which Professor 
 Lorimer, in so far as his theory touched the substance, pro- 
 posed to reduce all rights and laws whatever. But as men 
 do not know everything by intuition, but by process of 
 reasoning and deduction, the theory does not explain the 
 ordinary mode whereby men reach a knowledge of rights and 
 laws. 
 
 And finally we may regard the scientific use of the phrase 
 " natural law " as partly due to this last usage. The scientific 
 use does not primarily deal with human laws and human 
 relations, but is a statement of fact with regard to the con- 
 duct of objective things themselves. As water is hound to 
 flow down a hill, the lower tenement is hound to receive the 
 water from the upper, and the proprietor of the lower tene- 
 ment is hound to abstain from interfering with the natural 
 drainage. — (Pearson, Grammar of Science, 2nd ed., pp. 87-88.) 
 The scientific law is an induction from observed facts, not 
 much unlike the jural laws of servitudes and certain relations 
 of property and person.^ — (P. 320, note 1, supra) 
 
 We may compare the various uses of the phrase " natural 
 law " to the analysis of light by a prism. Here we have 
 three orders of rays — (1) heat rays ; (2) light rays from dark 
 red, in infinite variety to the faintest violet, seven or three in 
 number as you choose to count them, or infinite if you cannot 
 count them ; and (3) invisible chemical rays which produce 
 wonderful visible effects. So at the one end we have the 
 natural laws (statements of fact from our point of view as 
 
 ^ Cy. p. 394, sMpj-ffl, as to the theo- natural things as "sociable parts 
 logical associations with the phrase. united into one body," and subject 
 Hooker ( Works, i. 211) deals with to law ivier se. 
 
MOS— MORALS— MORALITY. 407 
 
 observers) as to natural things; similar laws of conduct 
 (similarly formulated) of living things; then human laws, 
 which supply the metaphorical starting-point for all the 
 other uses. These are first judicial — between individuals ; 
 legislative — between groups ; and philosophical, equitable, or 
 moral — between larger groups and races of men. Then we 
 have higher moral and equitable rules, which ultimately fade 
 away into philosophy, poetry, reKgion. But it is the philo- 
 sopher, with his analysis, who distinguishes these elements. 
 To the ordinary common-sense man they are all blended in 
 the unity of experience.^ 
 
 SECT. X. — MOS — MORALS — MORALITY. 
 
 " Mos," it has been suggested (Lewis and Short, s.v^, is 
 connected with a root m«, which means a rule or measure.^ 
 The Greek ^0o?, to which it corresponds, means originally the 
 haunts of animals. In classical usage they both mean 
 custom in a higher and special sense, and they are all con- 
 nected by Julian in the text — 
 
 " Inveterata consiietudo 'pro lege, non immerito custoditur, et hoc est 
 jus quod dicitur moribus constitutum."— L. 32, D. de legibus (1, 3). 
 
 Gaius (i. 1 and 92) links leges and mores as being similar. 
 
 " Mores " is used by Ulpian (vi. 9-12) to signify bad morals 
 
 — immoraUty. The phrase honi mores often occurs, but 
 
 iTiores by itself means generally good morals — the approved 
 
 standard of conduct. — (Cf. Ulpian, i. 4.) 
 
 Mos was with the Eomans a kind of law, when they 
 
 instituted the censores morum, who judged men according to 
 
 a certain standard. The law became written and statutory 
 
 when the censors published their edict (Bruns, 215) in 
 
 which they condemned games and Latin rhetoricians : — 
 
 " Hsec nova quae prseter consuetudinem ac morem majorum fiunt, 
 neque placent neque recta videntur." 
 
 1 Of. pp. 171 and 178, svjpra, with ed. p. 363. He seema to reverse the 
 
 SirF. J. Stephen's examination of the natural order of development, 
 
 meaning of "ought" and "should" ^ Cf. Reuouf, Hibhert Lectures, 71, 
 
 in Liberty, Equality, Fraternity, 2nd 119 ; and p. 37, supra. 
 
4o8 THE AIM OF LA W. 
 
 Muirhead points out that the function of this jurisdiction 
 of the censors was twofold, "for sometimes it operated in 
 restraint of law by condemning — though it could not pre- 
 vent — the ruthless and unnecessary exercise of legal right, as, 
 for example, that of the head of a house over his dependants ; 
 and sometimes it operated supplementarily, by requiring 
 observance of duties that could not be enforced by any com- 
 pulsitor of law." — (Roman Law, § 8 ; Smith, Diet. Antiq., s.v. 
 " Censor " ; Von Ihering, Geist, ii. § 26 (30).) Mos was thus 
 related to the Eoman law in very much the same way as 
 equity, both in Eome and Great Britain. 
 
 The history of philosophy affords abundant examples of 
 the criticism of law and political institutions by comparison 
 with ancient customs. The pessimism of Hesiod in The 
 Works and Bays was an early example ; Ovid's description 
 of the golden age has already been quoted (p. 46, supra; cf. 
 Spenser, p. 392, supra). The ancient customs may have been 
 mistaken or imaginary, but they were considered the most 
 effective means of criticism. The speech put by SaUust 
 in the mouth of Cato the younger is an attack on the age in 
 comparison with the past. — {Catiline, chap. 52.) 
 
 If the story told of Hipparchus is true (Grant, Aristotle, 
 i. 82), " that he set up obelisks along the streets and roads 
 carved with sentences of wisdom," we may see an attempt to 
 make the popular traditional morality into a kind of statute 
 law. 
 
 The great Jewish reformation in the time of Josiah (2 
 Kings xxiii.) was a reversal of innovations and a restoration of 
 customs sanctioned with the authority of Moses. 
 
 English history is a periodical comparison of the laws, 
 rights, and liberties of the subject with the early customs or 
 the Great Charter, which formulated these customs in an 
 authoritative form. 
 
 But there always comes a time when men criticise the 
 past, and do not accept it blindly. No doubt they cannot 
 escape from its influence, as they cannot free themselves 
 
MOS— MORALS— MORALITY. 409 
 
 from their environment. But if they come to think that 
 man has progressed from barbarism to civilisation and to a 
 higher morality, the ideal will be put in the future rather 
 than the past. Morality will mean not merely ancient 
 customs, but customs which man hopes to attain, it may be, 
 in an ideal state of existence. Mos becomes cequitas — ratio — 
 the goal of life. This was the position of Plato and Aristotle. 
 To them politics, ethics, and jurisprudence are still one 
 science, the two first being branches of social philosophy and 
 the last being not yet expressly named. — (Zeller, Aristotle 
 (trans.), ii. 136 ; Grant, i. 73 ; Holland, Jur. (9th ed.), 24.) 
 The individualism of Aristotle prepared the way for a science 
 of rights — -jurisprudence. Custom — the traditional morality 
 — is still in the back-ground, and is often expressly recog- 
 nised. — (Grant, Aristotle, i. 80 ; cf. Plato, Laws, vii. 800.) 
 
 The Stoics finally separated ethics from politics, and 
 though they appealed to the customs of their austere fore- 
 fathers, it was rather by the fiction of the law of nature and 
 equity that they influenced the Eoman law. The separation 
 of ethics from politics arises when the distinction is clearly 
 drawn between the state and the individual. The law of 
 the state had attacked and dissolved the family law — the 
 relations of the faterfamilias to his familia ; a man's 
 house was no longer a castle. It had also attacked and dis- 
 solved commercial law — the customs of traders. Then 
 liberty is pushed back to its last stronghold — the bosom of 
 the individual. Law has often attacked this, but always 
 without success. Here we have a science of ethics, separated 
 from politics and jurisprudence. But the individual is not 
 satisfied with liberty in the sense of being let alone ; by a 
 natural impulse he goes on to demand that other persons 
 shall adopt his ideal of individual rights, and hence Stoic 
 morality came to react on the Eoman law. As we have 
 already seen, the negative idea of liberty becomes later a 
 demand for positive liberty of aggression. John Stuart Mill 
 {On Liberty) feels aggrieved because his liberty of printing, 
 
4IO THE AIM OF LA W. 
 
 publishing, and preaching his philosophy is met by a similar 
 liberty claimed by ignorant persons of throwing rotten eggs 
 at the preacher. Morality in this aggressive sense becomes 
 a religion — a church militant like Mohammedanism and 
 missionary Christianity. In crusades against intemperance, 
 betting, and other practices, we have another example of 
 negative liberty assuming a positive character, and some- 
 times morality being confused with religion. This morahty 
 is no longer a possession of the individual, but a social 
 force. 
 
 In the Schoolmen morality appears as a quality of acts, 
 good or bad. From the nature of the questions discussed as 
 well as the solutions given, it is evidently common sense or 
 custom which is the back-ground of much of the discussion 
 by St. Thomas Aquinas of the nature of virtue. This is 
 modified by religious ideals. He distinguishes e0o? from ?0oj 
 (Summa 1, 2, g, 58, 1.) by describing the former as mere usage, 
 the latter as a natural inclination — a moral virtue. But the 
 most extraordinary development of law in application to 
 morals is the institution of the confessional and the rise of 
 casuistry in the Eoman CathoHc Church. The office of the 
 priest is spoken of as jurisdiction, and the Council of Trent 
 pronounced an anathema against any one who should affirm 
 that the sacramental absolution of the priest was not a judicial 
 act. — (Scavini, iii. p. 335). The penitential forum, says St. 
 Thomas, is more worthy than the contentious forum. Suarez 
 {Be Leg. viii. 6, 13) distinguishes the forum of conscience 
 and the forum of penitence. Like the Eoman censor, the 
 priest is a judge ; his code is not the censor's edict, but the 
 Decalogue, the traditional morality of the Church, and the 
 jurisprudence of casuistry. In practice persons of lax re- 
 ligious principles are said to evade this system, and satisfy 
 their own consciences, by means of legal fictions, e.g., crossing 
 from France to Belgium, and confessing before strange 
 priests, or paying a stranger a small fee to make a confession 
 in name of the person paying. The attempt to identify 
 
MOS— MORALS— MORALITY. 411 
 
 morality with law is just as likely to have as its result the 
 lowering of men's ideals as the raising of their conduct. 
 
 In Northern Europe the Eeformation swept away the 
 whole system ; but the legal framework of morality, which 
 was part of the essence of Catholic theology, derived from St. 
 Paul and St. Augustine, remained in the treatises of Protes- 
 tant writers. Grotius Be Jure Belli et Pads was treated as 
 a text-book of moral philosophy. It included a criticism of 
 barbarous customs in war, and was so far an attempt to 
 raise the customs of belligerents to a " moral " level. The 
 criterion was found in Holy Scripture and in the writings of 
 theologians, jurists, philosophers, and poets. Milton, in 
 the Samson Agonistes, uses the phrase "law of nature and 
 nations " as equivalent to " morality," though there is also a 
 quasi-international reference : — 
 
 " If aught against my life 
 Thy country sought of thee, it sought unjustly. 
 Against the law of nature, law of nations ; 
 No more thy country," &c. 
 
 Lord Stair, when Eegent of Philosophy in Glasgow in the 
 middle of the seventeenth century, might have read as his 
 class lectures the opening sections of his Institutions of the 
 law of Scotland, to which particular reference will presently 
 be made. Pufendorf — -parum jwisconsultus et minime philo- 
 sophus — in his book Be Jure Naturae et Gentium exemplified 
 more strikingly that in his mind jurisprudence and moral 
 philosophy were synonymous, unless jurisprudence is taken 
 as meaning " positive law." It was his little work Be 
 officio hominis et civis juxta legem naturalem, annotated by 
 Gerschom Carmichael, and published (2nd edition, Edinburgh, 
 1724) for the use of the students in Glasgow, which may be 
 regarded as the foundation of Scottish moral philosophy. 
 — (See Eeid's Works, by Hamilton, i. 30, note.) The post- 
 humous lectures on moral philosophy of Erancis Hutcheson, 
 Carmichael's successor in Glasgow, are for the most part an 
 elementary treatise on jurisprudence and international law. 
 
412 THE AIM OF LAW. 
 
 Adam Smith, the next professor, being free from clerical 
 traditions, separated jurisprudence, ethics, and economics ; 
 but until the rise of the Neo-Kantian school the legal tradi- 
 tion influenced all the British schools of moral philosophy, 
 both in order of arrangement and in substance. Even 
 Hobbes is not an exception, though he was almost as anti- 
 juridical as he was anticlerical, and deliberately took an 
 independent position for himself (p. 396, supra). The modern 
 treatment of customs, whether it be historical or meta- 
 physical, does not appeal to them as customs, but judges 
 them by some other criterion. It should be noted that on 
 the Continent the successors of Grotius and Pufendorf treated 
 the subject as natural law, or the philosophy of law, covering 
 nearly but not quite the same ground as British mora 
 philosophy, but dealing with substantive rights rather than 
 duties (p. 395, supra). In Edinburgh University at one time 
 the professorship of the law of nature and nations was re- 
 garded as a step towards the richer chair of moral philosophy. 
 
 It may also be noted that it is an English development 
 to discuss the external forms of law under the name of juris- 
 prudence. These forms are the result of custom, and may be 
 criticised and amended in the same way as the substance of 
 the law. This was the great work of Bentham, who saw that 
 forms, adopted through mere superstition, work substantive 
 injustice. 
 
 But in ordinary legal practice law and morality come 
 into contact. Thus customs are not legal, and will not be 
 recognised, unless they are "reasonable." This sets up an 
 external standard, but "is not always to be understood of 
 every unlearned man's reason, but of the artificial and legal 
 reason warranted by authority of law." — (Browne, Usages and 
 Customs, p. 19.) Contracts are invalid if contra honos mores — 
 i.e., inconsistent with ordinary popular morality (Bell, Pri7i. 
 35 ; and cases in English Digests, s.vv. ; " Contract," " Im- 
 morality;'' Code Civil, Art. 1133). Foreign laws and rights 
 acquired abroad are not recognised in other countries if they 
 
MOS~MORALS~MORALITY. 413 
 
 are inconsistent with morality. — (Dicey, Conflict of Laws, 34 ; 
 Bos Burg. Gesetzhich ; Einfiihr. G., Art. 30.) For all these 
 purposes the Court must make up its mind on a point of 
 morality as it does on a point of law ; and when law and 
 morality conflict, morality prevails. 
 
 Finally " moral " is used by some writers in the sense of 
 " juristic," when they speak of " moral persons " (Pufendorf, 
 Be J. N. et G. i. 1, 12) — i.e., persons holding certain offices, 
 or corporations or states. Pufendorf had no objection even 
 to the phrase " moral things." — {Ih. 16.) This usage stiU 
 survives in the Italian Civil Code (§ 2), which speaks of 
 " corpi morali," but it was condemned by Savigny (Eattigan, 
 Jural Belations, 179). It may be suggested that a " moral 
 person " meant merely a lawful corporation recognised by 
 the law, as opposed to unlawful and prohibited societies. 
 
 So little is this last use of the word " moral " known in 
 Britain, that when translated from Dutch into English it was 
 treated as a matter of jest. In the Despatch dated February 
 16, 1897, Dr. Leyds, on behalf of the late South African 
 Eepublic, claimed damages from Great Britain for the 
 Jameson Eaid, and divided his claim into two heads : — 
 
 " (a.) Materieele schade. 
 (&.) Moreeh of Intellectueele schade." 
 
 This meant real damage, which could not be measured 
 exactly in money, — solatium in Scots Law. — (Blue Book, 
 " South African Eepublic," June 1899 [cd. 9343], p. 3.) 
 
 Morality is shown in external acts and by persons, and 
 so in England it comes to mean, as it did in Eome, a special 
 kind of law, enforced by special courts. Thus Sir J. F. 
 
 Stephen : — 
 
 "Ecclesiastical Censures for Immorality. 
 
 " Every person who commits incest, adultery, fornication, or any 
 other deadly sin (not punishable at common law) is liable upon con- 
 viction thereof in an ecclesiastical court to be directed to do penance, 
 and to be excommunicated, and to be imprisoned for such term not 
 exceeding six months as the court pronouncing the sentence of excom- 
 munication may direct." — {Dig. Crimi. Law, p. 189.) 
 
414 THE AIM OF LA W. 
 
 The word " morality " is so used in the indictment in the 
 case of Reg. v. Most, 1881, 7 Q.B.D. 244. We may compare 
 with this the title of the " lonmoral Traffic (Scotland) Act, 
 1902," and the list of crimes given in the English Judicial 
 Statistics. 
 
 Thus the civil courts deal with flagrant immorality where 
 it becomes crime ; the ecclesiastical courts deal with sins in 
 deed or in word, and have even tried to extend their juris- 
 diction to thoughts in the forum of the confessional (p. 410, 
 supra). It is interesting to compare the lists of crimes in 
 criminal law books with the corresponding list of sins in 
 treatises on the Canon law. — (Eeichel, vol. ii. ; Walter 
 Steuart, Cook, Moncreiff, &c.) A man who lives so as not to 
 come within the jurisdiction of the ecclesiastical courts is 
 technically a moral man. From a higher standpoint he may 
 be a contemptible scoundrel. It depends on the plane of 
 custom or morality to which we refer. 
 
 The Westminster Confession of Faith (chapter xix.) deals 
 with the law of God, or the moral law, which is " summarily 
 comprehended in the Ten Commandments." — (Shorter Cate- 
 chism, 41.) This law is, however, not precisely the same as 
 the Canon law administered by the Presbyterian Churches. 
 It is so to speak extrajudicial for the benefit of the private 
 individual. It is wider and includes morality, which even 
 spiritual courts cannot and do not attempt to reach — e.g., the 
 ethics of creed subscription. The Presbyterian Churches 
 recognise liberty of conscience to this extent, that they will 
 only prosecute persons who offend in word or in deed. 
 
 Moralities, like legal systems, are local or peculiar to 
 particular groups of men, and collisions of moralities must be 
 solved, as collisions of rights, duties, or laws. Foreign 
 morality may be criticised. The collision between two 
 moralities may be solved by physical force — in reality law — 
 or by the superior intellectual force of the men who embrace 
 a particular creed ; or again by men inferior in position or 
 intellect admiring or imitating the morals of their superiors 
 
MOS— MORALS— MORALITY. 415 
 
 in either of those respects. Hence the power of religion. It 
 is morality enforced with zeal, as well as touched with 
 emotion. Hence the intolerance of religious men, varying 
 from active persecution down to social ostracism or dislike. 
 
 In India, where the Government refuses to recognise any 
 positive religion, it has been suggested that it should supple- 
 ment the penal code by instruction in morals. A Commis- 
 sion in 1884 recommended " that an attempt be made to 
 prepare a moral text-book, based on the fundamental prin- 
 ciples of natural religion, such as may be taught in all 
 Government and non-Government colleges." ^ The " mora- 
 lity" that such a commission would have adopted would 
 evidently have been at bottom what is commonly called 
 Christian, though its main features are found in the writings 
 of Greek, Chinese, and Indian philosophers. 
 
 All the ideas which we have noticed hitherto as involved 
 in law seem to be identified by Lord Stair in his Institutions 
 of the Law of Scotland. This great work was published in 
 its present form in 1693, when the Eoman law was in a 
 sense still the common law in Scotland, and when Scottish 
 lawyers were educated in Holland, and held by the traditions 
 of the Dutch civilians. In the opening title he says : — 
 
 " I. Law is tlie dictate of reason, determining every rational being 
 to that which is congruous and convenient for the nature and condition 
 thereof. . . . This is that eternal law which cannot be altered, being 
 founded upon an unchangeable ground — the congruity to the nature of 
 God, angels, and men. . . . This is also called the law of nature, 
 because it arises from the congruity or conveniency of nature, and 
 thence is known by the light of nature. ... II. Correspondent to 
 those dictates of reason (wherein law consists), which are in the under- 
 standing, there is an inclination in the will to observe and foUow these 
 dictates, which is justice. . . . III. Divine law is that jnainly which is 
 written in man's heart, according to that of the Apostle. . . . This is the 
 law of nature, known naturally either [or] immediately, like unto those 
 instincts which are in the other creatures, whereby they know what is 
 necessary for their preservation. So the first principles of this natural law 
 are known to men without reasoning or experii-nce, without art, industry, 
 or education, and so are known to men everywhere through the world, 
 
 ' Lyall'a Asiatic Studies (2iid sei'.), p. 8, wlioie the whole subject is 
 discussed. 
 
4i6 THE AIM OF LA W. 
 
 though they keep no communion nor intercourse together ; which is an 
 unanswerable demonstration of the being of this law of nature. . . . 
 IV. With these common principles, with which God hath sent men 
 into the world, He gave them also reason, that thence they might by 
 consequence deduce His law in more particular cases ; and this part of 
 the natural law is called the light or law of reason. ... V. This 
 law is also called conscience . . Conscience relates more to the 
 
 principles of religion than of morality. . . . VI. This law of nature 
 is also called equity from that equality which it keeps amongst all 
 persons. . . . VII. The law of nature is also termed the moral law, 
 being the absolute and adequate rvile of the manners of men for all times, 
 places, and persons." [XV. Human laws and positive laws are enacted 
 for the purpose of declaring and making clear the law of nature and 
 reason, and for the settlement of arbitrary points, to prevent disputes.] 
 " Hence it appears how necessary the laws of men are. Yet surely 
 they are most happy whose laws are nearest to equity and most 
 declaratory of it, and least altering of the effects thereof, except in cases 
 eminently profitable." 
 
 But in the dedication to the King (Charles II.) and 
 throughout the title just quoted, he puts the Word of God 
 either before or alongside the law of nature. He says 
 expressly : — 
 
 (VII.) " The law of natu.re, as it is imprest upon our hearts, so in the 
 goodness of God it is exprest in His Word . . . because through sin 
 and evil custom the natural law in man's heart was much defaced, 
 disordered, and erroneously deduced : he hath therefore reprinted the 
 law of nature in a viver character in the Scripture, not only having the 
 moral principles, but many conclusions thence flowing, particularly set 
 forth. This analogy of the law of nature, even in the hearts of heathens, 
 and as it is set dowai in the law of God, evidenceth suflfioiently that both 
 of them proceed from the same omniscient Author." 
 
 But this suggests the next head. 
 
 SECT. XI. — RELIGION — FAS?- 
 
 The appeal to the supernatural is coeval with the very 
 birth of law. But though law and religion are still inti- 
 mately connected, the relations between them have undergone 
 
 ' On this subject and that of the 209. As to the inoiiuiug of the word 
 
 preceding section see von Ilui'ing, religion, and as to the relation of 
 
 Gi'isl dcs rom, Hechtes, i. s. 18 ; ii. religion to reason, reference may he 
 
 ss. 26 and 55 ; De Meulenaere's made to Mr. W. H. I\fallook's Rehijion 
 
 Trans, i. p. 267 ; ii. p. 50 ; iii. p. 86, as a OircUble Doctrine: London, 1903, 
 
 and iv. p. 220 ; Bryoe, Studies, ii, pp. 7, 10, &o. 
 
RELIGION— FAS. 4 1 7 
 
 a revolution in the course of their history. As the begin- 
 nings of law in the technical sense are judicial, so the first 
 appearance of religion in connection with law is in the legal 
 process, unless we except such a case as the killing of a 
 person found in the act of sacrilege. In the common legal 
 process the culprit was taken in the act or confessed his 
 guilt, and no legal skill was necessary. But if the law or 
 the facts were obscure, divine assistance, it might be of the 
 god against whom the offence had been committed, might be 
 invoked. Hence also the use of torture to extort confession. 
 
 As we have already observed (p. 236), the "leading 
 cases " reported by antiquity, — problems which required 
 divine assistance for their solution — appear to us childishly 
 simple. The judgment of Solomon in the competition for 
 a child between two women of the harem ; ^ the judgment of 
 Solomon when a boy of eleven, in which he gave to the 
 owner of a field the produce of sheep which had trespassed 
 until the field was restored to its former state (referred to 
 in the Qu'ri,n, Palmer's trans, ii. 52) ; the story of Daniel, 
 Susannah and the Elders ; the story of Shylock and the Mer- 
 chant of Venice, are all simple cases. The points raised before 
 Sancho Panza, as Governor of Barataria, were rather logical 
 than legal puzzles, and others are arithmetical or geometrical. 
 
 In early times Church and State — law and religion — are 
 identical. And the first idea is that every single legal 
 judgment is an inspiration of the gods. The judge was an 
 oracle. This is seen most clearly in the Jewish Scriptures. 
 The Hebrews came to Moses to inquire of God. " These are 
 the judgments which thou shalt set before them." "The Urim 
 and the Thummim " and the breastplate of judgment were a 
 means of divination (Exodus xxviii. 30). The Septuagint 
 translates the passage thus : — " KaJ einQricreL's IttI to \oyelov 
 T>]s Kplaew^ Tr]v SrjKw(Tiv koI Ttjv akriQeiav," and the Latin Vul- 
 gate, " Pones autem in rationali judicii Doctrinam et Veri- 
 tatem." — (See Hastings' Diet, of Bible ; and Smith's Diet, of 
 
 ■^ Of. the aimilar deoiBion of Sir bk. V. canto i., with Max MUller, 
 Artegall in Spenser's Faerie Queetie, Last Essays, i. 279. 
 
 2d 
 
41 8 THE AIM OF LA W. 
 
 Bible, S.V., " TJrim and Thummim.") Another example is " the 
 law of jealousy," expounded in Numbers v. 11-31. If the 
 draught there prescribed had any potency, it could only be 
 by frightening the woman into confession. 
 
 The " lot " was a means of ascertaining the divine will, 
 though now devoted to profane purposes. So Grotius recom- 
 mends the "lot" as a means of settling disputes and pre- 
 venting war, quoting in support of his suggestion Dio 
 Chrysostom and Solomon, the latter of whom says — "The 
 lot causeth contentions to cease, and parteth between the 
 mighty."— (Z»e J. B. et P. ii. 23, 9.) 
 
 Babylonian conveyancing was a skilful adaptation of 
 witchcraft, as we see from their boundary stones ; another 
 example of the same is the Egyptian Cippus of Horus. — 
 (Metternich-stele ; Budge, Egyptian Magic, 147.) 
 
 Spells are also used for the detection of crime, as in the 
 Hebrew example just given. It is not so long since in our 
 own country it was the belief that if a murderer touched the 
 body of his victim it would bleed — supernatural evidence of 
 guilt. 
 
 The whole rational principle of the duel was that God 
 would defend the right. 
 
 This was the purpose of ordeals, and the original purpose 
 of oaths. It was assumed that God, like an Oriental 
 potentate,^ would execute on the spot the man who broke his 
 oath or swore falsely. — (Laws of Manu, viii. 109 ; Bryce, 
 Studies, ii. 212.) We see this vividly in the following 
 stanza of Chaucer : — 
 
 " A Briton book, writen with Evangyles, 
 Was fet, and on this book he swoor anoon 
 She gilty was, and in the mene whyles 
 A hand him smoot upon the nekke-boon, 
 That doun he fil atones as a stoon, 
 And bothe his yen broste out of his face 
 In sight of every body in that place." 
 
 {The Tale of the Man of Law, 666-672.) 
 
 ^ See the account of the execution Nov. 14, 1902, p. 6. Cf. Fisher, 
 of the murderer of Dr. Cooper at Fez, Social Oermany in I/uiher's Time, 
 by the Sultan of Morocco. — Times, pp. 53-59. 
 
RELIGION— FAS. 419 
 
 It may be a survival of the era of spells and witchcraft 
 that demands particular words in legal writs — arbores for 
 vUes, " dispone," " decern," &c. «fec. — (Budge, Of. cit. 4, 129, 
 pp. 227, 293, supra.) 
 
 The Latin /as suggests association with the oracle, if it is 
 derived from the same root as f ari, ^rnxi Von Ihering ^ says 
 that etymologically it signifies what appears light, a Divine 
 revelation. Divine oracle, such as fatwm. 
 
 Jus, Mos, and Fas were different aspects of law, and were 
 practically synonymous in later usage. Gellius has preserved 
 for us an interesting passage, where all these words occur, in 
 giving an account of the Flamen Dialis, but the variety of 
 expression appears to be purely literary. As a rule the 
 custom is stated as a fact (thirteen cases) ; religio occurs 
 three times ; fas, four times ; jus, twice ; mos, once ; and other 
 expressions five times. The following are specimens : — 
 
 "Equo Dialem flaminem vehi religio est ... item jurare 
 Dialem/as nuaquam est . . . ignem e flaminia id est flaminis Dialis 
 domo nisi sacrum eflferri jus non est. vinctum, si sedes ejus introierit, 
 solvi necessum est et vincula per impuvium in tegulas subduci atque 
 inde foras in viam demitti. . . . Capillum Dialis, nisi qui liber 
 homo est, non detondet ; capram et camem inooctam et bederam et fabam 
 neque tangere Diali mos est neque nominare. . . . pedes lecti, in 
 quo cubat luto tenui circumlitos esse oportet, . . . sine apice sub 
 divo esse licitum non est, &c. — (Huscbke, Jur. antejust. 3 ; Muirbead, 
 Roman Law, pp. 15-18.) 
 
 Isidore {Deer. Qrat. Pt. I., Dist. 1, ch. 1, § 1) says — " Fas 
 lex divina est ; jus lex humana ; transire per agrum alienum 
 fas est, jus non est." The Divine law is unchangeable, and 
 is opposed to human laws, which arise from custom, and vary 
 locally and temporarily. 
 
 The legal associations of /as are evident from the passages 
 in Gellius as to the jus pontijlcium, and also in the distinction 
 of dies fasti and nefasti — court days and non-court days, which 
 were kept a sacred secret till divulged by Cneius Flavius.^ 
 
 ' Geist des r.E., book i. s. 18 ; De in the Egyptian Calendar, — Budge, 
 Meulenaere's Trans., i. 268. Egyptian Magic, 225. 
 
 ^ There was a similar distinction 
 
420 THE AIM OF LA W. 
 
 The actio sacramenti was another point where legal action 
 and religious ceremony came into contact. If the decision 
 was not supernatural, the enforcement of the decree partook 
 of that nature. — (Muirhead, 5, 188, &c.) 
 
 But when Greek philosophy began to despise omens, 
 spells, witchcraft, and lots, and to regard the universe as 
 divine in a higher spiritual sense, the doctrine of the divine 
 origin of law took a higher form. The jurists might regard 
 themselves as priests and guardians of the sacred mysteries. 
 This idea, formulated by Ulpian, is put among the very first 
 sentences of the Pandects. It had been expressed by Cicero 
 in the famous passage in his Republic (iii. 22), preserved for 
 us by Lactantius and quoted by Pufendorf (ii. 3, 20) : — 
 
 " Est quidem vera lex recta ratio naturae congruens, diffusa in omnes, 
 constans, sempiterna, quae vooet ad officiwm jubendo, mtando a fraude 
 deterreat : quse tamen neque probos f rustra jubet aiit vetat neo improbos 
 jubendo ant vetando movet. Huic legi nee obrogari fas est neque 
 derogari ex bac aliqnid licet neque tota abrogari potest, nee vero ant per 
 senatum aut per populum solvi hac lege possumus, neque eat quserendus 
 explanator aut interpres ejus alius, neo erit alia Eomae, alia Athenis, 
 alia nunc, alia postbac, sed et omnes gentes et omni tempore una lex et 
 sempiterna et immutabilis oontinebit, unusque erit communis quasi 
 magister et imperator omnium deus, ille legis hujus inventor, disceptator, 
 later : cui qui non parebit, ipse se fugiet ac naturam hominis aspernatus 
 boc ipso luet maximas poenas, etiamsi cetera supplicia, quae putantur, 
 eft'ugerit." 
 
 The Latin religio has legal associations. If derived from 
 legere, as Cicero thinks, it may refer to the reading and 
 understanding of the signs of the oracle ; if from ligare, as 
 now commonly accepted, it is another form of jus, dbligatio, 
 and the ideas we have already examined. We have persons, 
 things, and acts of a religious character. Bes religiosce were 
 well recognised in the Koman law, and we may regard prayers 
 and vows as res incorporates — prestations to deities or saints 
 — as well as contracts. — (Ihering, Geist des r. B. i. § 18.) 
 
 Where Church and State are identified the law even in 
 civil affairs may be regulated by religious considerations. 
 Priests were a physical embodiment of both law and religion. 
 
RELIGION— FAS. 421 
 
 Thus, as we have seen, in the laws of Manu we have a reve- 
 lation which, iiiUr alia, gives a body of rules to guide the 
 king in administering justice. Mercantile law is disposed of 
 shortly by referring to custom. By enforcing their own rights 
 and the rights of their deities, the priests, like the kings, 
 created and enforced law. Thus religion in many ways has 
 moulded and modified, if it has not actually originated, law 
 and jurisprudence as well as art, architecture, sculpture, 
 painting, music, and Hterature. We see the process going 
 on before our eyes in the fight to retain education by the 
 Church. In the Universities education has been almost 
 entirely secularised, but elementary education is still a bone 
 of contention between Churchmen of various creeds and 
 secularists. But the system which Europe has abandoned is 
 still to be found in Musulman countries. We may see 
 students sitting cross-legged on the floor of Justinian's great 
 church — the Mosque of St. Sophia — receiving instruction in 
 theology and law from the same teacher. — {Gf. Bryce, Studies, 
 ii. 221.) The Scottish Universities still actually confer 
 degrees in utroque jure, though some persons assert that one 
 of the laws is not the Canon Law. 
 
 The theology of the Catholic Church — including the 
 Churches of the Eeformation — is essentially a legal system. 
 It has taken its form from the Eoman law, as we may see by 
 inspecting the summa of St. Thomas Aquinas and the West- 
 minster Confession of Faith. St. Thomas in his great work 
 has set himself to combine into an intellectual unity the 
 Bible and the traditions of the Church, as contained in the 
 writings of the Fathers, the Ethics and Politics of Aristotle, 
 and the Corpus Juris Civilis, with his own experience and 
 robust common sense. The whole treatise is on religion, like 
 The Lav:s of Manu and the Qu'rAn, but with him religion 
 includes law, for incidentally he treats law and rights with 
 great fulness of detail (1, 2, qq. 90-97, and 2, 2, qq. 57-79). 
 As justice was ambiguous with Aristotle in a wider or a 
 narrower sense, so religio may apply to the spiritual relation 
 
42 2 THE AIM OF LA W. 
 
 of individuals to God or a particular state of a person who 
 has taken vows (2, 2, qji. 81-100, 184-189). "A man of 
 religion " was merely a person who had taken vows, as we 
 see in Chaucer's Prologue. — (Eeichel, ii. 80.) 
 
 As the Church is above the State, so is the Divine law 
 above the human. St. Thomas followed Isidore and the 
 Canon law in maintaining that laws must be honest and just 
 (p. 356, supra). He quotes (1, 2, §. 95, 2) St. Augustine as 
 an authority for the view that a law which is not just is 
 no law, and adds, " Si vero in aliquo a lege naturali discordet, 
 jam non erit lex, sed legis corruptio." 
 
 Suarez (ii. 14) discusses whether human laws may dis- 
 pense from the law of Nature, and favours the negative. In 
 another passage he lays it down that human law must be 
 conform to the Divine (ii. 4, §§ 5 and 8), and that it derives 
 its force from participating in the principles of eternal law. 
 Again he deals with the evasion of unjust taxes (v. 18, 
 §§ 12-13), but it must be the Church which is the ultimate 
 judge of justness.^ There is a presumption in favour of the 
 civil power which is delegated to the ruler by God : " By 
 me kings reign and princes decree justice." — (Prov. viii. 15, 
 quoted by Suarez, ii. 4, 5.) 
 
 The modern doctrine, laid down by Scavini, is that civil 
 powers can deal only " circa res mere civiles : non enim 
 possunt condere leges ecclesiasticas." — (i. 1 82). But it is the 
 Church which must decide on the question of jurisdiction. 
 
 What is Catholic theology but another form of custom ? 
 The truth is what the Church has handed down by imme- 
 morial tradition — Quod semper, quod ubigue, et ah omnibus. 
 The answer of the Eeformers was that they went back to an 
 earlier custom — that of the Primitive Church. But now 
 since the promulgation of the doctrine of Papal infallibility, 
 it may be said that custom has given way to legislation. The 
 Pope is the authoritative interpreter of custom and he " can 
 do no wrong." 
 
 ^ When churches become political " to Cassar the things that are 
 they find great difficulty in giving Caesar's." 
 
RELIGION— FAS. 423 
 
 The Eeformation raised new difficulties as to the relations 
 of Church and State — law and reUgion, and we may now 
 observe how these were met. The Westminster Confession 
 of Faith (chapter xxiii.), which is the written creed of the 
 principal Scottish churches, lays it down as the duty of the 
 civil magistrate to assist the Church in maintaining the 
 truth and suppressing heresy and disorder, and provides, — 
 " It is the duty of people to pray for magistrates, to honour 
 their persons, to pay them tribute and other dues, to obey 
 their lawful commands, and to be subject to their authority 
 for conscience sake. Infidelity or difference in religion doth 
 not make void the magistrates' jw&t and legal authority nor 
 free the people from their due obedience to him, from which 
 ecclesiastical persons are not exempted." These clauses have 
 presented great difficulties in application in Scottish ecclesi- 
 astical politics. 
 
 Grotius, whom we may well regard as a rational Schoolman, 
 starts with the idea of the social nature of man as the founda- 
 tion of law, but he goes on to show that God is the Author 
 of this nature {I>e J. B. et P., Proleg. 11, 12), and says, — 
 " Here we are brought to another source of right {jus) besides 
 the natural source, namely, the free wiU of God, to which, as 
 our reason (inidledus) irresistibly tells us, we are bound to 
 submit ourselves." Of this jus volunfarium divinum (i. 1, 15) 
 he says, — " It may be said, but with reserve, that God did not 
 command the act because it was just, but that it was just 
 because God commanded it." Three times in human history 
 has there been this revelation of law to all mankind : — First, 
 at the Creation to Adam ; secondly, to Noah after the Deluge ; 
 and thirdly, through Christ. " Tria hsec jura baud dubie 
 omnes homines obligant." In a subsequent passage (i. 1, 17, 
 3) he applies this to practical legislation by declaring " that 
 it is not now lawful for the rulers of Christian states to make 
 laws of the same purport as the laws of Moses." 
 
 Pufendorf {De J. JV. et G., ii. 3, 20) states expUcitly,— " To 
 make these dictates of reason obtain the power and dignity 
 
424 THE AIM OF LA W. 
 
 of laws it is necessary to call in a much higher principle to 
 our assistance." . . . "The obligation of natural law 
 proceeds from God himself, the great Creator and supreme 
 Governor of mankind, who, by virtue of His sovereignty, hath 
 bound men to the observation of it." He rejects the view of 
 Hobbes {Be Give, c. 3) that " those laws which we call natural 
 . . . are not laws as they proceed from nature, but only 
 as they are enacted by God in Scripture." His reason is 
 that it is not " essential to a law that it be conveyed to the 
 subjects' notice in the form and manner of a proposition." 
 Hobbes himself says — 
 
 " The same law which is natural and moral is also wont to be 
 called divine, not undeservedly, as well because reason, which is the law 
 of nature, is given by God to every man for the rule of his actions, as 
 because the precepts of living, which are thence derived, are the same 
 with those which have been delivered from the Divine Majesty for the 
 laws of his heavenly kingdom by our Lord Jesus Christ and his holy 
 prophets and apostles. What, therefore, by reasoning we have under- 
 stood above concerning the law of nature we will endeavoiir to confirm 
 the same ... by holy writ." — (Molesworth's ed. ii. 50 ; (Latin) ii. 
 199.) 
 
 " The commands of the rulers are the laws of the ruled . . . God's 
 laws are declared after a threefold manner — first, by the tacit dictates of 
 right reason ; next by immediate revelation, which is supposed to be done 
 either by a supernatural voice, or by a vision or dream or divine inspi- 
 ration ; thirdly, by the voice of one man whom God recommends to the 
 rest as worthy of belief by the working of true miracles. Now he whose 
 voice God thus makes use of to signify His will unto others is called a 
 prophet:'— {\\. 205.) 
 
 This appears to be exactly the doctrine of Lorimer {Institutes, 
 2nd ed. p. 35) on account of which he complains (p. 21, note) 
 that he was classed with the theological school. Hobbes 
 thus expressly justifies the identification of natural law, 
 equity, the moral law, and the divine law with reason and 
 reasonableness. 
 
 Eeference might again be made to the views of Lord 
 Stair (p. 415, supra). His position was the traditional one, 
 derived from the Greek philosophers, Cicero, and the Eoman 
 lawyers through the Fathers of the Church and the School- 
 men. Natural law and morality are Divine law. 
 
RELIGION— FAS. 42S 
 
 Dallas of St. Martin, whose Styles were published after 
 upwai'ds of thirty years' use in 1697, shows how Stair's 
 doctrine was applied in Scottish practice. In the inductive 
 clause of a revocation he says — 
 
 " Considering how I have boen imposed upon ... to disinherit 
 ray said daughter tiud grandchiki of 1 heir j\ist, lawful, and righteous 
 inheritance, to which by the lawi ofnatiin; niunicipjil laws of the land, 
 and oven n-lujioii iUelf, they ought in justice to succeed." — (Stiles, ii. 
 486 ; (/. " Disposition " 48(5.) 
 
 Coming down to modern writers, we find Blackstone (iv. 
 59) declaring with Chief-Justice Provost that " Christianity 
 is part of the laws of England," and thence offences against 
 God and religion come first. But in an earlier passage (i. 39) 
 he lays it down that man depends on his Maker, and — 
 
 " He sliould in all points conform to his Maker's will. This will 
 of his Maker is called the law of nature . . when [God] created 
 
 man and endued him witli free will to conduct himself in all parts of 
 life, he laid down certain immutable laws of human nature, whereby 
 that free will is in some degree regulated and restrained, and gave him 
 also the faculty of reason to discover the purport of those laws." " Our 
 own self-love '' is " the universal principle of action." He " has graciously 
 reduced the rule of obedieuce to this one paternal precept, 'that man 
 should pursue his own true and substantial happiness.' This is the foun- 
 dation of what we call ethics or natural law. . . . This law of nature, 
 being coeval with mankind and dictated by God himself, is of course 
 superior in obligation to luiy other. It is binding over all the slobe, in 
 all countries, and at all times ; no human laws are of any validity if 
 contrary to tliis, and such of them as are valid deri\e iill their force and 
 all tlieir authority, mediately or immediately, from this original." 
 
 [Divine providence] " hath been pleased at sundry times and in 
 divers mannei-s to discover and enforce its laws by an immediate aiid 
 direct revelation. The doctrines thus delivered we call the revealed or 
 Divine law, and they are found only in the Holy Scriptures. These 
 precepts when revealed are found upon comparison to be really a part 
 of the original law of nature, as they tend in all their consequences to 
 man's felicity . . . Vet undoubtedly tlie revealed law is of infinitely 
 more authenticity than that moral system which is framed by ethical 
 writers and deiiominated the natural law. Because one is the law of 
 nature, expressly declared so to be by God himself. The other is only 
 what, by the aiisistauce of human reason, we imagine to be that law. . . 
 Upon these two foundations, the law of nature aud tlie law of revela- 
 tion, depend all human laws — that is to say, no human laws should be 
 suffered to contradict these," 
 
426 THE AIM OF LA W. 
 
 John Erskine, of Carnock, Professor of Scots Law in 
 
 Edinburgh, lays down the same doctrine as Stair, but with 
 
 less elaboration {Inst. i. 1, 3) — 
 
 "All laws ought to be in themselves just. This character is 
 inseparable from the laws of God, -who is justice itself ; and hviman 
 laws, when they j^rescribe anything reinignant to natural justice, have 
 no coercive force." "The law of nature has the God of nature for its 
 author, and it is not made known to us by any formal or e.xternal notifi- 
 cation of His will, but is impressed on our minds by the internal sugges- 
 tion of reason, and is therefore elegantly said by St. Paul to be 
 written by God upon the heart of every one of us." — (§ 7.) " What the 
 law of nature has commanded cannot be forbidden or even dispensed 
 with by positive law, and in like manner what it prohibits cannot be 
 commanded or even permitted by human authority. The law of nature 
 being indeed the command of God, to whom all His creatures owe 
 absolute obedience, no earthly lawgiver, who is himself subject to that 
 law, hath a right of abrogating or controlling it." — (§ 20.) 
 
 It is evident from section 26 that Erskine regarded re- 
 velation as dealing only with Jewish law. If these laws are 
 binding on us now, it is because they are in accordance with 
 the higher natural law. Erskine thus traces natural law to 
 God, but does not find it in Scripture {Prin. i. 1, 2). He 
 retains the theological formula, but the three revelations of 
 Grotius appear only as a rational inference from the fact of 
 original creation. But the doctrines of Blackstone and the 
 still milder doctrine of Erskine are rejected by their later 
 editors, who regard them as a mere survival without any 
 organic connection with their subsequent expositions of the 
 law. From notes added by Professor Christian to the 
 passage quoted from Blackstone and by Lord Ivory to those 
 from Erskine, we see that practically the law courts must be 
 the judges of what is the law of God or the law of nature. 
 
 Coke gives an example of " the law of God, Vindida est 
 mihi, et ego retrihuam," which prohibited private revenge. — 
 {Inst. 2, 103.) 
 
 The chief rules in our law, borrowed directly from the 
 Bible, are the list of degrees within which marriage is for- 
 bidden.1 Many accept the rules . who would dispute the 
 1 Ersk. Inst. i. 6, 9 ; of. 37 ; and Purves' Trs. v. Purves, 1896, 22 R. 513. 
 
RELIGION— FAS. 427 
 
 doctrine that they were binding solely because they were a 
 Divine revelation. Another rule, which is traced to the 
 Hebrew Code in Exodus, is as to the liability for an animal 
 which has been in the habit of doing damage. But this rule 
 is adopted not because it was revealed, but because it is 
 rational, and therefore natural and customary. Authority is 
 found in revelation for many diverse laws of marriage and 
 divorce. Mohammedans find authority for having four 
 wives in the example of Jacob, and for a very simple form of 
 divorce. Christians are monogamous as a general rule ; some 
 Christians hold marriage to be indissoluble and refuse 
 divorce. Scots law quotes Scripture for divorce on the ground 
 of desertion {Confession of Faith, xxiv, 6). 
 
 The logical outcome of Blackstone's doctrine may be seen 
 in the caricature of it by the early settlers in the New 
 England States. They carried the laws of England with 
 them, and Blackstone's doctrine in so crude a form that they 
 incorporated chapters of the Jewish Scriptures in their 
 published statutes, as being the law of God. De Tocqueville 
 has pointed out the grossly iniquitous results — intolerance 
 persecution, and tyranny. — {Democracy in America, Eeeve's 
 trans. (1889) i. 34 ; 2 Kent, Comm. 34. Of. Bryce, American 
 Commonwealth, c. 107.) 
 
 This wholesale verbal adoption of the divine law might do 
 little harm in the time of Alfred the Great (Thorpe, 
 20 et seq.) because the machinery of enforcement was 
 different, the civil courts more lax and inefBicient, the church 
 more powerful than in modern times, and above all, the state 
 of society and public opinion more uniform. It was 
 sheer force of circumstances — the fact that society was more 
 than religion — that religion was made for man, and not 
 man for religion — which has produced toleration, freedom, 
 and religious liberty both in Britain and America. 
 
 The change of view sketched above as to the relation of 
 religion to law has affected the relations of Church and State, 
 and the conduct of the individual members of these bodies. 
 
428 THE AIM OF LA W. 
 
 When congresses of clergy and presbyteries press legal 
 reforms on the Government it is only as citizens. They 
 more often appeal to utilitarian reasons than to the revealed 
 law of God. Even members of the Catholic Church are com- 
 pelled to adopt a similar attitude. When they demand what 
 they think justice, they do not plead the law of God or of the 
 Church as a title, so often as the fact that they are citizens, 
 taxpayers, and ratepayers. 
 
 We see, then, what is said to be revealed : — 
 
 (1.) In the earliest stage the Deity deals with details of 
 procedure, and reveals separate judgments on every 
 case. This is still the Chinese view.^ 
 
 (2.) As states become organised, and as the judicial 
 function of administering law in accordance with 
 custom, good faith and the observance of contracts 
 becomes separated, the revelation takes the form of 
 legislation — as with the Hebrews and the Hindus, 
 who received codes in this way.^ 
 
 (3.) As the conception of the relation of the Deity to 
 the universe changes so does His relation to law. 
 The legislation becomes more and more general. 
 As the legislator lays down a general rule for 
 the judge, so does God lay down a general rule for 
 legislators. " Divine " law becomes " Eternal " law, 
 which cannot change, as God is justice himself. 
 
 (4.) But laws regulate rights. If God reveals rules to 
 settle collisions of rights, how were rights created ? 
 The Book of Genesis, and the theories of Grotius 
 and others founded thereon, show that God gave 
 man dominion over things and living creatures. 
 He instituted the legal relations of property and 
 marriage, parent and child, and inferentially all 
 others, and the rights flowing therefrom. If we 
 
 ^ LyaU's^smiidSiitrftes (2nd ser.), ^ Gf. the Code of Khammurabi, 
 
 156. Johns, p. ix. 
 
RELIGION— FAS. 429 
 
 know the rights which are Divine, the Divine reason 
 in us may find the laws. 
 
 (5.) In like manner many moralists hold that what is re- 
 vealed is duties — to God, to men, and to one's self. 
 
 (6.) The doctrine then dwindles down to that of Erskine, 
 that God created the world and human beings. 
 Eights are involved in human nature and laws are 
 involved in rights ; and thus they are all ultimately 
 Divine. 
 
 Eeligions are also all local and temporal, and come like 
 laws into collision. "We must have some criterion for judging 
 between them. Thus Mohammedan morality may regard 
 Hindu morality as bad, and force may be required to settle 
 the question. Missionary enterprise amongst the young, 
 preaching crusades with the older generation, may set up a 
 new order of ideals and prejudices, and supplant an older 
 order of tradition, for law and religion agree in this, that 
 custom and immemorial tradition are prominent in both, and 
 that custom may be reformed by an appeal to ideals, either 
 past or future. We see the collision between Christianity 
 and Hinduism solved in India in all those ways. — (Mayne, 
 Hindu Law and Usage, 4th ed. 52) — and we see the law 
 reformed in New England and in Great Britain by an appeal 
 from the Old Testament to the New ; then to the Sermon on 
 the Mount ; or to the general spirit of Christianity, which 
 means ultimately the civilised views of the present day ; for 
 many people cling to the name of Christian though they 
 reject all the special doctrines which distinguish that religion 
 from Greek or Eoman or perhaps Indian or Chinese 
 philosophy. 
 
 While religion thus becomes sublimated into the general 
 idea to which humanity strives to attain in social relations, it 
 has in law a definite meaning. We are not here concerned 
 with religion as an institution, which looks for recognition 
 and support from law and the State. This must be reserved 
 
43° THE AIM OF LA W. 
 
 for future discussion. We may, however, note that if the State 
 supports or suppresses religion, the laws it makes will have 
 this end in view, and will be determined thereby, and in 
 this sense will be utilitarian. One point, however, demands 
 notice. The laws of England and of Scotland deal with 
 offences against " religion," i.e., the definite doctrines of the 
 Churches established in those respective countries. — (Black- 
 stone, Hume, Stephen's Digest, sects. 179-185.) These are 
 similar to but different from offences against " morality." 
 
 In the Catholic Church the mediaeval usage of the word 
 " religio " still survives. The sta,t%s religiosus, as we have 
 already seen, is a mode of life in obedience to vows. — (Scavini, 
 i. 466 ; Eeichel, GanonLaw, ii. 80.) The whole subject is 
 legal, and gives rise to legal problems, e.g., can a cleric 
 become religious ? His doing so may injure the Church ; 
 he may be barred, because he was educated for the priestly 
 office, and so on. — (Scavini, i. 583.) 
 
 But although civilised modern law has been entirely 
 secularised, we find churches borrowing from the reasonable 
 justice of municipal law. This was so even in the Middle 
 Ages, for the Canon law is founded on the Eoman Civil 
 law. This law was adopted in great part also by the 
 Mohammedans, as they adopted Eoman roads, and the 
 Eoman mode of administering taxation. In legal procedure 
 the Church Courts in Scotland follow secular examples. 
 Eeligion can no more draw up a code of laws than it can 
 build a cathedral. The religious spirit no doubt affects both 
 in substance and form, but just as the architect must make 
 sound foundations and arches in accordance with statical laws, 
 so the jurist, though he also be a monk, must, consciously 
 or unconsciously, make his decrees or his code in accordance 
 with the laws and the history, nature, and character of 
 the men for whom he legislates. We must not forget that 
 the same age which produced inspired judges and legislators 
 produced also inspired architects and builders. — (Exodus 
 XXXV. 31, &c.) The inspired jurist adopted utilitarian ends. 
 
FACTS AND IDEALS— UTILITY. 431 
 
 as the inspired architect adopted utilitarian stones and mortar 
 to keep the rain off the worshippers. 
 
 Eeligion thus borrows forms from law, as law in its 
 earliest stages borrowed from religion. It manifests 
 itself in persons — priests and "religious persons," — in 
 things — res scarce and religioscB, temples, shrines, &c. ; in 
 acts — religious services, offices for the dead, prayers, sacri- 
 fices, &c. It is an art or a science. Primitive religion is 
 often nothing more than the art of defeating or 
 circumventing supernatural neighbours, and propitiating 
 supernatural friends and allies. It becomes ultimately 
 spiritual, like the divine impulse of Socrates ; like habit 
 with Aristotle; the spirit which Seneca demands in bene- 
 factors, or the goodwill, which Ulpian considered to be the 
 essence of justice. To some the new spirit seems the negation 
 of religion, as it seemed to the contemporaries of Socrates and 
 of the Apostle Paul,^ for the tendency of both law and 
 religion is to become absolutely formal. On the other hand 
 law — the law-abiding spirit, justice, equity — may become in 
 very truth a religion. 
 
 SECT. XII. — FACTS AND IDEALS^ — UTILITY. 
 
 Eeligion or supernatural revelation affords no criterion of 
 the justness of laws or rights. We must judge of religions, 
 as of all social institutions, by means of reason. The mis- 
 sionarj' to the lieathen tries to show that his religion is 
 more reasonable than that of the heathen; the interpreter 
 of Scripture argues that his interpretation is more reason- 
 able, or he founds on the principle that G-od wishes the 
 life and happiness of his creatures to be as great and 
 lengthened as possible. On the other hand, if we attempt 
 to buttress justice with miracles or supernatural physical 
 
 1 The title of M. Guyau's able ^ Krause, The Ideal of Sivmanity 
 
 work, " The Ncm-Religion (Vvrrili- (translated by Prof. Hastie, D.D.). 
 gion) of the Future," gives counte- 
 nance to this idea. 
 
432 THE AIM OF LA W. 
 
 force we build on a foundation of sand, for if the miracles are 
 disbelieved, or the force is repelled by skill or greater force, 
 the whole fabric falls to ruin. Eousseau {Contr. Soc. ii. 6) 
 summed up the position of the present day when he said — 
 " Toute justice vient de Dieu, lui seul en est la source ; 
 mais si nous savions la recevoir de si haut, nous n'aurions 
 besoin ni de gouvernement ni de lois. Sans doute il est 
 une justice universelle, ^man^e de la raison seule." 
 
 The gods no longer inhabit Olympus : the oracle of 
 Delphi is dumb ; the Temple on Zion Hill is no more. The 
 discoveries of science have shown that the earth is an 
 insignificant globe floating in space ; and that its history, and 
 the history of the men who inhabit it, have gone back for 
 thousands if not millions of years. If we accept the theory 
 of Erskine as to the law of nature, both the character and 
 the date of the act of creation seem pushed out of our age, so 
 far back that they have no near relation to modern needs and 
 circumstances. What is the criterion of rights and laws ? 
 We now set ourselves first to ascertain the facts of nature ; 
 and secondly, by reason, to infer from these facts rights, 
 duties, and laws. Lawyers divided their systems under three 
 leading categories — persons, things, and actions — the external 
 forms of rights and duties which inhere in persons with 
 regard to things and persons, these rights and duties in turn 
 being regulated by means of laws — remedies, actions, &c. 
 The three precepts of the law appear to correspond to each 
 point of view. Eoneste vivere looks to laws and actions, 
 neminem Icedere to persons, and sumn cuigue trihuere to things. 
 
 Philosophy is a revolt against physical external super- 
 naturalism. If the popular religion claims to be inspired, the 
 philosopher claims to be inspired also. Socrates might not 
 see the heavens open and hear God speak in thunder, but he 
 knew the still small voice within him — the Aai/j.6vi6v ti. 
 This was perhaps a fiction, like the appeal to the code of the 
 JUS naturale. It expressed a truth in the current dialect. 
 God was not to be found in portents, miracles, and magic. 
 
FACTS AND IDEALS— UTILITY. 433 
 
 but He was the reason of a rational universe, and was to be 
 found by reason. 
 
 Plato and Aristotle treated of politics and the State, rather 
 than relations of individuals, but the Stoics first gave us 
 moral philosophy in the modern sense (Grant, Aristotle, i. 
 306). Cicero in his Be Officiis, which is written on Stoic 
 lines, deals at the very outset with Homstas, one of the 
 elements of which is " trihiere suum cuique " (i. 5, 15). The 
 man of honour {Honestas) needs no statutes and actions to 
 compel him to do right ; he is a law to himself. Although 
 Horace was an Epicurean, the famous lines of his ode (iii. 3) 
 breath a Stoical spirit : — 
 
 " Justum et tenacem propositi virum 
 Non civium ardor prava jubentium, 
 Non voltus instant] s tyranni, 
 
 Mente quatit solida neque Auster, 
 
 Dm inquieti turbidus Hadriaa, 
 Nee fulminantis magna manus Jovis ; 
 Si fractus illabatur orbis, 
 Impavidum ferient ruinse." 
 
 Justice is not an external thing, but resides indestructible 
 in the soul of the just man. The Kosmos might disappear 
 in ruin ; the gods might try to terrorise ; the rabble with one 
 accord might issue their command ; but they cannot make 
 justice. Justice is the still small voice in the bosom of the 
 individual. He can defy witchcraft, for it cannot reach his 
 soul. 
 
 The Eoman law attempted to give a detailed answer to 
 the question. What is suum cuique ? 
 
 " Justinian's Pandects only make precise 
 What simply sparkled in men's eyes before.'' 
 
 The Eoman law emphasised the rights of the individual, 
 and thus the individualistic systems of philosophy — Epicu- 
 reanism and particularly Stoicism — found a congenial soil in 
 the Eoman state. Politics was not open to discussion by the 
 Eoman citizen in the Empire; and the intellects which in 
 
 2e 
 
434 THE AIM OF LA W. 
 
 Greece might have discussed the nature of the State, turned 
 their attention to the rights of individuals, and so formed a 
 new conception of justice {cf. Cicero, Be Off. i. 7, 21). Seneca's 
 work Be Beneficiis may be read as a treatise on morals from a 
 legal standpoint — the jus humanum instead of the jus civile — 
 the things and prestations with which it deals being benefits. 
 Christianity gave a new meaning to the law of nature 
 by raising the higher nature of man, but it absorbed Pagan 
 elements till it in turn became a new heathenism. The 
 saints took the place of the local deities ; the sacraments and 
 formalism were mere magic revived. The Eef ormation on its 
 intellectual side was a protest not much unlike that of the 
 early Greek philosophers. 
 
 The rise of Christianity, and its spread over the Empire, 
 gave a new direction to the idea of the individual and of 
 personality. Justice was demanded by all humanity, and at 
 the present moment men are face to face with problems 
 between men of different races, and between men fighting in 
 commerce and on the battlefield, where justice is the object 
 sought for— problems which baffle at once the sagacity of the 
 politician, the ingenuity of the philosopher, and the aspira- 
 tions of the philanthropist. 
 
 The successors of the Eeformers still sought for a law of 
 nature outside of the supernatural, and found it in the 
 doctrines of Greek and Eoman philosophers ; but Grotius, 
 Pufendorf, and the semi-clerical holders of the university 
 chairs kept up the Catholic tradition, in so far as they 
 appealed to revelation and the law of nature as confirming 
 each other, though some put more emphasis on the latter 
 than on the former. 
 
 Adam Smith broke with the clerical tradition, and, treating 
 of things in themselves, founded the new science of political 
 economy. Here were true laws of nature which it was 
 thought impiety to break ; the violation of which brought 
 disaster and ruin to states. So strongly was the view at 
 one time held that these were laws in some jural sense that 
 
FACTS AND IDEALS— UTILITY. 435 
 
 it was proposed at a later date to settle trade disputes by 
 setting up arbiters and courts to administer these laws. But 
 now a reaction has set in. It is seen that the science is a 
 pure abstraction, that the so-called laws are merely mathe- 
 matical formulae, which rational beings should use, and, if 
 they can, in some cases defeat by calling into operation other 
 laws of nature, economic or other. It is not a science to be 
 put to practical uses, apart from ethics or religion, or some 
 other criterion of its results. 
 
 So with Person. Cicero founds law on the nature of man ; 
 Hutcheson, Eeid and later moral philosophers raise questions 
 of psychology, and now we may find psychologists, who trace 
 back the origin of right to feeling. Few branches of study 
 have in modern times attracted more attention than physio- 
 logical psychology. It is particularly applied to criminology, 
 penology and the administration of the law in marriage, 
 divorce, and personal relations generally. 
 
 And once more we may see in the reform of legal pro- 
 cedure and codification, and in the attempt by the modern 
 English school to found a separate formal science of juris- 
 prudence the third branch of the Eoman division — Actions. 
 But such an abstract science is useless to the practical lawyer 
 and misleading to the scientist unless its results can be 
 reconciled with those of economics, psychology and ethics. 
 
 Alongside these sciences we have the new science of 
 sociology which attempts to deal with humanity in organised 
 groups of growing complexity. History is an attempt to 
 teach experience by narrating facts, sometimes also by 
 pointing out the moral to be drawn ; it may mean anything 
 from statistics and chronological narration to metaphysics 
 and theology. All these sciences are attempts to systematise 
 our knowledge of men and things, but the interpretations 
 take their colour from religion and other extraneous sources. 
 And even if our knowledge were absolutely accurate we 
 cannot fall back on nature or the nature of man, for, as 
 Montesquieu showed, the natures of men and of nations are 
 
436 THE AIM OF LA W. 
 
 infinitely diverse, and will justify the most contradictory 
 rights, duties and laws. Eeason is a will-o'-the-wisp for as 
 we have seen reason is often unreasonable. 
 
 Two tendencies characterise modern British legislation. 
 First, the search for facts to form a basis. This is carried 
 out through commissions and debates in Parliament and the 
 Press. Then much legislation is left to departments in 
 Orders of Council, to local authorities in bye-laws, and to 
 private individuals in contract. They know the facts, and 
 can regulate their own rights. Secondly, we note the spread 
 of catch cries, ideas which seize men's minds and appeal 
 to their imaginations like a religion — freedom of religion, 
 freedom of trade, rights of suffrage, temperance, social purity, 
 mercantile honesty, patriotism, culture, education, efficiency.' 
 Mr. Beattie Crozier (Hist, of Intellectual Development, iii. 25) 
 says that — 
 
 " Civilisation, advances by means of a series of great abstract ideals 
 or ideal abstractions, blazoned on Mgh. in front and on eitier side of its 
 advancing course, to lead it on ; and by their zigzag and opposing pulls 
 helping to keep it steady on its even course between them. These 
 ideals are . . . means only or instruments, and the illusion . . . 
 is that men have in every age mistaken them for ends. In the earlier 
 ages of the world, this was not only natural, but it was right and neces- 
 sary in order to lend force and efficiency to action ; and even to-day it 
 is almost inevitable.'' 
 
 This seems hardly fair to the practical statesman, dealing 
 with the hard facts of everyday life, who must act often 
 on imperfect evidence of the facts and without very clear 
 knowledge of the more remote ends to which society is 
 moving. It is easy for the philosopher, who is not responsible 
 for practical results, to take Mr. Crozier's test of universaKty. 
 Is such a test possible to mortal man ? The statesman does 
 well by making his own ideal universal, as the Christian 
 makes his church Catholic. The bricklayer, who laid every 
 brick as if it were the copestone of the universe, would make 
 a magnificent wall. By all means let him use the test to 
 criticise other people's ideals with deadly efi'ect. To apply it 
 
FACTS AND IDEALS— UTILITY. 437 
 
 to his own would inevitably paralyse all action. The answer 
 to Mr. Crozier is that after all the statesman in modern times, 
 if not in all ages, is only a common sense man in a particular 
 position. 
 
 The preliminary inquiry into facts by means of com- 
 mittees and commissions of different kinds is very character- 
 istic of British legislative methods. Sometimes the inquiring 
 body is official, sometimes parliamentary, sometimes judicial, 
 sometimes expert, or it may be a combination of some of 
 these. Witnesses may be examined as in a judicial process. 
 Judgment may be given by a committee with appeal to 
 Parliament. They may try to discover the truth of a fact — 
 e.g., the flash-point of mineral oil ; the efficacy of vaccina- 
 tion ; or they may try to make new inventions — e..g., gun- 
 powder which shall be safe and smokeless ; bullets at once 
 humane and effective ; remedies for the plague or cholera. 
 The problem may be moral, as with the Contagious Diseases 
 Acts, the Licensing Laws, money-lending and usury ; or 
 economic, as in the last example, depression of trade, 
 bimetallism, Indian currency .^ In short our Governments 
 are accused of legislative cowardice, through their tendency 
 to inquire, and ascertain all the facts before venturing on an 
 opinion.^ If men knew — that is, really knew — all the facts 
 there would be no room for party differences ; the modern 
 politician's occupation would be gone. 
 
 We have now carried this tendency into international 
 relations by means of arbitration. If personal or national 
 feeling, opinion, greed, jealousy, or honour is involved, 
 arbitration is impossible, and war may become inevitable. 
 Defeat may either be regarded as a stubborn physical fact, 
 which cannot be ignored, or it may be treated with pious 
 resignation as the arbitrament of the God of battles. If the 
 
 ' See Blue - book, memoranda mission, and answered by » number 
 
 chiefly relating to the classification of professors and others in writing. 
 and incidence of imperial and local ^ See speech by Mr. A. J. Balfour 
 
 taxes, 1899 [c. 9528], where a paper in House of Commons, Times, 2nd 
 
 of questions was issued by the Com- April 1903. 
 
438 THE AIM OF LAW. 
 
 question can be treated as one of pure fact, then arbitration 
 is a common sense remedy. The difficulty is to find an 
 impartial tribunal — that is, one which will eliminate all 
 national or extraneous feeling. The machinery of courts, 
 written pleadings, and oral hearings make the judge's work 
 easier, for the facts may be too clear to admit of argument. 
 In other cases a material compromise may be fair. If the 
 national interest can be expressed in money or territory, 
 then arbitration and compromise are possible and natural, 
 and recommend themselves to the conscience of the ordinary 
 right-thinking man. 
 
 The idea of " utility " is a favourite subject of attack with 
 some philosophers, as religion is with others. It is, of course, 
 easy to show that " utility " is no more a guide than " reason," 
 " natural law," or " religion," for it also demands another 
 standard. But when the common sense man ceases to be 
 utilitarian he ceases to be rational. The word was common 
 in the Eoman law and was associated with equity. The 
 actio utilis was an equitable remedy to supply the deficiency 
 of strict law. Utilitas is used by Ulpian for equity (c/. 
 Gaius, iii. 109, 160). Brissonius devotes nearly three folio 
 pages to the exposition of these words. It still survives in 
 the quadriennium utile — the period allowed to minors by 
 Scots law to reduce injurious transactions entered into during 
 minority. We have seen it in the phrase dominium utile (p. 50, 
 supra) — and in the public interest, referred to by Paul, which 
 allowed privileges propter aliguam utilitatem (pp. 103, 107, 
 supra). Isidore of Seville gave us as one of his tests of 
 good laws that they should be framed not "private com- 
 modo, sed pro communi utilitate civium " (p. 356, supra). 
 
 Cicero {De Bep. i. 25) defines the State as " populus . . . 
 ccBtus multitudinis juris consensu et utilitatis communions 
 sociatus." This evidently suggested the definition of Grotius 
 (Be J. B. et P. i. 1, 14, 1) — "Est autem civitas ccetus 
 perfectus liberorum hominum juris fruendi et communis 
 utilitatis causa sociatus," although in a previous passage 
 
FACTS AND IDEALS— UTILITY. 439 
 
 (Proleg. 16) he dissented from the statement of Horace {Sat. 
 i. 3, 98)— 
 
 " Ipsa utilitas justi prope mater et sequi " — 
 
 and maintained that natural law is reinforced by utility {sed 
 
 naturali juri utilitas accedit), and that utility is merely the 
 
 occasion of civil laws. 
 
 We have seen Hobbes and Blackstone frankly appealing 
 
 to utility — salv^ populi — or to the happiness of the people as 
 
 an end (pp. 396, 425, supra). To these we may add a sentence 
 
 of Eousseau, speaking of monarchy — 
 
 " Tout marche au meme but, il est vrai ; maia ce but n'eat point 
 celui de la f^licitd publique, etla force mSme de I'administration tourne 
 sans cesse au prejudice de I'Etat." — (Contr. Soc. iii. 6.) 
 
 " Quelle est la fin de I'association politique ? O'eat la conservation 
 et la prosp^rit6 de sea membres. Et quel est le signe le plus a<ir qu'ils 
 se conservent et prospferent ? C'est leur nombre et leur population." — 
 (lb. iii. 9.) 
 
 Here then is a test fitted for the meanest intellect that 
 knows one number to be greater than another. "Calcu- 
 lateurs, c'est maintenant votre affaire: comptez, mesurez, 
 comparez." Of course he means ceteris paribus, and with a 
 great many other limitations, for it is a poor ideal of the world 
 to make it like a Stilton cheese, filled to its utmost capacity 
 with contented mites (cf. J. F. Stephen, Liberty, Equality, 
 Fraternity, 2nd ed. p. 194). But even this ideal is reached 
 by the absurd assumption that the mites do not fight among 
 themselves. At a certain stage they must turn cannibal or 
 cease to exist. 
 
 Utility, like Kant's Categorical Imperative, is an empty 
 formula, till it is filled with a content from experience. 
 Utility changes its meaning with the end you have in view. 
 If life is desirable, none disputes that utility is a safe guide 
 for what is immediately necessary to preserve the merely 
 animal life. If you have higher aims, what achieves these 
 aims is useful for that purpose. But to determine our duties 
 to the inhabitants of this globe a thousand years hence. 
 
440 THE AIM OF LA W. 
 
 utility is merely a word. We can hardly look forward a 
 century, for we do not know what a day may bring forth. 
 There is no difficulty in reconciUng actual utilitarianism 
 in practice with the religious spirit. It is done in Islam. 
 And even Christian divines, like Dr. Paley, are brutally 
 utilitarian. They sometimes speak of morality and religion 
 as the machinery for escaping from eternal perdition. 
 
 The relation of utility (expediency) and reasonableness 
 assumed in Greek thought almost a proverbial form. Thucy- 
 dides puts the statement in the mouth of one speaker that 
 nothing is absurd (unreasonable) which is expedient {pvSkv 
 aXoyov o ti ^vfj-cpepov), though he restricts it to the case of 
 kings and states {Hist. vi. 85). The expedient and the just 
 are associated in another passage (v. 105-107).-^ 
 
 The following sentences from Hooker's Ecclesiastical Polity 
 show that there is with him a real connection between reason 
 and utUity :—^ 
 
 " All tilings that are, liave some operation, not violent or casual. 
 Neither doth anything ever begin to exercise the same, without some 
 fore-conceived end for which it worketh. And the end which it 
 worteth for is not obtained unless the work be also fit to obtain it by. 
 For unto every end every operation will not serve. That which doth 
 assign unto each thing the kind, that which doth moderate the force 
 and power, that which doth appoint the form and measure of working, 
 the same we term a law. So that no certain end could ever be attained 
 unless the actions whereby it is attained were regular — that is to say, 
 made suitable, fit, and correspondent unto their end by some canon, 
 rule, or law. Which thing doth first take place in the works even of 
 God himself" (Keble's ed. i. p. 200). 
 
 " God worketh nothing without cause. All those things which are 
 done by Him have some end for which they are done, and the end for 
 which they are done is a reason of His will to do them." — {lb. 202.) 
 
 "If, therefore, it be demanded, why God, having power and 
 ability infinite, the efi'ects notwithstanding of that power are all so 
 limited as we see they are ; the reason hereof is the end which he hath 
 proposed, and the law whereby his wisdom hath stinted the effects of 
 his power in such sort that it doth not work infinitely, but correspon- 
 dently unto that end for which it worketh, even ' all things %/n;<rTws 
 (Sap. viii. 1 ; xi. 20), in most decent and comely sort,' all things in 
 measure, number, and weight.' " — (P. 202.) » 
 
 ^ As to the meaning of t6 (Tu/x^^/joc, ^ Gf. the translation of the word 
 
 see Grant's Aristotle, ii. 11. x^h^o-tu!, qnoted from the Book af 
 
FACTS AND IDEALS— UTILITY. 441 
 
 " Law rational, therefore, which men commonly use to call the law 
 of nature, meaning thereby the law which human nature knoweth itself 
 in reason universally bound unto, which also for that cause may be 
 termed most fitly the law of reason ; this law, I say, comprehendeth 
 all those things, which men by the light of their natural understanding 
 evidently know, or at leastwise may know, to be beseeming or un- 
 beseeming, virtuous or vicious, good or evil, for them to do."— (P. 233.) 
 
 "All men desire to lead in this world a happy life. That life is 
 led most happily wherein all virtue is exercised without impediment or 
 let." ..." True it is that the kingdom of God must be the first 
 thing in our purposes and desires. But inasmuch as righteous life pre- 
 supposeth life ; inasmuch as to live virtuously it is impossible except 
 we live ; therefore the first impediment, which naturally we endeavour 
 to remove, is penury and want of things without which we cannot live. 
 Unto life many implements are necessary ; moe, if we seek (as all men 
 naturally do) such a life as hath in it joy, comfort, delight, and 
 pleasure."— (P. 240 ; cf. p. 225.) 
 
 " If here it be demanded how it cometh to pass that . . . there 
 should be found even in good laws so great variety as there is, we 
 must note the reason hereof to be the sundry particular ends whereunto 
 the different disposition of that subject or matter for which laws are 
 provided, causeth them to have especial respect in making laws." — (Pp. 
 246-247.) 
 
 " As for laws which are merely human, the matter of them is any- 
 thing which reason doth but probably teach to be fit and convenient." 
 — <P. 249.) 
 
 We may note that reason is regarded here generally as 
 the end rather than the origin of laws. The distinction is 
 Kke the Aristotelian one of final and efBcient causes. Hooker 
 would have no difiBculty in frankly admitting utility as the 
 principle which makes merely human laws, as it makes 
 
 Wisdom, in the Latin Vulgate, and vd/ioi 6,yopeiov<n Trepl airAvTwv crTotxa- 
 
 the revised English translation of j^S/xcpoi fj tov kow^ <nin<l>ipovTos irainv, 
 
 the Apocrypha. The wordi xpv''"''^^ /t.r.X.) to cause men to do acts which 
 
 (uaefiil) is used in the sense of tend to produce or to preserve happi- 
 
 " moral," and occurs in Aristotle's nesa for the body politic either as a 
 
 Poetics. Like the Latin ?wmo friufi, whole or to any of its constituents, 
 a man who was XPV""''^^ was the Wemay also apply to jurisprudence 
 
 very reverse of a "good-for-nothing as an art Aristotle's theory of design 
 
 fellow." (Reiskius, Indices Grceci- — "the better" — " the form " (elSos) 
 
 talis, ii. 856; Butcher, Aristotle's towards which law tends — "the result 
 
 Theory of Poetry arid Fine Art, p. which nature strives to attain, but 
 
 304.) He was a man who filled rarely or never can attain." — (Cf. 
 
 his position in society and the State Butcher, op. eit., pp. 140, 185, and 
 
 to good purpose. As to the modern pp. 2 and 316, supra). See also as to 
 
 idea of "utility," see Grant, Aristotle, the doctone of tAos tho end in itself, 
 
 i 377, and cf. Ethics, V. i. 13, where Grant, op. cit. i. 220, 420, 466 ; ii. 7, 
 
 the pv/rposes of law are set forth (ol Si 36. 
 
442 THE AIM OF LA W. 
 
 ploughs and agricultural implements. But he goes further 
 by identifying the Divine reason with eternal purposes of 
 God, so that if we assume that God is perfectly good and all- 
 wise, we may assume that what we know or think to be his 
 laws are good, though we do not know the reason or purpose 
 of them. Probably Hooker would deal with the Divine laws 
 as with merely human ones, which did not contradict the 
 law of Ifature, of Eeason, or of God — defer to them because 
 they are enacted. The order of society is a good end in itself. 
 —{Worhs, i. 166, 273, 284, 399, &c.)i 
 
 SECT. XIII. — CONFLICTS OF IDEALS. 
 
 The universe may be regarded from one point of view as a 
 system of conflicting forces. All the relations of men involve 
 conflict, and when men become conscious of these relations 
 the result is a conflict of interests. They call their interests 
 rights, that is to say they expressly or impliedly ask society 
 to approve of the enforcement of their claims, or to give 
 active assistance in such enforcement, whereupon society 
 interferes to settle or prevent these collisions by means of 
 laws. The systems of law set up by different societies come 
 into collision, and these colUsions are in turn dealt with by 
 wider general laws — ;jurisprudence (in the French sense), 
 international law, and general theories of justice. But law is 
 not merely the resultant of the collision of material interests ; 
 there is no jural parallelogram of forces. There is a some- 
 thing involved in the facts of a case, yet not in them — a some- 
 thing added by the person who attempts to judge. We have 
 seen that the person of the judge involves in point of fact 
 a new physical element, because he has new interests, 
 social and individual. It is this something which we have 
 dealt with as justice, equity, morality, and rehgion, and 
 lastly, as an ideal element. These ideals of men are different, 
 and come into conflict. How can we solve these new differ- 
 
 1 Beattie Orozier's History of Intellectual Development, iii. 34, &o. ; Morley 
 on OomproTmse. 
 
CONFLICTS OF IDEALS. 443 
 
 ences ? We have already seen how men belong to different 
 worlds in which the ideals necessarily differ. Indeed the 
 same man for different purposes may live in different worlds, 
 and it is often hard to keep them from coalescing. Some men 
 pray when they should be doing business, while others 
 swindle and cheat their deities even in worship. 
 
 In some aspects men's ideals are ridiculously high. 
 Hobbes was right when he said that in a state of nature 
 every man had a rigM to aU. things. The " all " that was, 
 was, however, not very much. But with the progress of 
 civilisation, peace becomes assured, and material interests 
 become indefinitely multiplied. How many thousands of 
 private soldiers have dreamt of becoming Napoleons ! How 
 many poor clerics of being Archbishops or Popes ! How 
 many law-clerks of being Lord Chancellors ! How many 
 ragged little boys of being millionaires ! In so far as their 
 dreams demanded actual realisation they were absurd, but 
 they perhaps spurred their ambition to do something, and in 
 the end most of them found happiness in a humble sphere, 
 and thanked God that their dreams were never realised. But 
 these ideals are inconsistent with similar ideals of others. 
 Every man cannot attain the highest position in the world 
 of material things. And such ideals only become moral 
 when they inspire the possessor of them to act so that he 
 may deserve them, and to find a satisfactory realisation in a 
 spiritual or intellectual form. 
 
 And this is no less true of the ideals of obligation and 
 duty. The youths whom we have just figured were pre- 
 pared to accomplish any task, were eager to undertake any 
 burden. The ordinary man asks work as a favour — a benefit 
 to be conferred on him. The shirking of work and the lazy 
 life of the Irish peasant, or of the old-fashioned university don, 
 are exceptional cases — the product of civilisation which has 
 provided for their material comfort on the standard to which 
 they have grown accustomed. An office without any duties 
 to speak of is a modern conception. Even the idle savage is 
 
444 THE AIM OF LA W. 
 
 a product of civilisation, because he is no longer allowed to 
 enjoy the strenuous life of the warrior and hunter — ^his own 
 ideals. The ordinary man finds a certain amount of work a 
 pleasure and a privilege. 
 
 Although we speak of such personal ambitions as ideals, 
 they are not truly so. They are, as a general rule, material 
 rewards demanded without consideration of the burden of 
 duty undertaken, or the impossibility for the claimants of its 
 performance. Nor is it astonishiug that they all fail of 
 realisation. If we consider how few men among the millions 
 who inhabit this world are required as leaders, if we deduct 
 the years of youth and age when men cannot work, and the 
 hours of their lives necessarily devoted to eating and sleeping 
 and recreation, we feel as if we could count the number of 
 effective hours of work and thought of all the leading men 
 in the world. These men are the brain of the body politic. 
 If the brain is small it may only maintain animal existence ; 
 but the larger it is and the more highly organised, the higher 
 will be the character of the whole body. 
 
 "We may here notice the ideals which Professor Lorimer 
 {Inst, of Law, 2nd ed. pp. 237, 353, and 523) regards as the 
 objects of law, for they illustrate the impossibility of setting 
 up one aim as the end of human life. Shortly, he holds that 
 order is the proximate object of positive law ; liberty the 
 object of natural law ; and Jmman perfection the object of 
 ethics. The sources of these ideals are obvious. The last is 
 Greek, the second is derived from Continental sources and 
 writers of the school of Locke, the first is sound British con- 
 servative utilitarianism. One end being final and supreme, 
 it must control the others. Can anarchy not be per- 
 mitted in one state or for a season in order to give an object 
 lesson to the world and educate men towards perfection ? 
 May not men be deprived of liberty for a season in order 
 that they may appreciate freedom ? And if it is answered 
 that eternal anarchy and perpetual slavery of the whole 
 universe is meant, we reply that such statements mean 
 
CONFLICTS OF IDEALS. 445 
 
 nothing. The terms " absolute order " and " absolute liberty " 
 may be predicated of chaos. "Order" as an ideal must 
 mean such order as does not destroy liberty, and positively 
 promotes human ends. The historical struggles for liberty 
 are by individual nations and individual men, and against 
 individual oppressors, or for particular material interests. 
 " Liberty " means such liberty as is consistent with order, and 
 also promotes human ends. Again, perfection is unattainable 
 unless men or at least man is eternal. " Perfection " can 
 only be taken with the qualification "in so far as man's 
 environment will permit" (p. 404, swpra). Can a being, 
 within whom the spirit contends against the flesh, and the 
 flesh against the spirit, ever reach perfection ? — (Taylor, Pro- 
 blem of Conduct, p. 241, &c). 
 
 But it is not necessary that you should have a theory of 
 the universe to justify your taking your dinner. All life is 
 made up of such isolated acts, and so it is possible for the 
 vast majority of men to do without remote ideals. But the 
 ideal assumes a new importance when the possessor tries to 
 impose it on his fellow-men. If they accept it and follow 
 him, all is so far well. If they refuse to follow, if they resist, 
 who shall judge ? If the ideas of liberty, temperance, 
 virtue, knowledge are originally negative, they soon become 
 positive forces. The individual possessing these is not in 
 general content with his possession, but strives to communi- 
 cate them to his fellow-men, or to use them to their dis- 
 advantage. But as a general rule the clashing of material 
 interests solves the problem automatically. By change of 
 circumstances one or both of the disputants may come to 
 regard their interests differently, or the subject of dispute 
 may entirely change its character. 
 
 On the other hand, it is often remarked how low are 
 men's ideals. The savage has no time for such day-dreams 
 as we have referred to above ; his heaven is " eating and 
 drinking." But even the modern statesman must often be 
 satisfied with little ; civilisation may mean only the absence 
 
446 THE AIM OF LA W. 
 
 of serious crime ; education may mean the power to read a 
 penny dreadful and laboriously sign one's name. If you are 
 starving and naked, your ideal will be a comfortable meal 
 and warm clothes. Now the great bulk of mankind are 
 labourers in some capacity, and from this category we must 
 not exclude many of the capitalists, and the foremen who 
 superintend them ; their ideals are in general very gross and 
 very low. In former ages they would have been savages, 
 slaves, or serfs — in many cases, merely things like beasts, the 
 property of a master or ruler. Modern Christian civilisation 
 has made them persons with rights, and it is the protection 
 and enforcement of these rights — person and property — 
 which are dealt with by law. 
 
 For the lowest members of the State, if we can so call 
 them, for they are really outside of society, we have the 
 criminal law — the lowest ideal of what is absolutely necessary 
 to keep society together. 
 
 The municipal laws of person, property, and contract and 
 mercantile law, deal with members of an orderly society, and 
 enable them to avoid collisions. They enable men to live 
 peacefully, though they may be Protestant or Catholic, 
 heretic or infidel. Conservative or Socialist, scientist, painter, 
 poet, or philistine, trader or sportsman. There is a certain 
 minimum, of intercourse possible, and for this the municipal 
 law provides. It may decide questions of property held in 
 trust, and leave it to the religious, artistic, or scientific bodies 
 to work out their special purpose in their own way, and by 
 their own particular private laws. 
 
 But ubi societas ihijus. We have already seen that wher- 
 ever there are external material prestations by one man to 
 another, there exists law or its analogue. But this principle 
 is of much wider application. In the worlds of religion, 
 morals, art, science, there are persons who claim deference 
 from others, who feel it to be a wrong if their opinions are 
 not implicitly accepted. There are others who from tempera- 
 ment or circumstances are ready to obey — to accept religious 
 
CONFLICTS OF IDEALS. 447 
 
 formulas and moral precepts ; or to admire statues, pictures, 
 poems, or symphonies, if they imagine that it is the proper 
 thing to do. Then there is the superior person, prophet, 
 priest, philosopher, or critic, who either assumes the part of 
 a judge or ruler over his fellows or is tacitly elected. He, too, 
 claims this jurisdiction or sovereignty as a right, but if he is 
 not voluntarily chosen they may resent his interference and 
 reject his proffered advice. If the ideahst identifies his 
 interest with his opinions, and can persuade a sufiScient 
 number of people to assist him, the ideas of this single 
 individual may become the interests of a society, and may 
 be imposed by force on a minority. Here we see the 
 intolerance of such idealists, and that the danger to the peace 
 of society is greater in proportion as the ideals are remote 
 from those which ordinarily prevail. Festina lente is often 
 seen to be the highest wisdom. If men are rational beings 
 the truth must ultimately prevail, provided the force used 
 for its propagation appeals mainly to the reason. Mere brute 
 force and persecution often set up material interests adverse 
 to the truth — i.e., what the legislator or persecutor considers 
 to be the truth. Even advertising, which is a form of 
 physical force, must be judicious. 
 
 The worlds to which men belong and their ideals do not 
 necessarily interfere with each other if they are actually 
 separated in space or time, or if they are studiously kept 
 apart. But this may not be possible at all stages of history. 
 For example when men insisted on external conformity in 
 reUgious observances on which the safety and well-being of 
 the state depended, the result was religious persecution. 
 In our own day persons whose tastes differ in art may 
 dispute tiU they commit a breach of the peace. Eminent 
 scientists may quarrel personally, and abandon each other's 
 society over some theory of the universe. Freedom of 
 religion, freedom of speech, and freedom of thought may be 
 claimed as rights or may even be conceded to be such by 
 society when the claimants confine their actions strictly 
 
448 THE AIM OF LA W. 
 
 to .themselves, but when these go further and claim the 
 aggressive right of propagating their views, they constitute an 
 attack on the corresponding rights of others. Others need 
 not come to listen to the propagandist whom they regard as 
 a nuisance, and if they do they are barred from complaint. 
 But those who complain of intolerance are often themselves 
 the first offenders. 
 
 Men have therefore discovered that, as all must walk and 
 move on the solid ground of the habitable globe, there is a 
 correspondiag sphere of rights which will enable them to do 
 so without excessive collision and friction. This we have 
 just seen is the municipal law — as a system of rights. It 
 differs locally like language, but in any case men can always 
 fall back on the language of nature — gestures and signs ; and 
 on the law of nature — attack, defence, or forbearance and 
 sympathy. What men, therefore, call law in the jural sense 
 is not an isolated phenomenon. It appears wherever living 
 selfTConscious individuals come into contact. Where we 
 must draw the line between our human laws, as enforced by 
 courts or enacted by legislatures, and the analogous laws 
 which decide questions of opinion in theology, science, or art, 
 when these are referred to a third party or to a tribunal 
 composed of experts, is a question which must be reserved 
 for discussion elsewhere.^ All these are true interests of 
 men, but they are not the interests that concern the 
 policeman- view of the law. The police will remove a 
 German band, not because you object to Beethoven's music, 
 but because you object to their "making a noise." Again 
 and again in the history of the world men have degraded the 
 spiritual to the level of the material interest. Men have — 
 
 fought " lite mad or drunk 
 For Dame Religion as for punk." 
 
 Politicians in certain ranks often assault each other. Tolera- 
 tion — religious and other — is one solution of the difficulty of 
 
 ' No reference is here made to the ethical side of art or science. See 
 Taylor's Problem, of Oo^idtict, p. 194. 
 
CONFLICTS OF IDEALS. 449 
 
 conflicting ideals. It is the plan adopted by common sense 
 men ; by gentlemen in polite society if they wish to retain 
 friendships ; by the executive in Ireland when they prohibit 
 certain political meetings, in order to prevent breaches of the 
 peace, while in other respects the utmost licence of speech 
 may be permitted. It is a fact that intolerance in private 
 life and in the State often defeats itself. The border line at 
 which toleration ceases to be a right and intolerance becomes 
 a duty must be discovered by a wise following of experience. 
 Some complain of the intolerance of the modern philan- 
 thropist, as if he would insist on everybody selling all that 
 he had and giving it to the poor. The ordinary Poor Law, 
 with rates equally spread over the community, so as to give 
 a minimum of support to the failures of society, seems a con- 
 venient mode of organising corporate charity. In the pro- 
 jectors of the system it was true charity, but when their 
 scheme was carried it became hard law. But some schemes 
 defeat themselves, as when proprietors of houses deemed 
 insanitary sometimes prefer to pull them down, so that the 
 law deprives some of the very poorest members of society of 
 all shelter whatever. Then come schemes of socialism for 
 housing the poor, providing amusement, &c. But all these 
 schemes depend ultimately on the physical facts of the 
 density of population, and the idea of personality that is 
 to be sustained. In a petty tribe, with unlimited land to 
 wander over, and powerful enough to keep out undesirable 
 strangers, communism is possible. There is a point — say, if 
 there were eighty millions of people in England — where 
 private property might become impossible. If a popula- 
 tion is struggling with famine and plague, the ideal is 
 to live merely, and socialism or communism may be the 
 necessary means to keep the society in existence. The bonds 
 of society may be unloosed and many may flee from the city 
 or state.i The existence of poor-houses, hospitals, and 
 
 1 Cf. the econemio effecta of the the statutes of Edward III. Of. 
 black death in England (Green, Short also Stephen, Liberty, Equality, and 
 History, chap. v. sect, iv.) ; and see Fraternity, p. 193. 
 
450 THE AIM OF LA W. 
 
 charities of all descriptions are a result of luxury and super- 
 fluous wealth. In a savage state all are what we consider 
 poor, and the modern civilised poor would either never eidst 
 at all or would die out from want of the lowest necessaries 
 of life. 
 
 But charitable institutions are an undoubted evil, in so far 
 as they undermine the independence of the poorer classes. 
 The aims of philanthropists are therefore economic as well as 
 moral. They are economic in so far as they aim at a more 
 uniform division of wealth, and moral in so far as they aim 
 at a higher standard of comfort, thrift in the use of wealth, 
 and independence of charity. Without moral improvement 
 the economic might only aggravate the evils complained of. 
 For example, if higher wages are spent only in drink, higher 
 wages are a loss and not a gain to the workers.^ Even old 
 age pensions must be in point of fact and must be regarded 
 by the recipient as mere deferred payment of wages, if the 
 manly spirit of the community is to be preserved. Other- 
 wise the working classes must sink to the level of the mobs 
 of ancient Eome, who looked to the State for food and amuse- 
 ment the whole aim of their existence. For these purposes 
 it may be necessary to forbid the immigration of undesirable 
 criminal or diseased aliens, for no statesman is called on to 
 legislate for the whole universe, and no state can be expected 
 to court destruction by sacrificing its own citizens to make 
 room for inferior races or the refuse of foreign nations. By 
 such legislation the ideal of humanity is not necessarily re- 
 stricted, because a state may afford assistance to strangers in 
 other ways than by offering then a miserable asylum. — 
 (Reeves, Btate, Experiments, ii. 328.) 
 
 There may also be a conflict of ideals as to legal forms. 
 These necessarily arise when a legal profession is instituted.^ 
 
 ' Report of the Prison Commis- religion. It is seen in the rise of 
 
 sioners for Scotland for 1901 [Cd. profesisionalism in modem athletics, 
 
 1060], p. 7. Same for 1902 [Cd. where a few play the games, and the 
 
 1540], p. 6. multitude, whose health depends on 
 
 ''■ This conflict between form and outdoor exercises, merely look on and 
 
 matter is not confined to law and bet on the result. These persons are 
 
CONFLICTS OF IDEALS. 451 
 
 The interests of the profession clash with the interests of the 
 persons whose rights call for vindication. The common man 
 calls for extreme rapidity and certainty of decision. The 
 scrupulous lawyer, who knows the difficulty of doing justice, 
 may elaborate forms and delay just to make sure that he is 
 right. The Chinese allow appeals and re-hearings until the 
 cost of the lawsuit outweighs the value of the matter at 
 stake. There must be a mean somewhere. In the Scottish 
 Small Debt Acts we have provided a form of action which is 
 rapid, cheap, and generally satisfactory. The new Mercantile 
 Court in London is another attempt to meet the particular 
 demamds of commerce. But in the ordinary legal procedure 
 in Scotland, and in conveyancing both in England and Scot- 
 land, there is much room for reform. These reforms are 
 neglected because the class they affect is a small one, and the 
 reforms demand professional knowledge. Such reforms will 
 only be proposed and carried by some lawyer who is willing 
 to be the mouthpiece of the public, and perhaps incur the 
 resentment of his professional brethren for a time. Such has 
 been the history of reform from the days of Solon to those 
 of Cneius Flavins, and even in our own day with the intro- 
 duction of the Torrens system of conveyancing in South 
 Australia. — (Harcus, South Australia, 75 ; Eusden, Hist, of 
 Australia, 2nd ed. iii. 422 ; Beeves, State Experiments, i. 211, 
 331.) 
 
 To discuss the distinction of form and matter^ would 
 carry us into the region of metaphysic. The distinction is 
 familiar to the common sense man and subserves useful 
 purposes ; but, as we have observed already, forms are not the 
 ultimate ideal of jurisprudence. Primitive forms are instinc- 
 tive, rude, and even unjust. The first justice, as we 'have 
 seen, is an affirmation of the need of forms. But the subject 
 of law is unintelligible unless it has a content of human 
 
 formal athletes. Betting gives the ' See Sir Courtney Ilbert's Legis- 
 
 gambler a formal interest in sport, latwe Methods and Forms. 
 though he may consider it material. 
 
452 THE AIM OF LA W. 
 
 interests. Plato, Aristotle, Isidore, St. Thomas Aquinas, 
 Hobbes, aU discussed matter as well as form of law. Hobbes' 
 antipathy to lawyers was about as strong as his dislike of 
 priests for their formalism.^ It is said that Austin made a 
 mistake in placing utiHtarianism in the forefront of his system 
 of analysis of forms. It was in reality a survival of the mode 
 of treatment followed by his predecessors. In early treatises 
 on International Law, substantive rights were prominently 
 discussed under the head of camiS belli — causes of war ; 
 modern treatises are almost entirely formal, but the material 
 aspect survives in chapters on recognition and intervention. 
 The impossibility of separating form and matter, however 
 hard you may try, is practically demonstrated by Professor 
 Holland in his J^orisprudence. He discusses marriage (p. 
 165), and actually classifies corporations " according as they 
 subserve [certain purposes]," — (p. 323).^ We have heard of 
 a Lord Chancellor who knew a little of everything except 
 law ; but one who knew legal forms and nothing else would 
 be a very useless personage indeed. You cannot write a 
 tragedy merely by learning spelling, grammar, and prosody. 
 Mere logic will not make a scientist or a statesman ; for, as 
 one of the most eminent living logicians has declared, the 
 chief purpose of the old formal logic of the schools is to 
 frame puzzles for students in University examinations. As 
 Professor Bosanquet says {Essentials of Logic, p. 44), "In 
 [one] sense logic is emphatically ' formal,' though not 
 nearly so formal as it is often supposed to be." The legal 
 philosopher must therefore be warned to remember — fi.ri8\v 
 ayav — summum jus summa injuria. Pure formal jurispru- 
 dence may be an Lateresting study to the metaphysician, but 
 
 ^ See his remarks on "Precedent," use of the term applies to Professor 
 
 — Works, iii. 91, 266 ; and iv. 228. Holland's, that it "affords an addi- 
 
 ^ Professor Holland (Jwr. pp. 7-8) tional specimen of the incurable con- 
 may urge that his use of the term fusion in which the processes of 
 "form" has the authority of Aris- thought are involved by the unliappy 
 totle {cf. ZeUer, Aristotle, &c. ii. 2), misapplication to them of the meta- 
 but Aristotle would have regarded phorical word ' form ' " (Mill on 
 Justice, Equity, Ac. as the form of Samilton, 2nd ed. 453 ; cf. Ahrens, 
 law. Mill's remark on Hamilton's Droit Nat. 7th ei. i. 152 et seq.) 
 
CONFLICTS OF IDEALS. 453 
 
 it is a matter of little concern to the common sense man 
 demanding his rights or inquiring as to his obligations, or to 
 the practical lawyer advising him or deciding as to the 
 validity of such rights and obligations. This is another form 
 of collision of ideals, but this is between those of the meta- 
 physical jurist and those of the practical lawyer. 
 
 Law has thus from the point of view of the common sense 
 man come back to the point from which it started. His first 
 laws were truly natural laws, plain, obvious, just inferences 
 from the facts of nature, so plain, obvious and just that they 
 seemed part of nature itself. They were like the pieces of ore 
 or pure metal which were found lying -on the ground, and 
 were used by the primitive man. Por the richer deposits 
 deep scientific mining may be required, and the reward is so 
 much greater. Primitive forms of procedure were informal 
 and chaotic. So the laws of the modern State are as truly 
 founded on the facts of nature, but as society has become 
 complex, and our knowledge has extended its ramifications 
 far beyond the powers of individual men, so our laws present 
 a continuous course of evolution, whereby they are accom- 
 modated to the growing complexity of society, and reconciled 
 with the ever-growing mass of human knowledge. How this 
 is to be accomplished the common man does not know, but 
 he calls in the aid of professional politicians of all classes, 
 experts, economists, and philosophers, recognised and ortho- 
 dox, as well as quacks. 
 
 And corresponding to the three ideas of right, duty, and 
 law we now find that our ultimate working statutes are not 
 what the ruler holds to be absolutely ideal, or what the 
 subject regards on the one hand as completely satisfying his 
 natural claims, or on the other hand as perfectly free of 
 burden, or what the outside prophet, idealist, or critic pro- 
 nounces perfect ; but they are what the ruler can enforce, 
 what the subject can secure or submit to, and what the fair- 
 minded critic charitably forgives in respect of human ignor- 
 ance and imperfection. If we may trust Plutarch {Solon, 15), 
 
454 THE AIM OF LA W. 
 
 this fact had been discovered by Solon six centuries before 
 the Christian era. It was discovered by the first philan- 
 thropist who tried to suppress lynch law. All working 
 laws and rights are the resultant of many forces ; they 
 are a compromise between the ideals, the passions, and 
 the material interests of the rulers, the subjects and the 
 greater public, who may be included under the description 
 of critics, guided or misguided by political philosophers. 
 
 When men regard their institutions or their laws as 
 perfect it is more probable that their ideals have changed 
 than that the world has improved. Long habit has made 
 them grow accustomed to their imperfections, or they have 
 grown weary of the struggle for improvement. Young men 
 see visions ; the old are naturally conservative. When the 
 millennium comes the world will be in its old age. 
 
 While the common man is not particularly concerned 
 with the means by which his laws are made, he is much 
 interested in the result. In other words, he draws no dis- 
 tinction between politics and jurisprudence, as he draws no 
 distinction between story-telling and Hterature. He cannot 
 make a coat or a pair of boots, but he knows when they fit 
 and when they are uncomfortable, and as for fashion he is 
 content to be led by his friends, or even by his tailor or 
 bootmaker. So with the results of legislation. He may 
 insist on its coinciding with the revealed will of God, 
 or with long-established prejudice and custom, or with 
 what he thinks to be justice and morality, or with 
 common sense — that is, the ideas or feelings of himself and 
 his immediate neighbours. If the new laws do not 
 seriously interfere with any of these vague ideas they will be 
 accepted or tolerated ; but if they do so interfere, the ideas 
 may be again modified to accommodate themselves to the 
 laws. Again, men may quietly ignore the laws and let them 
 become a dead letter, and so our great legislative activity 
 may result in nothing, like the great Hterary output which is 
 practically and avowedly unread. For the ordinary moral, 
 
CONFLICTS OF IDEALS. 45 S 
 
 just and law-abiding man the law may be ultimately summed 
 up in the three rules — to live honourably, to hurt no man 
 willingly, and give every man his due, or, in the old Levitical 
 rule, more commonly known as the Christian precept, to love 
 his neighbour as himself. But, however high his aspirations, 
 these maxims to the ordinary man are not merely metaphysic, 
 for he imagines that they mean something which he tries to 
 realise in actual life, although his interpretation and practical 
 application fall lamentably short in the opinion of the most 
 favourable critic. Who is his neighbour ? In practice it is 
 generally one of a very limited circle indeed, and those 
 outside, if not enemies, are fair objects of aggression and 
 plunder. What is honesty? It is too often the merely 
 abstaining from injuring one's neighbour, because the neigh- 
 bour might give back more than he got. When he gives 
 his neighbour what is his due, the amount is often measured 
 by the giver's meanness. When he places himself in his 
 neighbour's position he often regards himself as a paragon 
 of virtue, which he himself is not in actual practice. 
 
 It may be admitted for our present purpose that the 
 maxim " Thou shalt love thy neighbour as thyself " is an 
 ideal absolutely impossible of attainment. No man can put 
 himself iu his neighbour's place unless he can become his 
 neighbour and live all his life, with all his inherited qualities, 
 and then he has lost the position of being another, for he has 
 become the neighbour. It may also be admitted that if it 
 were attempted to carry out the principle to its logical end, it 
 would destroy society. If interpreted literally it would 
 imply every man abandoniug a task for which he had at least 
 some qualifications, and devoting himself to another for 
 which he had almost none. — {Cf. Beattie Crozier, InUl- 
 lectual Development, iii. 28.) But at the same time it must be 
 admitted that the maxim in some form or other is wide- 
 spread,^ and is the only practical rule of law or morals which 
 some men possess. It is an example of generalisation or 
 
 1 It was expressly taught by Confucius (Max Miiller, Last Essays, ii. 270). 
 
45 6 THE AIM OF LA W. 
 
 universalisation of an idea common to the unscientific man. 
 It is an extreme revulsion from the hate or suspicion of his 
 neighbour, which is attributed to savages and primitive 
 peoples, which, indeed, is also a rule incapable of universal 
 application, the two ideas being the extremes of the analytical 
 spectrum, to which we have referred. Hatred of enemies 
 will produce little practical inconvenience, if you hardly ever 
 see a stranger. It is easy to love everybody when you know 
 only a dozen to speak to, and others only to look at. The 
 man of good intentions possessing only this rule will act like 
 the countryman introduced to court life whose only idea of 
 etiquette is to do as he sees others doing. He will make 
 many blunders, but his neighbours, perhaps guided by the 
 same rule, will charitably excuse them, or will thank him 
 for the enjoyment they derive from his mistakes. So in legal 
 matters, the man with the constant and perpetual will to 
 give his rights to his neighbour will in a case of difficulty 
 consult a friend, a professional lawyer, or even apply to the 
 law courts for guidance. We are not here dealing with the 
 criminal class but with men in society, who are willing and 
 ready to give every man his due if they only know what that 
 is. Such a man may live a long life without being able to 
 formulate a single rule of law, just as he may carry on con- 
 versation without being able to parse a word or having ever 
 heard of a rule of grammar. The Ten Commandments for 
 such persons contain sufficient detail. They interpret and 
 apply them for themselves, and as with what we have de- 
 scribed as prophylactic law (p. 254), persons whose con- 
 sciences are very sensitive will avoid the very appearance of 
 evil, and carry their rule a great deal further in practice than 
 a third person would be disposed to prescribe. We may 
 compare these vague general rules to old statutes which 
 briefly laid down a principle to be applied and developed by 
 the courts. Many men are worse than their professed creeds, 
 and as many are better. Circumstances — the physical environ- 
 ment — determine so much for men that the average conduct 
 
CONFLICTS OF IDEALS. 457 
 
 may be very similar, while their abstract ideals are even con- 
 tradictory. The theoretical creed may be seen only in occa- 
 sional outbursts of fanaticism or in occasional acts. 
 
 The rule in question is more easily applied in questions 
 of morals and etiquette, where the prestation demanded or 
 expected is mere feeling or kind words. There are churls to 
 whom it is an effort to be polite ; polite society deals with 
 these as criminals, by banishment or social ostracism ; those 
 who have the power may administer punishment appropriate 
 and severe. The rule is a general rough guiding principle 
 for society, judges as well as individual actors, and is readily 
 interpreted by experience and circumstances. It is a rule 
 which enables men to overcome friction in society. But at a 
 certain stage, where the friction becomes violent collision — 
 cases of slander, assault, and serious fraud and cheating — the 
 appeal is to the State law courts and a wider society. But 
 the law applied by these courts — except, perhaps, when a jury 
 is introduced — is more regular, more rigid, and embraces a 
 wider extent of experience. The reference to a jury is thus 
 not only an appeal to a looser equity, as in criminal trials in 
 France, but an appeal to material experience and knowledge 
 of the world, as in most civil jury trials in England. Legal 
 form, strictly so-caUed, stops when the issue is remitted to 
 the jury, and begins again when the court formally applies 
 the verdict. The substance of the decision is the justice, 
 equity, and experience of common sense men, guided by the 
 special legal experience of the presiding judge. 
 
 The good citizen grows into the legal system, and to him 
 it becomes as natural and as much part of himself as his 
 mother tongue. Eight, Duty and Law are merely analytical 
 abstractions. Eight appears when he wishes to assert and 
 justify an act of aggression on his own part, or resist aggres- 
 sion on the part of others; Duty when he justifies and 
 recognises a burden imposed on him ; and Law when there 
 is a conscious attempt at reconciliation of a conflict. In real 
 life they are all present as a single living process, and the 
 
458 THE AIM OF LA W. 
 
 abstractions make their appearance only when the process is 
 disturbed. 
 
 The Eoman maxims and the Levitical or Christian indi- 
 cate the two points of view which we have already 
 discussed — the physical and the ideal, the legal and the 
 religious, the formal and the material; but they both 
 arrive at the same result, because they are both rules for 
 actual conduct in the same physical world, and they must 
 be interpreted and applied in the light of experience. 
 The two views, the Eoman and the Christian, are supple- 
 mentary ; they are founded on human instincts, and so 
 we may say that ordinary men and women guide their 
 conduct by the law of nature — the law written on every 
 heart, the law of which no man can plead ignorance. 
 
 Thus in the common sense man we have traced a develop- 
 ment of the idea of right. It arose in the physical relations 
 of men competing for possession of fields and material 
 things; it expressed 'itself in vague forms of actions, 
 claims, appeals — for rights, justice, liberties, immunities, 
 powers, and was embodied in nilers, judges, justices, censors, 
 — definition so indefinite that it was not definition. What- 
 ever form the claim or the award may take — law, justice, 
 equity, morality, religion, reasonableness, rationality, utility, 
 it is in idea one — the public good. The idea is one and the 
 same, because however human experience may vary, human 
 nature is fundamentally the same in all climates and in all 
 ages.i 
 
 The professional lawyer is therefore entitled to maintain 
 that law implies and embodies all these ideas. He may 
 regard himself, as Ulpian thought he should, as a priest of 
 right, for his knowledge and experience, more wide and 
 abstract than that of the common man, may appear to the 
 latter as in a sense supernatural, but the danger to the legal 
 profession, as to all priesthoods, is the tendency to 
 exalt the form over the spirit, to become a slave of external 
 ^ Stephen, Liherty, Equality, Fraternity, p, 195. 
 
CONFLICTS OF IDEALS. 459 
 
 ritualism — to imagine that institutions and conduct must be 
 just because they are legal, or customary, or in accordance 
 with actual facts.^ 
 
 The apparently insoluble difficulty of reconciling our 
 ideals with practice may be overcome in the actual lives of 
 all right-minded and intelligent men, by at once keeping 
 our feet firmly on the solid ground of fact and experience, 
 and our eyes fixed on the pole-star of justice, to which men 
 in all ages and in all quarters of the globe look for guidance.^ 
 But philosophers and historians tell us that notions of 
 justice are perpetually shifting, just as astronomers tell us 
 that what we ignorantly call the fixed stars are palpably 
 moving to their more acute vision. If the navigator assumes 
 that the stars are fixed he will not err ; for his short voyage, 
 for our short lives, for our short stages they are fixed. Besides, 
 for still shorter coasting voyages, such as most men take, our 
 ordinary experience and knowledge of headlands, tides, and 
 currents suffice. So in society men have in general to deal 
 only with a small circle of which they are the centre — their 
 own family and immediate associates. To consider the affairs 
 of the universe while more immediate concerns call for atten- 
 tion is to court certain disaster. Equality — swiiim, cuique — 
 love of one's neighbour as one's self, to respect the traditions 
 of his ancestors, or the opinions of his fellows, are fair 
 working rules for the ordinary common sense man. If he 
 thinks his rule divine, or philosophical, or rational, it will 
 have a stronger hold of his spirit. But the sphere within 
 which his spirit can alter its environment is so small that 
 human life can be regarded as subject to evolution and so 
 can be treated scientifically, for it is subject to truly physical 
 laws of nature which cannot be evaded. 
 
 And this applies to the judge and the legislator as well as 
 to the litigant or the citizen in his private life. The judge 
 
 ' Cf. Cieero, Be legibus, i. 15, 42, ' oid' la-ircpos oSd' efos oilra 0av- 
 
 with the views of Hobbes, pp. 357 /iao-ris.— Aristotle, Ethics, v. 1. 15. 
 and 400, supra. 
 
46o THE AIM OF LA W. 
 
 swears on appointment that he will "do right." He may 
 dream of ideal justice, but his daily routine of duty calls him 
 to decide perhaps hundreds of cases involving trifling sums of 
 money, and trifling squabbles and petty points of detail in 
 procedure. If he has the constant and perpetual will to " do 
 right," he will decide everything in accordance with legal 
 tradition and the general moral aims of society. So the 
 legislator, whatever his ideals, whatever the promises he 
 makes before his election, soon finds that he is not legislating 
 for the millennium, but groping painfully in a dim twilight of 
 ignorance and prejudice; that he must be content with a 
 supervision of public affairs from day to day, voting aimual 
 supplies, and passing enactments which at the best may be 
 only a temporary alleviation of human troubles. 
 
 In our discussion of Eight, Obligation and Law we found 
 that it was possible to express each of these ideas in an 
 infinite series (pp. 122, 199, 203, and 316, supra). We now 
 find that the aims of men can be presented in the same form. 
 The litigants immediately interested in the subject of a suit 
 have a very narrow and present object in view. No doubt 
 there are exceptions. But with all deference to Von Ihering,^ 
 most Englishmen would say that their countryman described 
 by him, who spends money and time litigating about an 
 overcharge in a hotel bill is a fool, and very far indeed from 
 being a type. The heavens will not fall though he pays a 
 few marks beyond the market rate for lodging and food. 
 The Scotsman, at least, has a more excellent way ; he would 
 pay, and take the lesson ; he would warn his friends, so that 
 the hotel-keeper would lose more than he ever dreamed of 
 gaining ; and for the future he himself would make bargains 
 beforehand with hotel-keepers, cab-drivers, and porters, 
 and so save both his temper and his pocket. 
 
 But the judge in a litigation has other ends. He does 
 justice to the individuals in accordance with his oath, but as 
 
 1 Kampf xun's Hecht, 17tli ed. p. 45 ; quoted with approval by Paulsen, 
 MhiJc, 5th ed. vol. ii. p. 143. 
 
CONFLICTS OF IDEALS. 461 
 
 he is setting up a precedent, he tries to do justice to pos- 
 sible future litigants. If this is law, it is a general rule. 
 This, as we have already seen, is what is meant by the quali- 
 fication of generality added by Hobbes and his successors 
 to their definition of law. — (Holland, Jut. 22.) And once 
 more the legislator^who is, so to speak, deciding disputes m 
 vacMO, necessarily makes his rules still more general. He 
 has the interests of the whole body politic to consider. 
 Then the philosopher takes a still wider view, and tries to 
 embrace men of all time and men of all races in. his ideal. 
 And if we dare to speak of God as a legislator, He legislates 
 for a universe of which we know almost nothing. 
 
 We have noticed the tendency of law to become prophy- 
 lactic, — that is, to anticipate and prevent breaches of order 
 at increasingly earlier stages. There is a corresponding 
 tendency to make ideals more and more remote, to grasp at 
 ultimate perfection ; but of course if men's remote ideals are 
 already transcendental, the exigencies of practical life compel 
 them to adopt less remote concrete ideals. On the scientific 
 side we may recognise these tendencies in Mr. Spencer's 
 demand of a " rational utilitarianism " as opposed to the 
 merely " empirical." The distinction is between proximate 
 and remote, either in the past or the future. — (Frinciples of 
 EtUcs, i. 57.) 
 
 In all our discussion we have been dealing only, or at 
 least mainly, with the ordinary conlmon- sense man, and so a 
 discussion of the exceptional man — prophet, reformer, genius 
 — is beyond our present purpose. He also is a man and sub- 
 ject to the physical laws of nature. What can we say of his 
 ideals, and whence they come ? What can we say of conflicts 
 of ideals such as those presently to be noticed, which have 
 appeared in history and affected law and legislation ? We 
 can hear the sound thereof, but cannot tell whence they 
 come and whither they go. But this we do know, whatever 
 they are to the founders — divine, rational, just, equitable, 
 natural, or any other name you can devise — they change 
 
462 THE AIM OF LA W. 
 
 with their successors. The ideas become material interests — 
 common everyday claims of right; kings, priests, jurists, 
 soldiers, poets, artists, become members of trades or profes- 
 sions. They work for money, or merely to maintain the 
 founder's tradition ; the body may be left and the spirit 
 gone. A great reformer may found a church or a university ; 
 piety or learning may be his ideal ; a time comes when his 
 successors are concerned merely with benefices, titles, salaries, 
 and statistics ; professors may try to get as much money as 
 possible for as little work as possible, and some students 
 may think of nothing but passing examinations and taking 
 degrees. Here we have another law of nature, a fact of 
 human history which demands examination. Everyday ex- 
 perience shows that it applies to every Act of Parliament. 
 The very men who voted in the majority for it, set them- 
 selves to defy or defeat its provisions. 
 
 We have already compared the leaders of men to the 
 brain of Society. We might compare them to the reed which 
 sets an organ-pipe in vibration. If they are not tuned to 
 the same note there is no result, but when they are in tune 
 the great sympathetic tone of the pipe responds to the 
 motion of the invisible reed. The inspired prophet who 
 finds his teaching accepted has no doubt that the acclaiming 
 voice of the people is the very voice of God. But when 
 masses of men inspired by these ideas come into conflict 
 we seem again to be face to face with the elementary 
 forces of nature. Hobbes was wrong in imagining that 
 war — the helium omnium contra om,nes — ceased by the in- 
 stitution of the State. It merely took another shape — 
 modern competition in trade, conflict in matters of opinion, 
 and in politics and religion. War, like thunder, storm, 
 tempest, and earthquake, seems to be the natural mode of 
 solving the problem presented. So we see a struggle for 
 supremacy between Eoman civilisation and Carthaginian — 
 Aryan and Semitic ; the Crusades — Christianity and Moham- 
 medanism ; the thirty years' war — Protestantism and Catho- 
 
CONFLICTS OF IDEALS. 463 
 
 licism ; the civil war in England and the Napoleonic wars — 
 feudalism and democracy ; the civil war in America — slavery 
 and freedom — agriculture and manufactures ; the labour wars 
 of the last few years on the European Continent and in 
 America — capital and labour. These are only a few types of 
 events which show how helpless men are to rule themselves.^ 
 It is no answer to this to show that every single individual who 
 drew a sword or fired a shot in these struggles had a motive 
 peculiar to himself, one for glory, another for money, a 
 third because he was compelled, a fourth for hate of some 
 individual enemy. The war and the ideas which it repre- 
 sents are more than the sum of these motives, and different 
 from them, just as we know that each particle of sand in an 
 earthquake has its path determined by dynamical law, but 
 the whole phenomenon cannot be measured and described,' 
 except vaguely and generally by science. All that men can 
 do is to adapt themselves to the changes made, and try to 
 avoid being individually overwhelmed by what they cannot 
 control. It may indeed be fairly maintained that the ideals 
 referred to are genera,lly unknown to the actual combatants, 
 but are abstractions made long afterwards by the spectator, 
 historian or philosopher, in order to make the struggle and 
 its issue intelligible to himself. So we have reached a stage 
 of our discussion where we feel law ought to prevail and does 
 prevail, but it is a law beyond human power to enact or 
 enforce. To jurisprudence as to science all things are 
 assumed to be possible. The ordinary achievements of 
 science are impossible to one generation and miracles 
 to the next. So in law and polities men try to hit the mark 
 by overshooting it. A few years ago the Czar of all the 
 Eussias invited a congress to meet for the purpose of dis- 
 cussing disarmament and inaugurating an era of peace. 
 The congress met and made a few laws — real jural laws 
 
 which should satisfy the most orthodox Austinian. 
 
 They set up tribunals to deal with a few petty questions ; 
 
 '^ Stephen, Lil:iiy, Equality, Fraternity, pp. 179-183. 
 
464 THE AIM OF LA W. 
 
 they made regulations for combatants, and provision for 
 attending to the wounded, but they left the fundamental 
 question of the possibility of perpetual peace where they 
 found it — an unsolved mystery. But the State itself is a 
 wonderful invention to which men have grown accustomed. 
 If the individual man is rational, and endowed with a power 
 which men call free will, why should not mobs be rational 
 also ? We have partially succeeded with the State, why 
 should we despair of future progress in the same direction ? 
 
 The fallacy of all such schemes Hes in this, that because 
 for some purposes we can abstract the State or humanity and 
 treat it as a person, as a unity — a Leviathan — it is assumed 
 that the State is a unity for all purposes.^ The institution 
 of royalty, where the King is the centre of inertia of the 
 social system, has enabled men to grasp the unity of the 
 State, and modern kings are a powerful factor in maintaining 
 peace and order in the world. Modern wars are due chiefly 
 to the ignorance of savage and semi-civilised communities, 
 and to the passions of rashly thinking mobs. Can these be 
 controlled ? One way is by counter appeals to feeling ; but 
 this is not always successful. An appeal to brute force may, 
 as with persecution, defeat itself or secure a barren victory. 
 Nor are material ideals and mechanical compromises more 
 successful. The utilitarian philosophy has been represented 
 as an attempt to bring morals within the area of science 
 (Stephen, Liberty, Equality, Fraternity, 2nd ed. p. 357), 
 but the difficulty is to find a standard of measure- 
 ment. Certainly happiness is inadequate. It may be sug- 
 gested that the utilitarian school in England attempted to 
 extend economic formulas to morals, with its parade of 
 mathematical figures and notation ; but even economics 
 reaches " very few practical conclusions." — (Marshall, 
 
 ^ A curious difficulty in this stration are too small for tramway- 
 respect has arisen in recent practice systems and the supply of electricity, 
 of municipal politics. It is found So with parishes as educational 
 that the areas of burghs which were areas. 
 sufBoient for ordinary legal admini- 
 
CONFLICTS OF IDEALS. 465 
 
 Economics, 3rd ed. i. p. 748.) John Stuart Mill seems also 
 to have blundered in extending the idea of right — as a purely- 
 legal conception— to spheres in which it had no meaning. It 
 is impossible to treat the rights of states, or the rights of 
 races of men, as if they were rights of single private indivi- 
 duals to their clothes, their weapons or tools. It is impos- 
 sible to treat freedom in general, religion, thought, as if they 
 were material things which can be seen and handled. But 
 at the same time all these ideas are realised, and can be 
 realised only in living individual men, in actual corporeal 
 things, and definite individual acts. Law in the jural sense 
 has its actual foundations deep in the physical nature of 
 men and of things. Law and the idea of legal right are, 
 however, only the foundation on which the superstructure 
 of social relations must be built. Every law demands in its 
 application notions of justice, equity, morals, religion, and 
 practical experience of the world of men and things. The 
 problem how to reconcile the physical and the spiritual sides 
 of man's nature — rigidly formal law with the aspirations of 
 justice and equity — is one of pure metaphysics, which 
 nevertheless each man must solve for himself in some prac- 
 tical shape, under pain of death. 
 
 It will be maintained by some that such questions do not 
 belong to jurisprudence. But this is not the view of the 
 common sense man, or even of the practical lawyer, who is 
 concerned with the living organism of society. Jurispru- 
 dence is not mere morphology. The morphological jurist is 
 like a naturalist who throws away the oyster and studies the 
 shell which was made by the oyster and has a meaning only 
 for it. The pearl merchant and the legal tradesman are 
 confined by the exigencies of trade to external forms, but 
 they have no title to criticise the scientific standpoint, which 
 regards even the shell as a living process. The phenomena 
 of jurisprudence are continuous, as the history of politics, 
 ethics, and economics shows. We cannot, for scientific pur- 
 poses, draw an arbitrary line between law and these sciences 
 
 2g 
 
466 THE AIM OF LA W. 
 
 and confine the province of jurisprudence to legislation, as 
 Austin virtually did, or to judicial decrees and precedents, 
 as has been proposed more recently, or even to extrajudicial 
 forms, as we have examined these in the foregoing discussion. 
 Common sense rebels against the restriction of jurisprudence 
 to the anatomy of the skeleton of law in forms, and strives 
 continually to deal with the physiology of society. A living 
 organism will profoundly modify the skeleton, even if it 
 cannot make one entirely new. The ordinary man is 
 interested in the life, the spirit, the soul of the law, and 
 this fact has been emphasised by Montesquieu and Von 
 Ihering in the titles given to their great works. It is this 
 life which appears in the common sense and tact of the 
 practising lawyer, the broad equity of the courts and the 
 legislature, and which is assumed in the conduct of the 
 individuals who are subject to the law, who claim rights and 
 fulfil duties. The history of law is a perpetual struggle to 
 give a concrete form to this living spirit. The legal 
 pedant, no doubt, has his uses ; but as with the grammarian, 
 the common sense man, for whose benefit" laws exist, soon 
 grows impatient of his rigid absurdities when they defeat 
 the very ends of justice itself. The parallel between the 
 development of law and of language is in this respect very 
 close. Both take their rise in the needs of ordinary men ; 
 both tend to become rigidly formal in the practice of 
 specialists and experts ; and both have been revolutionized, 
 complicated, and simplified by the supervening usage of com- 
 mon men, as in modern English and the Eomance languages, 
 and in mercantile law, the law of wills, and other depart- 
 ments. But beneath verbal forms thought is persistent if 
 not unchangeable, as beneath legal forms there is eternal 
 law — ^justice. The scientist may distinguish thought and 
 language, legal forms and justice, but the common man finds 
 them one in experience, and strives to obliterate the dis- 
 tinction. 
 
 As the philosophical jurist passes in succession from the 
 
CONFLICTS OF IDEALS. 467 
 
 crude hard facts of legal practice, as seen, for example, in 
 courts-martial in time of war, through the series of criminal 
 systems, municipal laws, and special codes, he finds always a 
 residuum beyond, which appears to baffle his impotent 
 analysis, as those scientists who in recent years have 
 devoted their energies to liquefaction of gases always find a 
 new gas, which appears to defy their powers. Nowhere has 
 this idea been more finely expressed than in the lines of 
 Browning, which have been already referred to, where he 
 speaks of — 
 
 " every intermediate kind of court 
 That takes account of right or wrong in man, 
 Each unit in the series that begins 
 With God's throne, ends with the tribunal here. 
 God breathes, not speaks, his verdicts, felt not heard, 
 Passed on successively to each court I call 
 Man's conscience, custom, manners, all that make 
 More and more effort to promulgate, mark 
 God's verdict in determinable words, 
 Till last come human jurists — solidify 
 Fluid result, — what's fixable lies forged, 
 Statute, — the residue escapes in fume, 
 Yet hangs aloft,, a cloud, as palpable 
 To the finer sense as word the legist welds.'' 
 
 {The. Biiig and the Book, v. 1761-1784.) 
 
INDEX. 
 
 Ability, 63, 71, 72. 
 
 Absolute right, 122. 
 
 Accident, 56, 208. 
 
 Act {Ada, Acte, Aden), 300-303, 318. 
 
 Action, 32, 51, 55, 58, 63, 87, 89, 121, 
 
 133, 151, 159, 285, 300. See Lia- 
 bility ; Obligation. 
 "Action lies," 54, 58 ; Right of, 52, 
 
 75, 86, 122, 133, 215. 
 Actio sacramenti, 420 ; Fwii, &o., 193. 
 Advocate, 217, 242. 
 .fflschylus, 42, 128. 
 Ahrens, 131. 
 Aims of men and law, 12, 92, 262, 
 
 268, 269, 277, 320, 321, 346, 348, 
 
 351, 352-467. See Interest. 
 " Alabama claims," 62. 
 Alfred, Laws of, 427. 
 Allegiance, 200. 
 Alterwm 7wn Icedere, 321. See Prcecepta 
 
 jwris. 
 American Constitution, 285. 
 Analogues of law and procedure, 248, 
 
 363, 438, 446. 
 Analysis, 32, 122, 284, 287, 363, 406- 
 
 407, 467. See Eight. 
 Anarchy, 265, 444. 
 'kvai, 39. 
 
 Anglo-Saxon RiU, 47, 292, 377. 
 Anirrms, 109, 135, 168. 
 Answer, 57. 
 Answerable, 161, 162. 
 Antecedent rights, 122. 
 Anthropomorphism, 119. 
 Apastamba, Laws of, 40. 
 Appeal, 69. 
 Aquinas, St. Thomas, 388, 394, 410 
 
 421. 
 Arbiters, 360, 361. 
 Arbitration, in trade, 251, 258, 343 ; 
 
 International, 437. 
 Aristotle, 864, 371, 381, 391, 409, 441. 
 Arrlt, 294. 
 
 Art of conduct, 13, 283. 
 Art and invention, 11. See Invention. 
 Assignattis uiitur jure auctoris, 115, 
 
 385. 
 
 Athenian law of debt, 144. 
 
 Auctoritas, 115. 
 
 Augustine, St., 163, 356. 
 
 Austin, 78, 160, 238, 257, 258, 283, 
 
 337, 396, 452, 466. 
 Austrian Code, 405. 
 Authority, 63, 64, 70, 98, 100, 110- 
 
 112, 115-116, 118, 131, 397. 
 Authorities, 65, 83, 116. 
 Auto dafe, 301. 
 Avebury, Lord, 222 (note). 
 Ayliffe, Dr., 80. 
 
 Balfour's Praelicks, 53, 76, 99, 170. 
 
 Bankruptcy, Preferences in, 108, 123. 
 
 Bankton, Lord, 77, 335. 
 
 Barrister. See Advocate. 
 
 Basileus, 39. 
 
 Bees, Society of, 9. 
 
 Belgian Code, 298. 
 
 BeUwm omnium coTiira omnes, 369, 462. 
 
 Benefice, 110. 
 
 Beneficial right, &c., 83, 90, 110. 
 
 Beneficiary, 110. 
 
 Benefieiwm, 108-110, 177. 
 
 Benefit, 108 ; of clergy, 109. 
 
 Bentham, 67, 172, 231, 412. 
 
 Betting, 359, 451. 
 
 Bible, Laws derived from, 426-427. 
 
 Blackstone, 88, 170, 317, 425. 
 
 Blood, Avenger of, 55. 
 
 Board of Trade inquiries, 249. 
 
 Boo-right, 64. 
 
 Bond, 170, 244. 
 
 Book of Dead, 36, 37. 
 
 Bosanquet, Prof., 452. 
 
 Boundary stones, 38, 73, 144, 152, 
 
 213, 221, 268, 292, 305, 418. 
 Braoton, 185, 384, 389. 
 Britton, 127, 174, 186, 189, 389. 
 Browning's The Bing and the Book, 
 
 129, 147, 213, 216, 280, 316, 467. 
 Bryce, Mr. James, 119, 421. 
 Burden, 181-184 ; of proof, 181 ; Eeal, 
 
 183. 
 
 Canon, 37, 174, 189, 305, 307. 
 
470 
 
 INDEX. 
 
 Oanon law, 291, 302, 306, 307, 414, 
 
 430. See Ecclesiastical. 
 Capacity, 56, 63, 71-72, 115, 117. 
 Capito, 289. 
 
 Carmichael, Gersohom, 411. 
 Case, 17, 26, 29, 56, 131 ; Good, 57, 75, 
 
 160 ; Nature of a, 28, 56-57, 133, 
 
 197, 212. 
 Cases quoted or commented on — 
 
 Allen v. Flood, 91, 137, 258. 
 
 Bruce v. Smith, 345. 
 
 Buchan v. North British Railway, 
 223. 
 
 Castrique v. Imrie, 77, 108, 130. 
 
 Clarke v. Carfin Coal Co., 52, 60, 
 335. 
 
 Cramb v. Caledonian Railway, 19. 
 
 Edinburgh Street Tramways Co. v. 
 Torbain, 21. 
 
 Heaven v. Pender, 179, 196. 
 
 Hood V. Murray, 90. 
 
 KeiUer v. Magistrates of Dundee, 75. 
 
 Lumley v. Gye, 137, 202. 
 
 Neale v. Gordon Lennox, 215, 242. 
 
 Orr Ewing v. Orr Ewing's Trustees, 
 201. 
 
 Orr's Trustee v. Tullis, 245. 
 
 Poll 1). The Lord Advocate, 53, 303. 
 
 Queen, The, v. Keyn, 114. 
 
 Quinn v. Leathern, 91, 138. 
 
 Ralston v. Hamilton, 228, 390. 
 
 Ritchie v. The Clydesdale Bank, 333. 
 
 Sharp v. AVakefield, 251. 
 
 Symington v. Symington, 386. 
 
 Thorogood v. Bryan, 275. 
 
 Whitehead v. Blaik, 75. 
 
 Yzquierdo v, Clydebank Engineering 
 Co., 288. 
 Casuistry, 174, 410, 414. 
 Goisus lelli, 57, 452. 
 Causa debendi, 160, 168, 181. 
 Cause, 57-58, 73, 74, 168 ; Final, &c., 
 
 441. 
 Censor morum, 46, 407. 
 Cessante ratione, cessat ipsa lex, 390. 
 ChaiiTuan of meeting, 248. 
 Charge, 183-188 ; and burden, 187 
 
 (note). 
 Charity, 450. 
 Chaucer, 292, 418, 422. 
 Chinese law, 226, 461 ; literati, 109. 
 Chose in action (3 F. (H.L.) 33), 54, 93. 
 Christianity and law of England, 425. 
 Chrysostom, 394. 
 Church and art, &c., 421. 
 Church seat, 95 ; laws, 275. 
 Cicero, 34, 50, 103, 193, 291, 365, 382, 
 
 388, 394, 420, 433, 438, 459 (note). 
 Cippus of Horus, 418. 
 Citation apttrf acta, 301. 
 City as origin of law, 42. 
 Civil and ecclesiastical affairs, 422. 
 
 Civil rights, 89, 268 ; obligations, 192- 
 193 199 
 
 Claim', 58-63, 75, 77 ; claims, 123, 124, 
 165, 249, 286, 335 ; Court of, 60, 
 135, 251. 
 
 Clark, Professor, 35, 265, 292. 
 
 Classification of rights, 86-92, 95, 125 ; 
 of obligations, 190-199 ; of laws, 284- 
 286 ; of justice, 364. 
 
 Clergy as citizens, 428. 
 
 Clerkly privilege, 109. 
 
 Clubs, Drinking, 246. 
 
 Cnut, Laws of, 210, 215, 221. 
 
 Codes, 220, 224-229, 285, 349. 
 
 Coks, Sir Edward, 309, 345, 426. 
 
 Collisions of moralities, 414 ; of re- 
 ligions, 429 ; of rights, 107, 123, 
 138, 209, 213, 224, 267, 270, 278, 
 283, 338 ; of obligations and inte- 
 rests, 173 ; of ideals, 442-467 ; of 
 laws, 124, 136, 275, 277, 278-280 ; of 
 customs, 346, 350 ; of equities, 124, 
 385; of jurisdictions, 201. 
 
 Command, Law as a, 125, 170, 237, 
 264, 283, 311, 319, 321, 399. 
 
 Commercial customs, 328-331. 
 
 Commissions, Parliamentary, 249, 257. 
 
 Common law. The, 347. 
 
 Common sense, 1, 346, 350, 466. 
 
 Communis error fadt jvs, 336. 
 
 Companies, " One-ship," 246. 
 
 Competency, 53-56, 58, 65, 68, 72, 111, 
 202. See Potestative. 
 
 Competition of equities, 124, 385. 
 
 Completion of title, 73. See Title. 
 
 Compounding a felony, 89, 156, 194. 
 
 Compromise, 9, 10, 27, 213, 442, 454. 
 
 Conditions in contracts, 197. See Con- 
 tingent. 
 
 Consciousness, 7, 32, 346. 
 
 Confession of Faith. See Westminster. 
 
 Confessional. See Casuistry. 
 
 Conflict. See Collision. 
 
 Confucius, 455 (note). 
 
 " Consideration " in English law, 229. 
 
 Gonsolat del Mar, 221, 344. 
 
 Conspirators, Laws of, 136, 277. 
 
 Constables' powers and privileges, 106. 
 
 Constitutional law, 263, 270-274, 278 
 (note), 298, 358, 362. 
 
 Constitutions of Emperors, &c., 290, 
 297, 344. 
 
 Contingent and conditional rights, 90 ; 
 obligations, 197 ; laws, 285. 
 
 Contractu, Obligations ex, 168, 191. 
 373. 
 
 Contractua.1 rights, 119, 125; obliga- 
 tions, 197, 198. 
 
 Convention, 289 (note). 
 
 Conveyancing, 239, 243, 305 (note), 
 311, 330, 418 ; Acts, 255. 
 
 Corporations, 105, 266 ; sole, 96. 
 
INDEX. 
 
 471 
 
 Corpus juris canonici, 293, 307. 
 
 Cmyus juris dmlis, 291. 
 
 Coulanges, M. de, 153. 
 
 Course of dealing, 333. 
 
 Court, 111, 219, 260. See Jurisdiction. 
 
 Court-martial, 249. See Martial. 
 
 Coustimiier de Normandie, 377. 
 
 CoiUume, 345. 
 
 Crimen, 160. 
 
 Criminal law, 127, 193, 213, 267-270, 
 399j 446 ; rights, 89, 116-117 ; obli- 
 gations, 193. 
 
 Criminal and society, 136, 259, 261, 
 270, 276, 284, 446. 
 
 Croabbon, M., 275, 338. 
 
 Crofters Commission, 257. 
 
 Cross-examination, 216, 230. 
 
 Crown rights, 61, 76, 96, 100, 102, 
 117, 127, 128, 130, 218, 220 ; debts, 
 272. 
 
 Crozier, Mr. Beattie, 436. 
 
 Cruelty, Regulation of, 214-215. 
 
 Curses in deeds, &o., 152, 156, 221. 
 
 Custom, 237, 287, 304, 323-361, 412, 
 422 ; Personal, 332, 340. 
 
 Customs (Duties), 180, 345, 348. 
 
 Dallas' Stiles, 60, 110, 190, 425. 
 
 Damages, 82, 199. 
 
 Damna et interesse, 82. 
 
 D.C.L., 291. 
 
 Dead, Punishment of, 147 ; Book of, 
 
 36. 
 Pebt, 63, 178, 214 ; consisting of 
 
 coins, 139, 178 ; in Egypt, &c., 143, 
 
 153 ; Privileged, 108. 
 Decalogue, The, 395, 398, 410, 414, 456. 
 Decree, 212, 293, 314. 
 Deeraum (J. Voet, i. 4, 2), 293. 
 Defeasible rights, 90. 
 Definition, 212, 227, 303-305. 
 Delicto, Obligations ex, 168, 192, 373. 
 Deodand, 145. 
 Dhama, 58, 124, 164, 214. 
 Dicey, Prof., 225, 342, 362. 
 Diderot, 395, 402 (note). 
 ALKdiOfj-dvri, 369, 376. 
 AlKri, 36, 38, 45, 287, 366 ; i^oiXris, 51. 
 Dionysia, Petition of, 221. ' 
 Diodorus Sioulus, 147, 339. 
 Directum,, 48-50. 
 Disability, 72. 
 Divine right, 265, 341. 
 Documents of title, 80. 
 Domain, 93 ; eminent, 95. 
 Dominion, 118, 200, 397. 
 Dominions, 93, 219. 
 Dornimum, 32, 84, 92, 123 ; iitile, ka., 
 
 50, 438. 
 Dommages et interSts, 82. 
 Doom, 258, 292. 
 Double bond, 156, 245. 
 
 Draco, 288. 
 
 Droit, &c., 48, 288. 
 
 Duelling, 275, 338, 359, 418. 
 
 Duty, 31, 133, 136, 138, 177-178, 192, 
 
 211 ; of judges, 273 ; and interest, 
 
 172 ; duties, 179, 192. 
 
 Eastern civilisation, 278. 
 Ecclesiastical law, 81, 89, 99, 105, 
 
 106, 414. See Canon law. 
 Economic questions, 16, 250, 257, 267, 
 
 332, 434. 
 Edicts, Roman, 222, 226, 228, 273, 
 
 290, 294 ; Modern, 294. 
 Edward the Confessor, Laws of, 378. 
 Egypt, Lawof debt in,143; Government 
 
 and law courts in, 272 ; State and 
 
 Church under the Ptolemies in, 219. 
 Elegantia, 14, 228, 280-282, 394. 
 Eminent domain, 93, 96. 
 Ends. See Aims. 
 Epicheia (Epikeja), 382. 
 Equality, 374, 379. 
 Equitable right, &c., 83 ; case, 57 ; 
 
 jurisdiction, 363. 
 Equity, 246, 279, 340, 360, 381-386 ; 
 
 the spirit of law, 416, 438, 457, 466 ; 
 
 in Scotland, 385. See India ; Col- 
 lision of Equities. 
 Erskine, of Oarnock, 117," 426. 
 Estate, 64, 66, 69, 77, 83, 84, 93-95, 
 
 98, 106, 182, 199. 
 Ethics and law, 16, 46, 92, 211, 225, 
 
 238, 264, 261, 268, 276, 314, 332, 
 
 411. 
 Etiquette, 13, 167, 314-315, 338, 457. 
 Eurydice, 367. 
 Evasion of laws, 246, 256, 282, 454 ; 
 
 of taxes, 422. 
 Evidence, 217, 229-233, 285. 
 Exception, 62, 133. 
 Expediency, 440. 
 Extract decree, &c., 293. 
 Extrajudicial acts and law, 239, 260, 
 
 261, 266, 269, 270, 273, 364. 
 Eye for an Eye, &c., 214. 
 
 Facts, 16, 436. See Physical. 
 
 Faeultas, 68, 70, 96, 102. 
 
 Faculty, 64, 68-70, 79, 104. 
 
 Fair rent, 257, 333. 
 
 Family customs in India, 332 ; law, 
 
 225, 269. 
 Fas, 365, 419. 
 Fashion, 326-327, 330. 
 Fasti dies, 366, 419. 
 Fasting, 58, 124, 164, 211, 214, 271. 
 Feudal homage, 174. 
 Fictions, 120, 164, 169, 235-236, 328, 
 
 393, 410, 432. 
 Fideicommissa, 244, 247. 
 Fidelity of Romans, 155. 
 
472 
 
 INDEX. 
 
 Fides, 155. 
 
 Fiso, 162, 155. 
 
 Fishing, public, 96. 
 
 Forbidden degrees, 426. 
 
 Force, 266, 269, 273, 278, 315. See 
 
 Physical basis of law ; Validity. 
 Foreign law, 217. 
 Form, Aristotle's theory of, 441, 452 ; 
 
 and matter, 17, 125, 242, 288, 307, 
 
 320, 340 (note), 353, 377, 383, 404, 
 
 435, 451, 458, 465. 
 Formalism, 228, 264, 336, 452. 
 Forum competens, 65. 
 Franchise, 98, 99, 102. 
 Freedom, 102, 117. 
 French Code, 145, 183, 185, 234, 383. 
 Frontinus, 42, 306. 
 
 Galveston, 262. 
 
 Gambling, 275, 359. 
 
 Games, Laws of, 274, 317, 338, 400. 
 
 Gellius, 34, 289, 419. 
 
 Generality of laws, 104, 226, 226, 234, 
 
 461. 
 Gentili, 304 (note). 
 Geography, 272 (note). 
 German Code, 234, 270, 317, 413. 
 Gestation, Period of, 234. 
 Gibbon, E., 172, 228. 
 Glanvill, 58, 123, 383. 
 God, Rights of, 119, 122, 398 ; Law of, 
 
 121, 424, 426, 428, 461. 
 Golden rule, 28, 456. 
 Good of people, 400, 401. 
 Gortyn, Code of, 165, 289. 
 Goudy, Professor, 257. 
 Government and the State, 265. 
 Gragils, 346. 
 
 Gratuities to servants, 23. 
 Gregory of Tours, 49. 
 Grotius, 70, 119, 130, 411, 423, 438. 
 Groups of rights, 92-96, 114, 118 ; of 
 
 obligations, 134, 199 ; of laws, 317. 
 Guilt, 162. 
 Guyau, M., 431 (note). 
 
 Habit, 262, 283, 324-326, 341, 342, 
 
 346. 
 Hague, Congress of, 463. 
 Heir, 120. 
 
 Henry I., Laws of, 118, 378. 
 Heritable rights, 89. 
 Herkless, Professor W. R., 248. 
 Hesiod, 45, 368, 408. 
 Highway, 96. 
 Hipparchus, 408. 
 
 Hlothhsere and Eadric, Laws of, 193. 
 Hobbes, 259, 396-402, 412, 439, 443, 
 
 452, 461, 462. 
 Holland, Professor, 122, 158, 264, 345. 
 
 452. 
 Holmes, Mr. Justice, 94, 120, 160, 194. 
 
 Homer, Iliad, 40, 44, 45, 368, 381 ; 
 
 Odyssey, 39, 381. 
 Homestead laws, 165. 
 ffoneste vwere, 204, 321, 432, 453. 
 Hooker, 440, 442. 
 Horace, 35, 433, 439. 
 Horn, Putting to the, 156. 
 Hue and Cry, 59, 216, 364. 
 Hunter, Professor, 169. 
 Hutcheson, Francis, 411. 
 Hylozoism, 391. 
 
 Ideals, 1, 380, 411, 436. 
 
 Ihering, 18, 42, 132, 164, 267, 460. 
 
 Imagination, 11. 
 
 Immorality, 413. 
 
 Imperium, 94, 119. 
 
 Imprisonment for debt, 164, 214. 
 
 Incantations, 38, 43, 73, 235, 367. 
 
 Incapacity, 72. 
 
 Incorporeal thing, 99. 
 
 India, English equity in, 384, 405 ; 
 
 teaching morality in, 415. 
 Indian Codes, 227 ; code of procedure, 
 
 386 ; criminal code, 58. 
 Indictments abbreviated, 282. 
 Individualism, 433. 
 " Infamous conduct," 315. 
 Infanticide, 214. 
 Inquiries, Public, 249. 
 Inspiration, 417, 430. 
 " Instruction forjudges," 225, 316. 
 Insurance, 84, 209 ; policy, 330. 
 Interest, 32, 35, 50, 64, 77, 81-86, 90, 
 
 95, 120-122, 147, 172, 205, 208, 320, 
 
 338, 448 ; of rulers, 128, 218, 271 ; 
 
 of judges and witnesses, 83, 173, 
 
 216, 218, 271, 274. 
 Interest (Usury), 56, 82, 86, 173. 
 International law, 61, 83, 122, 128, 
 
 277-279, 343, 391. 
 Interpretation, 256, 264, 306, 340. 
 Intolerance, 447, 449 ; in New Eng- 
 land, 427. 
 Invention, 7, 13, 16, 217, 235, 239, 
 
 243-248, 338. 
 Irish Home Rule, 276 ; Land Courts, 
 
 267 333. 
 Isidore, 104, 356, 419, 422, 438. 
 Italian Code, 298, 413. 
 
 Japan, 260. 
 
 Jealousy, Law of, 418. 
 
 Jewish executions, 61, 211, 216. 
 
 Judge, 47, 224, 306 ; Function of, 231 ; 
 
 as a witness, 217 ; and law, 346, 
 
 366-357, 399-400 ; Privilege of, 107 ; 
 
 Interest of, 83, 225. See Interest. 
 Judgments, 292, 293, 318, 366, 399. 
 Jugemens d'OUron, 221. 
 Jura crediti, 35, 86; Begia, 118, 218, 
 
 296. See Crown rights. 
 
INDEX. 
 
 473 
 
 Jurisdictio, 112. 
 
 Jimsdietion, 66, 83, 96 (note), 98, 106, 
 111-115, 201, 202, 218, 225, 261, 
 254 ; Limited and final, 66, 279, 360, 
 362. 
 
 Jurisprudence and other sciences, 16- 
 16, 409, 435 ; and politics, 1, 463 ; 
 French, 265, 395, 442; "Medical," 
 "Nautical," &c., 16, 233, 235 ; not 
 merely formal, 17, 28, 356, 435. 
 
 Jury, 216, 232, 246, 340, 457. 
 
 Jus, Etymology of, 33, 288, 365 ; 
 meanings, 34-35, 60, 78, 85, 203 ; 
 Hwmanum, 434 ; in re and m per- 
 sonam, 137 ; mariti, 86 ; merce 
 faeiiUatis, 69 ; relictoe, 60, 86 ; 
 singula/re, 103. 
 
 Justice, 48, 66, 248, 337, 356-364, 397, 
 421 ; dianemetio and diorthotic, 42, 
 364, 371 ; in interpretation, 223, 
 349 ; meanings in French, 377. 
 
 Justioeable, 202. 
 
 Justification, 44, 377, 379. 
 
 Justinian, 228. 
 
 Justitia, Eoman, 366 ; Mediaeval, 379. 
 
 Kain, 189. 
 
 Kant, 132, 203, 439. 
 
 Khammurabi, 128, 273, 298, 349, 428. 
 
 King, Rights of, 118, 128, 194, 421 ; see 
 
 Jura Segia ; Crown rights ; no longer 
 
 judge, 243 ; as trustee, 96, 401 ; 
 
 King's peace, 194, 277 ; King's 
 
 Bench, Court of, 154. 
 Kosmos, 387, 391. See Order. 
 
 Lad, 186. 
 
 Land measuring, 36, 288, 305, 378. 
 
 Language and Law, 32, 265, 330, 466 ; 
 an invention, 7, 265, 337. 
 
 Lari-ikinisni in Australia, 277 (note). 
 
 Law, 1, 14, 205-322, 207 ; Etymology of, 
 292 ; Meanings of, 316-318 ; defined, 
 210, 320, 361 ; Three aspects of, 1, 
 205 ; human and divine, 442 ; and 
 morality, 412 ; merchant, 330 ; and 
 precedent, 338 ; as a body of cus- 
 toms, 350 ; Changeable and un- 
 changeable, 17, 358, 398, 399, 419 ; 
 not legislation merely, 257, 259, 
 466; as regulation, 206, 214, 263, 
 283, 285, 334, 337, 360 ; as a title, 
 171, 318 ; as a conti-act, 402 ; _ as 
 a religion, 431 ; as a machine, 
 231, 259, 268, 273, 274, 277, 282, 
 306, 311, 320, 341 ; Prophylactic, 
 239, 241, 253-256, 369, 466, 461 ; 
 and fact, 233 ; and justice, 364 ; 
 and reason, 390; of nature, 6-17, 
 252, 279, 306, 335, 393, 415, 426 ; 
 of human nature, 14, 230, 349, 
 403 ; physical and jural, 16, 207. 
 
 See Custom ; Language ; Justice ; 
 Morality ; Reason ; Nature ; Physi- 
 cal ; Martial. 
 
 Lawful interests, 91. 
 
 "Lawful," "It shall be," 66. 
 
 Legal rights, 125. 
 
 Legislation, making law, 238, 253 ; 
 and jurisdiction, 229, 262, 258 ; dis- 
 turbing effects of, 265. 
 
 Legitima portio, 389, 395. 
 
 Leibniz, 70, 132. 
 
 Leige, 200. 
 
 Lex, 289-291, 307, 344 ; Borruma, 291 ; 
 and Jus, 393, 397 ; Etymology, 289. 
 
 Leyds, Dr., 413. 
 
 Liability, 138, 165-168, 201, 202 ; lia- 
 bilities, 167 ; to action, 160, 195, 
 237. 
 
 Libertas, a right, 97. 
 
 Liberty, 64, 96-102, 105, 106, 138, 140, 
 158, 397, 409, 444 ; liberties, 98, 
 99, 118, 127. 
 
 Licence, 70, 97, 102-104, 251. 
 
 Licensing Courts, 251. 
 
 Lien, 189 ; of seamen, a privilege, 108. 
 
 Life of individual. Daily, 18, 445, 459. 
 
 Literal contracts, 229, 232. 
 
 Litigant, Eights of, 182, 231. 
 
 Lituus of Augur, 42. 
 
 Locke, 392, 444. 
 
 Logic, 17, 320, 360, 452. 
 
 Logos, 368, 376, 387. See Reason- 
 ableness. 
 
 Loi, 291. 
 
 Lords, House of, 29, 150, 243 ; deci- 
 sions, 334 (note). 
 
 Lorimer, Professor, 119, 193, 375, 403, 
 406, 424, 444. 
 
 Lot, 418. 
 
 Lucretius, 41, 398. 
 
 Ludwig's oath, 48. 
 
 LyaU, Sir A., 41, 415, 428. 
 
 Lynch law, 219, 247, 260, 267. 
 
 Maat, 36, 37, 407 (note). 
 Mafia, in Sicily, The, 277. 
 Magic, 43, 152. See Witchcraft. 
 Magna Oharta, 100, 270, 318, 344, 348 
 
 408. 
 Maine, Sir H., 150, 227. 
 Malum in se and Moihrni prohibitum, 
 
 269, 406. 
 Manu, 109, 214, 224, 226, 269, 421. 
 Maroulfus, 48, 146, 149, 155, 194. 
 Marriage, 6 ; laws, 426 ; and slavery, 
 
 143. 
 Martial law, 262. 
 Maxims, 220, 230, 304. 
 "May," 66, 66, 171. 
 Mean, Doctrine of the, 374, 388, 403. 
 Medical men and lawyers, 235. 
 Medicine, Forensic, 16, 233. 
 
474 
 
 INDEX. 
 
 Menger, 395. 
 
 Mercantile law, 226, 238, 330, 421. 
 Mercy to debtors, 164, 214. 
 Metaphysic. 2, 17, 61, 68, 119, 120, 
 
 122, 465. 
 Michaux Stone, 162, 305. 
 Mikado, 42. 
 Military law, 89. 
 Mill, J. S., 409, 452, 465. 
 Milton, 411. 
 Minister, 150. 
 Minos, 287. 
 
 Mobs, Rationality of, 464. 
 Mohammedans, 1, 427, 430. 
 Moipa, .39. 
 
 Money and measures, 213. 
 Money order, 313. 
 Momer-Williams, Sir M., 40. 
 Montesquieu, 402, 435. 
 Mm-a, 340. 
 Moral ideas in right and obligation, 
 
 45, 168 ; things, 413 ; philosophy, 4, 
 
 396, 411. 
 Morality, art of conduct, 13, 283, 346, 
 
 407, 416. See Custom ; Ethics ; 
 
 Mos. 
 Morelly, 395. 
 MorVmis saait vimim (Erskine, iii. 8, 77 ; 
 
 PoUook and Maitland, ii. 61), 76, 88. 
 Mos, 155,291, 344,407. 
 Moses, 220, 287. 
 Moveable rights, &c., 89. 
 Muirhead, Professor, 408. 
 Multa, 164. 
 Mimm (5 Eraser 383), 178-179. 
 
 Natueal law, 17, 391-407, 424, 453 ; a 
 negation, 393 ; obligations, 192, 247, 
 398 ; right, 117, 121. 
 
 Nature, 391, 403, 416. See Law. 
 
 Negative rights, 51, 101, 107. 
 
 Nehemiah and debt, 145. 
 
 Neighbour, Love of, 455. 
 
 Nettleship, ZcUin Lexicography, 35. 
 
 Newton, 323. 
 
 New Zealand, 256 (note). 
 
 Nexwm, 145. 
 
 Noblesse oblige, 200, 271. 
 
 Nojuos, and related words, 213, 288, 
 293, 305. 
 
 Notarial acts, 302. 
 
 Novation, 173. 
 
 Oaths and vows, 119 154, 218, 418. 
 
 Obligatio, 134. 
 
 Obligation, defined, 134 ; Synonyms of, 
 157 ; Feeling of, 135, 150 ; Grounds 
 of, 168-171 ; of law, 203, 289 ; and 
 right, 133-139 ; express and implied, 
 195 ; joint and several, 198 ; politi- 
 cal, 200 ; ex contraobu,, &c., 168, 322, 
 373 ; obediential, 195 ; "mothers of 
 
 actions," 158, 212 ; a deed, 70, 157. 
 See Olassifioation. 
 
 Obvagulation, 58, 124, 164, 213. 
 
 Officer, 150. 
 
 Official rights, 64-66, 89, 106, 110, 112, 
 116, 160, 273 ; duties, 113, 176, 273. 
 
 Oj^MOT— Office, 176, 179, 199. 
 
 Ombs, 181. 
 
 Opinion, Public, 69, 268. 
 
 " Ordain," 293, 314. 
 
 Ordeals, 237, 317, 418. 
 
 Order, 312-314, 355, 369; Standing, 
 248, 313 ; of court, 302. See Privi- 
 lege. 
 
 Ordinance, 299, 313. 
 
 Ordo, Etymology of, 206. 
 
 Original rights, 121. 
 
 Ornament in Statecraft, 13, 281, 327. 
 
 '0/)«6s, right, 44, 45, 388. 
 
 Ovid, 46, 222, 366, 408. 
 
 "Owe," "ought," 180, 407 (note). 
 
 Paley, 440. 
 
 Papal infallibility, 422. 
 
 Parliamentary law, 249. See Privilege. 
 
 Feccatitm, 163. 
 
 Peers, 150. See Lords. 
 
 Penal servitude, 145 ; law, see Criminal. 
 
 Penalties to fiso, &o., 162 ; in bonds, 
 
 245. 
 Perfect and imperfect obligations, 193, 
 
 229, 262. 
 Perfection, 404, 444, 463. 
 Person, 87, 435. 
 Personal debt, 143. 
 Petition of right, 100, 272. 
 Pharmacopoeia, 240, 339. 
 Phelps, E. J., 348 (note). 
 Physical, meaning of, 5 ; basis of law, 
 
 1, 8, 128, 220, 258, 259, 262, 264, 
 
 278, 315, 319, 323, 328, 343, 352, 
 
 435, 442, 458. 
 Pillory, 221. 
 Placaat, placard, 299. 
 PlacitiMn, 118, 295. 
 Plato, 221, 369, 370, 374. 
 Plea, 67, 266, 295-297 ; of Crown, 296. 
 " Plead," 297. 
 Pledge, 125, 152. 
 Pcena, 164, 193. 
 Police law, 252. 
 Political liberty, 101 ; rights, 98, 100- 
 
 102, 106, 149 ; obUgationa, 149-150,' 
 
 199-200. 
 Politics and ethics, 409 ; and law, 200 
 
 211, 219, 224, 269, 287, 367, 373 ; 
 
 and jurisprudence, 454. 
 Pollock, Sir F., 94, 334, 386. 
 Pondus, 181. 
 
 Possession, 73, 76, 93-94 ; a title, 85. 
 Potestas, 66, 68, 97. 
 Potentate, 67. 
 
INDEX. 
 
 475 
 
 Potestative, facultative, competent, 
 
 68. 
 Power, 63-68, 72, 85, 86, 97, 100, 106, 
 
 110-113, 116, 172, 251 ; and duty, 
 
 171, 172 ; of attorney, 67. 
 Practice of Courts, 334. 
 Prayers, 420. 
 Precedents, 221, 222, 257, 279, 304, 
 
 334-340, 400, 452, 461. 
 Prcecepta Jims, 70, 204, 321, 432, 455. 
 Prerogative, 98, 117-119. 
 Prescription, 340. 
 Presumptions, 230, 233-234. 
 Priest, as judge, 410 ; and law, 128, 
 
 420, -421 ; Lawyer as, 458. 
 Primitive law, 210, 225, 227, 235, 258. 
 Prior teTnpore potior jwre, 206, 207. 
 Private bill procedure, 249. 
 Private International law, 130, 201, 
 
 225, 299. See Collision. 
 Privilege, 85, 98, 103-108, 115, 116, 
 
 118, 135 ; of parliament, 107, 313, 
 
 358. 
 Procedure, Civil, 213, 217, 229-233, 
 
 236, 285_, 302 ; Criminal, 216. See 
 
 Arbitration ; Private Bill. 
 Prodigals, 360. 
 Profession, Legal, 208, 224, 229, 241- 
 
 243, 260, 468. 
 Professional bias, 28, 280. 
 Proof or constitution of right, 232. 
 Property, 83, 84, 87, 93, 258. 
 Prophet and reformer, 461. 
 Prophylactic law, 254. See Law. 
 Proportion, 374, 375, 379. 
 Prosecution, a sanction, 160. 
 Provisional Orders, 312. 
 Proximate and remote ends, 92, 268, 
 
 273, 440, 459. See Aims. 
 Public law, 270-274 ; rights, 95-96 ; 
 
 obligations, 198. 
 Pufendorf, 119, 411, 434. 
 Punishment, 11, 89, 194, 221, 241, 261, 
 
 268, 270, 326. 
 Punitive expeditions, 198. 
 Pursuer, 55, 59. See Hue and Cry. 
 
 QvMsi ex eoTiiradu and qimsi ex delicto 
 
 obligations, 192, 226. 
 Qucestio, 216. See Torture. 
 Quod rum hdbent in cere, luaMb in pelle, 
 
 194 199. 
 Qu'raA, 217, 236, 269, 417, 421. 
 
 Railway bye-laws, 171, 202, 223. 
 
 Baja, 40. 
 
 Barneses and the Hittites, 153. 
 
 Rate, 391. 
 
 Ration, 391. 
 
 Real burdens, 182. 
 
 Real and personal, 86-89, 147. 
 
 Reason and custom, 34,8. Sec Logos. 
 
 Reasonableness, 331, 346, 351, 386-391, 
 403, 412, 426, 431, 436, 440. 
 
 Reasonable part, 389. See Teroe. 
 
 BecM, 35, 129, 288. 
 
 Reciprocity of relations, 136. 
 
 Meaum, 47, 48, 134. 
 
 Pectus, 35, 46. 
 
 Reed, a measure, 37, 305. 
 
 Reformation, The, 411, 423, 434. 
 
 Registers, Public, 89, 245, 247. 
 
 Pegula, defined, 306, 307. 
 
 Regulation, 310-311. 
 
 Regulis Juris, De, 303, 305. 
 
 Religion, 416-431 ; Etymology, 420 ; 
 Man of, 422, 430. 
 
 Remedial rights, 122 ; obligations, 199. 
 
 Reparation, 169, 241, 253, 268. 
 
 Reports, Law, 222, 282. 
 
 Pes judicata, 335. 
 
 Res Sandoe. See Things. 
 
 Responsibility, 161, 169. 
 
 Pes siia nemini servit, 146. 
 
 Retaliation, 214. 
 
 Retention, Right of, 189. 
 
 Revelation, 218, 399, 423, 424, 428. 
 
 Revenge, 161, 226, 261, 263, 267. 
 
 Peus, 169. 
 
 Pex, 41. 
 
 Ridgeway, Professor, 38, 44, 
 
 Riding of marches, 221. 
 
 Right, Definition of, 131 ; Synonyms 
 of, 50 ; analysed, 32, 50, 51, 121, 
 122, 129, 131-133, 158, 284; duty 
 and law, 31, 45, 204, 210-212, 231, 
 232, 270, 272, 278, 316, 334, 457 ; 
 as title, 48, 61, 80, 120, 121 ; title 
 and interest, 54, 78-79, 110 ; as 
 property, 93 ; in motion, 54, 60, 
 133; "In his own," 76; "Good," 
 "Best," &c., 123 ; "Absolute," 197, 
 465 ; of action, 62, 53, 132 ; to 
 punish, 131, 263 ; to rebel, 131, 200, 
 265, 271 ; as obligation, 131, 134 ; 
 Unit of, 28, 121. See Case ; Unit. 
 
 "Rights of Man," 341. 
 
 Righteous, Rightful = Lawful, 129, 292. 
 
 Righteousness, 364, 376. 
 
 Riht (Justice), 47, 292, 377. 
 
 Robes of oface, 13, 281. 
 
 Rosetta stone, 143. 
 
 Rousseau, 117, 432, 439. 
 
 Ruler, as judge, 38, 40, 219, 220, 224 ; 
 Rights and motives of, 128, 218 ; 
 Duty of, 401. See Interest. 
 
 Rule of Law, The, 342-343, 349, See 
 Spirit. 
 
 Rules, 226, 230, 255, 273, 295, 304, 
 306 310, 319 ; Rigidity of, 227, 229, 
 237. 
 
 "Running powers," 66. 
 
 Russian communes, 288 (note). 
 
 Ruth, Book of, 38. 
 
476 
 
 INDEX, 
 
 Saoeileqb, 417. 
 
 Sale of one's self, 146. 
 
 Salmond, Professor, 334, 337. 
 
 Salus popuU sv/prema lex (Broom's 
 
 Maxims), 439. See Good. 
 Sanction, 11, 117, 160, 200, 225, 258- 
 
 264, 268, 269, 271, 273, 314, 319, 
 
 321, 349. 
 Sargon atone, 153. 
 Savigny, 132, 134. 
 Sceptre, Symbolism of, 37, 39, 140, 
 
 148. 
 Schuld, Skuld, Should, 146, 171, 407. 
 Science and natural law, 406 ; and 
 
 utilitarianism, 464. 
 Sciences, physical and moral, 2. 
 Scott, Sir Walter, 75, 79, 96, 156, 200. 
 Seeley, Sir J., 101, 271. 
 Self-help, 51, 159, 215. 
 Senchiis Mor. See Fasting. 
 Serfdom, 147. 
 Series of rights, 122 ; duties, 199, 203 ; 
 
 laws, 316 ; contracts, 402 ; ideals, 
 
 460. 
 Servant, Parable of the unjust, 141. 
 Service, 174-176 ; Services, 67, 135. 
 Servitudes, 135, 145, 174, 183, 406. 
 "Shall." See"WiU." 
 Shakespere, 45, 73, 94, 236, 369, 417. 
 Shelley, 392. 
 Ship's privilege, 107. 
 Shoe, Symbolism of, 38. 
 "Should." See Schuld. 
 Shoulder, 147. 
 Sidgwick, A., 320. 
 
 Sidgwiok, Professor H., 137, 360, 387. 
 Sigel, Professor, 221, 226. 
 Sin, 163, 226, 414. 
 Skeat, Professor, 147, 200. 
 Smith, Adam, 205, 412, 434. 
 Social animal, Man a, 5, 91, 203. 
 Social contract, 402. 
 Society, 69, 92, 124, 136, 209, 211, 
 
 262, 267, 276, 283, 448. 
 Solicitors, 241. 
 Solomon, 219, 236, 417, 418. 
 Solon, 41, 144, 369, 464. 
 Sovereign, 61, 400. 
 Sovereignty, 96, 102, 113, 118, 122, 
 
 270. 
 Spells. See Incantations ; Witchcraft. 
 Spencer, H., 368, 461. 
 Spenser, Edmund, 292, 383, 392, 417. 
 Spes successionis, 90. 
 Spinoza, 396. 
 Spirit of Law, 273, 278, 282-284, 315, 
 
 466. 
 Spiritual interests of people, 400-401. 
 Sponsio, 161. 
 
 Stair, Viscount, 140, 411, 415, 424. 
 State, 95 ; and law, 69, 91, 103, 124, 
 
 130, 142, 151, 170, 194, 214, 217, 
 
 247, 264-265, 267, 319 ; Act of, 303 ; 
 certificates, &c., 240, 241, 
 Statistics, 14, 26, 27. 
 Status, 72, 94 ; and contract, 150. 
 Statute, 298-299, 303, 331, 345. 
 Statutes quoted or commented on — 
 Agricultural Holdings Act, 1883, 65, 
 
 329. 
 Appellate Jurisdiction Act, 1876, 
 
 308. 
 Ballot Act, 1872, 202, 308. 
 Bankruptcy (Scotland) Act, 1856, 
 
 64, 85, 95, 257. 
 BiUs of Exchange Act, 1882, 71, 115, 
 
 166, 308, 329. 
 British Settlements Act, 65, 111, 
 
 113. 
 Church Pati'onage Act, 1874, 86. 
 Companies Act, 1862, 165, 167. 
 Conveyancing (Scotland) Act, 1874, 
 
 84, 94, 257. 
 Court of Session Act, 1850, 123. 
 Criminal Evidence Act, 1898, 231. 
 Finance Act, 1894, 56, 95, 116. 
 Interpretation Act, 1889, 305. 
 Judicial Factors Act, 1849, 65, 254. 
 Judicial Factors Act, 1880, 212, 272. 
 Land Ti-ansfer Act, 1897, 79, 84. 
 Local Government (Scotland) Act, 
 
 1889, 65. 
 Merchant Shipping Act, 1894, 115, 
 
 162, 198, 249. 
 Naturalization Act, 1870, 71, 72, 
 
 100, 113. 
 Partnership Act, 1890, 308. 
 Promissory Oaths Act, 1868, 134. 
 Sale of Goods Act, 1893, 115, 120, 
 
 308. 
 Small Debt Act, 1837, 179, 241, 293, 
 
 360. 
 Taxes Management Act, 1880, 179, 
 
 273. 
 Titles to Land Consolidation (Scot- 
 land) Act, 1868, 61, 65, 80, 93. 
 Universities (Scotland) Act, 1889, 
 
 113. 
 Vexatious Actions Acts, 1896 and 
 
 1898, 215. 
 Workmen's Compensation Act, 1897, 
 27, 160, 161. 
 Statutory rights, 125. 
 Stephen, Sir J. F., 185, 235, 413, 439. 
 Stipulatio, 161. 
 Stoics, 409. 
 
 Suarez, 119, 383, 389, 422. 
 Subject of right, a person, 203. 
 Subjection, 134, 149, 199-203, 208, 
 
 341, 343. 
 Subjects (property), 203. 
 Subjects of legislation, 238. 
 Sublime Porte, 42. 
 Sugden on Powers, 244. 
 
INDEX. 
 
 477 
 
 Suit, 54. See Pursuer. 
 
 Summons, Scots, 169, 180, 1S4, 266, 
 
 293. : 
 
 Swmjmwtnj'os summa injv/ria, 102, 116, 
 
 227, 229, 258, 278, 343, 360, 452. 
 Sumptuary legislation, 256. 
 Supernatural, 11, 225, 417. 
 Suretyship, 125, 152. 
 Survivorship, 234. 
 Suum euique, 321, 433. 
 Swift, Dean, 79. 
 Sympathy, 8, 205, 206, 247, 260, 261, 
 
 347. 
 
 Taxation, 215, 256 ; Evasion of, 422. 
 
 Teinds, 79, 256. 
 
 Teleology, 353, 441. See Aims. 
 
 Tennyson, 93. 
 
 Terce of widow, 60, 176, 389. 
 
 Terence, 388. 
 
 Termirms, 222. 
 
 Testament, 90, 340. 
 
 Themis, 286. 
 
 Themistes, 40, 286, 292. 
 
 Theodosian Code, 79, 147. 
 
 Theology, and Law, 376 ; Catholic, 421, 
 
 422. 
 Theophilus, 45. 
 Thesmos, 287. 
 Things, Personification of, 145, 162, 
 
 182 ; Sacred, &o., 258. 
 Ticket, 73, 206. 
 Thuoydides, 262 (note), 440. 
 Tithes, 79. 
 Title, 32, 50, 72-81, 85, 89, 94, 99, 
 
 108, 120, 121, 123, 168, 229, 233, 
 
 299, 318, 341; deeds, 48, 51, 63, 
 
 79, 315, 318 ; Completion of, 76, 88 ; 
 
 of nobility, 79 ; to sue, &c., 53, 74, 
 
 84, 288 (note 3) ; Defect of, 385 ; 
 
 Transfer of, 120 ; a church, 80. 
 Titular 79. 
 
 Toleration, Religious, 10, 427, 449. 
 Torrena Act in South Australia, 281, 
 
 451. 
 Torture, 161, 216, 285, 417. 
 Transmission of rights and obligations, 
 
 120, 173. 
 Treaties, 280. 
 
 " Trespassers will be prosecuted," 161. 
 Trustees, Eights of, 64, 90, 106 ; Rulers 
 
 as, 401. 
 Twelve Tables, 34, 41, 58, 103, 147, 
 
 164, 213, 214, 227, 228, 289, 298. 
 
 Ubi societas ibi pts, 274-278, 280, 320, 
 
 328, 363, 393, 446. 
 Ulpian, 365, 391. 
 Unit of law, 28, 158, 212, 221, 294, 
 
 297, 317. 
 Unimersitas, 95, 168. 
 University legislation, 313. 
 " Unjust taxes, Suarez on, 422 ; "No 
 
 law can be," 357, 400, 459 (note). 
 Unlawful associations, &o., 91, 413. 
 Unnatural, 406. 
 Unwritten law, 220-223. 
 Urim and Thummim, 417. 
 Usage. See Custom. 
 Uses, 244. 
 
 Usury, 82, 244. See Interest. 
 Utilitarianism, 396, 464. 
 Utility, 103, 438. 
 
 Validity, 51, 129, 157, 160, 266-267, 
 
 284. 
 Valour, Value, 266. 
 Verborwm Significatione, De, 303, 304. 
 VergU, 41, 43, 221, 266, 367. 
 Vesting, 90, 197. 
 Vexatious litigation, 215. 
 Vis, Vires, 64, 69, 266. 
 Voet, John, 89. 
 Voet, Paul, 299. 
 Vox populi, vox Dei, 462. 
 
 Warranty in early English law, 
 126. 
 
 Westminster Confession, 395, 414, 421, 
 423, 427. 
 
 Will, 14 ; (Testament), 90. 
 
 " Will " and " shaU," 171, 311, 321. 
 
 William the Conqueror, 47, 215, 344, 
 378. 
 
 Window tax, 256. 
 
 Wisdom, Book of, 440. 
 
 Witchcraft, 43, 73, 419. See Incanta- 
 tions. 
 
 Witnesses, 214, 215-219, 230 ; Rights 
 of, 217. See Interest ; Evidence. 
 
 Writ of Right, 93. 
 
 Writing, 220, 232, 237, 247, 291, 316, 
 344, 347 ; Privileged, 107. 
 
 Word of God, 416. See Logos. 
 
 Words, 229, 304, 419. 
 
 Workmen's Compensation, 169-170. 
 
 Zemindars, 256. 
 
 feDINBUROH: PRINTEU BY JAMES SKINNER ANB OOMl-ANV. 
 
BY THE SAME AUTHOR. 
 
 LECTURES ON THE PHILOSOPHY 
 OF LAW. 
 
 London : CHARLES GEIFFIN & CO., 1884. 
 12s. 
 
 THE FACULTY OF LAW IN THE 
 UNIVERSITY OF GLASGOW. 
 
 Glasgow : JOHN SMITH & SON, 1889. 
 Is. 
 
 THE LAW OF NATURE AND NATIONS 
 IN SCOTLAND; 
 
 Being the Lectures delivered in Session 1895-96 in the University of 
 Glasgow, introductory to the three Courses of (i.) Philosophy of 
 Law, General and Comparative Jurisprudence ; (ii.) The Law of 
 Nations, or Public International Law ; and (iii.) International 
 Private Law. 
 
 Edinburgh : W. GREEN & SONS, 1896. 
 
 4s. 
 
 JURISPRUDENCE: ITS PLACE IN THE 
 NEW CURRICULUM. 
 
 Edinbdegh, 1898 {out of Print). 
 
 IN PREPARATION. 
 
 ABSTRACT JURISPRUDENCE, 
 
 Being a continuation of the Data of Jurisprudence from the professional 
 or technical standpoint. 
 
4\ 
 
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